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Strategies For Fighting BAC Test Results In A Florida DUI Case


All US states have some variation of an implied consent statute, which makes acceptance of your driver’s license conditional upon your consent to a blood alcohol concentration (BAC) test if arrested for drunk driving. Under Florida’s law on implied consent, you face significant penalties if you refuse to blow or submit to another chemical test for BAC. A first offense means an automatic driver’s license suspension for 12 months; subsequent refusals can lead to a suspension of your driving privileges for up to 18 months.

Considering these harsh consequences, which are in addition to any penalties for a potential DUI conviction, it makes sense – in most cases – to take the BAC test. Fortunately, there are ways to fight test results using strategies relied upon by Florida DUI defense attorneys.

Insufficient Training: The law enforcement officer administering a breathalyzer test must have proper training and credentials to operate the testing equipment. Florida has implemented the Intoxilyzer 8000 to assess BAC, and the manufacturer has a strict set of instruction and training curriculum that a user must complete.

 Improper Maintenance and Calibration: The Intoxilyzer itself must also be properly maintained over time, including cleaning and regular calibration. If the machine does not undergo periodic maintenance, it can deliver inaccurate results.

Intoxilyzer Warranty: Even with properly trained users and proper care, these machines come with a one-year warranty on defects in material and workmanship. While the age of the Intoxilyzer in your case may vary, you can be sure that the majority of these machines are well beyond their warranty date. Warranties exist for a reason: Sellers and/or manufacturers are aware that functionality is subject to wear and tear over time, and they are not willing to take responsibility for any defects that come up after the warranty period. An Intoxilyzer that is out of warranty may also deliver false readings. 

Lung Capacity: A certain amount of air must be exhaled for a breathalyzer test to return an accurate result. Lung capacity is affected by such factors as gender, age, and size. Plus, respiratory conditions can affect volume. A smoker or person with asthma may not be able to generate enough of an exhale to get a proper reading.

The “Burp Defense” in Florida: Though it has never been tested in Florida, the “Burp Defense” has been successful in fighting drunk driving charges in other jurisdictions. The strategy contests the theory that your BAC in one exhale is the same as the level of alcohol running throughout your system. After burping, the BAC in your breath is higher than blood alcohol level in the rest of your body. Therefore, officers should wait a designated period of time after a burp for the higher BAC in your mouth to return to the level in your system. If they do not, the BAC test results may not be accurate.

Schedule a Consultation with a Florida DUI Defense Lawyer Today

If you were arrested and made the choice to submit to BAC testing, there are still ways to fight a drunk driving conviction. To get started on a solid DUI defense strategy right away, please schedule a free consultation with attorney Kevin J. Kulik by calling 954-761-9411 or visiting our website.



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