abstract road

What if I took the Breath Test

What if I took the Breath Test

Posted By Parks & Braxton, PA || 11-Jul-2016

Jury Instructions About the Breath Test in Florida Most people are of the impression that the legal limit is .08, and if your breath alcohol reading is higher, than you are guilty of DUI in Miami. In many states, where the law simply requires the prosecutor to prove that the defendant was above a .08 at the time the test was given, this would be correct.. However, Florida requires that a prosecutor prove that the defendant was above the legal limit “while driving.” Since most officers do not have an intoxilyzer in their police cruiser, this presents a problem for the State Attorney. To understand this better, consider the fact that the body always takes time to absorb whatever substance it ingests. For example, the aspirin that you take won’t cure your headache immediately. It takes time for the medicine to absorb into your body. Similarly, the alcohol that you ingest takes time to absorb into your body as well.


Most experts will agree that the average person takes 30 to 90 minutes to fully absorb alcohol. What this means, is the drink that you consumed at ten o’clock will not fully absorb into your body and be accurately represented in your breath alcohol reading for another 30 to 90 minutes. Additionally, this is merely an average. Studies have shown that different factors including the digestion of food can have a tremendous impact on the length of time it takes for the body to fully absorb alcohol.


How does affect the person who was arrested for DUI in miami and subsequently took a breath test? Consider an individual who consumes their last alcoholic beverage at 10:00 o’clock. That same person is stopped at 10:20 and is ultimately arrested for DUI in Miami. At 11:00 the individual provides a breath alcohol reading of a .140. Florida DUI law requires that the prosecutor must prove that the driver was above a .08 at 10:20 rather than 11:00 when the subject actually provided the breath test. Some prosecutors have attempted to elicit testimony from an expert witness who then attempts to relate back in time what the driver’s breath alcohol level was at the time they were stopped. The process is called retrograde extrapolation. Most witnesses do not have the training or experience to provide this type of testimony. Thus, in the end, the mere fact that a person who was arrested for DUI in Miami had a breath alcohol reading above a .08 is not necessarily fatal. If you have any questions about how to defend a DUI in Florida please call Parks & Braxton at (305) 655­-2900.

Categories: DUI