A review of 6 KEY topics You MUST Know by ➪ Boca Raton ➪
West Palm Beach DUI Attorney Josh LeRoy on:

Legal BAC and Refusal of Breathalyzer

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When prosecuting a person for driving under the influence of alcohol, attorneys representing the State of Florida find their greatest success when they can prove the amount of alcohol in the driver’s blood at the time of arrest exceeded the legal limit.

The amount of alcohol in a driver’s blood is known by the acronym “BAC”, blood alcohol content.

The Breathalyzer: The DUI Conviction Machine and Legal BAC Levels

Prosecutors commonly obtain proof of “BAC” with a machine that analyzes the amount of alcohol in a person’s breath. Hence, such machines are called “Breathalyzers.”

Successful operation of Breathalyzers requires each of these three things:

• A sample of the driver’s breath; and
• A lawfully calibrated and lawfully maintained Breathalyzer;
• A lawfully trained police officer who properly administers the use of the machine.

The absence of any one of these three things makes it impossible for prosecutors, through the use of a Breathalyzer, to convict a driver of driving under the influence.

Consequently, it is my responsibility as a criminal defense lawyer representing a driver charged with DUI to carefully and thoroughly investigate these facts to determine if police complied with the law.

In my investigations over the course of more than twenty years defending drivers charged with DUI, I have found that many times police have not complied with the law, thus allowing for successful motions to suppress, dismiss, and even acquittals.

The Alcohol on your Breath

If you were arrested for driving under the influence in Palm Beach County, or in any Florida county for that matter, the arresting police officer probably asked you to provide a sample of your breath.

The intended purpose of the breath sample is to scientifically measure the amount of alcohol that was in your blood at the time of, or close to the time of, the driver’s arrest to determine if they are within the legal BAC limit. A driver provides a sample of his or her breath by blowing air into a tube that is part of the Breathalyzer machine.

Refusal of Breathalyzer: Should A Driver Refuse to Provide A Breath Sample?

Now, whether or not a driver complies with a police request to provide a breath sample is an important question.

If a driver believes that the amount of alcohol on his breath may incriminate him, he may, understandably, refuse an officer’s request to provide the sample. This decision makes sense because, of course, no sane person wants to give evidence to help police obtain a conviction, and send him to jail, whether for a course of days, months, or even years.

But the same decision presents something of a problem to a driver because, according to Florida law, by driving on the state’s roads and highways, drivers thereby are legally required to give a breath sample upon request.

Refusing to provide a breath sample triggers an automatic suspension of one’s driver’s license for one year. Sometimes the specific circumstances of how or why the driver was stopped may allow the suspension to be lifted. But this is difficult to do because, among other things, a challenge to the administrative suspension must begin within ten days of the driver’s arrest.

At the same time, refusing to provide a breath sample deprives prosecutors of what might be the strongest evidence against you. So, the decision, if carefully thought out, may be a strategic one.

But if, when arrested for DUI, you refused to provide a breath sample, probably the wisest thing you can do is to consult with a criminal defense lawyer without delay.

The Alcohol in Your Blood

 The amount of alcohol on your breath corresponds to the amount of alcohol in your blood. When a person drinks beer, wine, or liquor, the alcohol from the drink is absorbed into the person’s blood.

Many factors influence the amount and the speed with which the alcohol is absorbed:

• The physical size of the person;
• the kind and amount of alcoholic drinks consumed;
• the kind and amount of food, if any, consumed before or while drinking;
• the period of time within which the drinks were consumed;
• and the person’s ability to tolerate alcohol.

Lawmakers in Florida, and probably every other state, have adopted the scientific conclusion that when an adult’s blood-alcohol content (“BAC”) reaches or exceeds .08, the driver is, as a matter of law, intoxicated, and so prohibited from driving.

This conclusion is based on evidence that when a person’s blood-alcohol content reaches this level, his ability to operate a motor vehicle is impaired. Consequently, the person presents a danger to others and himself.

The Best Defense Against A High Blood-Alcohol Content

 If you provided a breath sample in which the blood-alcohol content exceeded the legal limit, the best defense to your case is circumstances that prohibit the prosecutor or judge from considering those breath test results.

What are those circumstances?

Facts that show the police did not have lawful grounds to stop you. In other words, if the stop by police was illegal, then all the evidence after the stop must be thrown out of court.

To discuss how you were stopped and all other related issues to your DUI arrest, call me for a free consultation.

-Josh LeRoy

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West Palm Beach DUI Attorney Joshua LeRoy, Esq. is dedicated to providing his clients with personalized, honest, and aggressive representation in any areas of criminal law in West Palm Beach, Boca Raton, Boynton Beach, Lake Worth, Delray Beach, Jupiter & the surrounding areas of Palm Beach County in the State of Florida.