Can You be Convicted of a DUI Without a Breathalyzer in Tampa, Florida?

If you were arrested for DUI in Tampa and you refused to provide a breath sample at the Hillsborough County Jail, you may be wondering if you can still be convicted of DUI in the Hillsborough County Courts.

Many people believe that if a prosecutor does not have an exact measurement driver’s breath alcohol level, that the driver can’t be convicted of DUI.  However, as explained below, a breath or blood alcohol level above the legal limit is just one of two ways that a prosecutor can prove a DUI charge. 

Driving with an Unlawful Breath Alcohol Level

The first way that a prosecutor can prove that a person is guilty of DUI in Florida is to show beyond a reasonable doubt that the person drove or was in actual physical control of a motor vehicle, and that the person had a blood or breath alcohol level of .08 or more.  

So, with respect to driving with an unlawful breath alcohol level, for the prosecutor to meet his or her burden, the person driving must have submitted to a breath test and the results must have been above .08.  

For the breathalyzer results to be valid and admissible in court, the test must be properly administered by a person certified by the Florida Department of Law Enforcement as a breathalyzer technician, and the breathalyzer instrument used must have been properly calibrated and regularly maintained.  Further, the breathalyzer instrument must be inspected monthly by the Hillsborough County Sheriff’s Office and inspected yearly by the Florida Department of Law Enforcement.  

Why People Submit to a Breathalyzer Test

For a variety of reasons, persons arrested for DUI submit to a breathalyzer test.  

Sometimes a person arrested for DUI believes that their breath alcohol level will come back less than .08.  In many cases this is not an unreasonable belief.  There are times when persons arrested for DUI have breathalyzer results of zero, or levels that are well below the .08 limit.  This is because the field sobriety exercises upon which law enforcement officers rely to decide whether to arrest a person for DUI are imperfect.  Field sobriety exercises are not easy to do, even for someone that is completely sober.  People are not accustomed to walking on a line in the middle of the night or holding one of their legs up for an extended period of time on the side of a busy highway.  In addition to the novelty of the situation, distractions such as rain and wind, flashing police lights, and bystanders passing by can make the whole experience nerve wracking for the person doing the exercises.  Also, some people may have a problem with a knee or ankle, or some other physical or medical issue, which adversely affects their performance on the exercises. 

Sometimes a person will submit to a breathalyzer test because the officer tells them that if they refuse the breath test, that their license will be suspended for a year, but if they provide a breath test and the result is above .08, their license will only be suspended for 6 months.  Other times a person may submit to a breathalyzer because they want to cooperate with the law enforcement officer.  

Why People Refuse to Submit to a Breathalyzer Test

For a variety of reasons, persons arrested for DUI will refuse to submit to a breathalyzer test.

First, person arrested for DUI may refuse to submit to a breathalyzer because they realize they may be over the Florida legal breath alcohol limit of .08. 

However, there are other reasons a person might refuse to take a breathalyzer.  Some people don’t trust the technology and accuracy of the breathalyzer.  Other people are so frustrated with the entire experience of having their vehicle stopped, doing the field sobriety exercises, and then being detained, that they don’t want to cooperate any further with the law enforcement officer.  Other people who for a variety of reasons are not concerned with the difference between a six-month suspension and one year suspension of their driver’s license, don’t see the point in providing a breath sample – what mattered to them most was avoiding getting arrested – and if they are at the jail being asked to provide a breath sample, that arrest has already happened.  

Driving while Normal Faculties are Impaired

The second way that a prosecutor can prove DUI is to show beyond a reasonable doubt that a defendant drove or was in actual physical control of a motor vehicle in Florida, and that while driving the defendant was under the influence of alcoholic beverages, a chemical substance, or a controlled substance, to the extent that his or her normal faculties were impaired.

Under Florida law, a person’s normal faculties include the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.  Florida law defines impaired as “diminished in some material respect.” 

As a practical matter, this makes the facts that surround a DUI arrest, including the reason for the initial traffic stop of the driver, extremely important.  That’s because if the driver refused the breathalyzer test, the prosecutor must look to other evidence to prove that the driver was impaired.

For example, let’s say that a Tampa Police Officer writes in his police report that he pulled a car over because it was changing speeds and swerving all over the highway, and that it almost crashed into several other vehicles.  Let’s further assume that when the officer pulled the driver over and made contact with him, that the officer observed that the driver had red glassy eyes, slurred speech, and a strong smell of alcohol coming from his or her breath. In a case like this, the prosecutor’s position will be that the driver’s poor driving pattern, along with the officer’s observations of the driver after the stop, indicate that the driver was impaired.  The prosecutor will also argue that the reason the driver refused to take the breath test was because the driver knew he or she was over the legal limit.  

Compare that with a situation in which a police officer pulls a car over because the light around its license plate is not working.  In a case like this, the prosecutor can’t argue that the person’s driving pattern indicates that he or she was impaired.  Even if the officer documents in his or her report that the driver showed some signed of having drank alcohol (red glassy yes, an odor of alcohol coming from the driver’s breath), if the driver performs well on the field sobriety exercises, or if a driver does not perform those excises, then a case like this could be difficult for the prosecutor to prove.  

Hiring the Best Tampa DUI Lawyer

If you or a loved one has been arrested and charged with a DUI in Tampa, Florida, you need the best Tampa DUI attorney.  Attorney David Hardy is a former Tampa DUI prosecutor who now works as a DUI defense attorney. Attorney Hardy has handled many hundreds of DUI cases as a prosecutor and as a defense attorney.  He has extensive experience with DUI breathalyzer refusal cases, as well as DUI cases involving breathalyzer tests.  If you need help with a Tampa DUI, contact the Hardy Law Firm, P.A. 

Posted in Florida DUI Defense

David C. Hardy

David C. Hardy

David C. Hardy is a criminal defense attorney with offices in Tampa, Florida. He is a former prosecutor that is Board Certified by the Florida Bar and The National Board of Trial advocacy as an expert in criminal trial law. He practices in the areas of federal criminal defense, Florida criminal defense, and Florida DUI defense.

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