Florida Law Enforcement Has Problems Proving DUI When Breathalyzer Refused
As West Palm Beach drunk driving criminal defense attorneys, we were interested to see a recent article from the Vero Beach Press-Journal. The Dec. 3 article said that according to the Florida Highway Patrol, about 36% of Florida drivers refuse to take a breath test after being pulled over on suspicion of drunk driving. This is not without consequences for the driver, the article said, but refusing the Breathalyzer can also have serious consequences for law enforcement. Because the breath reading is vital evidence in a DUI case, not having a breath sample can considerably weaken prosecutors’ case against the driver. That was one reason the Vero Beach Police Department tried making a policy of routine blood tests in suspected DUIs, only to suspend the program for lack of qualified personnel.
In order to obtain a DUI conviction in Florida, prosecutors must prove that the accused was in control of a vehicle while having a breath or blood test reading of 0.08, or while under the influence of alcohol or drugs “to the extent that the person’s normal faculties are impaired.” Without test results, prosecutors must rely on the much more subjective “impaired faculties” standard. If the driver took field sobriety tests, prosecutors may introduce these as evidence. However, the article notes, Florida drivers may legally refuse to take field sobriety tests. Furthermore, any test results that do exist are subject to challenge in court, because many field sobriety tests are so unreliable that it’s possible to fail even when completely sober. Observations by officers at the scene, such as a statement that the officer smelled alcohol, may be even less reliable. That means it’s harder for prosecutors to convict someone of DUI without a BAC reading.
However, the article said, refusing a breath test is not without consequences. In Florida, people who refuse the Breathalyzer on a first DUI automatically lose their licenses for a year. That’s twice as long as the minimum license suspension for an actual conviction. A second refusal is a misdemeanor crime. However, as with all license suspensions, drivers may apply for a “hardship” license to get to work. Those who refused breath tests may apply for this license after serving 90 days of their license suspensions. And of course, refusing the breath test is unlikely to make a driver popular with the arresting officers.
Nevertheless, Balliro, Galasso, Leskovich & Seltzer tells its DUI clients to think carefully about whether to submit to a breath test. We understand that prosecutors need evidence to prove their cases, but as Fort Myers DUI defense lawyers, we also believe there are problems with breath tests that can lead to a false positive and wrongful charges. Breath tests using Intoxilyzer machines are under suspicion in Florida because of court rulings that they are not admissible due to reported false positives, legal problems and the lack of accountability from its manufacturer. Older breath tests can be thrown off by weather, the subject’s health, timing problems or even things the subject has eaten. Given the pain, inconvenience and financial costs of a DUI charge, some drivers may be better off refusing the breath test and living with the license suspension.
If you’re facing a drunk driving charge in Florida, BGL&S can help. We defend people throughout Florida from DUI charges of all types, including serious charges like DUI manslaughter. We also defend clients from related DHSMV license suspensions, alone or in tandem with defending a criminal charge. Even before a conviction, a DUI charge can seriously disrupt our clients’ lives, causing their cars to be impounded, a night (or more) in jail, problems getting to work, a sharp increase in auto insurance rates and public humiliation. A conviction means steep fines and fees, community service, probation or jail and DUI school. Our Naples intoxicated driving criminal defense lawyers help eliminate minimize that damage by mounting a strong defense whenever appropriate to keep clients out of jail and on the road.
BGL&S knows DUI arrests happen at all times of the day and night, so we make ourselves available 24 hours a day and seven days a week. If you or a loved one face DUI charges, don’t wait to call and see how we can help. For a free consultation, you can reach us through our Web site or call toll-free from anywhere in Florida at 1-866-ARRESTED.
