As a North Florida DUI attorney, I get asked this question all of the time. The short answer is: No, you cannot trick a Breathalyzer. There are several myths out there, but no method has been proven to prevent a Breathalyzer from reading your true blood alcohol content (BAC).
MYTH 1: Blow Lightly
Many people think that blowing lightly will defeat the Breathalyzer. The reasoning seems to be that if you only blow the air that is in your mouth – and not in your lungs – then the test won’t pick up on the alcohol in your system.
The problem with that theory is that if you don’t blow deeply, the test doesn’t work. The Breathalyzer only registers deep lung breaths, and the arresting officer will have you keep blowing until you’ve taken the test properly.
MYTH 2: Rinse with Mouthwash
If you use mouthwash right before you blow, then this will confuse the test and give you justification for blowing a high BAC, right? Not exactly. Compared to the alcohol content of mouthwash, it takes a fair amount of alcohol consumption to register above the legal limit. This is not to say that it’s hard to register a 0.08 if you’ve been drinking, but rather that it nearly impossible to register a 0.08 from a swig of mouthwash.
MYTH 3: Drink Caffeine to Absorb the Alcohol or Get it Out of Your System
Some people also think that drinking soda, coffee, or energy drinks after a night of imbibing will restore their BAC back to normal. This doesn’t work either. Drinking caffeinated beverages does not affect the concentration of alcohol in your system. In addition, studies have also shown that mixing alcohol with caffeine increases the risks associated with overconsumption. As a result, this is not only a fruitless exercise, but should actually be actively avoided.
What if I Blow Above the Legal Limit?
The fact that you can’t trick the Breathalyzer doesn’t mean that taking the test is the end of your case. There are numerous legitimate ways to fight the results of a Breathalyzer. Some examples include:
- Showing that you were arrested without probable cause and that the test results are the fruit of an illegal arrest.
- Challenging the reliability of the particular type or brand of Breathalyzer.
- Arguing that the Breathalyzer was not properly calibrated.
- Demonstrating that the test was administered improperly.
- Showing up in court – if the officer who administered the test does not show up to testify, your constitutional rights may protect you from being convicted.
These are just a small sampling of the defenses that can be used to overcome a DUI arrest. If you have been arrested for DUI, you should speak with your attorney about the options available in your case.
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The U.S. Constitution gives all people who are arrested the right to remain silent in order to avoid incriminating themselves following an arrest.
This right is contained in the Fifth Amendment to the Constitution, and was further clarified in the famous Supreme Court case of Miranda v. Arizona.
The Miranda Warning
The standard Miranda warning is:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Some police officers may stop and ask if you understand each sentence. The reason is that in order for the Miranda warning to be legally effective, it must be reasonably clear that the person who was arrested understands it. If the Miranda warning is not given properly, or if the arrestee does not give legal consent to speak to the police, statements made in subsequent interrogations may be inadmissible in court.
When the Police are Required to Read Your Miranda Rights
The police are required to read the Miranda warning before questioning any suspect who has been taken into custody. This generally means that the suspect must have actually been arrested.
However, just because you haven’t been formally arrested does not mean that you have to speak to the police. In fact, if you are being questioned by the police about your involvement in a potential crime, you should stay silent regardless of whether or not you have been taken into custody. Pre-arrest statements can be used against you (and sometimes the police will read the Miranda warning pre-arrest just to make sure that your statements will be admissible in court).
What if the Police Didn’t Give Me the Miranda Warning?
If you were arrested and the police did not give you the Miranda warning, your statements cannot be used as evidence to prove that you are guilty at trial. Failure to read your rights does not mean that you cannot be prosecuted. In fact, statements obtained in violation of the Miranda rule can still be used under certain circumstances. For example, the prosecutor may be able to use your post-arrest statements to attack your credibility if you give inconsistent testimony on the witness stand.
This means that it is absolutely critical that you not say anything to the police if you are being investigated for involvement in a crime. Once you start talking, the Miranda rules can get complicated. It is better that you speak with an experienced criminal defense attorney who knows the law before making any statements to the police.
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In this article, we examine some of the complexities facing individuals who have been arrested for driving under the influence (DUI) in Florida.
Administrative and Criminal Driver’s License Suspensions
The first important point to understand about being arrested for DUI in Florida is that you face two potential driver’s license suspensions. The first is referred to as an “administrative suspension,” and happens automatically if you fail to request a special administrative hearing within ten (10) days of being arrested. This suspension happens right away. It doesn’t matter if you are actually guilty – or even if you are ultimately officially charged with DUI.
The second suspension will be part of your sentence for a DUI conviction in court. Depending on the seriousness of your case and your prior arrest record, the criminal driver’s license suspension can be as short as six months, or as long as the rest of your life.
Florida’s Blood Alcohol Content (BAC) Limits for DUI
Florida’s standard BAC limit for of-age drivers is 0.08. However, if you are under 21, the limit is just 0.02. While not zero, this is still considered a “zero tolerance” policy because of the natural amount of alcohol in human blood.
The limit of 0.08 means that you will be charged with DUI if your BAC is 0.08 or above. Many people think that it is safe to blow a 0.08, but that is not the case. The penalties for DUI increase substantially if your BAC is at or above 0.15.
Penalties for Second and Third DUI Convictions
The penalties for DUI become more severe each time you get convicted. They are also worse if your arrests are closer together. For example, a second DUI can result in fines of $1,000 to $2,000, up to nine months of jail time, and a one-year driver’s license suspension. However, if your first DUI was less than five years ago, your license can be revoked for five years for a second-time offense.
For a third DUI conviction, the penalties are even steeper: up to $5,000 in fines, five years’ imprisonment, and a ten-year license suspension.
Most DUI charges are misdemeanors. However, certain DUI arrests can carry felony charges.
- A third DUI arrest within ten years of your last DUI conviction
- A fourth DUI arrest (at any point in time)
- An arrest for a DUI that involves serious bodily injury or death
Even a first-time DUI can become a felony if you cause an accident that results in serious injuries or death. In cases involving fatalities, charges of DUI manslaughter or vehicular homicide can lead to decades of imprisonment – along with all of the other penalties associated with a serious criminal conviction. (Link to previous article: “Can you afford not to hire a lawyer.”)
Speak with an Experienced DUI Attorney about Your Case
If you have been arrested for DUI, it is important that you speak with an experienced attorney right away. Contact Timothy Armstrong, P.A. now to schedule your free consultation.Read More
Driving under the influence (DUI) is a serious offense and is dangerous both to you and others out on the road. According to the law, you should not drive if your blood alcohol concentration is 0.08 or more. If you live in Florida and a policeman pulls you over for a suspected DUI offense, you have the right to decline taking a blood or breath test. However, you should be aware that there are consequences for refusing. When you obtained a Florida driver’s license, you agreed to the following statement: “Operator of a motor vehicle constitutes consent to any sobriety test required by law.” The most common test analyzes the breath for alcohol content using an instrument typically called a Breathalyzer.
Consequences of Refusing a Breath Test
Your failure to take a breath test can be seen as an admission of guilt in a court of law, should you have a hearing in front of a jury. Keep in mind that the consequences for refusing a breath test are different than the consequences for being found guilty of a DUI. You may be required to spend time in jail if this is your second or third offense. There are also consequences for minors who drink and drive. A minor’s alcohol content level must not exceed 0.05%. He might lose his license until the age of 18 for the first offense, and until age 21 for subsequent offenses.
Refusing to take a breath test does not always result in legal consequences. You are not in violation if the DUI arrest was not legal. For example, if an officer stops you without reasonable suspicion or arrests you without probable cause, you will not be punished for refusing the test. On the other hand, there are situations when you can be forced to take a blood test even if you refuse the breath test. A compulsory blood test may be required if an accident results in injury or death or if this is the third time you’ve been stopped for a suspected DUI.
If you have been stopped on a suspected DUI and refused to take a breath test, you should consult an attorney to determine your rights and determine if it is possible to have the charge reduced to a lesser offense such as reckless driving. Timothy Armstrong, P.A is available to guide you through your case. We will do everything possible to prevent you from losing your driving privileges, or to reinstate them if they have been lost. You can reach us at 904-356-8618 or fill out the contact form on this website, and we will contact you within 24 hours.Read More
If you have been arrested and charged with a DUI, you may be searching for the best DUI attorney in Florida to assist you with your case. A DUI is a serious charge, and there are many long-term consequences that you may face if you are convicted of your charges. The fact is that not all attorneys in Florida that specialize in DUI and related criminal charges will provide you with the same overall level of service, and not all of these professionals will be most effective at working toward the best overall outcome. Therefore, when you are searching for the best DUI attorney to assist you with your case in Florida, you may consider a few important points.
The Attorney’s Experience
Most attorneys specialize in specific areas of the law, and some will focus on a broad area of specialization, such as criminal law. While most criminal law lawyers will have some experience with DUI cases, some attorneys focus largely on these types of cases alone. These are professionals who may have years or even decades of experience defending clients who have been charged with a DUI. They understand the nuances of the law and are able to build a strategic defense for your case from their vast experience. Therefore, when you are considering hiring an attorney, pay attention to the specific number of DUI cases that he or she has tried in the past.
The Outcome of the Cases
In addition to finding an experienced attorney who has a considerable amount of experience with DUI cases, it is important to consider the overall outcome of the case. Defense strategies can be built to ensure that the individual’s rights were not violated when the law enforcement official made the arrest or throughout the rest of the time the individual was in custody. Even when a guilty verdict is the outcome, a skilled attorney may be able to fight for a reduced sentence.
An Initial Consultation
While you can learn a lot about a DUI attorney online, the best option is to schedule an initial consultation with an attorney. Through an initial consultation, you can get a better idea about the level of service that you can expect, as well as the attorney’s overall desire to represent you and help you through all aspects of your case.
After you have been arrested and charged with a DUI, you may be filled with stress, anxiety, and general fear for what the future may hold if you are convicted of the charges. Through an initial consultation with an experienced DUI attorney in Florida, you may be able to learn more about the steps that can be taken to represent your interests. You need an experienced, confident FL DUI lawyer who will fight for your rights in and out of court. Call us today or fill out our online contact form, and we will get back to you within 24 hours.Read More