DUI Breath Test

An arrest for DUI in Palm Beach County can sometimes involves a breath, urine, or blood test, so it's important to understand how they work and what your rights are. Probable cause for a 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.), restlessness, body tremors, grinding teeth, droopy eyelids, odor of marijuana, 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 an arrest for DUI.  The officer does not have to be 100% certain that the driver is under the influence to make an arrest. 

DUI Breath Test 

By having a driver's license in the state of Florida, the driver has agreed to give consent to a breath test upon a lawful arrest for driving under the influence of alcohol. It's important to understand that the driver does not have the right to refuse a breath test, only an option to refuse. A DUI 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 state law, certain procedures must be followed during the administration of a breath test:

  1. A breath test for DUI 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.
  2. A breath test for DUI 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.
  3. 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. In some cases, eating, drinking, chewing, burping or 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. Occasionally, dental work such as dentures may also taint the readings.

DUI Urine Test 

When a police officer has probable cause to arrest a driver for driving under the influence of a chemical substance or a controlled substance, he or she can ask the driver to give a urine sample to detect the presence of these substances. The urine test is administered to confirm the police officer's belief that the driver was under the influence of a chemical substance or a controlled substance, and to make the State's case stronger if the results of the test show the presence these substances. According to Florida state law, certain procedures must be followed during the administration of a urine test:

  1. A urine test for DUI 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.
  2. A urine test for DUI 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 a controlled substance or a chemical substance.
  3. A urine test for DUI must be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer a urine test in a reasonable manner that will ensure the accuracy of the sample and secure the individual's privacy.
  4. The driver must be told that a refusal to give a urine 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 urine sample is not admissible at trial.

DUI Blood Test 

There are two types of blood tests that can be administered to determine if someone is Driving Under the Influence in the state of Florida.

Legal Blood: Legal blood is obtained by a law enforcement officer asking the suspected impaired driver to give a blood sample for the purpose of detecting intoxicants. There are certain prerequisites and procedures that must be followed for a law enforcement officer to lawfully obtain legal blood:

  1. The officer must have a reasonable belief that the driver was impaired by alcohol, controlled or chemical substances.
  2. The driver must appear for treatment at a hospital, clinic, or other medical facility.
  3. The taking of a breath or urine test must be impractical or impossible.
  4. The blood test must be performed in a reasonable manner.

If the driver cannot refuse the blood test due to unconsciousness or a mental or physical condition, then the blood test may still be administered despite the absence of the implied consent warnings. If the driver is capable of refusing the blood test, then implied consent warnings must be read to him or her. Like refusals to breathalyzers and urine tests, a driver's refusal to take a blood test will be used against the driver in court as evidence of a guilty conscience.

Medical Blood: A physician, nurse or other qualified professional who provides medical treatment to a person injured in a car accident and becomes aware through a blood test that the injured person's blood alcohol level is .08 or higher, may inform any law enforcement officer or agency of the results. The process of informing is called notice. Certain procedures involving notice must be followed by the medical provider for a law enforcement officer to lawfully obtain the results of medical blood.

  1. The notice by the medical provider must be given to the law enforcement officer or agency within a reasonable time after the results of the blood test are received by the medical provider.
  2. The notice must only be provided to give the officer reasonable cause to request the withdrawal of a blood sample.
  3. The notice cannot include anything other than the name of the injured person, the name of the professional who took the blood, the blood alcohol level of the injured person as a result of the blood test, and the date and time that the test was given to the injured person.
  4. The injured person has the right to have his blood independently tested, and a law enforcement officer cannot impede his or her ability have an independent test. The law enforcement officer must provide the injured person with timely telephone access to get the test.

For the prosecutor to obtain the results of medical blood, he or she must issue a subpoena for the medical records. The prosecutor must show that the results of the blood test are relevant to the DUI investigation, and that the above notice requirements were followed. If the medical professional disclosed too much information to a law enforcement officer or agency then the injured person's privacy rights were infringed upon, which may result in suppression or inadmissibility of the blood test results in court.

We help individuals who have been arrested for DUI in Boca Raton, Delray Beach, West Palm Beach, Fort Lauderdale, and the surrounding cities. 

Just because you submitted a blood, breath, or urine test for DUI does not mean your case is over. If you have been arrested for a DUI in Palm Beach County or Broward County please do not hesitate to contact us at Bottari & Doyle for a FREE case evaluation at 561-588-2781.