The Rising Blood Alcohol Defense

In an effort to reduce the amount of time between a DUI arrest and the submission of a breath sample for alcohol content analysis, some Pinellas County law enforcement agencies have invested in mobile breath alcohol testing units. In the past, people who were arrested for DUI had to be transported to police headquarters for breath testing. Now, with this tool available to law enforcement, DUI suspects can be tested right at the scene of the initial traffic stop.

The ability of law enforcement to quickly administer an Intoxilyzer test shortly after initiating a traffic stop or arrest for DUI may serve to reduce the likelihood of a successful “rising blood alcohol defense.” In the past, a defense might have been better presented that a person arrested for DUI didn’t have an unlawful blood alcohol content at the time he was driving. The argument often made was that he was still absorbing alcohol into his bloodstream during the transporting process to the Intoxilyzer room at the local police station. Accordingly, his Breath Alcohol Content (BAC) would be over the legal limit by the time he ultimately submitted a breath test sample.

Attacking the Admissibility of Mobile Breath Test Results

Given the mobile nature of the Intoxilyzer unit, questions regarding compliance with the Florida Department of Law Enforcement regulations on breath testing might be raised. For example, one regulation requires that only persons holding a valid permit are allowed access to an Intoxilyzer machine. Likewise, it is required that the machine be stored in a “secured environment.” Does an Intoxilyzer machine stored in the back of a police van “substantially comply” with these requirements as set out by FDLE? Perhaps, the most important issue concerning mobile breath testing is the question of whether the Intoxilyzer was properly maintained and calibrated prior to its use in the field. FDLE rules hold the mobile Intoxilyzer to the same high standards as those machines kept at stationary breath testing facilities.

As with any questionable police practice, such arguments will have to be tested in court where the parties can have a full and fair opportunity to present evidence relevant to the dispute. An experienced defense attorney will enable you to carefully explore and analyze the practices of the police so as to determine whether full compliance with statutory requirements have been met. Click here to learn how we might be able to keep the results of a mobile breath test out of court.

If you have been arrested for a DUI in the St. Petersburg or Clearwater area and a mobile breath test was involved, call us for a free consultation at 727-855-3847.