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Tampa Criminal Attorney > Blog > DUI > Beating The Breathalyzer In A Florida DUI

Beating The Breathalyzer In A Florida DUI


Many DUI defendants assume that if they failed a Breathalyzer test, they’re automatically guilty. Granted, the DUI test conviction rate is much higher than the non-test conviction rate. But, we shouldn’t give the Breathalyzer too much credit. This gadget is simply an advanced version of the 1935 Drunk-O-Meter. With that principle in mind, there are several ways to beat Breathalyzer results in court.

There is a lot at stake in these cases. DUI may be the worst misdemeanor in Florida, because of its drastic direct and collateral consequences. The direct consequences seemingly get worse every year, as authorities continue to press the DUI crackdown. The indirect consequences, like employment problems, follow suit. So, a Tampa DUI attorney must step in early and aggressively to protect people from these harsh consequences.

Procedural Defenses

Some of the most effective Breathalyzer defenses have nothing to do with the test itself. Instead, these defenses focus on the events which lead to the test.

Before officers even think about administering Breathalyzer tests, the initial law enforcement contact must be legal. Legality could be an issue at traffic stops and at DUI roadblocks.

Almost all traffic stops begin with traffic violations, like speeding. Assume Officer Jones saw Tim speeding and pulled him over. That’s probably a legal stop. Now assume Officer Jones saw something amiss about Tim, perhaps because he left a bar late at night. Officer Jones follows Tim for a few blocks, and then pulls him over for speeding. That’s probably a profiling stop.

DUI roadblocks are legal if the checkpoint strictly adhered to all legal requirements. If officers took any shortcuts, a Tampa criminal defense lawyer can invalidate the checkpoint and therefore an individual stop at that checkpoint.

The field sobriety tests, like the walk-and-turn, usually come next. If officers didn’t administer these tests for some reason, or the defendant refused to perform them, officers may not have had probable cause to demand a chemical sample.

The statutory DIC warning could be an issue as well. As mentioned, DUI laws and direct consequences change almost every year. So, the DIC warning changes almost every year as well. If officers use an older version, the warning could be invalid. Similarly, if officers don’t administer the warning in a language the defendant understands, the warning could be invalid.

Scientific Defenses

Lack of proper maintenance may be the most common scientific defense in a Breathalyzer case. As mentioned, these devices are quite sophisticated. The more moving parts a gadget has, the more TLC it needs. Judges don’t hesitate to exclude test results if there are any questions about the accuracy of those results.

Speaking of accurate results, if the subject burped, vomited, or belched in the fifteen minutes prior to the test, alcohol particles in the stomach gush into the mouth and skew the results. The mandatory observation period in Florida isn’t strictly enforced. If the defendant burped, vomited, or belched, the administering officer probably didn’t see it happen.

Individual temperature changes could affect the results as well, especially in a borderline BAC case. A two-degree fever throws off a BAC calculation by as much as 7 percent.

 Work With a Hard-Hitting Hillsborough County Attorney

A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters in Pinellas County and nearby jurisdictions.

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