Florida Breathalyzer Overview
Florida’s laws surrounding breathalyzers are primarily governed by Florida Statute section 316.1932, which details the procedures that must be followed for breath testing as part of a DUI investigation, and Florida Statute section 322.2615, which outlines how refusing a breath test can lead to license suspension. There are several Florida Administrative Codes and rulings from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) that further impact these statutes, such as the proper protocols for calibrating a breathalyzer, training of breath test operators, and the procedures to follow if a breathalyzer is not working. While there are technicalities and nuances to these statutes and regulations, the most significant point to consider is that after a DUI arrest in Florida, a driver no longer has a choice regarding whether or not to take a breathalyzer—doing so is a requirement, and submitting to a breath test is mandatory .
When you are asked to take a breathalyzer test, the officer must advise you of the following: If you refuse to take the test after being warned about the penalties for refusal, your license will automatically be suspended for one year. It is important to note when you are requested to take a breathalyzer after being arrested, an officer may not be explicit about telling you that you must take the test. If you are arrested and subsequently requested to take a breathalyzer, it is mandatory that you do so. By not taking the test you are refusing the test, and your license will be suspended. If you then prevail against the criminal DUI charge, your license suspension will still remain in effect. However, if you submit to testing and you are found not to be DUI following the blood and/or breath test, the suspension imposed for refusal is lifted, and a refund of the license fees paid in conjunction with that suspension may be required.
Penalties for Refusal to Take a Breathalyzer Test
If you refuse to take the breath test upon arrest, you could face serious charges. Refusing a breathalyzer test when you are asked could be both a criminal and civil violation. The DUI laws surrounding refusal of testing in Florida are found in Florida Statute §316.1939. This law states that if you refuse to take the breath test your driver’s license will be suspended for one year. Your license is not automatically revoked, which will happen if you fail the breathalyzer test with a .08 or above. If you refuse to take a breathalyzer test at all, the law states that your driver’s license will be suspended for one year. On the first offense, there is no hardship license that is available. If this is your second or subsequent DUI arrest and you refuse to take the breathalyzer test, you could face a fine not less than $1000. Your driver’s license will also be administratively suspended for one year upon the arresting officer attending a refusal hearing. You could also face a fine ranging from $1000 to $5000 and a minimum of 18 months of mandatory imprisonment. The implied consent law in Florida requires individuals to submit to a breath test when they are arrested for driving under the influence. The law states that as a condition of operating a motor vehicle in this state, a person must agree to submit to a lawful test of their breath, urine, or blood for the purpose of determining alcoholic content or the presence of chemical or controlled substances. There are several exceptions in Florida to the implied consent law including: For your rights to remain unviolated, it is essential that you know and uphold all applications of this statute. You publically hold these rights until such time as you waive them, for example, by submitting yourself to a breath test upon demand of the arresting officer. Once you consent to a breath test, that refusal no longer applies until you are arrested again for a Qualifying Offense. In other words, only if your license is expired, or revoked, and you are arrested again for DUI, will a refusal be necessary. If your license is already valid, then this refusal becomes moot until another arrest for a Qualifying Offense. Although it is a requirement for motorists to submit to a breath test in the state of Florida upon request, it is important to significantly review your options.
Florida DUI Legal Limits for BACs
The legal blood alcohol concentration (BAC) limits for Florida drivers are as follows:
- The legal limit for driving in Florida is .08%.
- For commercial drivers, the legal limit is .04%.
- Those operating vessels on Florida waters are not permitted to have a BAC higher than .08% while driving and .05% while the vessel’s motor is off.
- Drivers under the age of 21 cannot drive with any measurable amount of alcohol – the legal BAC limit in Florida for those under 21 is .02%.
In any given case, if the blood alcohol concentration of a person suspected of driving after drinking is found to be at or above these limits, then the police have sufficient evidence of intoxication in order to make an arrest for driving under the influence. However, this will not always be enough for a conviction of drunk driving if the defendant actively disputes the finding or if it can be shown that the BAC was the result of a medical condition such as chronic diabetes or appendicitis. In those cases, there are a number of defense strategies that may be used to undermine the BAC results and seek an acquittal.
Fighting DUI Breath Test Results
There are avenues to challenge the results of a breathalyzer test when the individual receives the test results, or has been charged with a DUI. Depending on the circumstances, this could be done through a motion to suppress evidence, which is a request made to a judge to exclude evidence from being considered in trial.
A common motion to suppress evidence in Florida is known as a motion to suppress due to an unlawful arrest. Here an individual’s arrest for driving under the influence is illegal and the blood alcohol content reading will be suppressed if there is no probable cause for the police officer to arrest the individual for a DUI:
A law enforcement officer does not have probable cause for a DUI arrest unless that officer observes (1) a traffic infraction, or (2) operates the stopped vehicle or has an eyewitness describe in detail the traffic offense that he or she observed, and (3) observes the defendant commit a traffic infraction or exhibits any of the signs of driving under the influence identified in subsection (2) (a).
In the current situation the test was administered at the police station following an arrest, and the results are not received until several days later . In this instance, the defendant must file a Motion to Suppress tests administered at a later time and submit evidence as to why the results should be excluded from evidence at the trial.
Issues usually arise in situations where there is a delay between an arrest and administering the breathalyzer test. The time factor comes into play because of the BAC changes that occur over time. The blood alcohol reading can increase over time if the person just drank prior to being arrested.
In cases where the test was administered at the scene of the traffic stop, a Florida motion to suppress could be based on whether the individual charged with a DUI was given implied consent rights under Florida 316.1932(1)(a)(2). If the individual was not provided with their implied consent rights, it can be stated that the individual did not give consent for evidence to be collected for further prosecution, and the evidence should be suppressed.
It is important that the breathalyzer test is administered properly. If not, challenging the test results should be initiated during the first court date following the arrest. If the test was not administered properly or in accordance with all procedures, the imposition of penalties could be avoided, and the charges lessened or eliminated.
Recent Changes to and Notable DUI Cases in Florida
In recent years, Florida has seen a number of changes that affect how breath tests are administered and how the results can be challenged. One of the significant changes was the decision in McGill v. State of Florida, 41 Fla. L Weekly D1314 *1 (Fla 1st DCA 2016), which held that the breath-testing software used by the FDLE for all of their Intoxilyzer 8000 breath tests is unreliable. The McGill holding also found that the FDLE’s 20 minute pre-test observation did not meet the requirements of the Florida Administrative Code (FAC) 11D-8.004(2)(b), because the rule does not require the observer to be police officer. As a result of this case, many criminal defense attorneys routinely file motions to determine the admissibility of breath test results and/or motions to suppress breath test results, in DUI arrest cases. A Pre-Trial Hearing, prior to trial, is held to see if the breath test samples are admissible at trial. Depending on the outcome, the State will sometimes either agree to a lesser charge or dismiss the case altogether.
Other notable cases include: State of Florida v. Adkins, 2014-CF-5598; State of Florida v. Dorian Morris, 2014-CF-3549; State of Florida v. James Edward Smith, 2014-CF-5388; and State of Florida v. Paul Hawthorne, 2015-CF-5862 decided 12-30-15. All of these cases question the rules regarding supervision of those giving breath tests, where a police officer actually gave the breath test and not a properly trained operator. The reasoning in the case focused on the facts that the supervision was insufficient, because the proper records to show any supervision were not kept in accordance with FAC 11D-8.004(4)(b). These cases all hold that the alcohol test results are admissible , and they do not have the same attack used in McGill.
Prior to McGill, a case that questioned breath testing was State of Florida v. Hakim Remizov decided 5-11-14. By first saying that the State could use the Alcotest refuse to give a breath sample, the court said any refusal to provide a breath sample was a sufficient basis for the trial court to issue a warrant for blood draw. The breath testing in Florida was called the Alcotest 9510 going forward. However, this has since been updated to the Alcotest 9510 MKIII-C. This means there are no more of the Alcotest 9510s in use here in Florida.
And as recently as this year, the Appellate Court considered a case where the Supervisor, who was required to be a Law Enforcement Officer, was not. See State of Florida v. Stephen J. Fischer 4D18-11 decided 3-21-18 where the State charged the Defendant with DUI based on his refusal to submit to the breath test. The trial court heard the defense claim, on hearsay evidence, that the observation violated the Administrative Rules. The Court of Appeals ruled that the hearing was incorrect and reversed the trial court. Immediately after this was decided, the Florida Department of Law Enforcement amended the error in FAC 11D-8.004(2)(b) effective 5-25-18. Now, the administrative rule explicitly states that the "supervisor must be law enforcement officer, not civilian, and must be designated by the agency head." So, if the law enforcement officer is not one of those officers designated, then it violates the requirement of FAC 11D-8.004(2)(b). Expect to see motions to dismiss and motions to suppress filed in these types of DUI cases now as a result of this case.