DUI with a BAC Over .15
What happens if you get arrested for DUI, and your blood or breath alcohol concentration (BAC) is over .15?
Florida law provides for enhanced penalties if the BAC is over .15. The first battle is getting the prosecutor to stipulate that the BAC was below .15 so that the enhanced penalties do not apply.
Most DUI cases with a BAC over .15 involve a breath test. In those cases, the goal is to get the breath test reading thrown out entirely.
Your DUI defense attorney can audit the breath test machine to see if it complies with the administrative rules for the annual department inspection and monthly agency inspections.
When the Intoxilyzer 8000 does not comply with the machine’s maintenance rules, the court can throw the entire breath test out of evidence.
Other defenses can force the prosecutor to reduce the charges. For instance, in Hillsborough County, FL, if the BAC was over .15 but under .20, a first offense might still be eligible for the new DUI Diversion Program called “RIDR.”
Level 2 of the RIDR diversion program allows the DUI over .15 to be reduced to reckless driving with a withhold of adjudication in exchange for completing extra sanctions.
Those extra sanctions for the Level II RIDR program include seventy-five (75) hours of community service and installing the ignition interlock alcohol monitoring device for six (6) months.
Attorneys for DUI over .15 in Tampa, FL
Having a breath test reading with a BAC over .15 is surprisingly common. In fact, according to the Florida Department of Law Enforcement, the average breath test reading was just below .15 for all breath tests given in 2023.
The attorneys at Sammis Law Firm in Tampa, FL, are experienced in taking DUI breath test cases to trial and negotiating with the prosecutor for the best possible offer to reduce the charges.
We also understand the best ways to get the breath test reading thrown out of evidence if the Intoxilyzer 8000 breath test was maintained in accordance with the Chapter 11-D8 F.A.C. rules.
Contact us to discuss your case with one of the five DUI defense attorneys.
Call (813) 250-0500 today.
Click here to read more about our Recent Case Results in Drunk Driving Cases.
Enhanced DUI Penalties for DUI with a BAC of .15
The prosecutor with the State Attorney’s Office must allege a basis for the enhanced penalty in the charging document (which might be the DUI citation). Those elements must be proven beyond all reasonable doubt at trial.
The basis for the enhancement is an allegation that the BAC is over .15 percent. The court in State v. Haddix explained the requirement:
“We believe the BAL (Blood Alcohol Level above .15) … are essential facts constituting the offense charged which requires a factual determination by the jury or factfinder.” State v. Haddix, 668 So.2d 1064 (Fla. 4th DCA 1996).
Provided below is a summary of the enhanced penalties for any driver convicted of DUI with a BAC over .15 (without a stipulation to a lesser charge):
- First Offense for DUI Penalties
- First Offense under .15 – The court has the option of ordering the Ignition Interlock Devise for up to six (6) months, but it is not required; or
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- First Offense with a BAC of .15 or above – The court must order the Ignition Interlock Device for six (6) continuous months. See Section 316.193(4), F.S.
- Second Offense for DUI Penalties
- Second Offense under .15 – The Ignition Interlock is required for Not Less than One (1) Year; or
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- Second Offense with a BAC of .15 or above – The Ignition Interlock is required for Not Less than Two (2) Continuous Years. See Section 316.193(4), F.S.
- Third Offense for DUI Penalties
- Third Offense – Treatment is required, and the term is extended until treatment is completed; or
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- Misdemeanor and Felony – The ignition interlock device is required for not less than two (2) years. Section 316.193(2)(b), F.S.
When the BAC Reading is Over .15
What happens if one BAC reading is above .15, but the other reading is below .15? If one reading registered below .15 and another registered above .15, the State fails to meet the burden of proof to convict someone of an aggravated DUI with a reading of .15 or higher.
In Department of Highway Safety and Motor Vehicles v. Colling, 178 So.3d 2 (Fla. 5th DCA 2014), review denied, 148 So. 3d 770 (Fla. 2014), the court acknowledged that if there were two readings with one below the legal limit and one above, an inference that the driver was below the legal limit was equally plausible. Since the burden was on the Department, the burden was not met under these circumstances, so the administrative suspension was set aside.
The same logic should apply to cases where a BAC over .15 must be proven at trial. For this reason, prosecutors tend to accept the lower number as the true BAC level to determine how to charge the crime or what penalties to ask for at sentencing.
Stipulations to a Blood Alcohol Level of Less Than .15
Specific enhanced penalties apply if you blew over .015 on the breath test. In some cases, the prosecutor may offer to stipulate that the BAC was lower than .15 to resolve the case without a trial. The stipulation is required by Florida Statute Section 316.656(2)(a). That statute provides:
“[n]o trial judge may accept a plea of guilty to a lesser offense from a person charged [with DUI] who has been given a breath or blood test to determine the blood or breath content, the results of which show a blood or breath alcohol content by weight of 0.15 percent or more.”
The form varies from courtroom to courtroom, but the language below comes from a form used in one courtroom in Tampa, FL.
ORDER
THIS CAUSE having come before the Court on _______________ regarding DUI citation number ________ upon the stipulation of the State of Florida and the Defendant, and the Court having ratified the stipulation of the parties, it is
ORDER AND ADJUDICATED as follows:
- The Court finds that Defendant’s blood-alcohol level at the time of arrest was less than .15%.
- Because Defendant’s blood-alcohol level was less than .15% at the time of the arrest, the Court will not require that Defendant installs the ignition interlock device on Defendant’s motor vehicle.
DONE AND ORDERED in Tampa, Florida, this ____ day of __________, 2021.
The Honorable ________________
COUNTY COURT JUDGE
Additional Resources
States with Increased Penalties for High BAC – Visit the website of the National Conference of State Legislatures (NCSL), the nation’s most respected bipartisan organization providing states support, ideas, connections, and a strong voice on Capitol Hill, to find information on states that have enacted increased penalties for a high blood or breath alcohol concentration. The website also cites a study showing that in 2014, 56 percent of drivers who had been drinking and were involved in fatal crashes had a blood alcohol content of .15 or greater.
Finding a Lawyer for DUI with a BAC Over .15
If you need to find an attorney in Tampa to represent you in a DUI case involving an allegation that your blood or breath alcohol concentration was over .15, then contact an attorney at Sammis Law Firm.
We are experienced in representing clients charged with DUI after submitting to a breath test on the Intoxilzer 8000. We are also experienced in representing clients who submitted to a legal blood draw (or were subjected to a forced blood draw after a warrant was obtained).
Contact us to learn how to fight the breath or blood test reading to get it suppressed or excluded from evidence.
Call (813) 250-0500 to talk with an attorney immediately or schedule an office consultation.
This article was last updated on Friday, April 7, 2023.
