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The DUBAL Theory of DUI

In DUI cases, what does “DUBAL” mean? The term “DUBAL” stands for Driving with an Unlawful Blood/Breath Alcohol Level.”

Florida Statute Section § 316.193(1)(c) provides:

“A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and. . . [t]he person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”

Additionally, Florida Statute Section § 316.1934(2)(c) provides:

“[A] person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.”

So if you are arrested for DUI and your blood alcohol level is .08 or above, then the prosecutor MIGHT elect to charge you with DUI under one or both of the following alternative ways of proving DUI:

  1. DUBAL for being at .08 or above regardless of impairment; or
  2. Driving or being in actual physical control while normal faculties were impaired by alcohol beverages or controlled substances.

Sometimes courts equate the “DUBAL” theory of proving DUI with “strict liability.” For example, in Tyner v. State, 805 So. 2d 862, 866 (Fla. 2d DCA 2001), the court reasoned that “[t]he strict liability theory is the offense. . . more commonly referred to as driving with an unlawful blood alcohol level (DUBAL).”

In fact, the Tyner court observed that the Florida legislature “continues to specifically recognize the offense of driving with an unlawful blood alcohol level as an alternative to an impairment DUI offense.” Id. at 867.

In other words, “section 316.193 allows proof of a blood-alcohol level of [0.08] percent or higher to be substituted for proof of impairment — not as an unconstitutional presumption, but as an alternate element of the offense.” State v. Rolle, 560 So. 2d 1154, 1156 (Fla. 1990).

“[T]he availability of the DUBAL [theory] makes the presumption of impairment ‘a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level.” Cardenas v. State, 867 So. 2d 384, 391 (Fla. 2004)(quoting Robertson v. State, 604 So. 2d 783, 792 n.14 (Fla. 1992)).

For this reason, the presumptions contained in section 316.1934, Florida Statutes, are inapplicable to a DUBAL case because the crime itself consists of driving with a blood-alcohol level of 0.08 percent or more. See Haas v. State, 597 So. 2d 770, 774 (Fla. 1992).

Foundational Requirements for the DUBAL Theory

What are the requisite foundational requirements for the DUBAL theory? In State v. Komara, 14 Fla. L. Weekly Supp. 648a (Fla. Hillsborough Cty. Ct. Feb. 21, 2007), the court explained:

[i]n Florida, an unlawful blood or breath alcohol level can be proven by admission of evidence “under either the common law governing scientific test results or the implied consent law.” Cardenas v. State, 867 So.2d 384, 390 (Fla. 2004).

The common law method requires the State to establish what has come to be known as “the traditional scientific predicate.” This predicate includes evidence regarding reliability, qualifications of the technician, and the meaning of the results. See e.g. Robertson v. State, 604 So.2d 783 (Fla. 1992); State v. Strong, 504 So.2d 758 (Fla. 1987); State v. Bender, 382 So.2d 697 (Fla. 1980).

However, the Florida legislature has chosen to make it easier for the State to admit breath test results in criminal cases through enactment of a statutory and administrative scheme known as the “Implied Consent Law.” See §§316.1932; 316.1933 and 316.1934(5), Fla. Stat.

It is well settled that the “Implied Consent Law” allows the State to admit breath test results in a criminal trial by an affidavit instead of the traditional scientific predicate. David A. Demers, Florida D.U.I. Handbook, ,§ 6.2 (2007 ed.)….

The State’s ability to use a breath affidavit in lieu of the traditional scientific predicate is not absolute. An affidavit in lieu of the traditional scientific predicate is available to the State only if the breath test was conducted in accordance with §§ 316.1932 or 316.1933, Fla. Stat. See Bender, 382 So.2d at 700; State v. Miles, 775 So.2d 950, 953 (Fla. 2000).

This shortcut requires that the breath test was conducted in accordance with §§ 316.1932 or 316.1933, Fla. Stat. See Bender, 382 So.2d at 700; State v. Miles, 775 So.2d 950, 953 (Fla. 2000).

Therefore, “in order for the results of a defendant’s breath test to be admissible in evidence in a DUI prosecution, the tests must be made in compliance with the statutes and administrative rules.” State v. Friedrich, 681 So. 2d 1157, 1163 (Fla. 5th DCA 1996).

This article was last updated on Thursday, October 29, 2020.

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