Under Florida DUI law, it is illegal to operate a motor vehicle with a blood alcohol level (BAL) of 0.08% or higher. In drunk driving cases, the result of the breathalyzer test is often the most important piece of evidence the prosecutor has. Therefore, it is important to hire a DUI defense lawyer who can successfully challenge the admissibility of the breathalyzer test. One way to get the breathalyzer test thrown out of court is to show that the test was not administered according to Florida law. Florida has very specific rules on how breathalyzer tests must be administered. To find out more about the rules on administering breathalyzer tests you should contact a DUI defense law firm in your area.
20 Minute Waiting Period
Florida rules on breathalyzer tests require that, “the breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test.” If the State does not substantially comply with this rule the results of the breathalyzer test may be deemed inadmissible in a court of law.
If there is sufficient evidence that the police officer was not close enough to the defendant to reasonably ensure the defendant did not regurgitate within the 20 minute waiting period the test may be inadmissible. The officer must be in a position to observe whether or not the defendant regurgitated or ingested anything within the 20 minutes prior to the breath test for alcohol. For instance, if the defendant was in the officer’s vehicle for transport during the 20 minute waiting period, the officer may not have been able to reasonably ensure that the defendant had not taken anything by mouth or regurgitated.
Two Breath Test Requirement
Florida law requires the breath test operator to collect at least two breath samples from the driver. See Fla. Admin. Code R 11D-800.2. Additionally, the two tests must be conducted within 15 minutes of each other. Further, if the results of the two breath tests are not within .02 of each other a third breath test must be administered. If the police fail to analyze two breath test samples according to this rule the results may be suppressed. However, not all cases involving breath test results with a greater than .02 difference will be suppressed. You should consult a DUI lawyer for information about any specific case or set of circumstances. The State only needs to show it substantially complied with this regulation, 100% compliance is not necessary.
Procedure to Suppress the Breathalyzer Test:
The State has the burden of proving they substantially complied with the breathalyzer regulations. Before the State can use the breathalyzer test as evidence against the defendant, they must first produce evidence that the: 1)test was administered substantially in compliance with the regulations; 2) on a breathalyzer machine approved by the State; 3) by a person who was certified to conduct the test; and 4) the machine was calibrated, tested, and inspected in accordance with Florida regulations. See Florida v. Donaldson.
Failure to comply with the regulations above will not always result in a breathalyzer test being deemed inadmissible. The State only needs to show substantial compliance, strict compliance with the regulations are not necessary. Therefore, it is important for any DUI defense lawyer to carefully emphasize any defect in the breath test administration to help convince the court the defect is substantial. To speak with a DUI Defense lawyer about your breathalyzer test click here.
DUI Defense Law Firm:
If you have been accused of drunk driving in Florida call Florida Law Advisers to speak with DUI defense lawyer in Tampa. The DUI attorneys at our firm carefully scrutinize every detail of a case to identify any affirmative defenses, errors by police, violations of constitutional rights, mishandling of evidence, or sloppy police work that we can use to help our clients. We know how much our clients have at stake in DUI cases and we work diligently to aggressively defend our clients. Every DUI case is unique, which is why we carefully develop a comprehensive legal strategy that is individualized for each client. To find out if we can help you beat the DUI charges or for answers to your legal questions, call us today at 800 990 7763 to speak with a DUI defense attorney.