“Who Are You Going to Believe?” Proof vs. Police Testimony

By: John Guidry

“Who are you going to believe: me, or your own eyes?” – Eddie Murphy

Police work is only easy in a police state. Our founding fathers designed a system where the government has a heavy burden of proof.

If there is blood at a crime scene, CSI units are scrubbing the floor with laser toothbrushes looking for DNA. But in “minor” crimes—like Possession of Alcohol by a Minor—there is almost never physical evidence.

• No lab tests.
• No evidence bag.
• Just a cop saying, “Trust me, I know what I saw.”

So, how far can a police department get when the only proof is officer testimony? As it turns out, they can get disturbingly far—even based on nothing more than “foam.”

Charged with a crime based on zero physical evidence?

Officer testimony isn’t facts. Call John today at (407) 423-1117.

The Absurdity: Sand and Salt Water

Usually, for alcohol possession, the police never preserve the liquid. Courts have held they don’t have to; witness testimony that the liquid “smelled and looked” like alcohol is enough (A.A. v. State).

But sometimes, the police get it wrong. In P.N. v. State, 976 So. 2d 90 (Fla. 3d DCA 2008), a minor was arrested for holding a beer bottle.

• The Catch: When the officer seized the bottle, it contained sand and salt water.
• The Arrest: The officer arrested him anyway. (Your taxpayer dollars at work).
• The Ruling: The Appeals Court eventually overturned the conviction, explaining to the State that possessing a bottle that once contained alcohol—but now contains sand—is not a crime.

The Case: R.A.W. v. State (The Magic Foam)

This brings us to the main event: R.A.W. v. State, 92 So. 3d 312 (Fla. 1st DCA 2012).

• The Scene: A 15-year-old girl was on a sandbar. As police approached, a beer can tipped over.
• The Liquid: It was dark and “foamed up like beer.”
• The Lack of Evidence: The officer did not smell the liquid. He did not taste it. He did not keep the can. The teen denied drinking.

The Conviction: The officer testified that the “foaming action,” combined with the beer can, was enough to prove it was alcohol. The court upheld the conviction, ruling:

“There is merit to the common sense notion… that a liquid flowing from a spilled beer can is probably beer, particularly when it looks and appears to foam like beer.”

“Concurring Dubitante”: A Judge with Doubts

The unique thing about this case isn’t the facts; it’s the opinion written by Judge Scott Makar. He agreed to uphold the conviction (because he had to follow legal precedent), but he labeled his opinion “Concurring Dubitante.”

• What does that mean? It means the Judge doubted the legal point but wasn’t willing to say it was technically wrong.

Judge Makar took the government’s burden of proof seriously. He footnoted chemistry articles regarding “beer foam physics” and acknowledged that:

“Kids do goofy things like putting soda in a beer bottle to act cool.”

While the teen lost, the opinion highlights a terrifying reality: You can be convicted of a crime based on how a puddle bubbles.

John’s 2026 Update: The “Liquid Death” Defense

Note: The world has changed since 2012. Beverage marketing is different, and so is police technology.

1. The “Liquid Death” Problem In 2012, if you held a tallboy can, it was probably beer. In 2026, water brands like Liquid Death, energy drinks like Monster, and craft sodas come in cans that look identical to alcohol.

• The Defense: We argue that “looking like a beer can” is no longer probable cause. A dark liquid that foams? That describes Root Beer. That describes Coke.
• Without a smell test or a lab test, the R.A.W. logic falls apart in the modern beverage market.

2. Body Cams vs. “Magic Foam” In R.A.W., the officer just testified about the foam. Today, we pull the Body Cam.

• If the video shows the liquid just spilling without a specific “head” of foam, or if the can is clearly a non-alcoholic brand the officer misidentified, the case crumbles.
• Testimony is easily impeached when we have 4K video of the incident.

3. Civil Citations Florida has pushed hard to issue Civil Citations to juveniles for first-time alcohol offenses rather than arresting them. If your child was arrested instead of given a citation, we fight to get the charge downgraded or dismissed based on the Sheriff’s own policies.

Don’t Let Them Guess Your Guilt

If you or your child were charged based on an officer’s “guess” about what was in a cup or can, do not accept the charge. We make them prove it was actually alcohol.

Call me at (407) 423-1117. Let’s demand the evidence.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.