In many states, law enforcement is granted the power to demand a breath test through a portable breath testing device on the roadside as part of a DUI investigation. A great number of people feel that this is a logical way to conduct a DUI investigation since suspects with a low breath alcohol sample don’t have to be arrested. However, like many law enforcement “tools”, the roadside breath test has a great potential for abuse. Since it is considered “part of a DUI investigation”, a law enforcement officer needs little justification to demand a breath test at a roadside encounter. Further, there is no requirement to release an individual who provides a sample below the legal limit since law enforcement can simple allege a suspicion of impairment by use of controlled substance.

Florida’s applicable laws only allow law enforcement to demand a roadside breath test under very limited circumstances. Fla. Stat. 316.2616 provides that a driver under the age of Twenty-One (21), must never operate a motor vehicle with any alcohol in their system. This “zero tolerance” law is based partially upon current DUI law and partially upon Florida’s legal drinking age. If a law enforcement officer suspects that a motorist who is under the age of twenty-one (21) may be under the influence of alcohol, they are entitled to have the motorist submit to a roadside breath test. Should a motorist who is under 21 provide a breath sample of .02% or higher, their driving privileges will be suspended immediately for six (6) months for a first violation and twelve (12) months for any subsequent violation. A motorist being offered a breath test under this law may refuse to submit to the breath test, but then they face a twelve (12) month suspension for a first refusal, and an eighteen (18) month suspension if they have had a previous suspension for refusal. These suspensions may be challenged by a similar administrative hearing as an individual can request for administrative suspensions involved in a DUI arrest. Hardship licenses could be obtained through the Bureau of Administrative Reviews, but it is required that any individual who submits a breath test over .05% must complete a DUI program or approved Substance Abuse course first.

So where does this leave any driver over 21 who is offered a roadside breath test in Florida: in a rare, but beneficial, situation. A law enforcement officer in Florida cannot request a person to submit to any test to determine the alcoholic content of their breath, blood, or the presence of a controlled substance in their urine unless he/she has probable cause to arrest that person for DUI. Further, a law enforcement office can only request a breath test from an individual from an approved device. Portable breath testing devices are not approved by the Florida Department of Law Enforcement (FDLE) for the gathering breath to determine its alcoholic content for court presentation. Since they cannot be used for such a purpose, their use during a Florida DUI investigation would most likely result in a court finding that any subsequent arrest was illegal. This would be the case since the occurrence of a roadside breath test strongly implies that its results were considered in formulating probable cause for any subsequent arrest.

Thus, if you are ever offered a breath test with a portable breath tester on a roadside, many law enforcement officers will specify that it won’t be used against you. Law enforcement officers in Florida will only offer this type of test to a motorist over 21 to determine whether they will allow them to drive or walk home. The other day, I was in court watching a Motion hearing where a local law enforcement officer was testifying that he offered a defendant a roadside breath test. In that case, the officer advised the defendant that was not being arrested for DUI as long as he submitted to a roadside breath test. If the breath test was under .05%, the defendant could drive home from there, and if the test was over .05 the defendant would have to leave his car parked and pay for a cab. To many people on the roadside late at night, this sounds like a “no brainer”. NEVERTHELESS, it is always important to clarify the intent of a law enforcement officer before submitting to any breath test (portable or not)! The law is constantly changing, but at this time the law is as I stated above.

Although most seasoned DUI investigators will never attempt use a portable breath tester during one of their investigations, it has never ceases to amaze me what a non DUI investigators will try to get away with. If you took one of these tests, or had one offered to you, be sure to mention it right away to your attorney during your consultation.

In Florida, once a suspect is arrested, they are usually taken to a local police station or a Central Breath Testing facility. At that time they will be offered a test from Florida’s approved breath testing instrument, the Intoxilyzer 8000. This unit is designed to sit on a table top. These machines or “instruments” (as law enforcement prefers to call them) are kept in a secured room. It is important to note that these units can only be accessed, maintained, and tested on a regular basis by certified personnel. However, it is not unlawful for Intoxilyzers to be mounted on tables inside of mobile breath testing units “BAT mobiles”. Although not usually used, BAT mobiles have been affective methods of rapid gathering of breath evidence in the field for decades.

CAUTION: SOME OFFICERS CARRY APPROVED BREATH TESTING DEVICES IN THEIR VEHICLES, AND THE RESULT OF THESE TESTS HAVE OFTEN BEEN HELD TO BE ADMISSABLE! In my experience, I have crossed paths with some law enforcement officers who drive around with a fully approved and certified Intoxilyzer 8000 in the trunk or cargo compartment of their vehicle. Many lawyers throughout this state have argued that the presence of what has been highly touted by law enforcement and prosecutors as a scientific instrument, in the trunk of a Dodge Charger might raise questions about the device’s reliability. However, it seems that law enforcement has been undaunted in their quest to bring breath testing machines out into the field. From my personal experience, I have represented people who were offered breath tests from Intoxilyzers mounted in the cargo compartment of SUVs and trunks of cars. Do not underestimate the admissibility of breath test results from one of these machines. Some courts have been of the opinion that there is no bright line appellate decision or FDLE rule that prohibits such storage. Thus, it is best to exercise caution and assume that evidence gathered by a device kept in such a place could very well used against you in court later.

1 Comments

Leave a reply