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Chemical Testing in DUI Cases

After a DUI arrest in Florida, the arresting officer will ask you to submit to a chemical test. In most cases, the officer will ask for a breath sample, but sometimes the officer will ask for a urine or blood sample.

The chemical test is used to determine a blood or breath alcohol concentration (BAC) or the presence of any chemical or controlled substance.  Refusing to submit to a lawfully requested chemical test has consequences.

For example, if you refuse to submit to a chemical test, the officer can trigger an administrative suspension of your driver license that must be contested during a formal review hearing. In the criminal case in court, the refusal can be used to argue at trial that you were “conscious of your guilt.”

Attorney for Chemical DUI Tests in Tampa, Florida

Call an attorney at Sammis Law Firm to discuss your case in Tampa or Plant City, Hillsborough County, FL, or a surrounding area throughout Tampa Bay.

Click here to read more about our Recent Case Results in DUI Cases.

The criminal defense attorneys at Sammis Law Firm fight driving under the influence cases to exclude or suppress the result of a chemical test. Contact us to find out more about our experience fighting DUI cases involving a breath test, urine test or blood test.

Let us put our experience to work for you. Call (813) 250-0500.


First Things First – Are You RIDR Eligible?

Our attorneys are familiar with the new DUI Diversion Program in Tampa called RIDR. For a first DUI arrest, call a DUI Defense Attorney in Tampa to find out the eligibility requirements and procedures for entering the new DUI diversion program. Entering RIDR means that your DUI charge is reduced to reckless driving with a withhold of adjudication so that you might be eligible to seal the record.

If the arresting officer only suspected impairment from alcohol, you might be offered the Level I RIDR program if your BAC was between .08 but under .15. If your BAC was .15 or over but less than .20, then you might be offered the Level II RIDR program.

The best part of RIDR is getting the DUI reduced to Reckless with a withhold of adjudication. The withhold of adjudication means you might be eligible to seal the criminal history record so that it disappears from public view.

Even if you qualify for RIDR, you still need to contest the administrative suspension of your driver’s license within ten (10) days of your arrest. Demanding the formal review hearing is the only way to get the notation of the administrative suspension removed from your driving record. Otherwise, it will remain on your driving record for the next 75 years (even if the criminal history report is sealed).


Breath Testing in DUI Cases

After an arrest in Hillsborough County, the driver is taken to the Central Breath Testing Unit of the Hillsborough County Sheriff’s Office at the Orient Road Jail. HCSO maintains several breathalyzers. The breathalyzers used in Florida are known as the Intoxilyzer 8000 which is assembled by a company in Kentucky called CMI, Inc.

In every breath test case we take, we perform a full audit of the machine that you were tested on. We can look at the electronic data for your test, as well as everyone who blew before or after you. We can also look at all of the monthly agency inspections and the annual department inspection to see whether the Intoxilyzer 8000 machine used in your case was maintained in substantial compliance with all of the administrative rules.

Read our articles on the drunk driving breath test in Florida. Learn more about the Intoxilyzer 8000 and the FDLE’s procedures for regulating these machines.


Urine Testing in DUI Cases

In the past, if the arresting officer had reasonable cause to believe that the driver is under the influence of a chemical or controlled substance, then the arresting officer could request that the driver submit to a urine test. Today, fewer urine tests are being requested because of a shift in the case law that now requires the arresting officer to obtain a warrant before demanding a urine test.

Urine testing is the least reliable type of chemical test. It is often difficult to quantify the amount of a chemical or controlled substance or its metabolite in the urine. In many of these cases, the DUI defense attorney will move the court to exclude or suppress the results of the urine test, even if a warrant was obtained.


Blood Testing in DUI Cases

Under certain limited circumstances, the arresting officer can demand the most intrusive form of testing – the blood test. Although the blood test is considered the most accurate and reliable way of determining the presence of alcohol or controlled substances in the driver’s system, it is also the most complicated and difficult to admit at trial.

The arresting officer will often ask for a blood test after the driver goes to the hospital and a breath or blood test is impossible or impractical. Under Florida Statute Section 316.1933, if the officer has probable cause that a DUI with serious bodily injury or death occurred, then the officer can get a warrant to draw blood even before an arrest occurs.A recent line of cases now require that the arresting officer obtain a warrant before demanding a breath test. The only exception to this warrant requirement involves exigent circumstances or voluntary consent.

A blood test can also occur if the defendant submits to a breath test and then the driver demands an independent test. If the driver asks for an independent blood test after taking the breath test, then the officer must make reasonable attempts to accommodate that request. If the officer doesn’t help the driver obtain the independent test, then the results of the original test can be suppressed.


Refusal to Submit to Chemical Testing

If the driver refuses to submit to a breath test after being placed under lawful arrest for DUI, then the arresting officer will read the implied consent warning.

The refusal comes with certain administrative and criminal consequences. At trial, the prosecutor will argue that the fact that you refused to submit to a chemical test indicates that you knew you were guilty (“consciousness of guilt”).

Read more about the refusal to submit to chemical testing.


Florida’s Implied Consent Statute for DUI Chemical Testing

To address drunk driving in Florida, the Legislature enacted the implied consent law found at Section 316.1932, 316.1933, and 316.1934. One function of the statutory scheme is to imply the consent for a blood alcohol test of any driver arrested under suspicion of driving under the influence. Id. § 316.1932(1)(a)1.a.

If properly administered, the chemical test results give rise to criminal presumptions of impairment. For example, Section 316.1934(2)(c), makes a blood or breath alcohol concentration (“BAC”) of 0.08 or higher prima facie evidence of impairment.

Under the statutory scheme, the chemical tests must be scientifically reliable and accurate. See State v. Bender, 382 So.2d 697, 699 (Fla. 1980). Under Florida law, presumptions are rebuttable and a defendant may introduce “competent evidence bearing upon the question of whether [they were] under the influence of alcoholic beverages.” § 316.1934(2), Fla. Stat.

In Bender, 382 So.2d  at 699, the court found that “a defendant may in any proceeding attack the reliability of the testing procedures, the qualifications of the operator, and the standards establishing the zones of intoxicant levels.” Goodman v. Florida Dep’t of Law Enf’t, 43 Fla. L. Weekly S61 (Fla. Feb. 1, 2018).


If I Take the Breath Test, Can I Request an Independent Blood Test?

Section 316.1932(1)(f) provides that a person tested may, at his/her own expense, secure an independent blood, breath or urine test. The officer shall not interfere with the person’s opportunity and shall provide the person with timely telephone access to secure the test.

The failure or inability to obtain an independent test will not affect the admissibility of any test performed by the officer. But if the officers do not make “reasonable” efforts to help the person secure the independent test, then the results of the first test can be suppressed or excluded because of that failure.

The statutory availability of an independent blood test does not confer a right upon the defendant under those conditions. DHSMV v. Green, 702 So.2d 584 (Fla. 2d DCA 1997); DHSMV v. Cherry, 91 So.3d 849, 855 (Fla. 5th DCA 2011).

The right to an independent blood test under Unruh v. State, 669 So.2d 242 (Fla. 1996) and §316.1932(1)(f) are limited to circumstances in which the driver complies with the arresting officer’s request and then wishes to obtain a second test.

This means that for the right to an independent blood test to arise, you first have to take the test requested by the law enforcement officer. In other words, no right to an independent test exists when a defendant refuses to take the breath test.

The officer must render reasonable assistance in helping a defendant obtain an independent blood test upon request. Whether the assistance provided is “reasonable” depends on the circumstances.

The State is required to take affirmative action to assist a defendant in custody in obtaining an independent blood test when requested. Unruh v. State, 669 So.2d 242 (Fla. 1996). For instance, providing the defendant with a telephone that only allows collect calls is not timely telephone access. State v. Miceli, 8 Fla. L. Weekly Supp 393 (Fla. Monroe Cty. Ct. 2001).

The defendant is not deemed to have been denied the right to obtain an independent blood test where officer did not provide the defendant with uninterrupted telephone access with his father. Defendant never requested nor expressed any interest in obtaining an independent test. Smallridge v. State, 904 So.2d 610 (Fla. 1st DCA 2005).


FAQ: I thought I was entitled to remain silent and not incriminate myself?

If you have a constitutional right to remain silent under the Fifth Amendment of the United States Constitution, then why would the jury be told that I refused to take the roadside exercises or the breath, blood, or urine test? Whether the fact that you declined to perform a roadside exercise or submit to a chemical test depends on the particular facts and circumstances of your case.

Florida criminal law provides that when a law enforcement officer has sufficient legal cause to believe that a driver has committed the criminal act of driving under the influence, then the officer can ask the driver to participate in roadside agility exercise or blood, breath or urine test.

The fact that the driver refused does not usually elicit a Fifth Amendment violation of the privilege against self-incrimination because the refusal is relevant to the driver’s consciousness of guilt. Therefore, if the driver declines to take the test, the prosecutor can usually introduce this evidence.

Furthermore, the prosecutor can argue that the refusal shows that the defendant knew that if he submitted to the chemical test, then the test results would show that the driver had drugs or alcohol in his system.

However, when making this argument, the prosecutor cannot reference the driver’s failure to voluntarily provide evidence to disprove an element of the crime because making that argument would erroneously cause the jury to think that the driver had the burden of producing evidence. See Jackson v. State, 575 So.2d 181, 188 (Fla. 1991); Concha v. State, 972 So.2d 996 (Fla. 4th DCA 2008).


The Thin Line when Prosecutors Argue “Consciousness of Guilt”

A thin line exists between arguing that the refusal to submit to a breath test shows consciousness of guilt and arguing that the defendant failed to prove proof that he is innocent. In a recent Florida case, Morris v. State, 988 So.2d 120 (Fla. 5th DCA 2008), the prosecution crossed that line by arguing that an innocent person would speak up and protest his innocence.

In that case, the prosecutor also attempted to improperly shift the burden of proof by arguing that an innocent person would volunteer to take a breath test to prove his or her innocence. The prosecutor was essentially arguing to the jury that the jury should infer guilt from the fact that the driver did not speak up or take other pro-action actions to show his innocence.

The Court found these comments by the prosecutor “patently impermissible.” The defendant’s conviction in Morris v. State was reversed because of the prosecutor’s improper comments. An experienced DUI attorney needs to be constantly on guard against any attempt by the prosecutor to cross this line.

In those cases in which the prosecutor does cross the line, the criminal defense attorney needs to be prepared to preserve objections for appeal. The appeal could result in the DUI conviction being reversed if the trial court refused to stop the prosecutor from making such improper arguments.


Additional Resources

Florida Implied Consent Warning – Visit the website of the National Highway Traffic Safety Administration (NHTSA) to learn more about Breath Test Refusals in DWI Enforcement in an interim report, DOT HS 809 876, published in August of 2005. The publication was distributed by the U.S. Department of Transportation in the interest of information exchange. The report compares the administrative sanctions and criminal penalties for refusal in five selected states including Florida, Connecticut, Maryland, Louisiana, and Oklahoma.


Finding a Lawyer for DUI Chemical Testing in Tampa, FL

If you were arrested for drunk or impaired driving and have questions about chemical testing, then contact an experienced DUI attorney at Sammis Law Firm.

We are experienced in fighting to suppress or exclude the breath test, blood test or urine test. We represent clients charged with a variety of drunk driving offenses from a first offense to a more serious second or subsequent offense.

Contact us for a consultation to discuss how the type of chemical testing used in your case might impact the way the case is resolved. We can help you understand the DUI charges pending against you, possible defenses, the penalties and punishments, and the best ways to fight the charges.

We can begin your defense today. Call (813) 250-0500 today.


This article was last updated by Leslie M. Sammis on Monday, July 15, 2019.

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