Florida DUI Breath Level Misconceptions

In Florida, the State has two separate ways to prove a person was Driving Under the Influence of Alcohol (DUI or DWI as it is referred to in other states). One way is to show that a person is impaired, by presenting evidence like bad driving or a video of field sobriety exercises (FSE's, the one leg stand, walk and turn, etc...). They must also show at this stage that the person is under the influence of alcohol and it is the alcohol that caused the impairment. This is usually shown by the arresting officer stating there was "a distinct order of an alcoholic beverage coming from the driver's breath". And it is the jury that decides if the person was impaired and that it was the alcohol that caused the impairment.

Also note that the impairment by alcohol must have been at the time of driving or while in actual physical control (APC) of the vehicle. APC simply means the defendant must be physically in or on (on, as on a bike or motorcycle) the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time. Typically, sitting behind the wheel of a parked car with the keys in the ignition or in your hand.

The above also applies to "controlled substances" (marijuana, cocaine, etc) and chemical substances (sniffing glue or huffing aerosol for example).

The other way the State prosecutes DUI is by evidence of a breath result, and this is where many people have misconceptions of the legal level of.08. The.08 level must be looked at in two ways, the legal side of it and the practical side of it. If someone has a breath BELOW a.08 it does not mean they are not DUI.

THE LEGAL ANGLE: 1. There are presumptions of impairment at.08 or higher at the time of driving. 2. Presumptions of no impairment at.05 or lower at the time of driving. 3. No presumptions either way if the breath is below.08 or above.05 at the time of driving. The Judge will instruct the jury as to these standards.

If the breath is.05 or lower, the State may provide evidence of impairment at trial to over come, or rebut the presumption of "non-impairment". The Defense may provide evidence at trial to over come or rebut the presumption of impairment with a.08 or higher breath. With a breath lower then.08 but higher then.05, each side presents evidence in their favor. The jury then decides.

Florida law requires that before someone can be asked to submit to a Breath Test, they must already be under lawful arrest for suspicion of DUI. It's a lot like putting the cart before the horse. If you were to blow.000, no one is going to un-arrest you.

You can be DUI if your breath is below a.08 while driving. How? If you have ANY alcohol in your system and that alcohol impairs you even slightly, then legally you are DUI. There are no degrees of impairment. You either are or are not impaired, and if it's alcohol that impairs you, it's DUI. Would you want someone performing brain surgery on you with a Blood Alcohol Content (BAC) of.03? So if an individual is impaired at.03 for example, driving while impaired, even at.03 is DUI.

THE PRACTICAL ANGLE: The jury will hold many of the preconceived notions that below a.08 is ok and the State would be hard pressed to convince them otherwise. Considering the case load that many prosecutors have, the State would rather offer a reduction to Reckless driving on most cases involving a BAC hovering just above or below the.08 levels. It would be impractical for the State to take to trial all those cases since they would all go to trial and the system would grind to a halt.

DUI penalties are set out in the statutes. The Court MUST impose certain minimum penalties upon a conviction for DUI. (Twelve months probation, DUI school, 50 community service hours, 16 of those hours with the Sheriff's work detail 3 of those hours attending a DUI victim's impact panel, 10 day immobilization of your car, $500 fine, an adjudication of guilt, court cost, and a 6 months suspension of your license). These are minimums remember, the Court can always impose more, including 180 days jail on even a first DUI. With a solid DUI such as a high breath or a refusal case where the video shows a clearly impaired person, legal flaws in the evidence and procedures, may create a crack in the case. A crack that helps nudge the State in a direction to reduce the DUI in cases they normally would not reduce. With a DUI near the.08 level, a peron's past record may affect the State's decision-making process.

In summary,.08 is a legal standard and being below that standard doesn't mean someone is not DUI. It presents a hard sell to a jury for the State. Breath levels create presumptions that either side may over come. But before anyone knows exactly what your BAC is, you have already been arrested.