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Breathalyzer Tests: Florida Drivers Often Refuse When Asked to Blow

According to a report by WFTV Eyewitness News, four out of 10 Florida drivers stopped by police for suspected drunk driving refuse breathalyzer tests. However, what these Florida motorists may not know is that simply refusing a breathalyzer can be a serious offense in Florida. Breathalyzer Refusal Rates in Florida Given the high rates of breath test refusal in Florida, some have called for a change in Florida law. For example in other states, if a motorist refuses to take a breath test then police will simply take their blood and screen it for alcohol. The idea is that people will be more likely to take a breathalyzer if the alternative is a needle. However, when various Florida counties implemented these intrusive blood draws, Florida courts overturned the DUI convictions – leading some to ask for a change in the law to allow blood tests. Florida’s Implied Consent Law Florida’s current law regarding breath tests – commonly known as Florida’s Implied Consent Law – states that any motorist who simply accepts the “privilege…of operating a motor vehicle within this state is…deemed to have given his or her consent to submit to…[a] test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath.” Simply put: If you choose to drive, you have already consented to a breathalyzer, and if you refuse we can punish you. The punishments can be quite severe as well – with a first refusal punishable by a suspension of a driver’s license and a second refusal being considered a first-degree misdemeanor and a criminal offense. However, if you have refused a breath test do not despair as you still have some options. For example, if you refuse to provide a breath sample, you are entitled to a DMV hearing in which you can challenge the license suspension. In any case, it is always a good idea to speak with an experienced criminal defense attorney if ever charged with a DUI or refusal. Source: WFTV News, “DUI suspects refusing breathalyzers frustrating to prosecutors,” June 29, 2012

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Florida Law Enforcement Boozes it up to Defend Breath Test Device

The Florida Department of Law Enforcement (FDLE) recently launched a “spirited” defense of the Intoxilyzer 8000 machine – the machine it uses to test the blood alcohol content of suspected drunk drivers. Since theIntoxilyzer was put into service in 2005, it has been a subject of ridicule and attack among defense attorneys in several Florida counties who have claimed that it is an inaccurate means of measuring blood alcohol content. In an attempt to prove that the machine is reliable and accurate, the FDLE decided to test it out by paying some of its employees to get drunk while on the job. On an October day, the FDLE provided whisky and other liquor- at taxpayers’ expense – and had 15 employees drink while on the clock. After the participants had become sufficiently intoxicated, they blew into three different Intoxilyzers: one calibrated to provide an accurate measurement of breath volume, one set to measure too little breath and one set to measure too much. Cameras recorded the results. The participants’ blood was then drawn and sent to a lab for comparison. Two months later, an alcohol-testing expert from the FDLE presented the results of the experiment to a panel of judges from Sarasota and Manatee counties, and asserted that the test proves that the machines are accurate. Results of Experiment Questioned The judges were skeptical of the results of the experiment, partially because the results of the blood tests of the participants were conspicuously absent from the presentation and other results presented were not finalized. Statistical experts agreed, saying that the experiment may not be scientifically valid, as it was only performed one time on a small group of people. Use of Intoxilyzer Controversial The controversy surrounding the machines started in 2005, when certain machines reported that some drivers have blown 10-12 liters of air into the machine. This measurement is impossible, as a typical person’s lung capacity is only about five liters. Breath volume is important to achieve an accurate result, as an insufficient amount of breath can cause the machine to register artificially high blood alcohol content. Since FDLE rules do not require that breath volume measurements be calibrated, this calls into question the accuracy of the machines. The fears of inaccuracy may be legitimate. An expert found that drivers tested on these particular machines that are not properly calibrated were four times more likely to register a blood alcohol content of 0.25 – three times the legal limit. The panel of judges is awaiting final results before it decides if the Intoxilyzer will continue to be used in Manatee and Sarasota counties.

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Faulty Breath Tests Tossed In Florida DUI Cases

Prosecutors in two counties in Florida have withdrawn the breath tests from around 100 DUI cases, according to a story in the Herald-Tribune. The cases will still proceed, but the prosecution will rely on other evidence, said prosecutors in the article. Intoxilyzer 8000 Problems The Intoxilyzer 8000, a breath-testing machine, appears to have been improperly set up and may have caused numerous inaccurate measurements for years. The five machines in question operated without being properly calibrated for measuring the volume of air a suspect exhales into the machine. The Intoxilyzer calculates the blood alcohol content (BAC) of a person by comparing the amount of alcohol vapor in the breath to the volume of air exhaled. The faulty breathalyzers appeared to measure many times over the actual breath volume. In order to create an accurate measurement of BAC, the machine must receive enough air to ensure the sample is not skewed by residual alcohol in the mouth or throat. If the machine incorrectly measures the quantity of air, it cannot arrive at an accurate BAC. It is also possible, according to the Herald-Tribune story, that the machine could indicate an insufficient volume, falsely implying the suspect failed to blow a sufficient breath into the machine, which in Florida can be charged as a “refusal,” i.e. where one refused to take the breath test, and cause the motorists to be subjected to a license suspension. The state has found that as much as 40 percent of the Intoxilyzer 8000 machines were malfunctioning. Not Foolproof This story illustrates that even police can make mistakes when making arrests for DUI in Florida – you have a right to fight a DUI claim if you believe you were improperly charged. Moreover, additional reports from California and Pennsylvania indicate problems with other breathalyzers used by police. Breathalyzers have been found to be faulty throughout the country; the machines may not have been properly calibrated or maintained, or, the officers may not have received proper training. All of these factors can compromise the accuracy of a breathalyzer test. Even open-and-shut cases may have their weaknesses.

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Avoid Being Pulled Over on Suspected Drunk Driving

Even the most sober, law-abiding driver feels a twinge of panic when he or she sees a police cruiser’s lights flashing in the rear view mirror. However, someone who recently had a beer at a local bar or a drink while watching the big game will feel especially vulnerable in this situation. There are some basic steps a driver can take to avoid being pulled over in the first place. The best and safest step is to not drink before driving, this cannot be stressed enough. A difficult situation can be avoided by using a designated driver, taxi cab or public transit. Exercising safe driving practices is part of what December is about, as National Drunk and Drugged Driving Prevention Month brings awareness to drinking and driving during the holiday season. While we strongly urge everyone to avoid driving with any blood-alcohol content, read on to learn how to drive as safely as possible in a situation where you are legal to drive but have had a glass of wine or a beer with dinner and want to avoid a stressful police encounter: Ensure that you are safe to drive – adults in Florida may legally drive after consuming alcohol if they can safely operate a motor vehicle and have a blood-alcohol level below .08. If you feel you intoxicated or believe you may be anywhere near the legal limit, grab a glass of water and wait – time is the only thing that can sober you up. Plan your route – make sure you know where you are going before you turn on the car. Sudden, quick turns or turning without signaling will get you pulled over. Know your destination and path ahead of time. Turn your lights on – if you are driving at night with your lights off, the police will pull you over immediately. Many police officers state that this is the most common reason for pulling vehicles over on suspicion ofDUI. Forgetting to turn on your lights tells the officer that you are likely drunk before he or she even speaks to you. Eliminate distractions – the radio, passengers and cell phones provide unnecessary distractions to all drivers. Focus on the task at hand to avoid driving mistakes. Once again, please avoid drinking and driving. This is always the safest way to go. The above suggestions will not protect you from a DUI if you are driving with an unlawful blood-alcohol concentration. Look soon for our post on what you should do when you have been pulled over on suspicion of DUI.

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