I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have served as a police academy legal instructor teaching officers the constitutional limits of search, seizure, and arrest, and I served as Chief Operating Officer of the Hillsborough County Public Defender’s Office. Today our attorneys defend gun and drug charges across Tampa Bay, and this question — marijuana and guns — now sits at the center of one of the fastest-moving areas in criminal law.

What Does Federal Law Say About Marijuana Users and Guns?

Federal law makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. That ban lives in 18 U.S.C. § 922(g)(3), and because marijuana remains a controlled substance under federal law, it has always applied to marijuana users — including Florida’s hundreds of thousands of registered medical marijuana patients. A state card has never been a defense to the federal statute, because Florida’s medical marijuana program does not change what federal law says.

The federal ban shows up in a second place that trips up ordinary gun buyers: ATF Form 4473, the questionnaire every purchaser completes at a licensed dealer. The form asks directly whether you are an unlawful user of marijuana or any other controlled substance, and it warns that marijuana remains federally unlawful regardless of state medical programs. Answering falsely is a separate federal felony. Our attorneys have seen careful, law-abiding people put themselves in federal jeopardy with one checkbox — which is why the Supreme Court’s 2026 decision matters so much, and why it must be read carefully rather than treated as a green light.

What Did the Supreme Court Decide in United States v. Hemani?

In United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), the U.S. Supreme Court held that the government’s prosecution of a regular marijuana user under § 922(g)(3) violated the Second Amendment — the first time the Court has struck down the application of a federal gun ban to drug users. Ali Hemani was prosecuted for having a gun in his home while being a regular marijuana user; the government’s theory was that regular use of a controlled substance, by itself, was enough to disarm him. It did not claim he was addicted, that he was high when found with the gun, or that he posed any particular danger.

Justice Gorsuch’s majority opinion, affirming the Fifth Circuit 7-2, rejected that theory under the historical-tradition test. The government leaned on founding-era “habitual drunkard” laws, but the Court found those laws targeted people whose drinking left them “practically incapacitated and incapable of managing their affairs” — not everyone who drank regularly. The Court also stressed how the modern statute operates: it “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user . . . all without any pre-deprivation process,” while the historical laws required some proceeding — a conviction, a guardianship, a hearing — before anyone lost liberty. And the Court pointed out that the government’s own conduct undercuts the claim that all marijuana users are categorically dangerous: federal prosecutors have been directed to curtail enforcement against marijuana users, most states have legalized some use, and the government itself recently moved certain marijuana products down the federal schedules.

For Florida gun owners who hold medical marijuana cards, the practical takeaway is this: after Hemani, a federal prosecution built on nothing more than the fact that you regularly use marijuana is unconstitutional. That is a real shield. But it is a shield with defined edges, described next.

What Did Hemani Leave Undecided?

Hemani was an as-applied ruling, not a repeal — § 922(g)(3) is still on the books, and the Court expressly reserved several theories the government may still pursue. Anyone mixing marijuana and firearms in Florida should understand exactly where the line now sits.

That last row deserves emphasis. Nothing in Hemani changed the purchase paperwork. Until ATF revises Form 4473, a medical marijuana patient who answers “no” to the unlawful-user question is still committing a federal crime, whatever the Second Amendment now says about possession prosecutions. This is exactly the kind of trap where getting legal advice before you act is worth far more than defending a charge afterward.

Does a Florida Medical Marijuana Card Take Away Your Gun Rights?

No — holding a Florida medical marijuana card does not, by itself, disqualify you from owning or possessing a firearm under Florida law. Florida’s medical marijuana statute, Fla. Stat. § 381.986, created a physician-certification system with a patient registry, and nothing in Florida’s gun statutes makes registered patients prohibited possessors.

Florida’s concealed-carry licensing statute, Fla. Stat. § 790.06, does contain drug-related disqualifiers that patients should know about. The Department of Agriculture must deny a license to an applicant who “chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired,” and to anyone found guilty of a chapter 893 drug crime within the three years before applying. A conviction for a controlled-substance offense also triggers revocation of an existing license. So while the card itself is not a disqualifier, a marijuana-related conviction — even a misdemeanor — can cost you your carry license for years.

Where Is Medical Marijuana Use Still Illegal Even With a Card?

A Florida medical marijuana card authorizes “medical use” — and the statute defines that term to exclude specific places, so using marijuana in the wrong location remains a crime even for a fully registered patient. Under § 381.986, “medical use” does not include using or administering marijuana on public transportation, in any public place, in an enclosed indoor workplace, on school grounds, or — critically for Tampa Bay’s boaters and drivers — “in a school bus, a vehicle, an aircraft, or a motorboat,” with a narrow exception for low-THC cannabis not in a form for smoking. A qualified patient who uses marijuana in plain view of the public or in a vehicle or boat commits a first-degree misdemeanor.

The Sixth District Court of Appeal enforced exactly this limit in Tanaka v. State, No. 6D2024-1581 (Fla. 6th DCA June 19, 2026), a Collier County case where the court affirmed a conviction by quoting the statute’s rule that “medical use” does not cover marijuana in a vehicle, aircraft, or motorboat. The lesson for the hundreds of thousands of Floridians with cards: your protection travels with the statute’s definitions, not with the card in your wallet. Smoking in your car — parked or moving — is outside the program, and once an officer smells it, you may face both the misdemeanor and a vehicle search. Our attorneys have litigated where the odor-of-cannabis doctrine now stands in the Tampa Bay area; see our analysis of Florida’s Second DCA limiting the plain-smell doctrine.

Can 18-to-20-Year-Olds Carry a Concealed Gun in Florida Now?

As of mid-2026, Florida’s ban on concealed-carry licenses for adults under 21 has been declared facially unconstitutional by one of Florida’s appellate courts — a major shift, though not yet a statewide settled rule. In Eubanks v. State, No. 4D2025-1698 (Fla. 4th DCA June 17, 2026), a Broward County prosecution for carrying a concealed firearm, the Fourth District held that § 790.06(2)(b) — which requires concealed-carry applicants to be 21 — “is facially unconstitutional as it relates to 18- to 20-year-olds.” The court reasoned that 18-to-20-year-olds are part of “the people” the Second Amendment protects, that the State produced no historical tradition of categorically disarming young adults, and — quoting the U.S. Supreme Court’s Rahimi decision — that a group cannot be “disarmed simply because he is not ‘responsible.’” The court reversed the young man’s conviction outright.

Two cautions before anyone under 21 straps on a holster. First, Eubanks is a Fourth District decision; Tampa, Hillsborough, Pinellas, and Pasco Counties sit in the Second District, which has not yet spoken, and the State may seek further review in the Florida Supreme Court. Second, the decision addressed concealed carry — it did not touch Florida’s open-carry ban or the separate federal rules for handgun purchases by under-21 buyers. Anyone in that age group facing a carry charge should treat Eubanks as a powerful defense to raise, not a settled right to rely on. For the broader landscape — permitless carry under Fla. Stat. § 790.01, where guns are still prohibited, and how gun charges are penalized — see our guide to gun crime laws in Florida.

How Do These Decisions Change a Florida Gun Charge Defense?

They add constitutional attacks to a defense toolbox that already starts with the Fourth Amendment. When our attorneys defend a Tampa Bay gun charge involving marijuana, the analysis now runs on three tracks at once.

1. Was the stop and search lawful? Most marijuana-and-gun cases begin with a traffic stop, a pat-down, or a search justified by the smell of cannabis. If the stop was unlawfully prolonged or the frisk exceeded its limits, the gun itself can be suppressed — see our breakdown of stop and frisk law in Florida.
2. Is the charge constitutional after Hemani and Eubanks? A federal § 922(g)(3) charge premised on use alone is now unconstitutional as applied. A state concealed-carry charge against an otherwise law-abiding 18-to-20-year-old is squarely challenged by Eubanks. These arguments are raised by motion — and where a district conflict exists, preserving the issue protects your appeal.
3. Does the statute even fit the facts? Was the marijuana “medical use” within § 381.986? Was the firearm actually “possessed”? Was a license exception satisfied? The State must prove every element, and pre-file advocacy — engaging the State Attorney’s Office before charges are formalized — can resolve borderline cases before they ever reach a courtroom.

What Should You Do If You Are Arrested on a Marijuana-Related Gun Charge?

Move fast, and say nothing about your marijuana use to anyone but your lawyer. Statements about how often you use — the exact fact that decides whether the government can build a lawful case after Hemani — are routinely volunteered in the first police interview, and they are admissible. In Hillsborough County, a felony gun arrest means booking at Orient Road Jail, first appearance within 24 hours, and formal charging decisions by the State Attorney’s Office in the weeks that follow. That charging window is where an early defense presentation can change everything: our attorneys use it to put suppression problems, Hemani and Eubanks issues, and medical-marijuana documentation in front of the prosecutor before the filing decision is made. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa walks through the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

Frequently Asked Questions

Can I buy a gun in Florida if I have a medical marijuana card?

Florida law does not prohibit the purchase, but the federal purchase form still asks whether you are an unlawful user of marijuana, and marijuana remains federally unlawful even for state medical patients. Answering falsely on ATF Form 4473 is a federal felony that Hemani did not eliminate. Our attorneys advise cardholders on lawful paths before purchase, because this is far easier to get right in advance than to defend afterward.

Did the Supreme Court legalize gun ownership for all drug users?

No. United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), held only that prosecuting a person for regular marijuana use alone violates the Second Amendment. The Court expressly left open prosecutions of people who are addicted, armed while presently intoxicated, or shown by individualized proof to be dangerous — and it did not touch the felon-in-possession ban.

Can I keep a gun in my car along with my medical marijuana?

Carrying a firearm in your vehicle can be lawful under Florida’s permitless-carry framework, but using marijuana in a vehicle is never “medical use” under Fla. Stat. § 381.986 — it is a first-degree misdemeanor even for cardholders. Combining the two also invites a search and a charging decision that treats you as an unlawful user. Keep the marijuana sealed, in its original packaging, and never use it in the car or on a boat.

Can an 18-year-old legally carry a concealed gun in Florida in 2026?

The Fourth District held in Eubanks v. State that the 21-and-over rule in § 790.06(2)(b) is facially unconstitutional, but that ruling comes from South Florida’s appellate district and the issue is not finally settled statewide. In Tampa Bay — the Second District — prosecutors may still file the charge, and the defense must raise Eubanks by motion. The Brancato Law Firm, P.A. litigates these constitutional challenges and preserves them for appeal.

Will a marijuana conviction cost me my concealed weapons license?

Yes — a finding of guilt for a chapter 893 drug crime requires revocation of a Florida concealed-carry license, and it bars a new license for three years under Fla. Stat. § 790.06. That collateral consequence is one more reason to fight a “minor” possession charge rather than plead it out quickly. We routinely defend possession cases with the license consequences as a central goal.

Does Florida report medical marijuana patients to the federal government?

Florida’s medical marijuana use registry is a state system, and Florida law treats patient records as confidential; the registry is not a public list handed to federal authorities. But dispensary purchases, statements to police, and social media can all establish “unlawful user” status in a federal case. If you hold a card and own firearms, The Brancato Law Firm, P.A. can walk you through how the two programs actually interact.

Marijuana-and-gun law is moving faster right now than at any point in decades — Hemani and Eubanks both landed within a single week of June 2026, and the next round of decisions will decide how far they reach in Tampa Bay. If you are facing a gun or marijuana charge, or you hold a medical card and want to keep your gun rights intact, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 today. Constitutional defenses are strongest when they are raised before the State’s filing decision, not after.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I taught criminal procedure at the police academy, so I know exactly how officers are trained to build a search from a smell — and our attorneys review the recording of every odor-based stop for the moment that training shows.

Can Police Search Your Car Just Because It Smells Like Marijuana?

Not in Hillsborough, Pinellas, or Pasco County — the odor of cannabis, standing alone, no longer establishes probable cause here. In Williams v. State, No. 2D2023-2200 (Fla. 2d DCA Oct. 1, 2025), the Second District Court of Appeal — the appellate court covering Tampa Bay — sitting en banc, held that “the smell of cannabis standing alone is insufficient to establish probable cause,” receding from its own prior precedent.

The reason is simple chemistry meeting new law: since Florida legalized medical marijuana and hemp, a trained officer cannot tell by smell whether the odor comes from something illegal or something perfectly lawful. The smell no longer makes contraband “immediately apparent” — so it can no longer do the work of probable cause by itself. Odor remains a relevant factor, but it must be combined with something more. Our attorneys have been filing suppression motions built on Williams since the week it came down.

What Happened in Williams — and Why the Evidence Still Came In

Williams began the way these cases usually do: a 2023 traffic stop in Hillsborough County where officers said they smelled cannabis and searched on the odor alone — no admission of use, no indication whether the smell was hemp, medical marijuana, or illegal cannabis, and no evidence of recent smoking in the vehicle. The en banc court used the case to recede from Owens v. State, its 2021 decision holding that the legalization amendments didn’t change the Fourth Amendment analysis.

But there is a catch every reader should understand: the defendant in Williams still lost. Because the officers searched at a time when the old rule (Owens) was still binding precedent, the court applied the good-faith exception — evidence is not suppressed when officers act in objectively reasonable reliance on the appellate law in force at the time of the search. The practical translation: the new rule protects people searched after October 1, 2025, far more than those searched before. And because the change is so consequential, the court certified the question to the Florida Supreme Court as one of great public importance: does the plain smell doctrine continue to apply based only on the odor of cannabis? That question is still pending, and this page will be updated when it is answered.

When Can Odor Still Justify a Search? The Cherfils Lesson

When the smell comes with other facts — and in Cherfils v. State, No. 2D2023-1932 (Fla. 2d DCA Dec. 31, 2025), the same court showed exactly how that happens. Joshua Cherfils was stopped in a high-crime area for an improperly illuminated license tag. The officer smelled burnt marijuana. Cherfils became argumentative and nervous, then produced his medical marijuana card and admitted smoking earlier in the day — but the officer testified the odor was “a lot more than just if someone smoked earlier.” The court held that, under the totality of the circumstances, the officer could reasonably conclude Cherfils had been illegally smoking marijuana in the vehicle — and upheld the search.

The Brancato Law Firm, P.A. — Tampa search and seizure defense — (813) 727-7159

Read Williams and Cherfils together and the rule for our district is clear: smell alone loses; smell plus your own words and behavior can win — for the State.

Why Showing Your Medical Marijuana Card Can Backfire

Because the card converts a legally ambiguous smell into evidence of a crime. Hemp is legal to possess and use almost anywhere; medical marijuana is legal to possess but — under section 381.986, Florida Statutes — illegal to smoke in a vehicle. When Cherfils volunteered his card and his earlier smoking, he eliminated the innocent explanation (hemp) and handed the officer reason to believe the smell came from marijuana smoked in the car.

This is the counseling moment our attorneys wish more drivers got in advance: the Second District’s new rule is powerful, but nearly every case that loses under it loses because of what the driver said in the first ninety seconds of the stop.

August 2026 Update: Other Districts Keep Upholding Odor-Based Searches

Outside the Second District, Florida’s appellate courts are continuing to uphold vehicle searches built on the smell of marijuana — most recently in Ptomy v. State, No. 1D2025-1029 (Fla. 1st DCA Aug. 19, 2026). Applying a totality-of-the-circumstances approach, the First District affirmed a search where officers smelled marijuana in the vehicle and the driver’s own answers dispelled any lawful explanation for the scent — no hemp, no medical marijuana account that held up.

Ptomy leaned on two other recent decisions that show where the rest of the state stands: Aldama v. State, 394 So. 3d 148 (Fla. 3d DCA 2024), which found probable cause where the driver denied having a medical marijuana card or medical marijuana in the car — answers that ruled out any lawful source for the smell — and Hoehaver v. State, 389 So. 3d 766 (Fla. 5th DCA 2024), which held that the odor of burnt marijuana coming from inside a vehicle supplied probable cause. Notably, the Fifth District has also held en banc — in Baxter v. State, 389 So. 3d 803 (Fla. 5th DCA 2024) — that because the plain smell of cannabis is no longer clearly indicative of criminal activity, the odor alone cannot even supply reasonable suspicion for an investigatory stop. So even outside Tampa Bay the direction of travel is the same: the smell needs company.

Here is the statewide picture as of August 2026:

The Brancato Law Firm, P.A. — (813) 727-7159

The practical lesson hasn’t changed — it has sharpened. In every district, what you say during the stop is what converts a smell into a search. Until the Florida Supreme Court answers the certified question from Williams, the rule genuinely depends on where you were stopped — and our attorneys apply the right district’s law to every suppression motion we file.

What Do Officers Have to Show Now?

Facts beyond the smell — articulated specifically, not recited from training. Since Williams, an officer in our district who writes “I detected the odor of marijuana” and nothing more has written a suppression motion for the defense. What the case law now separates:

The Brancato Law Firm, P.A. — Tampa drug and search defense — (813) 727-7159

When our firm litigates these motions, the body camera is the battleground: the report’s neat “totality of circumstances” often turns out, on video, to be an odor and nothing else. That is a winnable case in the Second District today.

What Should You Do If Your Car Was Searched Based on Smell?

Get the search reviewed now, because the timing of your stop controls which rule applies. Searches conducted after October 1, 2025, in Hillsborough, Pinellas, or Pasco County are governed by Williams — odor alone is not probable cause, and a motion to suppress may take the State’s evidence off the table entirely. Earlier searches face the good-faith exception, but may have other defects: an unlawful stop, an overlong detention, or “additional factors” that exist only in the report. Bring the paperwork and any recording to counsel before your arraignment; suppression issues are won by lawyers who get to the video early.

Frequently Asked Questions: Cannabis Odor and Car Searches in Florida

Can police search my car for smelling marijuana in Florida?

Not based on the smell alone in the Tampa Bay area — Williams v. State ended that in October 2025. But odor combined with other factors, especially your own statements, can still justify a search, and other Florida districts continue to uphold odor-based searches. Our attorneys evaluate exactly which rule applied to your stop.

What is the plain smell doctrine?

It was the rule that the smell of cannabis, by itself, gave officers probable cause to search — treating the odor as automatically incriminating. The Second District receded from it in Williams because legal hemp and medical marijuana are indistinguishable from illegal cannabis by smell. Odor is now just one factor in the totality of the circumstances.

Should I show my medical marijuana card during a traffic stop?

Be very careful — in Cherfils, producing the card helped establish probable cause, because it signaled the smell came from medical marijuana, which is illegal to smoke in a vehicle. You are not required to explain a smell. In our cases, the card is best presented by counsel, in context, after the stop.

Does this ruling make marijuana legal in Florida?

No. Possession remains illegal except for medical marijuana obtained through a licensed dispensary and hemp within legal THC limits. Williams changed what justifies a warrantless search — not what is legal to possess.

Does the Williams rule apply everywhere in Florida?

No. Williams and Cherfils bind the Second District — Hillsborough, Pinellas, and Pasco among its counties — while the First, Third, and Fifth Districts have all recently upheld odor-based searches where the smell was burnt or the driver’s answers ruled out a legal explanation (Ptomy, Aldama, Hoehaver). Until the Florida Supreme Court answers the certified question, the rule depends on where you were stopped — and our attorneys brief the right district’s law in every motion.

What if my car was searched based on odor before October 2025?

The good-faith exception likely protects that search from suppression on odor grounds alone, because officers were relying on the law in force at the time — that is exactly what happened in Williams itself. But earlier searches often have other problems worth reviewing: the lawfulness of the stop, the length of the detention, and whether the claimed “additional factors” hold up on video.

Can a drug charge be dropped if the search was illegal?

Often, yes — when a suppression motion removes the drugs from evidence, the State frequently cannot proceed. The Brancato Law Firm, P.A. has litigated suppression in Tampa Bay courtrooms for decades, and post-Williams odor searches are among the most suppressible cases we see. Call (813) 727-7159 for a free case review.

For more about our defense strategies, visit our Tampa Drug Crimes Attorney page.

Related reading: Florida Medical Marijuana and Paraphernalia Transportation Laws · What to Do After Being Arrested in Tampa, Florida · How Does a Bond Hearing Work in Tampa? · The Criminal Court Process in Hillsborough County

Searched Over a Smell? The Law Just Moved in Your Favor

If your vehicle was searched based on the odor of cannabis in Hillsborough, Pinellas, or Pasco County, the rules that applied a year ago no longer do — and the recording of your stop may hold a suppression motion. Call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before your arraignment. The video that decides these motions does not preserve itself.

The Brancato Law Firm, P.A. 620 E. Twiggs Street, Suite 205, Tampa, FL 33602 (813) 727-7159 Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

The recent reversal of a Florida murder conviction in De Santus v. State, No. 4D2023-2235 (Fla. 4th DCA Oct. 15, 2025), shows what’s at stake when a defense attorney isn’t truly prepared.

I’m Rocky Brancato. At The Brancato Law Firm, I have spent more than 25 years defending serious felony and homicide cases throughout Tampa Bay, including over 150 jury trials. The De Santus ruling is exactly the kind of failure my practice is built to prevent. This guide explains what went wrong in De Santus, what Florida law actually requires of capital-eligible defense counsel, and the questions to ask any attorney before you hire.

What the Defense Attorney Failed to Do in De Santus

A Case Built Entirely on Witness Testimony

The Broward County shooting had no DNA, no fingerprints, and no video evidence. The State relied entirely on one witness. Before trial, that witness admitted to lying. She told a defense investigator that another man had the gun.

The defense attorney never used that prior statement to challenge her credibility. The jury never learned she had recanted. They also never heard that she allegedly tried to extort money from the defendant’s family. Either detail could have changed the outcome.

Later, a new witness came forward and testified that the shooter was a light-skinned man in a red jacket. The shooter was not De Santus. The Fourth DCA concluded the trial had been irreparably tainted by the attorney’s failures.

The court did not declare the defendant innocent. It reversed the denial of postconviction relief under Florida Rule of Criminal Procedure 3.850 and remanded the case for further proceedings.

How Florida Evaluates Ineffective Assistance of Counsel

Florida courts apply the federal standard from Strickland v. Washington, 466 U.S. 668 (1984), to claims of ineffective assistance. A defendant must show two things:

1. Deficient performance. The attorney’s representation fell below an objective standard of reasonableness.
2. Prejudice. There is a reasonable probability that the outcome would have been different without the errors.

The Florida Supreme Court applied this same framework to a capital first-degree murder case in Hilton v. State, 326 So. 3d 640 (Fla. 2021). The Second District Court of Appeal, which covers Tampa Bay, applied it to a homicide case turning on witness credibility in Jenkins v. State, No. 2D2022-3623 (Fla. 2d DCA 2024), reversing summary denial of an ineffective-assistance claim about misadvice on the right to testify.

De Santus fits this same pattern. The case turned on one witness’s credibility, the attorney’s errors went to the heart of that credibility, and the appellate court found a reasonable probability of a different result.

Anyone Can Call Themselves a “Homicide Attorney”

For death-eligible cases, Florida sets a qualification floor. Florida Rule of Criminal Procedure 3.112 (“Minimum Standards for Attorneys in Capital Cases”) requires lead trial counsel to have:

• At least 5 years of criminal litigation experience
• Lead counsel in at least 9 jury trials of serious and complex cases tried to completion
• Lead or co-counsel in at least 2 cases tried to completion in which the death penalty was sought
• Lead counsel in at least 3 murder trials (or 1 murder trial plus 5 other felony jury trials)
• At least 12 hours of capital-defense continuing legal education within the last 2 years

The Florida Supreme Court amended Rule 3.112 in November 2025 to broaden the definition of “capital trial” beyond first-degree murder to any death-eligible offense. Meeting Rule 3.112 is the floor, not a guarantee. De Santus shows what can happen when nominally qualified counsel still fail at the basics.

5 Questions to Ask Before Hiring a Florida Homicide Attorney

Before you trust your future to anyone claiming to be a homicide attorney, ask these questions directly:

1. How many homicide trials have you personally handled from start to verdict?
2. Have you ever obtained a not-guilty verdict in a homicide case?
3. Who will actually stand beside me in court, you or an associate?
4. What is your record when the State’s evidence seems overwhelming?
5. Are you certified under Florida Supreme Court standards to handle death-penalty cases?

If your lawyer hesitates on any of these questions, keep searching.

Homicide Case Results from The Brancato Law Firm

Each case is unique. Past results do not guarantee future outcomes.

Roommate Homicide: Not Guilty

A man charged with killing his roommate was acquitted after my direct examination showed the shooting was in self-defense. The jury returned a swift not-guilty verdict.

Grandmother Homicide: Charge Reduced

A grandmother initially charged with murder and aggravated child abuse avoided a life sentence after evidence showed the child’s injuries resulted from CPR efforts. The charge was reduced to child neglect with probation.

Second-Degree Murder: Reduced to Manslaughter

A jury found that my client’s shooting of his friend, while not exactly self-defense, was not “depraved mind” second-degree murder. The result was a significantly reduced sentence.

Frequently Asked Questions

Why was the De Santus conviction reversed?

The Fourth DCA found that the defense attorney’s combined errors (failing to use key impeachment evidence and failing to advise the client about testifying) violated the right to a fair trial. The court concluded these were not minor mistakes but fundamental failures that tainted the entire proceeding.

What is impeachment evidence?

Impeachment evidence challenges a witness’s credibility. In De Santus, the key witness had previously told a defense investigator that someone else, “Gangsta Baby,” had the gun. That prior inconsistent statement could have undermined her entire testimony, but the attorney never used it.

How do I verify an attorney’s homicide experience in Florida?

Ask directly: how many homicide trials have you handled to verdict? Request specific case outcomes. Check whether they meet Florida Rule of Criminal Procedure 3.112 qualifications for capital cases. If they hesitate or deflect, that tells you something.

Will the attorney I hire actually handle my case?

Ask before hiring. Some firms advertise experienced partners but assign cases to junior associates. At The Brancato Law Firm, every homicide case is handled by a senior trial attorney, not by junior associates.

What is Florida Rule 3.112?

Florida Rule of Criminal Procedure 3.112 sets the minimum qualifications for attorneys appointed to capital cases in Florida. The Florida Supreme Court most recently amended it in November 2025 to broaden which cases count as “capital.” Meeting the rule is the floor for capital appointments, not a complete measure of an attorney’s preparation.

How long do I have to challenge a Florida murder conviction for ineffective assistance?

Florida Rules of Criminal Procedure 3.850 (non-capital sentences) and 3.851 (capital sentences) generally require an ineffective-assistance motion within two years of the final judgment, with limited exceptions. Postconviction motions are time-sensitive, so anyone considering one should consult counsel quickly.

Facing Homicide Charges in Tampa Bay?

The De Santus case shows what happens when preparation fails. A homicide trial demands experience, judgment, and attention to every detail. Anything less risks a lifetime behind bars.

I’m Tampa Attorney Rocky Brancato. For more than 25 years, I have defended serious felony and homicide cases throughout Tampa Bay. As a former member of major-crimes and sex-crimes units in Tampa’s largest criminal defense office, I have the perspective that only decades in the courtroom can bring. Read more on our Tampa Homicide Attorney page.

I keep my caseload low so every client receives the preparation their case demands. If I’m too busy or it’s not the right fit, I’ll tell you. I won’t take a case I can’t handle properly.

Don’t assume every “homicide attorney” has the experience your life demands. Verify it before you hire.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Oquendo v. State, SC2023-0807 (Fla. Oct. 9, 2025)

In Oquendo v. State, the Florida Supreme Court clarified an important question for anyone claiming self-defense—especially military veterans or trauma survivors. The ruling opens the door to PTSD evidence but also establishes clear requirements for how that evidence must be presented.

Florida’s Two-Part Self-Defense Test

The distinction matters because PTSD evidence alone won’t justify self-defense. The attorney must tie it directly to both parts of the legal test. Once the defense makes a sufficient showing, the State must disprove self-defense beyond a reasonable doubt.

Why PTSD Matters in Self-Defense Cases

PTSD can cause someone to experience heightened fear, hypervigilance, or automatic fight-or-flight responses. For veterans or others who have survived violence, these reactions are genuine and immediate.

The Court recognized that these factors can be relevant to whether the defendant actually believed their life was in danger—the subjective component of self-defense. However, the jury must also find that the belief was objectively reasonable.

That’s where a skilled trial lawyer becomes essential. It takes strategy, preparation, and experience to present PTSD evidence in a way that satisfies both components of Florida’s law.

What Skilled Defense Counsel Must Do

An attorney’s strategy must go beyond simply introducing a PTSD diagnosis. Success depends on helping jurors understand the defendant’s perception of danger—without violating the “golden rule,” which prohibits asking jurors to imagine themselves in the defendant’s position.

Through careful questioning, visual evidence, and expert testimony, a strong defense can:

1. Show why the defendant genuinely believed deadly force was necessary
2. Highlight the reasonableness of that belief under the circumstances
3. Address psychological effects of trauma without suggesting diminished capacity (which Florida law does not allow)

This approach allows jurors to feel the urgency of the moment—legally, persuasively, and within the rules of evidence.

What This Means for Veterans and Trauma Survivors

For veterans of war, first responders, and others living with PTSD, the Oquendo decision offers a meaningful step toward fairness. It recognizes that not all fear responses are the same—and that a person’s lived experience can shape how they perceive and respond to threats.

Yet the ruling also underscores the need for experienced representation. Without the right legal framing, PTSD evidence can easily be misunderstood or excluded. A seasoned defense attorney must connect the dots between the defendant’s internal belief and what the law considers reasonable.

Frequently Asked Questions

Can PTSD be used as a defense in Florida?

PTSD itself isn’t a standalone defense, but after Oquendo, it can be relevant evidence in a self-defense case. It helps explain why the defendant believed they were in danger—but must be connected to the objective reasonableness standard as well.

What’s the difference between subjective and objective self-defense?

Subjective self-defense asks what the defendant actually believed. Objective self-defense asks whether a reasonably cautious person would have responded the same way. Florida requires both: genuine belief AND reasonable response.

Does this decision help veterans facing criminal charges?

Yes—but only with proper legal strategy. The Court opened the door to PTSD evidence, but without skilled framing, that evidence can be excluded or misunderstood. Veterans need attorneys who understand both combat trauma and Florida’s evidentiary rules.

What is the “golden rule” in Florida trials?

The golden rule prohibits asking jurors to imagine themselves in the defendant’s position. This creates a challenge for PTSD cases—the attorney must help jurors understand the defendant’s perception without explicitly asking them to “put yourself in his shoes.”

Facing Self-Defense Charges in Tampa Bay?

If you or a loved one faces charges involving self-defense—especially a shooting, homicide, or violent confrontation—it’s critical to act quickly. These cases turn on evidence, perception, and presentation.

I’m Tampa Attorney Rocky Brancato. For over 25 years, I have defended clients across Tampa Bay in cases involving self-defense, homicide, and violent crimes. I understand how to present PTSD and trauma evidence within Florida’s evidentiary framework—and how to connect that evidence to both components of the self-defense test.

When your freedom is at stake, experience matters.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Case Background: Probation After Reduced Charges

The defendant faced charges of sexual battery and lewd or lascivious conduct. However, through a plea deal, those charges were reduced to aggravated child abuse and child abuse. He was sentenced to prison followed by probation.

The judge required him to:

• Complete a sex offender treatment program,
• Avoid victims and minors, and
• Follow specific conditions agreed to in court.

Importantly, the court did not impose full sex offender probation, which would have carried far stricter rules.

Florida Probation Conflict Between Written and Oral Sentence

After release, the probation officer attempted to enforce broad restrictions from the written sentencing order. Specifically, the order directed him to “follow all sex offender rules.”

Because of this, the appellate court found a Florida probation conflict. Florida law requires written orders to match oral pronouncements. Otherwise, a defendant faces restrictions that were never part of the official sentence.

Court’s Decision on the Probation Conflict

The Fourth DCA reversed and ordered the trial court to remove the “follow all sex offender rules” condition. The court emphasized:

• Probation must follow what is said in court.
• Written documents cannot expand restrictions.
• Defendants are protected from unlawful probation conflicts.

Why Florida Probation Conflicts Matter

When probation conditions go beyond the oral pronouncement, defendants face unnecessary risks:

• Harsher supervision,
• Greater chance of violation,
• Unfair restrictions not part of their plea.

An experienced attorney can spot and challenge these conflicts quickly.

Protecting Your Future in Florida Courts

Probation conditions should never be harsher than what the judge actually ordered in court. When that happens, defendants and their families face unfair restrictions that were never part of the sentence. In these situations, you deserve immediate help from an attorney who knows how to challenge unlawful probation terms.

That is why at The Brancato Law Firm, P.A., attorney Rocky Brancato draws on more than 25 years of criminal defense experience, including years in an elite sex crimes unit, to protect clients and fight for fair outcomes.

Contact us today at (813) 727-7159 for a confidential consultation.

The Florida Fourth District Court of Appeal recently granted Stand Your Ground immunity to a Palm Beach defendant charged with second-degree murder. In Spencer v. State (4D2025-0023), the court ruled that prosecutors failed to disprove self-defense by clear and convincing evidence.

This case demonstrates why Stand Your Ground immunity matters for anyone facing violent crime charges in Florida. Moreover, it illustrates how the burden of proof works in self-defense cases—and why experienced legal representation is essential. I am Tampa Criminal Defense Attorney Rocky Brancato. For over 25 years, I have provide top level criminal defense services to the citizens of Tampa Bay. My firm, the Brancato Law Firm, P.A., can help change the narrative if you used self defense and stood your ground!

Case Background: Palm Beach Stand Your Ground Claim

Ivin Spencer was charged with second-degree murder after a deadly confrontation in a Palm Beach parking lot. Although Spencer admitted to the shooting, he argued that Florida’s Stand Your Ground law applied to his case.

The Victim’s History

The evidence showed that the victim, Brandon Bell, had a history of making threats and was known to carry a gun. Consequently, Spencer had reason to believe that any confrontation with Bell could turn deadly.

The Confrontation

On the day of the shooting, Bell aggressively advanced toward Spencer while yelling threats. Spencer, who had health limitations that put him at a physical disadvantage, feared for his safety. As a result, he fired a single shot.

After the Shooting

Immediately after the incident, Spencer called 911 and cooperated fully with police. This behavior is consistent with someone acting in self-defense rather than with criminal intent.

Why the Court Granted Stand Your Ground Immunity

The appellate court ruled that prosecutors failed to meet their burden of proof. Specifically, the State could not prove by clear and convincing evidence that Spencer’s use of force was unjustified.

Together, these facts supported the conclusion that a reasonable person in Spencer’s position would believe deadly force was necessary to prevent imminent death or great bodily harm.

Lessons from This Florida Self-Defense Ruling

Stand Your Ground Can Dismiss Charges Before Trial

Unlike an acquittal at trial, Stand Your Ground immunity dismisses charges entirely. As a result, the defendant avoids the risk, expense, and uncertainty of a jury trial. This makes pursuing immunity a critical strategy in appropriate cases.

The State Carries a Heavy Burden

Once a defendant raises Stand Your Ground, prosecutors must disprove self-defense by clear and convincing evidence. This is a higher standard than preponderance of the evidence, though lower than beyond a reasonable doubt. Nevertheless, it places significant pressure on the State.

Context Shapes Legal Outcomes

Prior threats, the victim’s reputation, physical disparities, and circumstances at the scene all matter. Therefore, thorough investigation and presentation of context is essential to a successful Stand Your Ground claim.

Frequently Asked Questions

What is Stand Your Ground immunity in Florida?

Stand Your Ground immunity allows a defendant to have criminal charges dismissed before trial if they can show they used force in lawful self-defense. Under Florida law, a person has no duty to retreat if they are in a place where they have a right to be.

Who has the burden of proof in a Stand Your Ground hearing?

Once the defendant raises Stand Your Ground, the burden shifts to the prosecution. The State must prove by clear and convincing evidence that the defendant’s use of force was not justified. If prosecutors cannot meet this burden, the court must grant immunity.

Can Stand Your Ground apply to murder charges?

Yes, absolutely. Stand Your Ground immunity can apply to any charge where self-defense is raised, including first-degree murder, second-degree murder, and manslaughter. The Spencer case demonstrates that even second-degree murder charges can be dismissed through Stand Your Ground.

What evidence helps a Stand Your Ground claim?

Helpful evidence includes prior threats from the victim, the victim’s violent reputation, physical disparity between the parties, witness testimony about the confrontation, and the defendant’s post-incident conduct such as calling 911 and cooperating with police.

Is Stand Your Ground the same as self-defense?

Stand Your Ground is a specific type of self-defense claim under Florida law. The key difference is that Stand Your Ground eliminates the duty to retreat. In other words, you do not have to try to escape before using force if you are lawfully present at the location.

How do I pursue Stand Your Ground immunity?

Your attorney files a motion for Stand Your Ground immunity, and the court holds a hearing. At that hearing, the prosecution must prove that your use of force was not justified. If they fail, the charges are dismissed. This process requires experienced legal representation.

More on Self-Defense

• Tampa Attorney for Self-Defense
• Tampa PTSD and Self-Defense
• Tampa Criminal Mental Health Attorney
• Tampa Gun Crime Attorney
• Tampa Violent Crime Attorney
• Tampa Murder Attorney

Protect Your Rights with a Florida Criminal Defense Lawyer

If you face violent crime charges where self-defense may apply, you need an attorney who understands how to argue for Stand Your Ground immunity in Florida. At The Brancato Law Firm, P.A., attorney Rocky Brancato has more than 25 years of experience defending homicide, sex crimes, and major felonies throughout Tampa Bay.

Moreover, Attorney Brancato proactively pursues Stand Your Ground immunity hearings for eligible cases. Do not wait until trial to raise self-defense—the right strategy can dismiss charges entirely.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

Background of Noem v. Vasquez Perdomo

In early June 2025, the Department of Homeland Security launched “Operation At Large” in Los Angeles. Armed and masked agents carried out raids at bus stops, car washes, farms, and day-labor sites. According to court filings, many people were detained before agents asked a single question25a169_5h25.

The lawsuit argued that individuals were being stopped based only on:

• Apparent race or ethnicity
• Speaking Spanish or accented English
• Being in certain locations such as tow yards or parks
• Performing low-wage jobs such as landscaping or car washing

The district court ruled that these factors, even when combined, did not amount to reasonable suspicion under the Fourth Amendment. It issued a temporary restraining order halting the raids while the case continued.

The Supreme Court’s Decision

The government appealed, and the Supreme Court stepped in. By granting a stay, the Court allowed immigration officers to continue the challenged tactics for now.

Justice Kavanaugh’s Concurrence

Justice Brett Kavanaugh explained that immigration officers may briefly detain individuals if they have reasonable suspicion of illegal presence. He argued that in areas with high numbers of undocumented immigrants, factors such as language, job type, and presence at day-labor sites can be relevant. He also questioned whether the plaintiffs had legal standing to seek broad injunctive relief.

Justice Sotomayor’s Dissent

Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, strongly disagreed. She described evidence of U.S. citizens being violently detained. She emphasized that using race, language, and occupation sweeps in millions of innocent people, which the Fourth Amendment forbids. In her view, the Court’s stay unfairly sanctioned discriminatory seizures.

Why the Noem v. Vasquez Perdomo Immigration Case Matters

The Noem v. Vasquez Perdomo Supreme Court immigration case affects more than legal theory—it changes daily life for many.

• For immigrants: The ruling gives agents more freedom to conduct raids in cities far from the border.
• For U.S. citizens and legal residents: Latino workers and Spanish speakers risk detention unless they can quickly prove their status.
• For the courts: The decision highlights the Supreme Court’s increasing reliance on emergency rulings, often called the “shadow docket.”

These developments raise serious concerns about constitutional protections, equal treatment, and the balance of power between courts and the executive branch.

What Comes Next?

The Ninth Circuit Court of Appeals will continue hearing the case, with arguments scheduled later this month. If the Ninth Circuit upholds the district court’s injunction, the Supreme Court may take the case on full review. Until then, the stay remains in place, allowing federal agents to conduct raids based on the disputed factors.

Key Takeaway

The Noem v. Vasquez Perdomo Supreme Court immigration case underscores how immigration policy intersects with constitutional rights. The Court’s stay tips the balance toward enforcement, at least for now. But the final outcome will depend on future rulings. Communities across Los Angeles—and the country—will be watching closely.

How The Brancato Law Firm, P.A. Can Help

If you or a loved one believe you were unlawfully stopped based only on appearance, language, or location, the Constitution may still provide important protections. Even in light of the Supreme Court’s ruling, evidence obtained through a stop based on a mere hunch—rather than clear, articulable suspicion—may be challenged in court.

At The Brancato Law Firm, P.A., we have over 25 years of experience fighting unlawful searches and seizures. Our firm can review whether a motion to suppress may be filed in your case, potentially excluding evidence obtained in violation of your rights.

Call us today at (813) 727-7159 to schedule a confidential consultation.

Florida’s gun laws have changed. On September 10, 2025, the First District Court of Appeal in McDaniels v. State, 1D2023-0533 (Fla. 1st DCA 2025), struck down Florida’s decades-old ban on openly carrying firearms. The Attorney General has declined to appeal, which means the ruling stands: open carry is now legal in Florida.

However, this does not mean you can carry a firearm everywhere. Significant restrictions remain under Florida Statute 790.06(12) and federal law. Understanding where you can and cannot carry is essential to avoiding arrest.

At The Brancato Law Firm, our goal is not to take sides on whether this change is good or bad. Our focus is on making sure you understand the law as it now stands—and to remind you that if you are arrested under Florida’s gun laws, your rights deserve a strong defense. We are your Tampa Gun Crimes Law Firm.

What the Court Decided in McDaniels v. State

The First District Court of Appeal struck down Florida’s open carry ban, finding it violated the Second Amendment. The court’s reasoning:

• The Constitution protects both open and concealed carry
• History shows open carry was the traditional and accepted way of bearing arms
• Florida’s blanket ban went too far by prohibiting it altogether

This decision was guided by the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, which established that gun regulations must be consistent with the nation’s historical tradition of firearm regulation.

What Was the Old Florida Open Carry Law?

Since 1987, Florida law made it a crime to openly carry a firearm in public. Violations could result in up to 60 days in jail and fines. The only exceptions were narrow—such as while hunting, fishing, or camping, or while traveling to and from those activities.

That law is now unconstitutional. Floridians may openly carry firearms in public, subject to the location restrictions that still apply.

Where You Still Cannot Carry a Firearm

Open carry is now legal, but location restrictions remain in full effect. Under Florida Statute 790.06(12) and federal law, carrying a firearm in any of the following locations can still lead to arrest:

Private Property Rules

Private business owners can set their own rules regarding firearms. If a business posts “No Firearms” signs or asks you to leave, you must comply. Refusing to leave after being asked can result in trespass charges—even if you are otherwise carrying legally.

Who Still Cannot Carry a Firearm

The McDaniels ruling changed how you can carry, not who can carry. The following individuals remain prohibited from possessing firearms under Florida and federal law:

• Convicted felons (F.S. 790.23)
• Individuals under 21 years of age
• Chronic or unlawful users of controlled substances
• Individuals subject to domestic violence injunctions (F.S. 790.233)
• Individuals adjudicated mentally defective or Baker Act committed
• Individuals subject to active Risk Protection Orders (F.S. 790.401)

Frequently Asked Questions

Is open carry now legal in Florida?

Yes. Following the McDaniels v. State ruling and the Attorney General’s decision not to appeal, open carry is now legal in Florida. However, location restrictions under F.S. 790.06(12) still apply.

Can I carry in a bar or nightclub?

No. Firearms remain prohibited in any portion of a business licensed to serve alcohol for on-site consumption.

Can I carry at schools or school events?

No. You cannot carry at elementary, middle, or high schools, their administration buildings, or school sporting events. Colleges and universities are also off-limits.

Can I carry at a courthouse or government meeting?

No. Courthouses, courtrooms, polling places, and government board meetings remain prohibited locations.

What about airports?

You cannot carry inside passenger terminals beyond TSA security checkpoints. Firearms must be properly checked if you are flying.

What if I accidentally walk into a prohibited location?

Ignorance of the law is not a defense. You could still face arrest. Always know where you can and cannot carry before doing so.

What if a private business does not allow firearms?

Private business owners can prohibit firearms on their property. If asked to leave, you must comply or risk trespass charges.

Arrested for a Gun Offense in Tampa?

If you or someone you care about has been arrested under Florida’s gun laws—whether for open carry, concealed carry, or another firearm-related offense—you have rights worth fighting for.

At The Brancato Law Firm, attorney Rocky Brancato brings over 25 years of trial experience to every case. We do not take a position on whether gun laws are “right” or “wrong.” Our job is to stand with you in court and fight back if your constitutional rights have been violated.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Pasco Counties

On September 5, 2025, the Florida Sixth District Court of Appeal issued a decision in Thomas Andrew Vana, Jr. v. State of Florida that directly addresses enhanced penalties under drug laws. This Florida drug conviction reversed park ownership ruling shows how missing evidence on park ownership can undo serious enhancements tied to drug cases.

Background of the Florida Drug Conviction Reversed Park Ownership Case

Thomas Vana was charged with eighteen offenses tied to four separate drug transactions in 2018. Among these charges were six counts of selling controlled substances within 1,000 feet of a municipal park, which carried far harsher penalties under section 893.13(1)(c), Florida Statutes (2018).

At trial, the State presented testimony from confidential informants and law enforcement officers who said Vana’s home was near Lake Kennedy Community Park. A property broker for the City of Cape Coral testified that the City owned the park, but her testimony did not establish when that ownership began. Despite this gap, the trial court denied Vana’s motion for judgment of acquittal and allowed the jury to convict on the enhanced charges.

The Appellate Court’s Analysis

On appeal, the Sixth DCA reviewed the denial of Vana’s motion for judgment of acquittal de novo. The panel emphasized that while circumstantial evidence can support a conviction, the State must prove each statutory element beyond a reasonable doubt.

Here, the enhanced charges depended on proving that the sales occurred within 1,000 feet of a state, county, or municipal park. The testimony failed to show that Lake Kennedy Community Park was municipally owned in 2018, when the offenses occurred. Testimony about ownership in later years did not satisfy the State’s burden.

The court cited similar rulings, including Cox v. State, 764 So. 2d 711 (Fla. 1st DCA 2000), and Lemaster v. State, 162 So. 3d 56 (Fla. 4th DCA 2014), which held that proof of a location’s status at the time of trial cannot substitute for proof of its status at the time of the alleged offense.

Outcome

The court affirmed Vana’s remaining convictions but reversed the six enhanced counts tied to park proximity. It remanded the case for entry of judgment on the lesser-included offenses of simple sale of a controlled substance and for resentencing.

Holding: Affirmed in part, reversed in part, and remanded with instructions.

Why This Case Matters

This ruling highlights the precision required in proving sentencing enhancements under Florida drug laws. A conviction for selling drugs near a park, school, or church can double or even triple the penalties. But the State must meet its burden with evidence tied to the actual date of the offense, not assumptions or later testimony.

Final Note

This update is provided by The Brancato Law Firm, P.A. Our firm represents individuals facing serious drug charges and other criminal cases in Tampa, Hillsborough, Pinellas, and Pasco Counties. For a free, confidential strategy session, please call (813) 727-7159.

Why Breath Test Machine Maintenance Matters

When police arrest someone for DUI in Florida, prosecutors typically rely on the Intoxilyzer 8000 to prove impairment. Indeed, this breath testing machine serves as the gold standard for measuring blood alcohol content. However, its results depend entirely on the maintenance and calibration procedures that keep it accurate.

If technicians fail to properly maintain the Intoxilyzer, courts can exclude its results from evidence. As a result, this exclusion can mean the difference between a conviction and a dismissal.

The Case: State v. Kilburn, Marano, and Depauw

In this consolidated appeal, three DUI defendants challenged their breath test results on identical grounds: specifically, the Intoxilyzer 8000 used to test them had undergone an unauthorized repair.

The critical fact proved simple: FDLE inspectors replaced the breath tube on the Intoxilyzer 8000. However, under Florida’s rules, only the manufacturer or an approved repair facility may perform such repairs. Because the repair violated Florida’s administrative rules, the court concluded that technicians had not properly maintained the machine. Therefore, the presumption of accuracy that normally applies to breath test results disappeared.

Common Grounds to Challenge Intoxilyzer Results

The Kilburn case focused on unauthorized repairs. However, defense attorneys can challenge Intoxilyzer 8000 results on many other grounds in Florida DUI cases:

How an Experienced DUI Attorney Investigates Breath Test Evidence

At The Brancato Law Firm, P.A., we examine every detail of DUI cases. Specifically, we investigate the complete maintenance and inspection history of the Intoxilyzer 8000 used to test you. Furthermore, this investigation includes:

• First, requesting all maintenance logs and repair records for the specific machine
• Second, reviewing FDLE inspection reports for compliance with Florida Administrative Code
• Third, verifying the breath test operator held valid certification at the time of testing
• Additionally, examining video evidence to confirm officers followed the 20-minute observation period
• Moreover, identifying any unauthorized repairs or gaps in the maintenance chain
• Finally, deposing FDLE inspectors and breath test operators when necessary

As a result, this detailed investigation frequently reveals issues that provide grounds to suppress breath test evidence—just as the defense attorneys accomplished in Kilburn.

Frequently Asked Questions: Intoxilyzer Maintenance and DUI Defense

Can courts throw out breath test results if technicians failed to properly maintain the Intoxilyzer?

Yes. As the Kilburn case demonstrates, Florida courts will exclude Intoxilyzer 8000 results if the State cannot prove technicians maintained the machine according to Florida Administrative Code requirements. Specifically, this includes proper inspections, authorized repairs, and calibration procedures.

What qualifies as an “unauthorized repair” on an Intoxilyzer 8000?

Under Florida law, only the manufacturer or an approved repair facility may perform repairs on the Intoxilyzer 8000. In Kilburn, for example, FDLE inspectors replaced the breath tube themselves—a repair they lacked authorization to perform. Because this violated Florida’s rules, the court excluded the breath test results.

How often must FDLE inspect the Intoxilyzer 8000 in Florida?

Florida Administrative Code Rule 11D-8 requires FDLE to inspect the Intoxilyzer 8000 at least once per calendar month. Therefore, if gaps exist in the inspection records—or if officers used the machine during a period when FDLE missed inspections—this can provide grounds to challenge the results.

What is the 20-minute observation period?

Before administering a breath test, officers must observe the subject for at least 20 minutes. During this time, they must ensure the subject does not eat, drink, smoke, vomit, or put anything in their mouth. Essentially, this prevents mouth alcohol contamination from affecting the results. Consequently, failure to properly conduct this observation can provide grounds to challenge the test.

Can I request the maintenance records for the Intoxilyzer used in my case?

Yes. Your defense attorney can subpoena all maintenance logs, repair records, and inspection reports for the specific Intoxilyzer 8000 that officers used to test you. Indeed, these records prove essential for identifying potential grounds to challenge the breath test results.

What happens if the court excludes breath test results in my DUI case?

Without breath test results, prosecutors must rely on other evidence—such as field sobriety tests, officer observations, and video footage. As a result, this often leaves them with a significantly weaker case. Depending on the remaining evidence, the State may reduce charges or dismiss them entirely.

Does the officer’s certification affect breath test validity?

Yes. The breath test operator must hold valid certification at the time of testing. Therefore, if the officer’s certification had expired or the officer obtained it improperly, this can provide grounds to challenge the breath test results.

Should I refuse a breath test in Florida?

Refusing a breath test in Florida carries significant consequences. Specifically, implied consent laws trigger automatic license suspension and a separate charge apart from the DUI. However, every case presents different circumstances. If police have already arrested you for DUI—whether you took the test or refused—contact an experienced DUI defense attorney immediately to discuss your options.

Related:

• Tampa DUI Lawyer – Full-service DUI defense
• Trenton’s Law – Enhanced DUI and BUI Penalties
• Fight Your DUI Charge: Proven Defense Strategies
• How to Challenge Field Sobriety Exercises in Tampa

Snowden v. State, No. 1D2023-1998 (Fla. 1st DCA July 2, 2025)

A Florida appeals court recently overturned a murder conviction because police ignored the suspect’s Miranda rights when he made clear requests for a lawyer. The First District Court of Appeal’s decision in Snowden v. State highlights a core constitutional protection—your right to legal counsel. If police violated your Miranda rights, Tampa Attorney Rocky Brancato of the Brancato Law Firm, P.A. can help.

Three Requests for a Lawyer—Police Kept Talking

What Happened in the Interview Room

Daquavion Snowden was charged with first-degree murder following a fatal shooting in Escambia County. Immediately after his arrest, law enforcement officers placed him in an interview room. At the time, he was shirtless, restrained in chains, and clearly under the influence of narcotics. Furthermore, the officers exited the room after telling him they would return shortly.

While waiting for their return, Snowden became physically ill and vomited. Staff moved him so they could clean the facility. It was during this transition that he asked his first clear question regarding legal counsel. However, the police did not stop to clarify his request or provide an attorney. Instead, they chose to resume the interrogation an hour later.

During the subsequent questioning, the officers continued to press him for information. In addition to the relentless questioning, they offered vague promises of leniency. Specifically, they suggested he could “minimize his involvement” if he continued to speak. Consequently, Snowden remained cold and confused without any legal protection.

The Miranda Rule: What Police Must Do

What the Court Ruled

The First DCA ruled that Snowden’s statements should have been suppressed. The judges found that all three requests were clear and unequivocal—meaning officers should have immediately stopped questioning.

Even worse, the court found that Snowden’s later decision to continue talking was likely the result of police pressure. Officers made repeated comments about “helping himself,” mentioned “mitigating factors,” and left him isolated for hours. This created a coercive environment.

The court reversed the murder conviction because police violated Miranda.

Frequently Asked Questions

What happens if police keep questioning me after I ask for a lawyer?

Any statements you make after invoking your right to counsel may be suppressed—meaning they cannot be used against you at trial. In Snowden, this suppression led to the entire murder conviction being reversed.

How clearly do I need to ask for a lawyer?

Your request must be clear and unequivocal. Phrases like “I need a lawyer” or “I want to talk to my attorney” are sufficient. The court in Snowden found that even “Is there any way I can talk to my lawyer?” was clear enough to invoke the right.

Can police pressure me to keep talking?

No. Once you ask for a lawyer, police cannot try to persuade you to waive that right. Tactics like promising help, mentioning “mitigating factors,” or suggesting you can “minimize involvement” may constitute coercion—and any resulting statements may be suppressed.

Does this apply to all criminal cases in Florida?

Yes. Miranda rights apply to all criminal interrogations in Florida—from misdemeanors to murder. If police violate these rights, the remedy is suppression of the illegally obtained statements.

Why This Matters for Tampa Bay Defendants

If police ignore your request for a lawyer, your statements may be thrown out. The court’s ruling in Snowden sends a clear message: law enforcement must respect your rights.

At The Brancato Law Firm, we review every interaction between police and my clients. If you were interrogated after asking for a lawyer, we may be able to suppress key evidence in your case. These details often make the difference between conviction and acquittal.

Were Your Miranda Rights Violated?

If you were questioned without a lawyer after clearly asking for one, the evidence may be inadmissible. You have the right to remain silent and the right to legal protection.

I’m Tampa Attorney Rocky Brancato. For over 25 years, I have defended clients throughout Tampa Bay in serious felony cases. I understand how to identify Miranda violations and how to use them to protect my clients’ rights.

Don’t let police pressure cost you your future.

Call (813) 727-7159 for a Confidential Consultation

The Brancato Law Firm, P.A.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Serving Hillsborough, Pinellas, and Polk Counties