Say "No" to a DUI Breath Test This Holiday Season: Fort Lauderdale DUI Attorney Explains Breathalyzer Downfalls
With the holidays right around the corner, Florida cops are especially on the lookout for people driving while under the influence of alcohol or drugs (known as DUI).
While flashing red and blue lights and walking in a straight line for field sobriety tests may characterize a DUI investigation, the silent killer police rely on to prove intoxication is the breathalyzer test. Recent reports say DUI Breathalyzers often overestimate your intoxication level - which could be the difference between getting a DUI or not, or getting charged with a more severe DUI charge than is warranted.
A breathalyzer is a device police ask people under DUI investigation to blow into in order to ultimately determine the alcohol content of their blood by analyzing a sample of breath. If the results are .08 or higher, that person is presumed to be impaired by alcohol.
Breathalyzer tests have been a subject of controversy in recent years, however, due to their inaccurate results. The devices often generate slanted outcomes, despite their claims of precision and accuracy. More times than not, human error is at fault for the test’s failure.
According to the New York Times, on average, breath test results are 40% too high, leading to false DUI arrests and false DUI convictions. Little government supervision of Breathalyzer methods results in administers’ incomplete knowledge of the device and leads to inadequate breathalyzer test administration and inaccurate results.
While issues surrounding the accuracy of breath tests grow, police departments - especially here in South Florida - still rely on these machines to prove intoxication.
Not all criminal defense attorneys have the specific training and experience to excel at DUI Defense in South Florida. Not all DUI Defense attorneys have significant experience defending breathalyzer cases. Hiring a trained Fort Lauderdale DUI attorney, with experience defending breathalyzer test cases, can help you fight against the many possible breath test inaccuracies in court. This is important because there are significant penalties for a DUI conviction in Florida and despite the common misconception, DUI breathalyzer cases can be won by the defense.
What to do If Pulled Over For Driving Under the Influence
If you are pulled over, remember to be as polite to the police as possible and do not tell them any information. You are not required to answer questions about how much you drank, submit to field sobriety tests, and, most importantly, YOU DO NOT NEED TO TAKE A BREATH TEST!!!
If the police think that you are drunk they will arrest you with or without a breathalyzer test. It is important to not freely give away any incriminating information.
If you do not take a breathalyzer test, the police will suspend your driver's license for a year. While seemingly intimidating under the pressure of an arrest, it is a much better outcome than spending time in jail. If you act quickly, within 10 day of your arrest, the Rossen Law Firm will be able to get you a temporary hardship license for a period of up to the entire one-year suspension. One important note - if you previously refused a breath test during a DUI investigation and refuse a second time, you can be charged with an additional crime in Florida. When it comes to Field Sobriety Tests in Florida - you should always say no. You have the right to say no when a police officer asks you to do sobriety exercises - even if you're completely sober. They're shockingly difficult to "pass" and there is absolutely NO negative consequence for NOT doing them. All you're doing is giving police evidence for their DUI case against you.
(That being said - we win DUI cases when people flunk the field sobriety tests all the time - your case is not over, even if you did the field sobriety tests and failed them)
Breathalyzer Tests in Fort Lauderdale DUI Investigations
After being arrested for a DUI in Fort Lauderdale, defendants are transported to the Breath Alcohol Testing Facility, run by the Broward County Sheriff’s Office, and a technician administers a breathalyzer test. Florida law only requires technicians to substantially comply with breathalyzer administration - meaning they must comply only “substantially,” not follow the rules 100% - leaving questions as to whether or not the test was conducted correctly.
In Fort Lauderdale, the police department relies heavily on breathalyzer tests in order to ensure a conviction for a DUI charge. Ironically, Broward County Sheriff’s Office only has 1 to 5 breathalyzer machines put into their cop cars for the entire district and the Fort Lauderdale Police Department has the machines but is not using them. When a person’s blood alcohol content (BAC) isn’t tested right away, the breathalyzer’s outcomes may be skewed.
How we Defend Florida DUI Cases with Breathalyzer Tests
We commonly rely on the likely level of intoxication 'at the time of driving' to defend cases with breathalyzer tests. To actually be convicted of a DUI, prosecutors must prove that a person’s breath was over the legal limit at the time of driving. If a person's breath is tested an hour after they've been arrested, for example, the alcohol has worked its way into their system more and a breathalyzer might read their BAC over the legal limit when, perhaps, they were not actually over the legal limit at the time they were arrested.
This occurs because most breathalyzer tests take place hours after the actual arrest, as most police officers do not have an Intoxilyzer 8000 – breath test machine– in their car. While these instruments, that look like an old computer, weigh up to 17 pounds, they are portable. The technology allows for these tests to be completed 15 minutes after driving, but most defendants do not get tested at the proper time and then must suffer the consequences of an inaccurate result. Similarly, portable breath tests, which are smaller versions of the Intoxilyzer 8000, are only admissible in court if the DUI defendant is under 21. This makes it difficult for people over the legal drinking age to receive precise results at the time of driving.
We are also able to attack the machine itself if test results seem too skewed. All police departments in South Florida use the Intoxilyzer 8000, despite the fact that it dates all the way back to 2005. If anyone were caught using a Nokia Flip Phone today, they would be deemed crazy -- but police departments think that it’s OK to use machines that are about 15 years old.
Intoxilyzer 8000s use infrared technology to conduct their tests – a method from the 1930s. This ancient approach, coupled with their aging machinery, are likely putting out more and more inaccurate BAC test results which is not good if you're under DUI investigattion in South Florida.
In many breath test cases, the Florida State Prosecutors call upon breath test technicians as expert witnesses in court to explain how a blood alcohol test is administered using a breathalyzer machine, even though technicians can only comment on how they are told to work it.
If there is ever a problem with the machine, technicians are not allowed to take the machine apart and try to fix it. When issues occur, technicians can only send the machines back to the manufacturer to be repaired. This means these technicians have never actually seen the inside of these machines nor experienced first hand how the machines work. In court, they can only make comments about conclusions resulting from the breathalyzer test, which are often too generalized and do not mean much to the jury.
There are many variables that can affect the results of a breathalyzer test, and we use this fact to our advantage when defending our clients.
Instead of weighing each variable at the start of every test, such as breath temperature, partition ratio, and breath volume, the machine picks averages when calculating the results. These variables may increase and create higher results than reality depending on if someone is sick, has a fever, is stressed or hyperventilating, or more.
If we can show a defendant’s test did not take into account these important variables, we are often able to prove their innocence in their DUI case in court.