Motion in Limine for DUI Cases

Before a DUI trial, the defense attorney should file a motion in limine to exclude the prosecutor from eliciting any inadmissible facts. The defense attorney should also demand that the prosecution remove any gratuitous, hearsay, or improper statements made by the officers and recorded on their dash-cam or body-worn cameras.

For example, the DUI defense attorney can file a motion in limine to preclude the prosecutor from qualifying any previously disclosed witness as an expert or otherwise having such a witness testify about their opinion.

The ultimate determination as to whether a person accused of DUI was under the influence of alcohol to the extent his normal faculties were impaired is the jury’s alone. See Martinez v. State, 761 So.2d 1074, 1078-1081 (Fla. 2000); Sosa-Valdez v. State, 785 So.2d 633 (Fla. 3d DCA 2001), Rivera v. State, 807 So.2d 721 (Fla. 3d DCA 2002).

The officer should not be permitted to testify to his opinion that the defendant was “impaired” or “under the influence to the extent that his normal faculties are impaired.” In Thorp v. State, 777 So.2d 385, 395 (Fla. 2000), the court noted: “[a]s a general rule, lay witnesses may not testify in the form of opinions or inferences; it is the function of the jury to draw those inferences.”

The court should therefore impose a rule that: “As long as the testimony by the officers is restricted to lay observations . . . the probative value of the psychomotor testing is not outweighed by the danger of unfair prejudice.” State v. Meador, 674 So.2d 826, 832 (Fla. 4th DCA 1996).

Sample Motion in Limine in DUI Case

The motion in limine is filed pursuant to the FLORIDA RULES OF CRIMINAL PROCEDURE, Rule 3.190 and FLORIDA RULES OF EVIDENCE 90.401, 90.402 and 90.403, respectively. The motion might request the court precludes the prosecution or any of their witnesses from:

  1. using the term “test” or other related terms such as pass, fail, or points, when offering evidence of any physical sobriety exercises that may have been performed in this case, or that the arresting officer was allegedly certified to administer these exercises;
  2. commenting or having the arresting officer give his “opinion” concerning the defendant’s alleged impairment or that any of his actions are consistent with that of someone who is impaired due to alcohol;
  3. remove any gratuitous statements made by the officers and recorded on their body-worn cameras regarding their opinion the defendant was impaired; and
  4. offering evidence of the civil penalties for the defendant’s alleged refusal to submit to a breath test.

The Officer Doesn’t Always Make a DUI Arrest

In McKeown v. State, 16 So.3d 247 (Fla. 4th DCA 2009), the Fourth District determined the officer’s testimony that he did not make an arrest every time he investigated a DUI, was irrelevant and tended to improperly bolster the State’s case. Id. at 249 (Fla. 4th DCA 2009).

The court held that permitting the police officer to testify he arrested only half of the DUI suspects he investigated was not harmless error. During the trial, the defendant made a relevancy objection, which the court overruled. Id. at 248. This error was further exacerbated when the prosecutor reiterated it during closing arguments. On appeal, the Fourth District could not find that the error was harmless so the conviction was reversed. Id. at 249.

A DUI Charge Means the Defendant is Guilty of DUI

Likewise, in Ruiz v. State, 743 So.2d 1, 5 (Fla.1999), the court found that the state engaged in improper argument by implying that “[i]f the defendant wasn’t guilty, he wouldn’t be here.”

In Cartwright v. State, 885 So.2d 1010, 1015 (Fla. 4th DCA 2004), the court held it is improper for a prosecutor to suggest that the state charges only those who are guilty.

In the Officer’s Opinion, the Defendant Was Impaired

In State v. Meador, 674 So.2d 826 (Fla. 4th DCA 1996), the court explained when the prosecution witness is able to give an opinion that a DUI defendant is impaired. In Meador, the defendant challenged the admissibility of his performance of the physical sobriety exercises administered because they lacked scientific reliability and probative value of impairment and, alternatively, were otherwise highly prejudicial.

The Meador court concluded from the studies it reviewed that “there is no reliable numerical correlation between performance on the field sobriety tests and breath alcohol concentration, let alone impairment.” Id. at 832.

While sobriety exercises may tend to increase the accuracy of the decision-making process, “[w]hat the studies do not show . . . is that the tasks have any enhanced scientific reliability not readily observable by the average lay person. Further, the tests’ flaws prevent the State from accurately quantifying the relevancy of the tasks.” Id.

The defense will argue sobriety exercises are not scientific tests. Instead, the ordinary life experiences of jurors will allow them to examine the evidence and make a proper determination as to whether or not the defendant is impaired. The Meador court agreed because “[j]urors do not require any special expertise to interpret performance of these tasks.” Id. at 831.

The Meador court reviewed scientific data and cases from across the country, heard testimony from experts in the field, and determined: “[i]t is entirely appropriate for the jury to consider the simply physical tasks which comprise the field-sobriety tests.” Id. at 831.

The Meador court found that “evidence of the police officer’s observations of the results of the defendant’s performing the walk-and-turn test, the one-legged stand test, the balance test and the finger-to-nose test should be treated no differently than testimony of lay witnesses (officers, in this case) concerning their observations about the driver’s conduct and appearance . . . The police officer’s observations of the field sobriety exercises, other than the HGN test, should be placed in the same category as other commonly understood signs of impairment, such as glassy or bloodshot eyes, slurred speech, staggering, flushed face, labile emotions, odor of alcohol or driving patterns.” Id. at 831-32.

Therefore, the officer should be prevented from testifying as to their ultimate opinion that a DUI defendant is “impaired” based upon any of the investigation conducted, for such lay testimony invades the jury’s province with misleading, scientific-appearing, but unscientific information.

In Floyd v. State, 569 So.2d 1225, 1231-32 (Fla. 1990), the court concluded that typically “a lay witness may not testify in terms of an inference or opinion.” Testimony concerning the results of field sobriety exercises is thus to be treated as “lay observations of intoxication” and not as “scientific evidence of impairment.” Id. at 831.

In Chesser v. State, 30 So. 3d 625 (Fla. 1st DCA 2010), the court found it improper for lay witnesses in DUI Manslaughter case to render opinions on crucial issues concerning impairment.

In Jones v. State, 95 So.3d 426 (Fla. 4th DCA 2012), the officer’s subjective interpretations of the defendant’s statements, while not an ultimate opinion regarding guilt, still improperly bolstered the prosecution’s case).

Prohibiting Terms Such as “Test,” “Pass,” “Fail,” or “Points” 

The defendant’s argument that the utterly unusual exercises do not test one’s “normal faculties” was deemed to go to “the weight of the evidence and not its admissibility.” Id. at 832. But the jury may give inappropriate weight to police officers’ testimony, especially regarding the officer’s lay observation of signs of impairment in a DUI case.

For this reason, the court should preclude any reference to the sobriety exercises by using terms such as “test,” “pass,” “fail,” or “points,” because they “create[] a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment, as such terms give these layperson observations an aura of scientific validity. Therefore, such terms should be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment.” Id. at 833 (citations omitted).

The defense attorney should prevent any attempt to attach significance to the defendants’ performance of these exercises beyond what a layperson would conclude. Otherwise, it might jury and tip the scales so that the danger of unfair prejudice would outweigh its probative value.

Exclude Statements About Giving an Opportunity to Dispel Suspicion or Alarm

The officer should not be able to testify about allowing the defendant to dispel any alarms the officer may have or concerns that he did anything wrong. See Warmington at p. 4. Also, any such statement should be excluded from the video taken at the scene.

In Warmington v. State, 2014 Fla. LEXIS 3070, the Florida Supreme Court reaffirmed that testimony elicited by the prosecution during a criminal trial involving a defendant’s failure to produce exculpatory evidence impermissible shifts the burden of proof from the prosecution to the defendant, and is therefore inadmissible. Id. at p. 22. The Court concluded that the “testimony may have led the jury to believe that Warmington had a duty to produce exculpatory evidence”, id. at p. 15, or that the accused had a duty to perform such exercises in order to exculpate himself. Id

Testimony that the Defendant’s Actions were Consistent with Impairment

A police officer’s testimony or comments suggesting a defendant is guilty invades the province of the jury to decide guilt or innocence. See Lopiano v. State, 164 So.3d 82, 84 (Fla. 4th DCA 2015).

In Reynolds v. State, 74 So.3d 541 (Fla. 4th DCA 2011), the trial court erred in allowing the officer’s testimony that the defendant’s behavior was “consistent” with a general pattern of illegality. In the context of a DUI case, the officer should not be permitted to testify that any of the defendant’s actions are consistent with that of someone impaired due to alcohol.

In Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994), the court held that the kind of opinion testimony by lay witnesses admissible under section 90.701 is limited to things related to perception: e.g., “distance, time, size, weight, form and identity.” Id. at 748-49.

In Martinez v. State, 761 So.2d 1074, 1080 (Fla. 2000), the court noted: “there is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant’s guilt. In this situation, an opinion about the ultimate issue of guilt could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant.” Id. at 1080.

In Milla v. State, 8 Fla. Supp 756c (Fla. 11th Cir. Ct. 2001), the officer’s testimony in DUI case constituted impermissible expert opinion of an individual not qualified as an expert witness.

In Roundtree v. State, 2014 Fla. App. LEXIS 13410, the trial court erred in admitting an interrogation of the defendant which primarily consisted of the officer expressing his personal opinion as to the defendant’s guilt.

In Sheppard v. State, 2014 Fla. LEXIS 2717 [39 Fla. L. Weekly S551a], Justice Pariente wrote in her concurring opinion that “I also write to emphasize that, although we affirm the convictions in this case, we strongly condemn the admission of police interrogation into evidence where the detective expresses an opinion about the defendant’s guilt . . . exposing the jury to an investigating officer’s opinion about the defendant’s guilt is particularly troublesome because it ‘could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant.’ ” Id. at 58-59, citing to Martinez v. State, 761 So.2d 1074, 1080 (Fla. 2000) [25 Fla. L. Weekly S471a].

In Alvarez v. State, 147 So.3d 537 (Fla. 4th DCA 2014), the court noted that “[w]hen factual determinations are within the realm of an ordinary juror’s knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury.” Id. at p. 5.

Arguments on Potential Driver’s License Suspension in DUI Refusal Cases

In a DUI refusal case, the defense attorney should also demand that the prosecutor not make 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.

Florida Statute Section 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.”

In State v. Taylor, 648 So.2d 701 (Fla. 1995), the court found that the refusal is relevant to show consciousness of guilt and the defendant is free to offer an innocent explanation for not taking the test.

In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the court found the admission of the defendant’s refusal to submit to a blood-alcohol test does not offend Fifth Amendment right against self-incrimination.

Therefore, 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 Section 316.1932(1)(a). See Rockford v. Elliott, 721 N.E.2d 715, 718 (Ill. 2d DCA 1999).

In Rockford, had the Florida legislature intended “that evidence of the civil penalties a defendant faced be admissible in addition to his refusal to submit to a breath test, [it] could have so provided in the statute.” Rockford, 721 N.E.2d at 719.

Instead, the Florida legislature went so far as to expressly exclude any civil penalty under section 322.2615(14) at the defendant’s criminal trial when it wrote that “[t]he decision of the department . . . shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial.” Furthermore, “[t]he disposition of any related criminal proceedings . . . affect a suspension imposed pursuant to this section.”

This article was last updated on Friday, August 11, 2023.