Can Police Charge Me With A DUI Even If They Never Saw Me Driving A Car?

It's possible that there is a defense to a DUI charge, if no one saw the person driving the car or in actual physical control of the car. Actual physical control can mean being in the front seat with keys in your hands, even if the car is not running. There are times when the police may not have seen you driving the car or in actual physical control of the car but some other witness has seen you. If that person comes forward in response to a subpoena, then they can establish actual physical control by testimony.

Can A Breathalyzer Ever Be Wrong?

There are all kinds of ways Breathalyzer testing can be wrong. First of all, the phenomenon that measures breath alcohol varies significantly from breath to breath. If a person takes a deep breath, holds it for few seconds, and blows into a breath machine, the breath alcohol level would be substantially higher than it would be if he had breathed normally. On the other side of the scale, a person can take two or three hard, fast breaths before they blow into the machine and have their breath sample considerably lower. 

The temperature of air that is coming out of your lungs will determine how much alcohol remains in the vapor, so if you are holding your breath for a few seconds, that is warming up your air. It absorbs more soluble organic compounds in your lungs and alcohol is a soluble organic compound. After holding your breath for few seconds, you could easily blow 0.03 or 0.04 higher than you actually are. If you take two or three hard, fast breaths and cool off your lung tissue before you take the breath that you blow into the machine, you can easily blow 0.02 or 0.03 lower than you would otherwise measure. 

The machines are also not entirely accurate. There are devices, like the Intoxilyzer 8000, that are supposed to catch certain factors that can fool it. For example, if you are on a very low carb diet, it can create acetone in your breath. Acetone can fool an Intoxilyzer, and even an Intoxilyzer 8000, into showing increased breath alcohol without showing that an interference was detected. 

Do I Have The Right To Consult An Attorney Prior To A Breath Or A Blood Test In Florida?

The courts in Florida have held that you don't have the right to consult an attorney before a breath or blood test. It is conceivable, however, that we will have federal courts revisit whether or not the Florida rules that you don't have a right to a lawyer is, in fact, consistent with the United States constitution. 

Can I Rescind My Refusal To Take A Breath Test In My DUI Case?

You absolutely can rescind your refusal of a breath test. You can rescind your refusal and if they don't give you an opportunity to give a breath sample within a certain amount of time, then they won't be able to use that refusal against you. 

For more information on DUI Charges While Not Driving A Car, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (941) 219-5553 today.

Board Certification in DUI Defense

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Tom Hudson passed the National Board Certification Examination (written and oral) in Honolulu in 2008, and was recertified in 2013. He was one of the first 50 lawyers granted national board certification in DUI Defense, and is nationally recognized as an authority in DUI law.

Why We're Different

Board Certification as a DUI Specialist by the National College for DUI Defense. Formal NHTSA Certification as an Instructor of the Standardized Field Sobriety Tests given by police in DUI cases. Formal training as a NHTSA Drug Recognition Evaluator. ("Drug Evaluation & Classification") Formal training to operate the Intoxilyzer 8000, Florida's official breath test instrument. Extensive experience in teaching other attorneys how to handle DUI cases. Hundreds of jury trials both as defense lawyer and as prosecutor. Florida's State Delegate to the National College for DUI Defense.