A breath test is often the primary evidence against someone in a DUI case. In the State of Florida, if you have a breath or blood alcohol level of .08 or above and you are driving a vehicle, you can be charged with DUI. This is true whether or not your “normal facilities are impaired”, which is the other way that it can be proven that someone was DUI. This test can make DUI a strict liability standard. It doesn’t matter if you didn’t know you over the .08 level or if you didn’t mean to be over the .08 level. If you are over the /.08 level, you can be charged with DUI with an unlawful blood alcohol level.
One of the most frequent questions we get from someone before a DUI case is whether they should give a breath sample if they have been drinking and get pulled over. The answer is that it depends on the facts of your case; so there is no way to answer that question in advance. When considering whether to give a breath sample, someone should consider the following factors:
- If you are over the limit of .08 and you give a sample, your chances of being convicted of DUI are very high.
- If you give a breath sample of between a .05 and .79, you could still be charged with DUI under the theory that while your breath alcohol level was not over the limit, your “normal facilities were impaired”.
- If you give a sample of .00 to .049, you are actually entitled to a jury instruction that the jury is to presume that you are not impaired should you be charged with DUI (assuming you do not have any drugs in your system that are found by a urine test), but you could still be charged with DUI.
- If you refuse to give a sample, your driver’s license will automatically be suspended for 12 months. If you give a sample of .08 or above, it will be suspended for 6 months and if you give a sample less than .08, it will not be suspended at all.
- If you feel the effects of alcohol in any material way (if you are “buzzed” or “drunk”, there is a good chance you will have a breath alcohol level of .08 or above.
- If you refuse to give a breath sample, the prosecutor will argue that the reason you refused was because you knew you would give a sample over the legal limit.
- You can still be charged with DUI if you refuse to give a breath sample.
- If you have previously refused to a breath sample and you refuse for a second time, you are actually committing a more serious crime than a first time DUI.
Whether you gave a breath sample or not, an attorney experienced in criminal law can analyze your case to help determine the best course of action for you and how to get the best possible outcome in your case. Many of our attorneys are former prosecutors who understand how the State handles DUIs and they use that insight to aggressively defend your case. If you have been charged with DUI, you should contact one of our attorneys immediately. The license suspension provisions mentioned above can’t be challenged if it has been more than 10 days since your arrest. Don’t delay; start getting help today from one of our experienced Gainesville attorneys.
Criminal Law: DUI: Field Sobriety Exercises
Law enforcement calls them “field sobriety exercises”. They are the physical test that law enforcement ask a suspected drunk driver to do on the side of the road. They include the “walk the line”, “finger-to-nose” “the eye test” (looking for horizontal gaze nystagmus) and “one leg stand” tests. While law enforcement calls them exercises, they are really tests. If you pass them, you may be allowed to go on your way. Fail them, and you’ll get arrested for DUI. Sounds a lot more like a test than an exercise to us.
The most important thing about Field Sobriety Exercises is this: YOU DON’T HAVE TO DO THEM. Unlike a breath test, there is no penalty for a second, third or even 100th refusal to do field sobriety exercises. You can simply say “no” to the test (I’m sorry, I mean “exercises”!) If you have been drinking and you refuse a field sobriety test, you may get arrested on suspicion of DUI. That being said, don’t be tricked into thinking that you can pass these test if you have any significant amount of alcohol or drugs. Often times, you are better off having refused the test as opposed to attempting them and failing.
Whether or not you participated in “field sobriety exercises”, you may have gotten charged with DUI. If this is the case, you need to speak to one of our defense attorneys immediately. Many of our attorneys are former prosecutors who can use their experience in prosecuting DUI to help aggressively defend your case.