.08 or Above

In almost every contested DUI case the most litigated element is impairment of normal faculties or the presence of a blood or breath alcohol level of .08 or higher according to William Moore, a DUI Attorney in Broward County.

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There are not two separate offenses (i.e., DUI and Driving with an Unlawful .08 Blood Alcohol Level (DUBAL)), however just one offense that could be proven in two alternative ways. The State could meet its burden by proving beyond a reasonable doubt that the defendant's normal faculties were impaired or that the defendant had a blood or breath alcohol level of .08 or higher. In different words, the legislature has established more than one method of proving the offense. Either alternative can be established without evidence of the other. The jury need not specify which alternative formed the basis for the verdict. In fact, in Euceda v. State, the court ruled that it was proper for the prosecutors to tell the jury that they did not have to be unanimous as to which alternative applied as long as they were unanimous as to guilt. Many criminal lawyers find great fault in this ruling as it seemingly violates the Florida Constitution (in addition to the United States Constitution).

The .08 blood alcohol level has additional significance according to Florida DUI Lawyers.

For a long time, DUI could only be established by proof of impairment. A .08 blood alcohol level above the specified limit was prima facie evidence of impairment. This provision was retained when the law was changed to provide that a blood or breath alcohol level above the specified limit is sufficient, standing alone, to establish guilt. Thus, not only is proof of a blood or breath alcohol level of .08 or higher an alternative to proof of impairment; it is also strong evidence of impairment. This may be confusing and unnecessary; however, it is the law. Numerous DUI defense lawyers argue that the presumption is a blatant violation of our constitutional rights.

William Moore is a Fort Lauderdale Criminal Attorney who is know for his aggressive trial strategy and tireless work in perfecting defense strategy. 

If an alcohol test result is available, the simple thing for the State Attorneys Office to do is to rely on the strict liability approach. In fact, it may be that there is little or no evidence of impairment, but a test result of .08 or higher. As the basis for the charge, the State may choose to allege and prove those test results. Logically, in such cases, the State would seek to keep out any defense evidence suggesting that the accused was not impaired. That was precisely the issue in State v. Lee. The court ruled that evidence indicating no impairment was relevant to discredit the reliability of the test results.

Over the past few years that there has been some confusion as to the legal relationship between blood alcohol level and breath alcohol level. In one case, the defendant was charged with having an unlawful blood alcohol level, but not an unlawful breath alcohol level. The State never introduced any evidence of an unlawful blood alcohol level, but only introduced evidence of an unlawful breath alcohol level. The instructions advised the jury that the State could prove the charge by proof that the defendant had an unlawful or breath alcohol level of .08 or more grams of alcohol per 210 liters of breath. The defendant did not object to the instruction. The defendant was condemned. Subsequently, the trial judge granted a motion for new trial because the defendant was charged with having an unlawful blood alcohol level, but the State proved only that the defendant had an unlawful breath alcohol level. On appeal, the court reversed. The court concluded that the instruction was a correct statement of the law and did not constitute fundamental error. The defendant was not convicted of an uncharged crime. Breathalyzer test results establish blood alcohol level. Therefore, even if the jury found that Defendant had a breath alcohol level of .08% or more grams of alcohol per 210 liters of breath, they could properly find him guilty of having an unlawful blood alcohol content.

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This confusion over blood alcohol readings versus breath alcohol readings has also been considered in administrative license suspension proceedings. The courts that have considered it have concluded that the legislative intent was that breath alcohol readings are sufficient to establish blood alcohol levels.

One circuit judge ruling on a petition for writ of prohibition made the significance of this amendment clear. In that case, the traffic citation charged the defendant with driving or actual physical control while impaired or with an unlawful blood alcohol level. After the statute of limitations expired the State filed a direct information charging the defendant with driving or actual physical control while impaired or with an unlawful breath alcohol level. The judge found "that the change from the original charge of unlawful blood alcohol to unlawful breath alcohol constitutes a change in an element of the offense." And the State was barred by the expiration of the statute of limitations from proceeding on a charge of driving or actual physical control with an unlawful breath alcohol level. However, the court rejected the argument that the State was also barred from proceeding on the portion of the information alleging impairment, which was also included in the original citation.

The blood or breath alcohol level might also be useful to the DUI defense lawyer as one piece of evidence to be considered along with all other evidence. If the level was .05 or lower, it is presumed that the defendant is not guilty. If the level was between .05 and .08, there is no statutory presumption one way or the other, but that fact may be considered along with other competent evidence of impairment.

Case law establishes that even if the State fails to show compliance with these sections, the test results are still admissible upon proof of a proper scientific predicate. However, in Robertson v. State, the Supreme Court ruled that if the State must rely on such a scientific predicate, the statutory presumptions are unavailable. The same rule applies to boating while under the influence. Yet, these rulings on the statutory presumption in DUI and BUI cases are not retroactive. Meaning the rulings do not apply to judgments that were final and not subject to review on direct appeal at the time the rulings were entered.
If it cannot be established that the substance was consumed before or after driving or actual physical control, the State cannot prove its case. Therefore, where the defendant was out of the presence of officers after driving, and testified that he consumed beer during that period, the court granted a judgment of acquittal. It was a reasonable hypothesis that the defendant was not impaired by alcohol until after driving.

A more common timing issue is whether delay in securing a test sample influences the admissibility of the results and the sufficiency of the evidence. This deals with the need to relate a blood or breath alcohol level back to the time of the stop through retrograde extrapolation. In Miller v. State, the Court ruled that there is no such requirement for test results to be admissible. It is only necessary that the sample be secured a reasonable time after the stop. Delay and any testimony based on retrograde extrapolation goes only to the weight of the evidence and is for the jury to consider.

DUI defense lawyer may introduce such evidence to establish a reasonable doubt as to whether the defendant was impaired. In State v. Clements, the court affirmed the circuit court's reversal of a misdemeanor DUI conviction on the grounds that the trial judge erred in excluding expert testimony applying "the Widmark formula" to conclude that the defendant had an alcohol content between .02 to .05 and would not have been significantly impaired. The defendant had refused the alcohol test and the trial judge concluded that such testimony would have been irrelevant without the statutory presumptions. The court rejected that rationale.

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