Attack The Breath Test

1. THE MACHINE:

Police officers use a breath machine that is known as the Breathalyzer 8000. The machine is maintained and inspected on a monthly and annual basis. It is used to determine if your breath alcohol level is .08 or more grams of alcohol per 210 liters of breath. In Florida, when your breath level is .08 or higher, it is assumed that you are Driving Under the Influence. However, there are many ways we can attack these machines' results.

2. HOW TO BEAT THE MACHINE:

(a) 20 minute observation period:
After you are arrested, for DUI but before the breath test, the police must observe you for 20 minutes prior to you giving a breath test. During that 20-minute period, police must ensure that you did not regurgitate anything or have anything in your mouth. If police did not watch you for the ENTIRE 20 minutes, your breath test can be thrown out of court.

(b) 2 breath samples:
The police require that you give 2 breath samples within 15 minutes of each other to determine your breath alcohol level. Each breath sample must be within .02 of each other. If your breath samples are farther apart than .02, then your breath results may be inadmissible in court and your case may be dismissed.

(c) Monthly and Annual Inspections:
Florida Department of Law Enforcement requires that the breath machine be inspected on an annual and monthly basis. The police must use an approved alcohol solution and test the machine to determine if it accurately reads alcohol levels. If the machine has not been maintained properly and/or the alcohol levels are incorrect, your breath results may be inadmissible in court and your case may be dismissed.

(d) Expert Testimony:
We can bring toxicologists and experts to determine your true breath alcohol level at the time you were driving. When you are given the breath test, usually it is given at least 1 to 2 hours after you were driving. Breath alcohol levels fluctuate during this time. Many times an expert will help our case because they are able to determine that your breath alcohol level was actually below the .08 legal limit when you were driving.

3. DEFENSES:

(a) Time of Driving Defense:
The Prosecutor must prove that your breath alcohol level was .08 or higher at the time you were driving your car. Most times you are not given a breath test until hours after you have been arrested for DUI. During this time, breath alcohol levels often fluctuate making your breath alcohol inaccurate and thus calling into question the evidence the police have against you. In court, we can attack your breath results and possibly move to have them excluded.

(b) Breath Test Operator's and Inspector's Qualifications: The Breath Test Operator, the person who administered the breath test, has to be certified by Florida Department of Law Enforcement. If he or she did not have the proper certification, your breath results could get thrown out of court.

The Breath Test Inspector performs the machine's monthly inspections. Florida Department of Law Enforcement requires that he or she be certified through their agency and that he or she have the proper training. If the inspector does not have the proper certification and training, your DUI case could get thrown out.