Blowing over a .08 does not mean your case is hopeless. Too many people simply give up and are willing to accept a bad resolution just because there is a breath result rather than a refusal.
Let me tell you why that thinking is flawed.
First and foremost, forget about the breath result for a moment. A DUI case must be analyzed from the very first moment police make contact with the client—usually during a traffic stop.
An officer will typically pull over a DUI client for a perceived traffic violation: speeding, following too closely, running a stop sign, or failure to maintain a single lane (weaving). The stop and subsequent investigation are just as critical to a DUI defense as the breath result itself.
So why did the officer pull you over? Let’s assume the stop was valid—you were driving in excess of the posted speed limit.
Okay, so at that point the officer should write you a speeding ticket and let you go on your merry way.
But this is often where a non-criminal traffic stop escalates into a criminal investigation.
What did the officer observe? Why did they decide to turn a routine traffic stop into an extended detention?
During a traffic stop, police may detain you only for as long as necessary to issue a citation. Once that task is complete, they must let you leave unless they have reasonable suspicion that criminal activity has occurred or is currently occurring. Driving under the influence of alcohol is a crime, and officers must make specific observations to justify detaining you for a DUI investigation.
Did you have bloodshot, watery eyes? Was your speech noticeably slurred? Was your face flushed? Did you have an odor of alcohol on your breath?
While it is not legally required that all of these observations be present, there must be at least some “indicia of impairment.” Absent that, an extended detention is illegal. It does not matter if you failed the Field Sobriety Exercises or even blew a .20. If there is no reasonable suspicion of DUI, the evidence against you must be suppressed.
Case dismissed.
That is just one way to evaluate a breath case—even a case involving a “high blow,” meaning a reading in excess of .15.
But what if the stop was valid and reasonable suspicion did exist?
Then you attack the breath test itself.
The Florida Department of Law Enforcement (FDLE)—the state agency responsible for maintaining and servicing breath-testing machines—must ensure those machines are in proper working order. In Florida, law enforcement uses the Intoxilyzer 8000. FDLE and the police departments that use these machines are required to conduct routine inspections and maintain detailed monthly and annual maintenance records.
A thorough review of those records (a step no competent DUI attorney should ever skip in a breath case) may reveal issues that render the results unreliable.
For example, do the machines experience “purge failures”? A purge failure occurs when the chamber that collects the breath sample is not completely emptied between tests. If residual alcohol remains in the chamber, it can artificially elevate the reading. The rules require two breath samples. If the chamber does not properly clear after the first test, the second test cannot be reliable, and the results must be thrown out.
So if you submitted to a breath test during your DUI arrest, do not despair—and do not do something foolish like walking into court alone on your first court date and pleading guilty. A DUI conviction stays on your record forever (it cannot be sealed or expunged). You will face thousands of dollars in fines and costs, lose your driver’s license for at least six months, and suffer a host of additional problems and inconveniences.
Do the right thing. Contact a DUI attorney immediately after your arrest, and let’s handle this the right way.
Eric Matheny is a DUI attorney serving Miami-Dade, Broward, and Palm Beach Counties. Contact Eric now.