Jury Instructions About the Breath Test in Florida Most people are of the
impression that the legal limit is .08, and if your breath alcohol reading
is higher, than you are guilty of
DUI in
Miami. In many states, where the law simply requires the prosecutor to prove
that the defendant was above a .08 at the time the test was given, this
would be correct.. However, Florida requires that a prosecutor prove that
the defendant was above the legal limit “while driving.” Since
most officers do not have an intoxilyzer in their police cruiser, this
presents a problem for the State Attorney. To understand this better,
consider the fact that the body always takes time to absorb whatever substance
it ingests. For example, the aspirin that you take won’t cure your
headache immediately. It takes time for the medicine to absorb into your
body. Similarly, the alcohol that you ingest takes time to absorb into
your body as well.
DUI IN MIAMI
Most experts will agree that the average person takes 30 to 90 minutes
to fully absorb alcohol. What this means, is the drink that you consumed
at ten o’clock will not fully absorb into your body and be accurately
represented in your breath alcohol reading for another 30 to 90 minutes.
Additionally, this is merely an average. Studies have shown that different
factors including the digestion of food can have a tremendous impact on
the length of time it takes for the body to fully absorb alcohol.
THOUGHTS FROM A MIAMI DUI ATTORNEY
How does affect the person who was arrested for
DUI in miami and subsequently took a breath test? Consider an individual who consumes
their last alcoholic beverage at 10:00 o’clock. That same person
is stopped at 10:20 and is ultimately arrested for DUI in Miami. At 11:00
the individual provides a breath alcohol reading of a .140. Florida DUI
law requires that the prosecutor must prove that the driver was above
a .08 at 10:20 rather than 11:00 when the subject actually provided the
breath test. Some prosecutors have attempted to elicit testimony from
an expert witness who then attempts to relate back in time what the driver’s
breath alcohol level was at the time they were stopped. The process is
called retrograde extrapolation. Most witnesses do not have the training
or experience to provide this type of testimony. Thus, in the end, the
mere fact that a person who was arrested for DUI in Miami had a breath
alcohol reading above a .08 is not necessarily fatal. If you have any
questions about how to defend a DUI in Florida please call
Parks & Braxton at (305) 655-2900.