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Winning a Circumstantial Evidence DUI Case in Florida


Prior to 2016, Florida had one of the highest breath test refusal rates in the country. But then, lawmakers passed a refusal-to-submit law. Under Section 316.1932, refusing a lawful request to blow into a Breathalyzer is a separate misdemeanor offense. So, even if a Port St. Lucie DUI attorney “beats” the drunk driving charges, prosecutors could still convict the defendant of a serious misdemeanor. The refusal-to-submit law had the desired effect, as the number of refusals dropped significantly.

Nevertheless, some drivers still refuse to provide chemical samples. In these cases, prosecutors must rely on circumstantial evidence. Typically, the field sobriety tests supply this evidence.

Unapproved Field Sobriety Tests

The Romberg balance test is probably the most common unapproved field sobriety test. The simple test procedure belies the extremely complex nature of this test. There are some variations, but most subjects must stand erect, extend their arms to either side, close their eyes, and tilt their heads back. They must hold this position for about fifteen to thirty seconds. In the early nineteenth century, German neurologist Moritz Heinrich Romberg theorized that his test took away all three senses necessary to maintain balance, which are:

  • Vision,
  • Proprioception (knowing one’s body position in space), and
  • Vestibular function (knowing the position of one’s head while standing).

If the subject is unable to maintain balance, the subject is probably intoxicated, according to the theory.

There is very little scientific evidence to support Romberg’s idea. For this reason, the National Highway Traffic Safety Administration does not approve this test, so its results are probably inadmissible in a Port St. Lucie courtroom. However, it’s sometimes a good idea to allow prosecutors to present this evidence, so a defense attorney can discredit it. Most officers have no idea what things like “proprioception” mean, so they have a hard time defending this test on the witness stand.

Other unapproved tests, which have even less scientific basis, including the finger-to-nose test and the reciting-the-ABCs test.

Approved Field Sobriety Tests

If prosecutors win circumstantial evidence DUI cases, it’s usually because of the three test NHTSA battery. These three tests, while more reliable than the shaky ones listed above, are still full of holes.

  • Horizontal Gaze Nystagmus: Subjects must hold their heads still and track moving objects, such as the tip of an index finger, only by moving their eyes. If the pupils move involuntarily at certain angles, the subject probably has nystagmus. That much is well-established. The problem is that alcohol intoxication is not the leading cause of nystagmus. Generally, either genetics or a childhood brain injury cause HGN. Many people have this condition, which is also called lazy eye, but the symptoms are so mild they don’t realize they have this condition.
  • Walk and Turn: Roadside HGN tests are not very precise, and roadside WAT tests, which is also known as the heel-to-toe walk test, are not very accurate either. People with any mobility impairment cannot complete this test whether they are drunk or not. Furthermore, it’s almost impossible to walk an imaginary line over an uneven surface, and that’s usually what the officer demands.
  • One Leg Stand: Officers often say that subjects failed the HGN and WAT because of minor technicalities. That’s also the case with the OLS. Some technicalities include holding the elevated leg at slightly the wrong angle or putting it down a split second too late.

At trial, prosecutors must use this shaky circumstantial evidence to establish guilt beyond a reasonable doubt. That’s a daunting task.

Connect with Dedicated Lawyers

It’s not easy for prosecutors to win DUI cases with just the FSTs for evidence. For a free consultation with an experienced criminal defense attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. Convenient payment plans are available.




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