Archive for the ‘Florida DUI Chemical Tests’ Category

The “Most Accurate” Form of DUI Chemical Testing May Be Less than Accurate

Thursday, February 2nd, 2012

Although having a driver blow into the Breathalyzer 8000 is the most common way that Florida police will test blood alcohol concentration (BAC) following a DUI arrest, blood testing is considered the most accurate method of testing BAC.  BAC refers to the amount of alcohol present per a hundred milliliters of blood in a driver’s body.  There are a wide range of reasons that BAC chemical testing via blood sample may be inaccurate.  It is worth keeping in mind that although an entire vial of blood may be extracted, only a microscopic quantity is tested (i.e. less than a tenth of an ounce).  Since the amount of blood tested is so miniscule, the slightest error can lead to results that are wildly inaccurate.  One reason that Florida DUI defense lawyer John Musca is able to successfully defend those charged with DUI is that even this most accurate form of BAC testing often is mistaken.

There are many procedural irregularities and mistakes that may lead to inaccurate BAC blood testing results including:

  • Contamination of the blood sample
  • Failure to properly sanitize testing apparatus
  • Blood samples from different test subject being mixed up
  • Lack of proper refrigeration of blood sample
  • Testing personnel that lack adequate training and experience
  • Failure to properly mix chemicals with the blood in the vial for testing
  • Chain of custody issues
  • Alcohol fermentation in the sample because of failure to properly store the sample
  • Use of the wrong preservative and anticoagulant powder

These are only a few examples of errors that may make BAC testing results inaccurate.  Because blood test results are usually the most important evidence in Florida DUI cases where blood testing is used, Florida DUI attorney John Musca carefully investigates BAC procedures including extraction, handling and testing procedures, to identify procedural errors that may have impacted his clients BAC results.  It is worth reiterating that minor errors can cause major distortions in blood testing BAC results.  When a blood sample is not treated properly with chemicals or stored in the proper cool environment, it can generate a BAC that is double or triple the actual BAC level of the test subject.

If you or someone you love has been arrested by a Florida police officer for DUI, our experienced team of Florida DUI attorneys and staff work diligently to expose weaknesses in the prosecution’s case.  We seek the best possible outcome for our clients.  We invite you to contact a Florida DUI attorney at Musca Law to schedule a free confidential consultation at (800) 687-2252 to see how we can help.

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Frequently Asked Questions (FAQs) BAC Chemical Testing in Florida DUI Cases (Part 1)

Thursday, December 29th, 2011

At the Florida DUI defense law firm of Musca Law, we know that being arrested for DUI can be a stressful experience that creates enormous uncertainty about the future.  We routinely receive calls and emails from those who are facing Florida DUI charges and their families.  While the best way to obtain information about your rights and options if you are charged with DUI in Florida is to speak to an experienced DUI defense attorney at our law firm, we have provided some answers to common questions below.

Since I blew over the .08 percent legal limit, what is the point of hiring a Florida DUI attorney?

Many people are under the misconception that DUI cases are pretty cut and dry if your breath test results are over the legal limit.  The reality is that there are many defenses that can be effectively used even if you failed a breath test.  Florida DUI defense lawyer John Musca may challenge whether the officer even had a legal basis for pulling you over or for conducting a DUI investigation.  If the officer did not have a sufficient legal basis to pull you over, then DUI attorney John Musca may seek to suppress critical evidence including the following:

  • Field sobriety testing
  • Breath, blood & urine testing
  • Admissions or incriminating statements
  • Officer observations
  • Evidence obtained during a search of your vehicle

There are many other defenses that an experienced Florida DUI attorney may use including attacking the breath test results.  The point is that a breath test result above .08 percent does not mean that you will be convicted of DUI in Florida provided you have an experienced DUI attorney who understands the available procedural and substantive defenses.

What is the rising blood alcohol defense?

The law prohibits having a blood alcohol concentration above .08 percent at the time you are driving not at the time that chemical testing is administered.  The duration of time for alcohol to be absorbed into your body may range from forty-five minutes to three hours so the alcohol concentration may continue to rise after you are stopped and even after you are arrested.  Sometimes a substantial period of time will pass between the time you are pulled over and a breath, blood or urine test is administered.  If you alcohol level is below .08 percent, your BAC may rise above this level during this lapse in time.

Am I required to submit to a chemical test of breath, blood or urine?

Under Florida’s implied consent law, a driver who refuses to consent to chemical testing of one’s blood alcohol concentration will face an administrative suspension of one’s driver’s license.  The implied consent law provides that anyone who drives in Florida consents to submit to chemical testing as a privilege of driving on Florida roadways.  A refusal to submit to chemical testing may result in a minimum one year suspension for a first offense and an eighteen month suspension for a second refusal.  A second refusal can also result in a misdemeanor conviction.  If you refuse to submit to a breath test, this may also be used as evidence in your DUI case.

While these answers may address some of your questions if you have been arrested by DUI in Florida, you may also review our other FAQs for other common questions.  The best way to obtain answers to your questions is to speak to a member of our experienced Florida DUI team at Musca Law.

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When Can a Florida Officer Compel a Blood or Urine Test Following a Breath Test?

Thursday, August 4th, 2011

There are many aspects to a DUI drugs case in Florida that makes it different from driving under the influence of alcohol.  While the process may be similar in terms of the initial stop, which must be based on a traffic violation or articulable facts that a driver is engaged in illegal activity.  Once a driver is stopped an officer will typically make observations regarding the driver’s physical condition including bloodshot eyes, smell of alcohol and slurred speech.  Based on these observations the officer will then typically request that the driver submit to field sobriety tests (FSTs).  When the driver predictability fails the FSTs as expected, the case starts to get interesting.

If the officer has not uncovered specific evidence that the driver is under the influence of drugs, the officer usually will ask the driver to submit to breath testing.  If a driver has not been drinking or has consumed a negligible amount of alcohol, there is little reason for the driver to refuse to take the breath test.  If the officer still believes that a driver is intoxicated despite a breath test with a blood alcohol (BAC) test below .08 percent, the officer will then insist that the driver submit to blood or urine testing to determine if the driver is under the influence of drugs.

The problem is that the officer really has no specific evidence that the driver was under the influence of drugs merely because the driver passed the breath test.  Generally, Florida’s implied consent law requires motorists to consent to chemical testing of breath, blood or urine incident to a DUI arrest.  If a driver refuses to consent, the prosecutor can comment on the refusal as “consciousness of guilt” at trial.  The interesting question is whether the prosecutor has the same right to comment on the refusal of a blood or urine test following a driver consenting to and passing a breath test.

If you are arrested for DUI drugs our experienced Florida DUI attorneys may be able to challenge a blood or urine test that is administered after you have been determined not to be over the legal limit of .08 percent BAC by a breath test.  The key issue is usually whether the officer has specific evidence that you are under the influence of drugs.  If the officer has no specific evidence to support a belief that you are under influence of drugs beyond the fact that you passed a breath test, we may be able to have subsequent urine or blood test results suppressed or convince the judge that your refusal to submit to blood or urine test may not be used against you at trial.

While it is never advisable to drive while under the influence of drugs (or alcohol), anyone stopped who has taken any type of drug whether legal prescription, over-the-counter medication or street drug should not volunteer any information to an officer about any such drug use.  It is also important to realize that drug paraphernalia, prescription bottles or pills left in plain view in a driver’s vehicle may provide sufficient evidence of a driver being under the influence of drugs to require a urine or blood test even though the driver has successfully passed a breath test.

If you or someone you love is arrested for DUI drugs and forced to submit to a urine or blood test after successfully passing a breath test, our experienced Florida DUI defense attorneys may be able to file a motion to suppress the test results or any reference to the refusal.  Our Florida DUI defense attorneys offer a free initial consultation so call us today.

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

Hiring a Florida DUI law firm 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).

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Understanding How Delayed Testing Can Affect Your Florida DUI

Tuesday, July 5th, 2011

There are many grounds for challenging Florida DUI charges based on the lack of reliability of blood alcohol testing via breath, blood or urine.  The Breathalyzer 8000 is the device approved for breath testing in Florida, and breath testing is the most common means of testing blood alcohol concentration (BAC).  Breath testing is notoriously less reliable than blood testing.  If there is a substantial delay of time between your DUI stop and the breath test, the results of the breath test are even more suspect.

The way the body processes alcohol makes delays in administering a breath test highly relevant to defense of Florida DUI criminal charges.  When alcohol is consumed, it does not go directly into one’s blood stream.  Alcohol must be absorbed into the bloodstream before it will have an impact on your BAC or impact your driving.  When you drink alcohol, it must go through an absorption process during which your BAC is rising.  The longer the time that passes the more alcohol that will be absorbed into your bloodstream.

The rate of absorption by the body depends on a wide number of factors including age, weight, general health, individual rate of metabolism and contents of one’s stomach.  As alcohol is absorbed into the bloodstream, it will rise for a period of time then plateau and eventually begin to fall.

This means that you could be at a party and be below the legal limit.  You have a couple of drinks for the road and are still below the legal limit when you leave the party.  Because it may take an hour for the alcohol consumed right before leaving the party to be absorbed into your body, you could lawfully drive home and go to bed without having your BAC level rise above .08 percent.

If a police officer stops you as you drive home, you would still be under the legal limit at the time of the stop.  However, there may be delay between the time of the stop and administering the formal breath test.  The more time that passes the higher your blood alcohol level would rise until hitting the plateau point and starting to fall.  This means that you would have been legally driving when stopped, but you would be over the legal limit when tested.

Our experienced Florida DUI attorneys carefully investigate and examine the timing of when you consumed your last alcohol, the quantity consumed, BAC results and the duration of time between your stop and formal BAC testing.  If a delay between the stop and the test may have contributed to an invalid test because you were in the absorption stage, we may use an expert to explain this process to the jury.  In some cases, we may even be able to have the breath tests results excluded because they are unreliable.

Our Florida DUI lawyers carefully investigate every aspect of the prosecutor’s DUI case so that we can challenge the evidence against you and seek suppression of evidence where appropriate.  Our goal is to seek dismissal or acquittal of your DUI charges in Florida.  When these are not viable options, we look to weaken the prosecutor’s case so that we can push for the best possible plea agreement.  If you have been stopped and arrested for DUI in Florida, our experienced legal team is ready to help.  We offer a free initial no obligation case review so there is no reason to delay.  Call us today!

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