Breath, Urine, or Blood Tests
Am I required to provide a breath, urine, or blood sample?
Under Florida law, if you are operating a vehicle within the state, you are presumed to have already given your consent to submit to a test meant to detect the presence of alcohol in your breath. You are also presumed to have given your consent for a urine test to determine the presence of any controlled substance. Law enforcement is therefore permitted to ask for either a breath test, a urine test, or both tests. If you examine your Florida driver’s license you will see that it contains the warning, “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”
As a result of the implied consent law, if you refuse to submit a breath or urine sample, the Florida Department of Highways Safety and Motor Vehicles, Division of Driver’s Licenses will automatically suspend your driver’s license for at least one year. In order to encourage drivers to submit a sample, the suspension is shorter if you comply with law enforcement, but blow a .08 or higher. Of course, providing a breath test sample will often arm the prosecutor with additional evidence to secure a conviction. Therefore, the decision to cooperate by providing a breath test, or to refuse the breath test, can often be quite difficult.
If you refuse the breath and/or urine test, the State Attorney’s Office will lack physical evidence of your impairment; but they will use your refusal to argue your “consciousness of guilt.” Your attorney can often present reasonable explainations as to why you refused to submit to a breath test and can emphasize that the State lacks precise physical evidence to demonstrate your impairment. As a result, when deciding whether to submit to a breath and/or urine test, you must weigh the consequences of a refusal against the danger of arming the State with evidence that you had a breath test result over the legal limit.
Whether you submitted a sample of a .08 or above or refused, you have the ability to challenge your driver’s license suspension within ten days from the date of your arrest through a DHSMV Formal Administrative Review Hearing. We can represent you at this hearing and argue that the suspension should be overturned. Our written request for such a hearing will often result in the issuance of a temporary driver’s license that will enable you to continue to lawfully drive. Click Here to learn more about Getting Your Driver’s License Back.
The taking of blood is only allowed in certain limited circumstances:
- You voluntarily consented to the taking of your blood;
- Law enforcement secured a search warrant to draw your blood; or
- You are involved in an accident that caused or contributed serious bodily injury or death, and there are “exigent circumstances” that prevent obtaining a search warrant.
Is there a difference between a blood test and a breath test?
Many people are surprised to discover that the Intoxilyzer is far less accurate in measuring impairment than a blood test. The Intoxilyzer does not actually measure your blood alcohol level. Rather, it measures the alcohol content in your breath. When you submit a breath sample into an Intoxilyzer machine used by local Pinellas County law enforcement, you shouuld know that the device is not set up to preserve a separate sample of your breath for later independant testing.
As a result of the limitations of breath testing, Florida Statute 316.1932 was enacted. This law gives you the right to request an independent blood test if you submit to a breath test and you are unhappy with the result. Not only is a blood test more accurate than a breath test, a sample of your blood can be retained for subsequent re-testing in a laboratory. Keep in mind; although better than breath tests, blood tests may still provide flawed results due to contamination, improper police procedures or other factors. Nonetheless, if you honestly believe that your breath alcohol reading reflected by the Intoxilyzer is inaccurate and you believe your blood alcohol content is below the legal limit, requesting an independant blood test may be in your best interest. Read more about the deficiencies of the Intoxilyzer and your right to an independant blood test.
If a blood draw was conducted in your case, the admissibility of your blood alcohol test results will depend on whether the State can show compliance with a multitude of administrative regulations and the requirements of the Florida Statutes. This often includes the argument that, despite your transport to a hospital, the taking of breath or urine was not impractical or impossible. Likewise, there may be an opportunity to argue that the degree of injury involved in the case did not rise to the level of “serious bodily injury” where the highly invasive method of a “forced blood draw” was justified. At our consultation, we can discuss the facts of the blood draw in your case and the possibility of seeking to keep the blood test results out of court.
Is law enforcement required to conduct an observation period before collecting a breath sample?
If you have any traces of alcohol in your mouth or esophagus, the accuracy of the Intoxilyzer results could be compromised. The Intoxilyzer is designed to test only a deep lung air sample. Injecting pure alcohol from the mouth directly into the breath test tube will cause the machine to register a faulty high reading. You may get this “mouth alcohol” effect through belching, hiccupping or vomiting. Likewise, having dental appliances in your mouth could trap alcohol and have a great potential to interefere with the securing of an acurrate breath alcohol test result.
In order to prevent the results from being inaccurate, the Intoxilyzer operator is required to monitor you for 20 minutes prior to your submission of a breath sample. He does this to better ensure that none of these variables will cause “mouth alcohol” to be present in your mouth or throat prior to your submission to the intoxilyzer machine. If the officer fails to observe you consistently for 20 minutes, you should inform our office so that we can further explore the validity of the test results.
Am I still in trouble if I blew less than a .08 BAC?
Yes. In Florida, it is illegal to drive if your normal faculties are impaired. Although you are presumed impaired if your BAC is .08 or greater, you can still be convicted of DUI if your BAC is lower than the presumptive legal limit. In such as case, the State Attorney’s Office will have to prove that your “normal faculties were impaired.” However, blowing under the legal limit may make your case a good candidate for a reduction from DUI to reckless driving. In most instances, where a driver blows under a .08, law enforcement will request a urine sample for laboratory analysis to reveal any use of controlled substances. We can secure the laboratory report in advance of your court appearance to examine the toxicology results. Click here to learn about the prosecutor’s limitations with urine testing in DUI cases.