Tampa DUI Attorney

Florida DUI and the Misconceptions of the “.08”

In Florida, the State has two separate ways to prove a person was Driving Under the Influence of Alcohol (DUI or DWI as it is referred to in other states). One way is to show that a person is impaired, by presenting evidence like bad driving or a video of field sobriety exercises (FSE’s, the one leg stand, walk and turn, etc…). They must also show at this stage that the person is under the influence of alcohol and it is the alcohol that caused the impairment. This is usually shown by the arresting officer stating there was “a distinct order of an alcoholic beverage coming from the driver’s breath”. And it is the jury that decides if the person was impaired and that it was the alcohol that caused the impairment.

Also note that the impairment by alcohol must have been at the time of driving or while in actual physical control (APC) of the vehicle. APC simply means the defendant must be physically in or on (on, as on a bike or motorcycle) the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time. Typically, sitting behind the wheel of a parked car with the keys in the ignition or in your hand.

The above also applies to “controlled substances” (marijuana, cocaine, etc) and chemical substances (sniffing glue or huffing aerosol for example).

The other way the State prosecutes DUI is by evidence of a breath result, and this is where many people have misconceptions of the legal level of .08. The .08 level must be looked at in two ways, the legal side of it and the practical side of it. If someone has a breath BELOW a .08 it does not mean they are not DUI.

THE LEGAL ANGLE: 1. There are presumptions of impairment at .08 or higher at the time of driving. 2. Presumptions of no impairment at .05 or lower at the time of driving. 3. No presumptions either way if the breath is below .08 or above .05 at the time of driving. The Judge will instruct the jury as to these standards.

If the breath is .05 or lower, the State may provide evidence of impairment at trial to over come, or rebut the presumption of “non-impairment”. The Defense may provide evidence at trial to over come or rebut the presumption of impairment with a .08 or higher breath. With a breath lower then .08 but higher then .05, each side presents evidence in their favor. The jury then decides.

You can be DUI if your breath is below a .08 while driving. How? If you have ANY alcohol in your system and that alcohol impairs you even slightly, then legally you are DUI. There are no degrees of impairment. You either are or are not impaired, and if it’s alcohol that impairs you, it’s DUI. Would you want someone performing brain surgery on you with a Blood Alcohol Content (BAC) of .03? So if an individual is impaired at .03 for example, driving while impaired, even at .03 is DUI.

THE PRACTICAL ANGLE: The jury will hold many of the preconceived notions that below a .08 is ok and the State would be hard pressed to convince them otherwise. Considering the case load that many prosecutors have in our geographical areas of practice, the State would rather offer a reduction to Reckless driving on most cases involving a BAC hovering just above or below the .08 levels. It would be impractical for the State to take to trial all those cases since they would all go to trial and the system would grind to a halt.

Having Tampa DUI Defense Lawyer Is Important

Having a Tampa DUI attorney on a low breath case is just as important as with any other criminal offense. DUI penalties are set out in the statutes. The Court MUST impose certain minimum penalties upon a conviction for DUI. (Twelve months probation, DUI school, 50 community service hours, 16 of those hours with the Sheriff’s work detail 3 of those hours attending a DUI victim’s impact panel , 10 day immobilization of your car, $500 fine, an adjudication of guilt, court cost, and a 6 months suspension of your license). These are minimums remember, the Court can always impose more, including 180 days jail on even a first DUI. We help insure in almost ever single first time DUI that, if we cannot beat the case, that minimum penalties are imposed, including early termination of the probation.

With a solid DUI such as a high breath or a refusal case where the video shows a clearly impaired person, we look for legal flaws in the evidence and procedures, in order to find a crack in the case. A crack that helps nudge the State in a direction to reduce the DUI in cases they normally would not reduce. Often we can find those cracks and create a situation that results in a reduction even in higher then .08 cases.

With a low breath case reduction, or any reduction for that matter, the Court is not locked into the standard DUI penalties listed above, while the State usually wants to include DUI sanctions even in reduced cases. In these cases we present a package to the State listing reasons why certain penalties should be knocked out of the sentence. The presentment we make to the State includes personal to you reasons, as well as the legal weaknesses in the case as to why the State and Court should agree to below the “average reduction to reckless” offers.

In summary, .08 is a legal standard and being below that standard doesn’t mean someone is not DUI. It presents a hard sell to a jury for the State. Breath levels create presumptions that either side may over come. Our law firm is well suited to look at the case from all angels, legal and practical and ensure you get the best possible out come, regardless of the BAC level, whether we out right beat the case or convince the State to reduce it.