Can evidence be thrown out in a Florida DUI case?

When people ask whether DUI evidence can be "thrown out," they mean a motion to suppress. It is the formal way to ask a judge to keep out evidence that was gathered in violation of the law, before the case ever reaches a jury. This page explains the rule that governs it, the grounds people most often ask about, what Florida's breath testing rules actually say, and how the motion fits into the calendar in South Florida courts. How a DUI case is defended overall is on our main DUI defense page.

What is a motion to suppress in a Florida DUI case?

Florida Rule of Criminal Procedure 3.190(g), in the rules effective October 1, 2026, covers a "Motion to Suppress Evidence or Statements." Under Rule 3.190(g)(1), a defendant who claims that the State obtained evidence "as a result of an unlawful search or seizure by a government agent," or obtained statements from the defendant unlawfully, may move to suppress them. The rule then sets four requirements:

• Contents. The motion must "state clearly the particular evidence or statements sought to be suppressed, the reasons for suppression, and a statement of the facts on which the motion is based" (Rule 3.190(g)(2)).
• Hearing. The court first decides whether the motion is legally sufficient; if not, it is denied. The court may then take evidence on the facts (Rule 3.190(g)(3)).
• Timing. The motion must be filed before trial or before a deadline the judge sets, "unless there is good cause for the delay or the state does not object" (Rule 3.190(g)(4)).
• Written order. If the motion is granted, either side can ask for a written order with findings of fact and conclusions of law before jeopardy attaches (Rule 3.190(g)(5)).

The constitutional basis is Article I, section 12 of the Florida Constitution, which protects against unreasonable searches and seizures and says it "shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." It also says evidence obtained in violation of that right "shall not be admissible" if it would be inadmissible under those decisions. Article I, section 9 adds that no person shall "be compelled in any criminal matter to be a witness against oneself."

Which grounds do people ask about in DUI cases?

A DUI investigation is a chain of decisions by the officer, and each link can be examined. The table below lists the ones people ask about most, with the Florida law that frames each. Whether a ground applies depends on the video, the reports and the testing records in your case.

The stop and the detention

Florida's stop and frisk law lets an officer temporarily detain a person when "circumstances which reasonably indicate" that the person has committed, is committing or is about to commit a crime (s. 901.151(2)). The detention may last no longer "than is reasonably necessary" and may not go beyond the place it started or the immediate vicinity (s. 901.151(3)). If probable cause appears, the person is arrested; if it does not, the person "shall be released" (s. 901.151(4)). The stop itself, the time it took, and the reason it went on are often the first things a lawyer checks on the video. Your rights during the stop are covered in your rights during a police stop in Florida.

The request to exit and the roadside exercises

No Florida statute sets a separate test for ordering a driver out of the car or for asking for roadside exercises. Those steps are measured against Article I, section 12, which follows the United States Supreme Court's Fourth Amendment decisions, and against the time limits in section 901.151(3). What the statutes say about the exercises themselves is on our page do I have to do field sobriety tests in Florida.

Probable cause for the arrest

The implied consent law applies to a breath test that is "incidental to a lawful arrest" and requested by an officer "who has reasonable cause to believe" the person was driving or in actual physical control while impaired (s. 316.1932(1)(a)1.a.). If the arrest was not lawful, the breath test that followed is open to challenge, and so is a refusal charge, which requires a lawful arrest and probable cause (s. 316.1939(1)(a), (b)). How a refusal is handled is explained in refusing the breath test in Florida.

What do Florida's breath testing rules actually say?

A breath result is valid only if the test was "performed substantially according to methods approved by the Department of Law Enforcement" (s. 316.1932(1)(b)2.) and by a person with a valid FDLE permit (s. 316.1934(3)). The same statutes say "insubstantial differences" between approved methods and what was done do not make a test invalid. FDLE's methods are in chapter 11D-8 of the Florida Administrative Code. Two of them come up in almost every DUI case:

• The 20-minute observation. Rule 11D-8.007(3), in the version effective July 1, 2026, says the operator, agency inspector, arresting officer or a person designated by the permit holder "shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test." It adds that a second 20-minute period is not required before a later sample.
• Two samples within 0.020. Rule 11D-8.002(12) defines an "Approved Breath Alcohol Test" as at least two breath samples "collected within fifteen minutes of each other," producing "two results within 0.020 g/210L." If the first two are more than 0.020 apart, a third sample must be analyzed. Failing to provide the required number of valid samples counts as a refusal, though results obtained may still be used "if proved to be reliable."

Rule 11D-8.007 also requires the instrument to be kept in a secured environment and the test to follow FDLE's operating procedures for the Intoxilyzer 8000 or 9000, with the result recorded on the breath alcohol test affidavit. The full set of breath rules is on our page about Florida breath test rules.

What about a blood draw?

Section 316.1933(1)(a) requires a blood test, with reasonable force if necessary, when an officer has probable cause to believe an impaired driver caused death or serious bodily injury, and in those cases the test "need not be incidental to a lawful arrest." Outside those cases, section 316.1932(1)(c) allows a blood test when the person is at a hospital, clinic or ambulance and a breath or urine test is impractical or impossible. Under both sections, only a physician, certified paramedic, registered nurse, licensed practical nurse, other hospital-authorized personnel, or a licensed clinical laboratory director, supervisor, technologist or technician, acting at an officer's request, may draw the blood (ss. 316.1932(1)(f)2.a., 316.1933(2)(a)). The analysis must follow FDLE's methods by a permit holder (s. 316.1933(2)(b)). More detail is in can police take your blood after a DUI crash.

How does a suppression motion move here, step by step?

1. Discovery. After a Notice of Discovery, the prosecutor must disclose, among other things, the defendant's statements, "whether there has been any search or seizure and any documents relating thereto," and reports of scientific tests (Rule 3.220(b)(1)(C), (I), (J)). Video, breath affidavits and maintenance records are what a lawyer studies.
2. Drafting. The motion names the specific evidence, the reasons and the facts, as Rule 3.190(g)(2) requires.
3. Setting the hearing. Each division sets its own procedure. In Palm Beach County, Division B's instructions treat a motion to suppress as a "Long Motion" set through the judicial assistant and require all pretrial motions to be heard before the pretrial hearing. The Trial Division says substantive pretrial motions should be heard in the referring division before trial. Local courts are described on our Palm Beach County courts page.
4. The hearing. The judge decides legal sufficiency, then hears testimony, usually from the officer, and watches the video (Rule 3.190(g)(3)).
5. The ruling. If granted, the suppressed evidence cannot be used at trial, and either side may ask for a written order (Rule 3.190(g)(5)). The State then decides whether it can go forward with what is left. If denied, the case continues toward a resolution or a trial, explained in what happens at a DUI jury trial in Palm Beach County.

The same steps apply in Broward's county court at the Central Courthouse in Fort Lauderdale, where the Seventeenth Circuit's Administrative Order 2021-30-CO (Amendment 2) files DUI cases, in Miami-Dade's County Court Criminal Division, and at the Martin County Courthouse in Stuart, with each judge's own scheduling rules.

What changes the answer?

• The Palm Beach first-time program. The State Attorney's program sheet says its plea "must be entered prior to the filing of any defense motions, demands for discovery, or demands for jury trial." Filing a motion to suppress can mean giving up that path, so the choice has to be made first. See the Palm Beach County first-time DUI program.
• What the video shows. Many grounds turn on timing and words that only a recording captures.
• Whether the defect was substantial. The breath and blood statutes forgive "insubstantial differences" from FDLE's methods (ss. 316.1932(1)(b)2., 316.1934(3), 316.1933(2)(b)).
• A crash with serious injury or death. The blood test rules in section 316.1933 do not require an arrest first, which changes the analysis.
• The license case. The license review decides probable cause and the test result or refusal (s. 322.2615(7)), but its rulings are not considered at the DUI trial (s. 322.2615(14)(a)). Testimony from that hearing can be used in the criminal case only if timely disclosed in discovery under Rule 3.220 (s. 316.193(10)). See the DUI formal review hearing.
• Deadlines. A motion filed after the court's deadline may be heard only for good cause or if the State does not object (Rule 3.190(g)(4)).

A worked example

For example, suppose a hypothetical driver is stopped in Boca Raton for an expired tag, held at the roadside for a long wait before any DUI investigation begins, and then arrested. At the station the video shows him burping during what the affidavit lists as the observation period, and his two breath samples are 0.012 apart. His lawyer reviews the stop under section 901.151, the length of the detention, the probable cause for the arrest, and whether the observation met rule 11D-8.007(3). The 0.012 difference is inside the 0.020 range in rule 11D-8.002(12), so that point would not support a challenge, while the observation issue might. Because a motion would end any chance at the Palm Beach first-time program, that decision comes first. The person and facts are invented to show how the rules apply, not a client's case or a prediction of any ruling.

Common mistakes people make

• Believing that a missing reading of rights ends the case automatically; the rule requires a specific motion about specific evidence.
• Filing a motion in Palm Beach County before deciding about the first-time program.
• Waiting until the trial date to raise a suppression issue, after the court's deadline.
• Assuming every small difference from the breath rules matters; the statutes excuse insubstantial ones.
• Not asking for the video, the breath affidavit and the instrument records early.
• Treating a loss at the license review as the end of the criminal case's suppression issues; the two are separate.

What to do this week

1. Write down the time of the stop, the time of the arrest and the time of the breath test, as closely as you can remember.
2. Note anything you ate, drank, or any belching or vomiting in the 20 minutes before the breath test.
3. Keep the breath ticket or any copy of the affidavit you were given.
4. List every statement you remember making, and when.
5. Ask a lawyer to request the video and the testing records through discovery.
6. In Palm Beach County, decide about the first-time program before any motion or discovery demand is filed.

Frequently asked questions

Does a motion to suppress get the whole case dismissed?

Not by itself. It keeps out the specific evidence the judge suppresses. Whether the State can continue depends on what evidence remains; other ways a case can end are covered in whether charges can be dropped before trial.

Can I file a motion to suppress myself?

Rule 3.190(a) requires every pretrial motion to be in writing and signed by the party or the party's attorney. In practice, the legal sufficiency review in Rule 3.190(g)(3) makes the drafting important.

Is the hearing in front of a jury?

No. The judge hears and decides a motion to suppress before trial (Rule 3.190(g)(3), (4)).

Can my statements to the officer be suppressed?

Rule 3.190(g)(1) covers statements "obtained unlawfully" from the defendant. Whether that applies depends on when and how the statements were made, which the video and reports show.

Can a breath test be suppressed if the officer did not wait 20 minutes?

Rule 11D-8.007(3) requires the officer or operator to "reasonably ensure" the person took nothing by mouth and did not regurgitate for at least 20 minutes. Whether a lapse was substantial enough to matter is decided by the judge on the facts.

Does a motion to suppress delay the case?

It can add a hearing date before trial. How hearings, continuances and the 90-day misdemeanor period in Rule 3.191(a) fit together is explained in the Florida speedy trial deadlines.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense in South Florida. He can review the stop, the arrest, the testing records and the video with you, explain which issues the rules and statutes support, and file and argue motions in Palm Beach, Broward, Miami-Dade or Martin County when they fit the facts. Every case is different, and no result can be promised. The consultation is free, and you can call 24 hours at (561) 362-6677.

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