Breath Test

Florida Statute § 216.1932 is the state’s implied consent law. Under this statute, any person who accepts the privilege of operating a motor vehicle within Florida is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test when suspected of driving under the influence (DUI) of alcoholic beverages.

In most cases, an alleged offender will be asked to submit to a roadside breath test administered on a portable device as well as a breath test usually performed on a machine known as an Intoxilyzer 8000 at the actual police station. Breath testing is generally considered to be the least invasive form of testing for blood or breath alcohol concentration (BAC) and typically provides immediate test results, but the tests also need to be administered in accordance with numerous requirements in order for any evidence to be allowable in criminal cases.

Lawyer for Breath Test Defense in West Palm Beach, FL

If you were arrested for drunk driving in South Florida after failing or refusing a breath test, it is in your best interest to immediately retain legal counsel. Meltzer & Bell, P.A. defends clients arrested for DUI in Royal Palm Beach, Riviera Beach, Palm Beach Gardens, Greenacres, Lake Worth, and many other surrounding areas of Palm Beach County, Miami-Dade County, and Broward County.

Lawrence Meltzer and Steven Bell are experienced criminal defense attorneys in West Palm Beach who can investigate how your breath test was handled and use any errors to possibly file a motion to suppress the test results. You can have our lawyers provide a complete evaluation of your case when you call (561) 557-8686 to set up a free, confidential consultation.


Palm Beach County Breath Test Information Center


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Breath Test Refusal Penalties in Florida

While the implied consent law leads most people to believe that they are obligated to comply with requests to submit breath samples, the truth is people do have the right to decline such testing. A person who exercises this right, however, can face other consequences in addition to possible prosecution for a DUI offense.

Florida Statute § 216.1932 provides that a law enforcement officer must inform a person that failure to submit to any lawful test of his or her breath will result in the suspension of his or her driver’s license for one year for a first refusal or 18 months for a second or subsequent refusal. Additionally, Florida Statute § 216.1939 makes it a first-degree misdemeanor for a person to refuse to submit to a breath test when his or her license has been previously suspended for failure to submit to a lawful test and:

  • the arresting law enforcement officer had probable cause to believe the alleged offender was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
  • the alleged offender was placed under lawful arrest for a violation of Florida Statute § 316.193 unless such test was requested pursuant to Florida Statute § 316.1932(1)(c) (relating to the administration of a breath or urine test being impractical or impossible during treatment at a hospital, clinic, or other medical facility);
  • the alleged offender was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of one year or, in the case of a second or subsequent refusal, for a period of 18 months;
  • the alleged offender was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
  • the alleged offender, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer.

A first-degree misdemeanor is punishable by up to one year in jail and a fine of up to $1,000.


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Common Breath Test Issues in Florida Criminal Cases

While people who refuse to submit breath samples often know that they have avoided giving evidence to prosecutors, the individuals who do provide specimens often assume they are destined to be convicted because the breath test results were in violation of Florida BAC limits. The truth is that many different kinds of breath samples have been thrown out of courts all over the Sunshine State for various types of mistakes by law enforcement agencies.

Some of the most common reasons that breath test results can be challenged in court and possibly declared inadmissible include, but are not limited to:

  • Failure to calibrate or improper calibration of breath testing device;
  • Failure to follow certain testing, set up, or other procedures;
  • Failure to conduct observation period;
  • Failure to properly inform alleged offender of consequences of refusal;
  • Improper administration of breath test;
  • Errors concerning partition ratios, mouth alcohol detection, breath volume, or other factors;
  • Results impacted by alleged offender’s medical condition;
  • Improper notarization of breath test affidavit;
  • Discrepancy between samples exceeds legal limits;
  • Test conducted by unauthorized individual; or
  • Other violations of the Florida Administrative Code.

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Breath Test Resources in Palm Beach County

Florida Statute § 216.1932 | Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal. —  View the full text of the state law in Florida governing breath, blood, and urine tests. You can read all of the requirements for the Alcohol Testing Program within the Department of Law Enforcement. Also find the types of information concerning the results of tests taken at the direction of the law enforcement officers that must be made available to alleged offenders.

Florida Department of Law Enforcement (FDLE) | Intoxilyzer 8000 Records — Visit this section of the FDLE website to access various information concerning Intoxilyzer 8000 records. You can find instrument files and registrations, subject test electronic data, and inspection test and other electronic data. The website also has subject test statistics, evaluations, and research studies


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Find a Breath Test Defense Attorney in West Palm Beach, FL

Were you arrested for DUI in the Palm Beach County area after failing or refusing to submit to a breath test? You will want to contact Meltzer & Bell, P.A. as soon as possible.

Our West Palm Beach criminal defense lawyers represent individuals in communities throughout Palm Beach County, Miami-Dade County, and Broward County, including Wellington, Delray Beach, Boynton Beach, Jupiter, Boca Raton, and several others. Call (561) 557-8686 or submit an online contact form to have our attorneys review your case and answer all of your legal questions during a free initial consultation.


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