23rd Feb 2015

There is no accurate answer to such an inquiry. It is not illegal to “drink and drive”…it is illegal to drink and drive with either;

1) An unlawful blood alcohol level or
2) Proof of alcohol consumption to the extent that the motor faculties have been impaired.

An illegal blood alcohol level in South Florida is a reading of a .08 or higher.  Specifically; a reading of .08 creates a presumption of impairment.

A reading of .05 to .08 carries no presumption of impairment yet a person can be prosecuted for having this lesser reading. There would be a necessity of proof of impairment beyond the amount of alcohol in the person’s system (For example a .06 reading but rear ending a car may motivate a prosecution despite the lower, non-presumptive reading)

A reading of .05 or lower carries a presumption of not being impaired.

A blood alcohol test, whether through a breath or blood test, does not necessarily reflect how much a person had been drinking but, rather, it reflects how much alcohol is in the person’s body at the time being tested.  Remember, alcohol is burned off by the body.  A motorist is supposed to voluntarily take a breath test if requested by law enforcement. That test may either incriminate or exonerate that motorist. A person that has not been drinking may benefit from taking the test (however, a breath testing machine may improperly designate something as “alcohol” when it is not, .i.e. a person that has inhaled solvents and takes the test may get a false positive alcohol reading) whereas a person that has consumed a lot of alcohol will be highly prejudiced by taking the test.

A person accused of DUI can refuse a breath test, performing roadside sobriety tests or even speaking with the investigating police officer. There is no absolute adage that it is always best to refuse to take a breath test. There are definite consequences for a refusal but a refusal to take a breath test may preclude incriminating evidence. Although a person is not necessarily entitled to advice from an attorney during the investigatory phase of a DUI, requesting for an attorney… immediately… may give the appearance that the accused is concerned about having their legal rights protected rather than trying to hide evidence of alcohol consumption.

I have had many clients call me as they are being pulled over by the police or while there are being kept in their car while the police are on their radio. A consultation with an experienced South Florida criminal defense attorney may have a huge impact on where the case may go.

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