The law treats driving under the influence (DUI) and driving while intoxicated (DWI) differently then other Florida criminal offenses. Because of the high level of pressure to reduce the number of alcohol related accidents, the law has made exceptions to certain fundamental constitutional protections that apply in other context. For example, the Fourth Amendment of the U.S. Constitution provides protection from unreasonable search and seizures. This typically means that the police must have some basis for conducting the stop of a vehicle, which means individualized suspicion based on articulated facts. However, the U.S. Supreme Court approved sobriety checkpoints in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). These checkpoints permit stops of vehicles under specific conditions without any basis for suspicion that a driver has engaged in criminal activity.
Another example of a traditional constitutional protection that DUI concerns have trumped is the right not to be compelled to provide evidence against oneself. Unfortunately, this protection is not guaranteed in DUI cases in Florida and in most other states. The implied consent law in Florida requires that a driver who is arrested for DUI may be asked to submit to chemical testing to determine one’s blood alcohol concentration (BAC). This chemical testing is most often conducted by use of breath testing.
A failure to comply and provide evidence against oneself by submitting to blood alcohol testing is considered a separate offense and can result in more severe punishment including a longer license suspension, a separate misdemeanor offense (for a 2nd refusal offense) and the refusal may be used as evidence of consciousness of guilt at a person’s DUI criminal prosecution.
What many Florida drivers do not realize is that a person can be considered to have refused despite diligent attempts to comply. A breath test in Florida is usually conducted using the Intoxilyzer 8000. The breath testing device cannot register a result unless you produce a large enough sample of alveolar air or deep lung breath. If you do not produce a large enough sample, the device will register a volume not met (VNM) flag. A technician will allow a person two chances to blow into the device. If a sufficient sample is not produced, the technician will record the test as a refusal.
To produce an adequate sample, you must blow into the device for at least one second and produce 1.1 liters of air. The technician and prosecutor will attempt to portray the test as though you failed to cooperate and intentionally did not cooperate with the test. A fair variety of individuals including those with asthma, emphysema, smokers and the elderly may struggle to produce a sufficient volume of air. Our experienced Florida DUI defense attorneys may file a motion to suppress any reference to the “refusal” in such a situation.
If you or a loved on is arrested for DUI, our experienced Florida DUI attorneys may be able to help you avoid the negative consequences of a Florida DUI conviction. We have represented many Florida residents accused of DUI and refusals including those involving VNM 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).
