DUI Breathalyzer FAQs

In Florida if you have refused a breath test previously, then the act of refusing it a second time is a criminal offense, and Florida law allows an individual to be sentenced up to 1 year in jail for that second refusal. Courts will generally look at the facts and circumstances surrounding the first refusal, and then obviously the facts and circumstances surrounding the second refusal to determine whether or not there is a pattern of illegal or improper conduct that the court must sentence with that severity in mind. So, yes, there is severe punishments that can happen for a second time refusal.

In the state of Florida, the Florida department of law enforcement has enacted numerous rules regarding the administration of breath testing device, the way that they are maintained, the way they are inspected, and whether or not they’re approved devices. In order for a breath test to be admissible in a Florida court, the government is required to show compliance, or at least substantial compliance with those rules, regulating the breath test device.

Law enforcement can charge you with refusing to submit to a breath test, even when you are making attempts to submit. It is going to end up being a question for a judge or a jury, of whether or not you were truly trying to submit to that test, or playing games due to possible levels of intoxication.

They are not very accurate. In fact, with the exception of individuals under 21, law enforcement is not allowed to utilize them in the state of Florida. It has been determined by the legislature that, again, their reliability is so questioned that they do not allow law enforcement to utilize them unless we have an underage drinking case where in some circumstances law enforcement can use a portable device to test a minor whether or not any alcohol is in that individual.

A breath test is an instrument that is going to analyze your breath using infrared light absorption to determine whether or not you have alcohol in your breath sample and at what levels you have. Again, the machine is a computerized machine with different software that is going to look at the amount of light that is absorbed in that sample to determine what your blood alcohol level is.

In Florida, an individual is not required to have to submit to a breath test or a blood test. You do have the right to refuse. The Florida statute allows individuals that option. It’s not a right according to the law, however, the United States Supreme court at this exact moment is taking up that case. Within the next year or so we’ll probably have an opinion from United States Supreme court on whether or not the refusal, that is more of a right or is it just a legal option that you have. Right now, you do have the option to refuse any type of breath testing.

First and foremost, just because an individual blew over the legal limit does not mean that they’re guilt of a DUI. The breath test itself may never be admissible evidence. Even if you blew 2-3 times the legal limit, it doesn’t mean that you’re automatically guilty of a DUI. That is just evidence to try to convict you. However, if that evidence is ruled inadmissible because the machine was not properly calibrated or because there was a problem with the maintenance of that instrument, then a jury or judge will never even know about a breath test result and what that number is. The two are definitely independent of each other and do not control each other.

There are numerous different ways to challenge the breath test device in court. Again good a counsel will be looking at whether or not the instrument was working properly at the time. Whether or not the test was administered within compliance to rules. Whether or not that instrument was properly calibrated and functioning properly during its maintenance inspections both monthly and yearly. Again whether or not that instrument is showing compliance with the department rules is the major question to determine the admissibility of a breath test in the state of Florida.

The short and simple answer to that is no, breath testing device utilized in the state of Florida has been under attack since it started its use in Florida in 1996. Every 10 to 15 years it seems the state of Florida will get a new device believing that it fixes all the problems of the previous device when in fact they do not, they just add to the problems. In Florida there’s a requirement for the breath testing device to be monthly inspected by certain individuals, and inspected every year by individuals in Tallahassee Florida Department of Law Enforcement. Again, the records have shown that there are repeat problems and violations of their own rules that continue to bring the reliability of that instrument into question.

In Florida at this time there is only one approved breath testing device, and that is the Intoxilyzer 8000. It is manufactured in Kentucky, and it has been being used in Florida for the last fifteen to twenty years. Again, there’s the possibility that Florida may be changing to the new device that that manufacturer is making, but that has not yet occurred.

In Florida the use of the breath test machine is to determine your BAC level because in Florida an individual is considered to be under the influence of alcohol to the extent that their normal faculties are impaired if they reached that .08 level. In Florida again we use the breath testing device to be able to measure that level to determine whether or not an individual may be convicted of DUI or not.

Breath test results can be challenged in a court of law. Again, the aspects need to be looked at from the beginning of whether or not that device is a proper device to be able to be utilized in Florida, whether or not it has been properly maintained and calibrated to be able to be used in Florida, and then whether or not your particular test was administered in compliance with the rules and regulations for breath testing in the State of Florida.

The fact that an individual has refused a breath test only opens the door for the possibility of a second refusal charge. However, if you’ve refused a breath test or blood test previously, there are still legal issues that need to be looked into regarding how that first refusal took place, what type of warnings were given to you at that point in time, and what was the state of the law at that point in time to determine whether or not your defense attorney can make argument to the court that the judge should not consider the first refusal. It should be ruled inadmissible. Again, there is the ability the challenge prior criminal activity even on a second refusal charge.