Defenses in Florida Criminal and DUI Cases
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Orange County Criminal Defense Lawyer & Orlando DUI Attorney:
Each Criminal Case is unique and needs to be fully investigated for every
possible defense.  Even in cases where the evidence of guilt is overwhelming,
a properly prepared defense can result in significant reductions in penalties
the Defendant receives.  The following list contains some of the defenses that
may exist in a criminal case.

Suppression of Evidence - In many cases, evidence may be suppressed
due to improper search and seizures.  This means that the evidence would not
be able to be used against the defendant at trial making it difficult or in some
cases impossible for the State to prove their case.  

Suppression of Statements - In many cases, due to a lack of Miranda warnings or improper interrogations
techniques, statements of the Defendant may be suppressed.  In some cases, suppression of the defendant's
confession or statements could be the difference between them being found guilty or not guilty.

Physical Evidence - This type of evidence may involve things such as DNA, fingerprints, footprints, blood, video,
photographs, tire tracks, receipts, stolen items, drugs, chemicals, etc.  There are a number of defenses which may
exist regarding physical evidence collected by law enforcement in a case.  For example:

1)  The evidence collected not being consistent with the crime charged.  Such as Injuries or the lack of injuries which
are inconsistent with the alleged actions in the case.

2)  Improper procedures used in the collection of the evidence.

3)  Improper testing or handling of physical evidence.

4)  In a DUI case, whether there were any problems with the calibrations and/or maintenance of the Intoxilyzer breath
test instrument.

5)  An inability on the part of law enforcement to establish proper chain of custody of physical evidence to ensure that
it wasn't tampered with.

Testimonial Evidence - This type of evidence involves the statements of any victims, witnesses and police
officers in relation to the crime. There are a number of defenses which may exist regarding any testimonial evidence
in a case. For example:  

1)  Contradictions between the victim, witnesses or officers version of events.

2)  Multiple statements by the same victim, witness or officer which don't match or contradict the other previous
statements.  In many cases contradictions may exist between the officers testimony and what they wrote in their
police reports.

3)  A lack of credibility of the victim, witnesses or officers involved, including any motives to fabricate their stories.

4)  The mental state of any victim, witnesses or officer, including whether any of them consumed any alcohol or drugs
at the time of or prior to the event.

5)  Whether any statements of the State or Defense witnesses were coerced.

6)  Tainted identifications or photo lineups.

7)  Unavailability of State witnesses necessary to prove the offense.

Inadequate Investigation or Improper Police Work  - Many times law enforcement will not thoroughly
investigate a case or they may conduct improper investigations which may result in a number of defenses in a case.  
For example:  

1)  Evidence not collected or tested by law enforcement that might have provided information as to the defendant's
innocence.

2)  Any exculpatory evidence that was destroyed by law enforcement.

3)  The officers lack of experience or training.

4)  The adequacy or overall time spent by the officers on their investigation before reaching their conclusions as to
the accused guilt.

5)  Whether the accused was entrapped by law enforcement into committing a crime they would not have otherwise
committed.

The Defendant's Evidence - In some cases, the Defendant may be able to provide evidence or defenses
which help show their innocence or weaken the States case against them.  For example:

1)  Alibi evidence such as hotel, ATM, or credit card receipts and/or witnesses who would place the accused person
at a different location during the commission of the offense.

2)  Any defense witnesses that may contradict the States version of events in the case.

3)  The mental state of the accused at the time the crime was committed.

4)  Whether the accused was acting in Self defense.

5)  Whether the defendant had any physical or medical conditions that may have affected them or their performance
or results on any tests

6)  In a DUI case, whether there were any weather, lighting, road, or mechanical conditions of the vehicle that would
affect the accused driving ability.

7)  In a DUI case, whether the condition of the ground surface or surrounding environment would affect the
performance of the Field Sobriety Exercises.

Time Limitations - In some cases, the State may be barred from pursuing the defendant for the crime. For
Example:

1)  The expiration of the Statute of Limitations for the crime charged.

2)  The expiration of the speedy trial time from the date of arrest.

Note:  It is the State Attorney's Office burden to establish and prove each and every element of the crime charged by
either physical or testimonial evidence beyond a reasonable doubt.  In many cases, a good defense can make it
difficult or impossible for the State to establish the defendant's guilt.  

Some of the following Florida Statutes involving defenses and mitigation may be relevant in certain cases:

Florida Statute 921.0026 - Mitigating circumstances.
This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.
(1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence
points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the
downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2).
The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter
924, but the extent of downward departure is not subject to appellate review.

(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified
include, but are not limited to:

(a) The departure results from a legitimate, uncoerced plea bargain.

(b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.

(c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the
requirements of law was substantially impaired.

(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or
addiction or for a physical disability, and the defendant is amenable to treatment.

(e) The need for payment of restitution to the victim outweighs the need for a prison sentence.

(f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.

(g) The defendant acted under extreme duress or under the domination of another person.

(h) Before the identity of the defendant was determined, the victim was substantially compensated.

(i) The defendant cooperated with the state to resolve the current offense or any other offense.

(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant
has shown remorse.

(k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.

(l) The defendant is to be sentenced as a youthful offender.

(m) The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total
sentence points under s. 921.0024 are 52 points or fewer, and the court determines that the defendant is amenable
to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in
the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony” has the same
meaning as provided in s. 948.08(6).

(3) Except as provided in paragraph (2)(m), the defendant’s substance abuse or addiction, including intoxication at
the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify
a downward departure from the permissible sentencing range.

Florida Statute 775.027 - Insanity defense.
1) AFFIRMATIVE DEFENSE.—All persons are presumed to be sane. It is an affirmative defense to a criminal
prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane.
Insanity is established when:

(a) The defendant had a mental infirmity, disease, or defect; and

(b) Because of this condition, the defendant:

1. Did not know what he or she was doing or its consequences; or

2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that
what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.

(2) BURDEN OF PROOF.—The defendant has the burden of proving the defense of insanity by clear and convincing
evidence.

Florida Statute 775.051 - Voluntary intoxication; not a defense; evidence not admissible for certain
purposes; exception.
Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance
as described in chapter 893 is not a defense to any offense proscribed by law. Evidence of a defendant’s voluntary
intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not
admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection,
or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by
a practitioner as defined in s. 893.02.

Florida Statute 776.012 - Use of force in defense of person.
A person is justified in using force, except deadly force, against another when and to the extent that the person
reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s
imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to
retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to
himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013

Florida Statute 776.013 - Home protection; use of deadly force; presumption of fear of death or great bodily
harm.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself
or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to
another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering,
or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or
was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or
unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the
dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection
from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or
under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or
occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14),
who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and
the officer identified himself or herself in accordance with any applicable law or the person using force knew or
reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has
a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including
deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself
or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied
vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or
conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is
designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an
invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or
property.

Florida Statute 776.031 - Use of force in defense of others.
A person is justified in the use of force, except deadly force, against another when and to the extent that the person
reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious
or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her
possession or in the possession of another who is a member of his or her immediate family or household or of a
person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly
force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a
forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Florida Statute 776.041 - Use of force by aggressor.  
The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great
bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of
force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant
that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of
force.

Florida Statute 777.201 - Entrapment.
(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting
as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the
commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage
in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial
risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that
his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier
of fact.

Florida Statute 782.02 - Justifiable use of deadly force.
The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any
felony upon him or her or upon or in any dwelling house in which such person shall be.

Note:  Florida Statute 782.11 - Unnecessary killing to prevent unlawful act.
Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony,
or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a
felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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