DUI Breath Test
If you have been arrested for a DUI, contact Palm Beach County Attorneys’ Bottari & Doyle at 561-588-2781. The driver does not have the right to refuse, only an option to refuse. By having a driver’s license, the driver has agreed to give consent to a breath test upon a lawful arrest for driving under the influence of alcohol. The officer’s probable cause for the DUI arrest is based on the officer’s observations.
The officer will look for a driving pattern indicative of impairment (failing to maintain a single lane, swerving, weaving, etc.), odor of alcohol on the driver’s breath, flushed face, slurred speech, fumbling of the driver’s license, difficulty getting out of the car, poor performance on field sobriety exercises and many other indicators of impairment to establish probable cause for the arrest. The officer just has to have a reasonable belief that the driver’s normal faculties are impaired by alcohol, controlled substances or chemical substances, or that the driver has a breath or blood alcohol level of .08 or higher to make the arrest for any DUI. The officer does not have to be 100% certain that the driver is under the influence to make an arrest. The breath test is administered to confirm the police officer’s belief that the driver was under the influence of a alcohol, and to make the State’s case stronger if the results of the test show a breath alcohol level of .08 grams of alcohol per 210 liters of breath.
Pursuant to Florida Statute 316.1932(1)(a)(1)a, certain procedures must be followed during the administration of a breath test:
- The breath test must be given incidental to a lawful arrest. If the officer didn’t have probable cause to make the arrest, or if the driver was detained for too long absent reasonable suspicion that a crime had occurred, then an argument can be made that the arrest was not lawful. If the arrest was not lawful, then any evidence gathered as a result of the arrest (results of a breath, blood or urine sample) would likely be suppressed or inadmissible at trial. An illegal arrest or prolonged detention may lead to a dismissal of the case.
- The breath test may only be given at the request of a police officer who has a reasonable belief that the driver was driving under the influence of alcohol.
- The driver must be told that a refusal to give a breath sample will result in a suspension of the driver’s privilege to drive a motor vehicle for 12 months for a first refusal, or for 18 months if the driver’s privilege to drive has previously been suspended for refusing to give a lawful breath, blood or urine sample. The driver must also be told that if his or her privilege to drive has previously been suspended for refusing to give a lawful breath, blood or urine sample and refuses a second time that he or she commits a misdemeanor. This is Florida’s Implied Consent Warning. If the officer does not read the driver this warning, then any evidence that the driver refused the breathalyzer is not admissible at trial.
The breathalyzer machine is called the Intoxilyzer 8000. The machine must be maintained, calibrated and operated correctly or the readings can be unreliable. Additionally, eating, drinking, chewing, burping and vomiting prior to giving breath samples can taint the readings. Before giving breath samples, a police officer must watch the person for a period of twenty minutes to ensure that none of these things occur. Dental work such as dentures may also taint the readings.
If you have been charged with Driving Under the Influence, please do not hesitate to contact a Palm Beach DUI attorney at Bottari & Doyle today for a free case evaluation.