Breath Test Defenses

In most traffic stops involving suspected driving under the influence (DUI) offenses, police officers will request that alleged offenders submit to a test of their breath. Many breath tests are performed in roadside settings using portable devices, but some tests can also be performed on standalone machines located within police departments.

A person fails a breath test if he or she has a breath alcohol concentration (BAC) of 0.08 or more, but a person can also be arrested for refusing to submit to a test. Test failure or refusal does not always mean that a person will ultimately be convicted of DUI, as any one of a number of errors that may have been committed in the administration of such tests could invalidate the results and make them inadmissible in court.

Attorney in Fort Lauderdale, FL Discusses Breath Test Defenses

If you were arrested for DUI after failing or refusing a breath test in Palm Beach County, it will be in your best interest to quickly seek legal representation. Meltzer & Bell, P.A. defends clients in communities throughout Broward County, Miami-Dade County, and Palm Beach County.

Our Fort Lauderdale criminal defense lawyers can fully investigate how your test was conducted and work to help make sure you achieve the most favorable outcome to your case that results in the fewest possible consequences. You can have our attorneys review your case and help you understand all of your legal options when you call (561) 557-8686 to receive a free, confidential consultation.


Palm Beach County Breath Test Defenses Information Center


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Failed Breath Test Defenses in Florida

Several people comply with law enforcement requests for breath samples simply to comply with the law. In some cases, individuals feel confident that they did not consume enough alcohol to make them legally intoxicated.

When a person does fail a breath test, that failure can lead to an arrest but not necessarily a conviction. Breath test results can be challenged and suppressed when they involve such errors as:

  • Improperly calibrated Breathalyzer;
  • Failure to maintain breathalyzer;
  • Test conducted by unauthorized individual;
  • Failure to comply with observation period requirements;
  • Sample not taken within state time limits;
  • Food or other alcohol consumption produced false positive;
  • Samples exceed margin of error; or
  • Other violations of state breath testing requirements.

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Breath Test Refusal Defenses in Florida

Florida Statute § 316.1932 establishes that any person who accepts the privilege of operating a motor vehicle within Florida is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test—including an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. This is known as Florida’s implied consent law.

Despite the statutory language, people do still have the right to refuse these tests. Refusing to take a breath test, however, will automatically trigger a one-year suspension of driving privileges for a first refusal and an 18-month suspension for second and subsequent refusals.

It is important to understand that a refusal in Florida is not limited to just people who tell officers “No” when asked to submit. An officer could also designate a person as having refused if he or she becomes argumentative or fails to produce a sufficient amount of breath necessary to create a sample.

In certain cases, the alleged refusal itself may be challenged. In other cases in which a person admits to refusing a test, an officer’s failure to read the implied consent warning to the alleged offender could also result in the criminal charges being dismissed.


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Breath Test Defense Resources in Palm Beach County

Florida Department of Law Enforcement (FDLE) | Breath Testing Home — Visit this section of the FDLE website to find information about Florida’s breath testing program. You can learn more about Breath Test Operator Course Curriculum and access breath testing forms. The website also has Intoxilyzer 8000 Records such as instrument files and registrations, subject test electronic data, subject test statistics, and evaluations and research studies.

Williams v. State, 167 So. 3d 483, 488 (Fla. 5th DCA. 2015) — William Williams was convicted under Florida's "Refusal to Submit" statute, but argued that the statute, as applied to him, violated the Fourth Amendment in regards to the United States Supreme Court's decision in Missouri v. McNeely, ___ U.S. ___, 569 U.S. ___ (2013). The Florida Supreme Court originally agreed to hear this case, but Williams’ attorney conceded defeat in July 2016 following the United States Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. ___ (2016). In Birchfield, the Court held that police do not need a warrant for a breath test.


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Find a Breath Test Defense Lawyer in Fort Lauderdale

Were you recently arrested for drunk driving in South Florida after failing or refusing a breath test? Make sure that you contact Meltzer & Bell, P.A. as soon as possible.

Our criminal defense attorneys in Fort Lauderdale represent individuals in communities all over the Palm Beach County area, including Greenacres, Jupiter, Lake Worth, Palm Beach Gardens, Riviera Beach, Royal Palm Beach, Wellington, West Palm Beach, Boca Raton, Boynton Beach, Delray Beach, and many others. Call (561) 557-8686 or fill out an online contact form to have our lawyers provide a complete evaluation of your case during a free initial consultation.


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