With the holidays right around the corner, cops are especially on the lookout for people driving while under the influence of alcohol. While flashing red and blue lights and walking in a straight line may characterize a DUI investigation, the silent killer police rely on to prove intoxication is the breathalyzer test - which recent reports say might overestimate your intoxication level.


A breathalyzer is a device people under DUI investigation blow into in order to determine the alcohol content of their blood by analyzing a sample of breath. If the results are .08 or higher, that person is presumed to be impaired by alcohol.  

A police officer holds out a breathalyzer to test someone as part of a DUI arrest. His police car with lights on is behind him.


Breathalyzer tests have been a subject of controversy in recent years, however, due to their inaccurate results. The devices often generate slanted outcomes, despite their claims of precision and accuracy. More times than not, human error is at fault for the test’s failure.


According to the New York Times, on average, breath test results are 40% too high, leading to false arrests and convictions. Little government supervision results in administers’ incomplete knowledge of the device and leads to inadequate test administration and results. 


While issues surrounding the accuracy of breath tests grow, police departments still rely on these machines to prove intoxication. Not all criminal defense attorneys have the specific training and experience to excel at DUI Defense. Not all DUI Defense attorneys have significant experience defending breathalyzer cases. Hiring a trained DUI Defense attorney, with experience defending breathalyzer test cases, can help you fight against these inaccuracies in court. This is important because there are significant penalties for a DUI conviction in Florida and despite the common misconception, DUI breathalyzer cases can be won by the defense.


What to do If Pulled Over For Driving Under the Influence  


If you are pulled over, remember to be as polite to the police as possible and do not tell them any information. You are not required to answer questions about how much you drank, submit to field sobriety tests, and, most importantly, YOU DO NOT NEED TO TAKE A BREATH TEST!!! If the police think that you are drunk they will arrest you with or without a breathalyzer test. It is important to not freely give away any incriminating information. 


If you do not take a breathalyzer test, the police will suspend your driver's license for a year. While seemingly intimidating under the pressure of an arrest, it is a much better outcome than spending time in jail. If you act quickly, within 10 day of your arrest, the Rossen Law Firm will be able to get you a temporary hardship license for a period of up to the entire one-year suspension. One important note - if you previously refused a breath test during a DUI investigation and refuse a second time, you can be charged with an additional crime in Florida.


Breathalyzer Tests in Fort Lauderdale


After being arrested for a DUI in Fort Lauderdale, defendants are transported to the Breath Alcohol Testing Facility, run by the Broward County Sheriff’s Office, and a technician administers a breathalyzer test. Florida law only requires technicians to substantially comply with breathalyzer administration - meaning they must comply only “substantially,” not follow the rules 100% - leaving questions as to whether or not the test was conducted correctly. 


In Fort Lauderdale, the police department relies heavily on breathalyzer tests in order to ensure a conviction for a DUI charge. Ironically, Broward County Sheriff’s Office only has 1 to 5 breathalyzer machines put into their cop cars for the entire district and the Fort Lauderdale Police Department has the machines but is not using them. When a person’s blood alcohol content (BAC) isn’t tested right away, the breathalyzer’s outcomes may be skewed. 


How we Defend Cases with Breathalyzer Tests


We commonly rely on time of driving to defend cases with breathalyzer tests. To actually be convicted of a DUI, prosecutors must prove that a person’s breath was over the legal limit at the time of driving. If a person's breath is tested an hour after they've been drinking, the alcohol has worked its way into their system more and a breathalyzer might read their BAC over the legal limit when, perhaps, they were not actually over the legal limit at the time they were arrested.  

This occurs because most breathalyzer tests take place hours after the actual arrest, as most police officers do not have an Intoxilyzer 8000 – breath test machine– in their car. While these instruments, that look like an old computer, weigh up to 17 pounds, they are portable. The technology allows for these tests to be completed 15 minutes after driving, but most defendants do not get tested at the proper time and then must suffer the consequences of an inaccurate result. Similarly, portable breath tests, which are smaller versions of the Intoxilyzer 8000, are only admissible in court if the defendant is under 21. This makes it difficult for people over the legal drinking age to receive precise results at the time of driving. 


We are also able to attack the machine itself if test results seem too skewed. All police departments in South Florida use the Intoxilyzer 8000, despite the fact that it dates back to 2005. If anyone were caught using a Nokia Flip Phone today, they would be deemed crazy -- but police departments think that it’s OK to use machines that are about 15 years old. Intoxilyzer 8000s use infrared technology to conduct their tests – a method from the 1930s. This ancient approach, coupled with their aging machinery, are likely putting out more and more inaccurate BAC test results.  


In many breath test cases, the prosecution calls upon technicians as expert witnesses in court to explain how a blood alcohol test is administered using a breathalyzer machine, even though technicians can only comment on how they are told to work it. If there is ever a problem with the machine, technicians are not allowed to take the machine apart and try to fix it. When issues occur, technicians can only send the machines back to the manufacturer to be repaired. This means these technicians have never actually seen the inside of these machines nor experienced first hand how the machines work. In court, they can only make comments about conclusions resulting from the breathalyzer test, which are often too generalized and do not mean much to the jury. 


There are many variables that can affect the results of a breathalyzer test, and we use this fact to our advantage when defending our clients. Instead of weighing each variable at the start of every test, such as breath temperature, partition ratio, and breath volume, the machine picks averages when calculating the results. These variables may increase and create higher results than reality depending on if someone is sick, has a fever, is stressed or hyperventilating, or more. If we can show a defendant’s test did not take into account these important variables, we are able to prove their innocence in court. 


How the Rossen Law Firm has Fought Faulty Breathalyzer Tests & Won Criminal Cases


Man Found Not Guilty After Blowing a 0.159


Our client Norbert was driving home from his mother’s 75th birthday party in Fort Lauderdale when he was stopped for a violation of the “Move Over” Law. Two cops had already stopped someone else on the side of the road when Norbert drove by them. Norbert is from Hungary and did not know he was supposed to stop, or slow down to ten miles per hour below the speed limit when passing this scene. Norbert pulled over right away and already had his license, registration and insurance out when the deputy approached the vehicle. 


The cop had Norbert step out of the car to conduct a DUI investigation. After completing Field Sobriety Exercises, the cop arrested him and took him down to the station, where he blew a 0.159 one hour after he was driving. There were a lot of holes in the police investigation, and both the video footage and field sobriety tests indicated that Norbert was fine. We got the state to admit that there was another DUI task force member on scene who is the ONLY one with a portable breathalyzer in his car, the Intoxilyzer 8000. This means the cops could have given Norbert a breath test on the side of the road but chose not to, and they admitted they did not know his BAC level at the time he was driving. The jury deliberated and because of the improperly administered breathalyzer test, they found Norbert not guilty.


Woman’s DUI Charges Reduced to Reckless Driving After Blowing a 0.121


Similarly, our client Amanda was driving in Pembroke Pines when she was pulled over for Driving Under the Influence. Amanda’s brother had just died, so she was crying and was disheveled when the cops questioned her. The Pembroke Pines Police Department does not use body camera video or video in their cop cars, so the only video they had was from the Breath Alcohol Testing Facility. When they arrived they gave her a breath test, in which she blew a 0.121. They started to record Amanda five minutes after the breath test, in which she did not slur her speech and was able to do the field sobriety exercises. 


We used this video to our advantage when deposing the police officers that arrested Amanda. They told us that she had a minimal driving pattern and that she looked good on video. At the trial the jury could not see the breath test video, so we had to prove that Amanda did everything she could to get better after the incident. Amanda took our advice and went to DUI school almost immediately and acted professionally when talking to the cops and breath test technicians. We were able to get Amanda’s charges reduced to reckless driving despite her breath test results.


For More Information … 


For more information about how to deal with DUI’s, make sure to visit our website at www.RossenLawFirm.com to find our “7 Rules You Need to Know to Survive a Florida DUI.”


You can also call us today at: 754-999-2499 

Attorney Adam Rossen
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South Florida Criminal & DUI Defense Attorney
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