Facing a Breath Test DUI charge can be overwhelming and intimidating. From the moment you see the flashing red and blue lights to being asked to step out of the vehicle, you may not be thinking straight. Complicating matters is the fact that the laws behind breath testing can be hard to remember, especially during a traffic stop.
Melbourne Breath Test DUI Attorney
Breath testing is not an infallible method, but it is one that is used frequently by law enforcement to prove DUI status during trial. If you have taken a breath test and failed, whether at a point of 0.08, or higher, you need to contact a defense attorney immediately.
Contact The Law Offices of Mark Germain by calling (321) 775-3559 or submit an online form today to start building your DUI defense.
Mark Germain serves Brevard County, Indian River County, Volusia County, and Osceola County.
What Is a Breath Test DUI?
According to Florida Statutes Section 316.193(1)(c), to convict a person of a Breath Test DUI, the prosecutor must prove the following:
- The person was driving or in actual physical control of a vehicle.
- The person’s breath-alcohol level was 0.08 or more grams of alcohol per 210 liters of breath at the time they were driving or in control of the vehicle.
Under Florida Statutes Section 316.1934, the amount of alcohol in a driver’s blood or breath creates certain legal assumptions about whether or not they were impaired:
- Blood/Breath Alcohol Level 0.05 or less:
If the individual’s alcohol level is 0.05 or lower, the law assumes they were not impaired by alcohol. - Blood/Breath Alcohol Level between 0.05 and 0.08:
If the alcohol level is between 0.05 and 0.08, the law does not make an assumption either way. The court will consider other evidence, such as how the person was driving or how they performed on field sobriety tests, to determine if they were impaired. - Blood/Breath Alcohol Level 0.08 or higher:
If the alcohol level is 0.08 or higher, the law assumes the individual was impaired and under the influence of alcohol.
Other evidence, such as witness testimony or test results, can also be considered in court, and the alcohol test must be conducted properly for the results to be valid.
What Are the Penalties for a DUI?
| Offense | Penalty |
| First DUI | Misdemeanor Fine: $500 to $1,000 Imprisonment: Up to 6 months Probation: Up to 1 year, including a minimum of 50 hours of community service Vehicle Impoundment: 10 days |
| First DUI with BAC of 0.15 or Higher | Misdemeanor Fine: $1,000 to $2,000 Imprisonment: Up to 9 months Ignition Interlock: Mandatory for at least 6 months on all vehicles owned or operated by the individual |
| First DUI with a Minor in the Vehicle | Misdemeanor Fine: $1,000 to $2,000 Imprisonment: Up to 9 months Ignition Interlock: Mandatory for at least 6 months on all vehicles owned or operated by the individual |
What Are Potential Alternatives to Incarceration?
Probation: Individuals convicted of DUI may be placed on probation. During probation, the individual is required to meet certain conditions set by the court, which may include regular check-ins with a probation officer, abstaining from alcohol, and attending required programs.
Substance Abuse Education and Treatment: As a condition of probation, individuals may be required to complete a substance abuse education course through a licensed DUI program. This program includes an evaluation, and if necessary, a referral to a treatment provider. Completion of this program is mandatory, and failure to do so can result in further penalties, including loss of driving privileges.
Community Service: The court may order the individual to complete a minimum of 50 hours of community service. If the court finds that performing community service would create a hardship, it may allow the individual to pay $10 for each hour instead.
Vehicle Impoundment or Immobilization: The court may order the impoundment or immobilization of the vehicle used during the DUI offense. For a first-time offender, this typically lasts for 10 days, but longer periods apply for repeat offenses. The vehicle cannot be used by anyone, including family members, during the impoundment period.
Ignition Interlock Device: For second or subsequent DUI convictions, or if the individual’s blood alcohol level was 0.15 or higher, the court may require the installation of an ignition interlock device on any vehicle they operate. This device prevents the vehicle from starting unless the driver provides a breath sample that is below the legal limit.
Qualified Sobriety and Drug Monitoring Program: The court may order participation in a sobriety and drug monitoring program. This program includes regular testing for alcohol or drugs and is an additional requirement alongside other penalties like the ignition interlock device.
What Are Defenses in Breathalyzer DUI Cases?
Improper Testing Procedures: Breathalyzer machines require routine maintenance to ensure accurate results, and if the machine used was not maintained in accordance with FDLE guidelines, the reliability of the test results could be called into question. Florida law enforcement uses the Intoxilyzer 8000 when they suspect that someone is driving under the influence. In DUI cases involving breath tests, attorneys in Florida have successfully argued to exclude breath test results until the source code for the Intoxilyzer 8000 is provided. Without access to this code, it can be difficult to verify whether the machine is functioning accurately. If this code isn’t made available, it can lead to the exclusion of breath test results in court.
Improper Calibration: Breath test machines like the Intoxilyzer 8000 must be regularly inspected and calibrated to ensure they are working properly. Any issues with the machine’s monthly or annual inspections could cause inaccuracies in the test results. If the machine wasn’t properly maintained or calibrated according to set rules, the breath test results might be unreliable.
Lack of Observation Period: Florida law requires that the officer observe the person for at least 20 minutes before administering the breath test. If the officer fails to meet this requirement, the results may be questioned.
Interference from Substances: Some substances, such as mouthwash, cough syrup, or even certain medical conditions, can affect the breathalyzer results. The defense may argue that these factors caused a falsely high reading.
Inadequate Training of the Officer: If the officer administering the breath test lacked proper training or permit, the results may be challenged. The defense can argue that the officer did not have the necessary skills to conduct the test correctly.
Medical Conditions: Certain medical conditions, such as GERD (gastroesophageal reflux disease), diabetes, or even dental issues, can produce breath test results that inaccurately suggest intoxication. The defense can use medical evidence to support this claim.
Improper Handling of Test Results: The defense may argue that the test results were mishandled or incorrectly recorded. This could involve errors in the paperwork, data entry, or the chain of custody of the test results.
What Can a DUI Attorney Do For Me?
Facing a DUI charge, especially when a breath test is involved, can be overwhelming. A DUI lawyer can provide important guidance and support throughout the process.
First of all, your lawyer will carefully review the details of your arrest, including the breath test results. They will look at how the test was conducted, whether the equipment was properly maintained, and if the test was administered correctly. This is important because any errors or inconsistencies could impact the validity of the test results.
Your lawyer will also explain your rights and options in a way that you can understand, without legal jargon. They will keep you informed about what to expect at each stage, whether it’s preparing for court or discussing possible outcomes. Having a clear understanding of your situation can make a big difference in how you approach your case.
In court, your lawyer will be your advocate. They will question the evidence presented by the prosecution, including the breath test results, and argue on your behalf. Their goal is to challenge the charges against you and seek the best possible outcome, whether that means negotiating a plea deal, fighting for reduced charges, or fighting for a dismissal.
Additionally, your lawyer will handle all the paperwork, court filings, and communication with the court and prosecution. This not only helps to keep your case on track but also allows you to focus on your personal life while they manage the legal process.
Frequently Asked Questions
What happens if someone refuses to take a breath test in Florida? Refusing to take a breath test in Florida results in an automatic suspension of the driver’s license for 1 year on the first refusal. A second refusal leads to an 18-month suspension and is classified as a first-degree misdemeanor. The refusal can also be used against the individual in court as evidence of impairment.
Can someone be convicted of DUI if their breath-alcohol level is below 0.08? Yes, a person can still be convicted of DUI if their breath-alcohol level is below 0.08, especially if other evidence, such as erratic driving or failing field sobriety tests, suggests impairment. The prosecution can argue that the person was under the influence to the extent that their normal faculties were impaired.
Is it possible to get a hardship license after a DUI conviction in Florida? Yes, after a DUI conviction in Florida, a person may be eligible for a hardship license, which allows them to drive for essential purposes like work, school, or medical appointments. The eligibility depends on factors such as whether it’s a first-time offense and if the individual has completed a DUI school.
Can someone face additional charges if they cause an accident while driving under the influence? Yes, if a person causes an accident while driving under the influence, they can face additional charges such as property damage, personal injury, or DUI manslaughter, depending on the severity of the accident.
How do the police decide whether to administer a breath test? Police typically administer a breath test if they have reasonable suspicion that a driver is under the influence of alcohol. This suspicion can arise from observing erratic driving, slurred speech, the smell of alcohol, or failure of field sobriety tests.
Additional Resources
Florida Statutes Section 316.193 – This law defines driving under the influence (DUI) in Florida. It covers the conditions under which a person can be charged with a DUI, including blood alcohol levels and the presence of controlled substances. The law outlines the penalties for DUI offenses, which range from fines and imprisonment to the mandatory installation of an ignition interlock device. Repeat offenses or DUIs resulting in serious injury or death lead to harsher penalties, including felony charges.
Florida Statutes Section 316.1932 – This law deals with the implied consent to alcohol, chemical, or controlled substance testing in Florida. It requires that by operating a vehicle, drivers agree to submit to breath, urine, or blood tests if lawfully arrested for DUI. Refusal to submit to these tests results in automatic license suspension and potential criminal charges.
Breath Testing Home / Intoxilyzer 8000 Records – The Florida Department of Law Enforcement (FDLE) manages the records for the Intoxilyzer 8000, a device used for breath alcohol testing in DUI cases. This resource provides access to data on the instrument’s inspections, test results, and calibration records. It also offers information on the standards and procedures followed to maintain the accuracy of these devices.
Accuracy of Consumer Marketed Smartphone-Paired Alcohol Breath Testing Devices – This study, conducted by the National Library of Medicine, evaluates the accuracy of smartphone-paired alcohol breath testing devices. The research found that while some devices closely matched the readings of police-grade breathalyzers, others significantly underestimated blood alcohol concentration (BAC). The findings highlight the potential risks of relying on consumer-grade devices.
Hire a Breath Test DUI Attorney in Brevard County, FL
If you or a loved one have been charged with a DUI you need to contact an experienced DUI defense attorney immediately.
Mark Germain serves the counties of Brevard, Orange, Volusia, Osceola, and Indian River, and the cities of Melbourne, Palm Bay, Titusbay, Vero Beach, Gilford, Sebastian, Deltona, Daytona Beach, Port Orange, Kissimmee and Poinciana.
Contact The Law Offices of Mark Germain by calling (321) 775-3559 or submit an online form today to start building your DUI defense.
