Archive for the ‘Florida Breathalyzer Refusal’ Category

Florida Court Rejects No Refusal Checkpoint Procedure in Misdemeanor DUI Cases

Friday, February 3rd, 2012

With Super Bowl Sunday a week away, law enforcement authorities throughout Florida will be ramping up with increased DUI enforcement.  Sobriety checkpoints (i.e. DUI roadblocks) are a popular tool of law enforcement for enforcing DUI laws during major holidays or other events where it is assumed there will be increased drinking and driving.  Fortunately, a recent Florida court decision will deprive law enforcement of a more extensive weapon – forced blood draws in misdemeanor DUI cases.

Florida law enforcement authorities following a trend in a number of states have been arranging to have judges ready to grant warrants to draw blood at so-called “No Refusal Checkpoints.”  When motorists are stopped at these DUI roadblocks and decline to submit to a breath test, a judge is available to immediately issue a warrant which authorizes forcibly taking a blood sample for chemical testing of blood alcohol concentration (BAC).  This procedure poses a particularly onerous infringement on Fourth Amendment search and seizure interests because the initial stop is random and does not require any individualized basis for suspicion.

In the State v. Geiss (Case No. 5D10-3292), the Fifth District Court of Appeals for Florida ruled that the forced blood draw procedure used at “No Refusal Checkpoints” was not authorized under Florida law.  The defendant in the case Gregory Geiss was stopped for suspicion of DUI.  Geiss declined to perform field sobriety tests and also refused to comply with the officer’s demand that the driver submit to a breath test.

The Fifth District Court of Appeals considered three separate challenges to the forced blood draw procedure based on the following: (1) Constitution right to privacy; (2) Florida’s implied consent statute; and (3) Florida’s state warrant statute.  While the court rejected the first two challenges to the forced blood draw procedure, the court ruled that the procedure was invalid under Florida’s warrant statute.  Florida Statute 933.02(3) provides in pertinent part “[u]pon proper affidavits being made, a search warrant may be issued under the provisions of this chapter upon any of the following grounds: (3) [w]hen any property constitutes evidence relevant to proving that a Felony has been committed.”

The court found that the procedure was not authorized under the state warrant statute for misdemeanors, which would include most though not all DUI offenses.  Because this is the first Florida appellate court to rule on this issue, courts throughout the state will look at this decision in misdemeanor DUI cases involving forced blood draws.  Florida law enforcement authorities find forced blood draws attractive because “DUI refusal” cases are more difficult for prosecutors.  If you are charged with DUI following a forced blood draw at a Florida no refusal DUI roadblock, Florida DUI defense attorney John Musca provides zealous DUI defense based on innovative and proven legal strategies and new legal developments.  We invite you to contact a Florida DUI defense attorney at Musca Law to schedule a free confidential consultation at (800) 687-2252 to see how we can help.

Florida DUI: False Positive Breath Test Results

Monday, August 15th, 2011

Many people mistakenly confuse portable breath testing results with reliable science.  A driver who has had only a small amount to drink may test over the legal limit for a presumption of intoxication under Florida law of .08 percent blood alcohol level (“BAC”).  Many people chew gum or use mouthwash to eliminate the odor of alcohol from their breath.  This is a common sense reaction to the fact that the odor of alcohol on one’s breath following a stop is often one of the observations that officers use to justify field sobriety testing or breath testing.  Ironically, this may mean that you test over the legal limit even though you have not actually consumed enough alcohol to be intoxicated.

While some people have heard the stories about testing over the limit after using mouthwash, cough syrup or an asthma inhaler, most people assume such stories are the stuff of urban legends.  The truth is that a breath testing machine cannot distinguish between alcohol in a person’s mouth and alcohol that has been metabolized by the body and breathed out from the lungs.  \Portable breath testing devices multiply the amount of alcohol in a breath sample 2100 times to calculate a person’s BAC.  This breath testing machine is programmed to assume that a person has 2100 units of alcohol in one’s blood for every unit of alcohol in one’s breath. This conversion ratio is called the “partition ratio”.   But this ratio is only an average so actual ratios vary from as low as 900:1 to as high as 3500:1.  If the ratio is wrong in a particular case, a person can test as being under the influence when one’s actual BAC is below the legal limit.  This is precisely what can happens when the breath testing device measures unmetabolized alcohol in the mouth as opposed to metabolized alcohol in breath from the lungs.

Common brands of mouthwash often contain high levels of alcohol.  For example, Listerine contains 27% alcohol and Scope contains 19% alcohol.  When mouthwash is used and the amount of mouth alcohol is multiplied by the 2100 conversion number, it can mean someone who is not under the influence produces test results indicating that he or she is over the legal limit.  In one study, subjects who had used Listerine tested over the legal limit with an average .11 BAC as much as five minutes after using the mouthwash.  This means that spraying mouthwash may lead to an unjustified DUI arrest as opposed to helping you avoid one.  If you are stopped by a police officer and submit to DUI breath testing, you may be the victim of unreliable results from a portable breath testing device with far from scientific and infallible accuracy.  An experienced Florida DUI attorney will carefully investigate grounds for challenging your DUI breath results and seek to attack these results based on a multitude of reasons for inaccurate results.

Call 1 800-687-2252 to Speak With a Florida DUI lawyer In Your Area.

Hiring a Florida DUI attorney to aggressively defend you can help you obtain the best possible result in your case.  Call our toll-free, Florida DUI Advice Helpline at 1 (800) 687-2252 for a Florida DUI law firm near you (by appointment only).

A Lawyer’s Input on the Refusal of Testing With A Breathalyzer

Tuesday, July 19th, 2011

When an individual commits the unlawful act of driving while under the influence of alcohol or drugs, one can always expect to be asked to submit in either a breathalyzer, blood test, or a urinalysis by an entity of law enforcement. If arrested after a field sobriety test, you will most definetly be asked to submit to a breathalyzer test by the arresting officer. If your not deathly ill from the alcohol consumed and need medical attention, be ready to get your breath ready because the cop will be attempting to conduct the breathalyzer.

If asked to participate with the breathalyzer test by the officer, and you decline it, you will have the have a suspension of your driver’s license for a year for the first offense, and eighteen months of suspension for the next offense if you have previously refused to participate with a blood, urine or breath test with the administered by a law enforcement entity. The next question he asks will be the same question again, to submit to a breathalyzer test.

However, what should you really do? If refused at the first time you are asked for consent, your driver’s license will be certainly be suspended for a period of time based on the number of previous offenses, if any are applicable. Also, the Department of Motor Vehicles (DMV) issues the actual suspension separate from the conviction charge, regardless if proved innocent or guilty. If an individual has never refused a breathalyzer test, they are eligible to possibly attain a hardship license within the state of Florida, after ninety days of the refusal. Secondly, the refusal to actually submit to the test could be used against an indvidual in the court of law as known guilt of driving while under the influence, which will usually be used against the defendant in court.

The best a person facing any DUI charges can simply use three things to help minimize the demeanor of the incident and possibly elude charges as a hold by if at all possible trying to stay away from refusing evidence, explaining the jury simple of your decision and reason as to why you did not participate in the test, and to also make sure the State Attorney stays within proper boundaries when arguing the individuals refusal of the test with the jury. A “Confusion Document” can sometimes come to help the defendant when they were improperly informed of the consequences that result from not participating in the investigation and also if the proper Miranda Rights were not recited as required.