In any DUI case, a good defense attorney will start by analyzing three aspects of the case before even getting to the point of determining whether her believes that State can prove its case beyond a reasonable doubt. The attorney should look at:

  • Whether there was probable cause for a traffic violation or reasonable suspicion of criminal activity to support the traffic stop.
  • Whether the investigating officer has reasonable suspicion that the driver was impaired in order to begin a DUI investigation.
  • Lastly, whether there was probable cause to support the DUI arrest.

In this article, we will be analyzing the second and third inquiries.

In order to request the performance of field sobriety exercises, and furthering a DUI investigation, a law enforcement officer must possess reasonable suspicion of a DUI. State v. Ameqrane, 39 So.3d 339 (Fla. 2d DCA 2010).

While there is not a firm definition of reasonable suspicion, courts have tried to describe it. One court stated that in order to justify an intrusion into a person’s Fourth Amendment right to be free from warrantless searches and seizures, law enforcement must point to specific objective facts and rational inferences that they are entitled to draw from these facts in the light of their experience. Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1985). Another court described it as “something less than probable cause, but something more than mere suspicion. It is a reasonable suspicion that requires further investigation. It is a suspicion which has some factual foundation in the surrounding circumstances observed by the officer, when those situations are interpreted in light of the officer’s knowledge.” State v. Hunt, 391 So.2d 760 (Fla. 5th DCA 1980).

Admittedly, this will be a fact-specific determination made by both the investigating officer in the moment and by a reviewing court after the fact. So, the next question is, “What must the specific objective facts and rational inferences from them prove to provide reasonable suspicion?”

The crime of Driving Under the Influence requires proof that (1) the defendant was driving or in actual physical control of a vehicle and, (2) while driving or in actual physical control of the vehicle, the defendant was under the influence of alcohol or a controlled substance to the extent that her normal faculties were impaired. Gillig v. State, 356 So.3d 260 (Fla. 2023); Fla. State. 316.193(1).

In most cases, the first element is undisputed; the driver was driving her vehicle when she was pulled over.

In one case this author handled, the facts indicated, in the light most favorable to the State, that there was evidence of:

  • Speeding
  • Pulled over in a timely and safe manner
  • Bloodshot and watery eyes
  • Odor an alcoholic beverage
  • Slight slur
  • Admission to consumption of alcoholic beverage
  • Admission that last drink was four hours prior and prior to a nap
  • She is polite, logical, coherent, responsive
  • She provides driver’s license, registration and insurance without issue

Some of the more common indicators of impairment are:

  • Slurred speech (allegedly present in this case)
  • Unsteady gait or difficulty walking (not present)
  • Bloodshot or glassy eyes (allegedly present)
  • Smell of alcohol on breath or clothing (allegedly present)
  • Delayed reaction time or clumsiness (not present)
  • Flushed face or sweating (not present)
  • Lowered inhibitions (not present)
  • Overly emotional behavior (not present)
  • Aggressive or overly friendly behavior (not present)
  • Poor coordination (not present)
  • Risky or impulsive decisions (not present)
  • Cognitive or Mental Signs (not present)
  • Confusion or difficulty focusing (not present)
  • Poor judgment (not present)
  • Forgetfulness or repeating themselves (not present)
  • Difficulty following conversations (not present)
  • Impaired ability to process information (not present)

It must be remembered that law enforcement should be looking for impairment of “normal faculties.” That phrase typically refers to a person’s awareness, cognition, memory, judgment, attention and concentration, emotional regulation, motor skills, sensory perception, speech, and balance and coordination.

With that said, there are cases that have described various situations and whether they support reasonable suspicion.

In State v. Ameqrane, 39 So.3d 339 (Fla. 2d DCA 2010), the Court found that law enforcement had reasonable suspicion to continue a DUI investigation based upon an odor of alcohol, bloodshot eyes, and evidence of Horizontal Gaze Nystagmus. This decision is interesting, however, because it relies upon Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005) for the proposition that speeding, an odor of an alcoholic beverage, and bloodshot eyes are sufficient to support reasonable suspicion. However, the Origi court, while it did state that the high rate of speed, odor of alcohol, and bloodshot eyes were sufficient for reasonable suspicion, it also had evidence that Origi did not immediately pull over, he had a flushed face, he staggered upon exiting the vehicle, and swayed side-to-side. It’s curious as to why they would limit itself to an odor and bloodshot eyes alone when they had so much more evidence of impairment. The Ameqrane court, after relying upon Origi, then used evidence of HGN to support reasonable suspicion despite that being one of the exercises sought to be excluded due to lack of reasonable suspicion up to that point.

Both Ameqrane and Origi find their origins in State v. Taylor, 648 So.2d 701 (Fla. 1995). The Taylor court found reasonable suspicion of DUI when there was a high rate of speed, staggering upon exiting the vehicle, strong odor of an alcoholic beverage, slurred speech, watery and glassy eyes. The most recent case on this found that glossy, bloodshot eyes, the odor of alcohol, and having significant issues locating a driver’s license and registration was sufficient for reasonable suspicion to be found. State v. Howard, 2025 Fla. App. LEXIS 3618 (Fla. 5th DCA 2025). Howard did reiterate that there must be reasonable suspicion of impairment by alcohol, not just consumption.

Of course, the totality of the circumstances is analyzed when making a reasonable suspicion determination. What none of these courts did, was weigh the evidence of impairment versus evidence of non-impairment. Reasonable suspicion of driving under the influence is not or, at least, should not be a check the box determination. Bloodshot eyes, odor of alcoholic beverage, speeding…check, check, and check. Therefore, reasonable suspicion. In Florida, the consumption of alcoholic beverages and then driving is not against the law. Only being impaired while behind the wheel is illegal, as it should be. Furthermore, we know that bloodshot eyes can be caused by allergies, fatigue, or other eye issues other than excessive consumption of alcoholic beverages. Lastly, people speed while sober all the time without alcohol playing any factor in that traffic violation. All this is to simply say that when undertaking a totality of the circumstances analysis, consider ALL the circumstances and evidence, not just the evidence of impairment.

On this basis, we can distinguish Taylor, Ameqrane, and Origi. For whatever reason, they failed to discuss any evidence of sobriety. Perhaps, there was no evidence of sobriety. But they are still judged by the same totality of the circumstances review of the evidence to determine whether there is reasonable suspicion of DUI. In this case, in looking at the totality of the circumstances, it is clear that the law enforcement officer lacked reasonable suspicion.

While he did check the boxes of speeding, odor, bloodshot eyes, admission to consumption, and slurring, he failed to consider her nap (which shows good judgment), that the admission was to a drink four hours prior to the stop, her demeanor, her ability to engage logically and coherently, her ability to perform small motor functions by gathering her documents, her lack of flushed face or sweating, and her ability to maintain her emotions and mental state. When weighing everything together, it is clear that the deputy lacked reasonable suspicion that her normal faculties of awareness, cognition, memory, judgment, attention and concentration, emotional regulation, motor skills, sensory perception, speech, and balance and coordination were impaired to continue his investigation.

Assuming, arguendo, that the deputy possessed reasonable suspicion to continue his investigation, he certainly lacked probable cause to arrest after her performance on the field sobriety exercises. “Probable cause” is “a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in belief that the named suspect is guilty of the offense charged.” Johnson v. State, 660 So. 2d 648 (Fla. 1995). Probable cause for a DUI arrest must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system. DHSMV v. Possati, 866 So. 2d 737, 740 (Fla. 3d DCA 2004). All of the same considerations for reasonable suspicion apply to a consideration of whether probable cause for an arrest existed. The only difference is the level of certainty required by the arresting deputy is much greater than is necessary for the investigating deputy.

Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system. State v. Howard, 2025 Fla. App. LEXIS 3618 (Fla. 5th DCA 2025).

Surprisingly, there are not a lot of DCA-level and above cases detailing what facts will and will not support probable cause for a DUI arrest. Just about all that is clear is that the odor of alcohol alone will not support probable cause for such an arrest. State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000). However, such County and Circuit Court cases do exist.

In January 2025, a Duval County Court granted a suppression motion where the officer asked the defendant to exit the vehicle, observed no difficulty with his exit or his walk, noticed a moderate odor of alcoholic beverage, as well as bloodshot, watery eyes, and defendant refused to submit to field sobriety exercises. State v. Wrigley, 33 Fla. L. Weekly Supp. 17a (Duval Cty Ct, January 24, 2025). In Wrigley, the arresting officer admitted that he didn’t think there was a probability that the defendant was impaired as well. But, while the officer’s candor I’m sure was appreciated, it’s the objective facts that control and not the officer’s opinion. As such, a court found probable cause lacking in Duval County.

In Castilla v. DHSMV, 31 Fla. L. Weekly Supp. 244a (Thirteenth Circuit Court, June 7, 2023) probable cause was found to exist in Hillsborough County (Judge Helene Daniels) when the driver was stopped for failure to make a right turn into the proper lane, causing law enforcement to take evasive action to avoid a collision. After the stop was initiated, the driver was slow to respond, traveling over five blocks before stopping. After the stop occurred, law enforcement observed that the driver’s eyes were bloodshot, so he was detained to await a DUI investigator. Additionally, the driver twice tried to drive away from the scene while the officer was still in possession of the driver’s license. As for observations in addition to the bloodshot eyes, there was an odor of alcohol, slow movements, and poor performance on field sobriety exercises.

Probable cause was also found by Judge Wolfe in Johnson v. DHSMV, 30 Fla. L. Weekly Supp. 537a (Thirteenth Circuit Court, October 11, 2022) where the driver was stopped for driving without headlights, had an odor of an alcoholic beverage, bloodshot and watery eyes, failure to follow instructions, and resisted law enforcement’s request to exit the vehicle.

If anything at all can be gleaned from these cases, it is that more than an odor and bloodshot eyes are needed to support probable cause for a DUI arrest. Neither of those indicators show impairment of normal faculties. Certainly, no one would argue that light consumption of alcohol and bloodshot eyes would indicate that someone is unsafe to operate a motor vehicle. There needs to be some evidence of diminishment of motor skills, judgment, speech, attention, concentration, etc. in order for law enforcement to have articulable facts to support probable cause.

With the facts articulated above, the Court granted a suppression of the evidence and the case was dismissed.

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