DUI in Florida, the Value of an Independent Breath Test

In Miami, and the rest of Florida, if you get arrested for DUI and are given a breathalyzer test, you have the right to a second breath test from an independent source. The Florida Legislature has granted each driver the Statutory right to this independent breath test. All you have to do is ask, and pay, for it. One might ask, why bother? If it’s that simple, why would the second test be any different from the first? There are two good answers to this. First, if you are refused the opportunity to a breath test you may win the case. Second, if you do get the second test, by the time you get there, your blood alcohol level might have decreased to a level below the legal limit.

Now that we know that we have the right to a second, independent breath test, how do we go about securing such a test? Picture this: you’re in a police station at 3:00 am. You’ve just taken a breath test and you are over the legal limit. At this time you demand an independent breath test. The police have to give you access to a phone and a phone book. The rest is up to you.

It might surprise you how many people have made this simple request, “I’d like an independent breath test” and have not been provided a phone or a phone book. The failure of the police to give you those two things is sufficient to suppress the breath test they took. Once that scientific evidence is out, the question of impairment is one of opinion.

On the other hand, if we give the officers and troopers of Miami and South Florida the benefit of the doubt and presume that they do offer the accused a phone book and a phone. The accused then calls a toxicologist who does independent breath alcohol tests. By the time you get to the toxicologist or he gets to you, there is a great likelihood that your breath alcohol level will be lower.

Breath alcohol levels fluctuate in a curve. It goes up sharply over a half hour or so and then tapers off in the succeeding hours. Some have commented that you can “race a shot home.” This statement is based on the theory if you drink a lot and then race home, you might not be drunk until you get there. (Not recommended.) This is the only time I see the independent test having the potential to hurt a defendant (if their breath alcohol level was still on the way up). However, it would have to be very close in time to the last drink. Given my experience with DUI arrests in South Florida, I think it very unlikely that anyone would have a rising breath alcohol level after they were given a breath test by an officer.

This is because the process of arrest takes a long time. By the time you leave the bar/party/dinner and get pulled over, get driven to the station, get processed and get the breath test it could be two or three hours later. Chances are that you blood alcohol level is on its way down by then. By the time you’re given a phone and meet with the toxicologist, it might be another few hours. By that time, your breath alcohol level of a .09 might be a .04. That could be the difference between a DUI conviction and a handshake on the way out of court.