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A DUI defense attorney sits with hands folded, confidently at his desk.In a previous post, we wrote about Motions to Suppress in DUI cases. However, the experienced DUI practitioner has other tools in their tool belt to help keep evidence out of your trial.  Of course, as evidence is suppressed or ruled inadmissible by a judge, the State’s case gets weaker and weaker, and the State has more incentive to make an offer to resolve the case that is worth considering.  Motions in Limine can play a big part in getting a case resolved favorably.

In many states, field sobriety tests are considered scientific tests.  However, in Florida, they are not.  In any case that field sobriety tests are administered, several different Motions in Limine MUST be filed to ensure that your rights as an accused are protected in accordance with Florida law.

Motion in Limine To Restrict Comment by Police on Field Sobriety Tests

Many cases in Florida discuss what can and cannot be testified to by Law Enforcement Officers in regard to field sobriety tests.  In fact, in Florida, officers cannot call them tests.  A Motion in Limine to Restrict Comment by Police on Field Sobriety Tests should be filed and argued in every DUI while field tests were administered, so that prior to trial, a judge can enter an order prohibiting the prosecution from eliciting certain testimony regarding the field sobriety exercises and requiring their witnesses to only use court approved terminology.

A successful motion in this regard will keep the police from using certain terms such as not being allowed to say a defendant failed a sobriety exercise.  In addition, the roadside battery of agility maneuvers may not be referred to as tests but must be called exercises.  The State will also not be able to discuss the validation studies or accuracy of the exercises in predicting whether a person is under the influence.  The only admissible testimony that should be allowed regarding the field exercises after a Motion in LImine is argued is the officer’s “lay observations.”  Lay observations are basically what a person with no special training would have been able to see if watching the field exercises being conducted.

Motion in Limine as to the Ultimate Question, “Was the Driver Impaired?”

Cases in Florida also prohibit an officer from giving their opinion as to whether or not the driver was impaired.  That ultimate question is up to the jury to decide.  Although expert witnesses are often allowed to give opinions, non-experts such as police officers should be prohibited from giving their opinions especially regarding the question the jury is to decide.  The Florida Supreme Court said almost exactly this in Thorp v. State.  “As a general rule, law witnesses may not testify in the form of opinions or inferences; it is the function of the jury to draw those inferences.”   Thorp v. State 777 So. 2d 385, 395 (Fla. 2000).

Motion in Limine in Regard to the Implied Consent Warning

Florida Law allows a prosecutor to enter into evidence the fact that a person refused to take the breath test.  This is specifically allowed by Florida Statute § 316.1932 which states in relevant part: “The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a)1.a. Fla. Stat.  However, prosecutors typically try to enter much more than the fact the defendant refused to take the breath test.  They also try to get the court to allow them to enter the administrative penalties for not taking the breath test, which include a driver’s license suspension of up to 18 months.  Then the prosecutor will argue to a jury that the reason the driver did not take the test is that they knew they were drunk, and they did not want the jury to know.  In fact, the driver was so certain that their breath test would be over the legal limit that they were willing to walk away from their driver’s license for 12 months instead of letting the jury see what the results would have been.

Recent case law has held that the penalties for refusing to take a breath test ought not to come into evidence since the law only says that the fact of the refusal is admissible.  In fact, a Motion in Limine was recently granted in State v. Jackson, Jr. which said exactly this.

IT IS ALSO ORDERED THAT any mention of the potential driver’s license suspension penalties for declining to submit to a breath test may not be argued by the prosecution. While FLORIDA STATUTE 316.1932(1)(a) provides that “[t]he refusal to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding” neither the plain meaning of the statute nor any Florida case law interpreting it permits, in essence, the addition of a new provision to the statute providing for the admissibility of the civil penalties of a refusal as evidence of guilt.

Accordingly, any admission into evidence of the potential driver’s license penalties attendant to a breath test refusal would constitute an inappropriate and unlawful expansion of FLORIDA STATUTE 316.1932(1)(a).

An Experienced DUI Defense Lawyer Knows What Motions in Limine to File

Motions in Limine can be filed when appropriate to prevent many different arguments from being made or pieces of evidence from being admitted into a court case.  An experienced DUI attorney like the Board-Certified DUI Defense experts at Katz & Phillips, P.A. knows which Motions in Limine to file in their cases.  Each case is different with no one size fits all defense.  Call us today and discuss with us how our experience and qualifications can be put to use for you in defending your DUI case.  Many additional Motions in Limine may be applicable to your case. There is no way one article could possibly foresee all the possibilities in every case, so it is important to discuss your particular matter and the defenses available with a knowledgeable DUI Defense Expert.  We look forward to speaking with you.

Below Are Other Common Issues for Motions in Limine in DUI Cases

Motion in Limine to exclude:

  • The Officer’s Experience In Arresting Every Driver They Investigate For DUI
  • Comments About The Defendant Having An Opportunity To Dispel The Officer’s Concerns That The Driver Is Impaired.
  • Motion In Limine Regarding The Defendant’s Breath Test Results
  • Motion In Limine Regarding The Horizontal Gaze Nystagmus Exercise And Lack Of The Officer’s Qualifications To Administer.

Motions to Suppress are also important in defending DUI cases.  Click here to learn how we use Motions to Suppress in defending our clients’ DUI cases.