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Case Results

"Coerced" Breath Test Excluded from Trial

June 2018

Motion to Suppress Granted

 When the police ask you to submit to a breath test, it is actually considered a "search" under the Fourth Amendment to the U.S. Constitution. That means that, unless there is a search warrant, the police must ask for your consent to get a breath sample from you.

In Florida, the state legislature has set out exactly how the police should ask for a sample. It is a verbatim statement called the "implied consent warning." It warns the motorist that a refusal to give a breath sample could result in a license suspension or another criminal charge. 

In today's case, our client wasn't sure whether he wanted to give a breath sample. His wife told him to get a lawyer. In response, he was told by the arresting officer that his wife couldn't make the decision for him, and that the breath test "doesn't have anything to do with court." 

That last part was wrong. The breath test has EVERYTHING to do with court. It  is admissible as evidence against the accused. And despite the officer reading the implied consent warnings from a card at least twice more, he never corrected the misstatement. He warned our client that a refusal could be used against him in court, but never said that the breath test could be used in court.

Our client relied on that misstatement, and gave a breath sample which could be used against him. We asked that the sample be excluded from evidence, because his consent to the breath test was "coerced" by being misinformed by the officer.

The judge agreed with us, and the breath test result was ordered excluded from evidence. 

Practice area(s): DUI / DWI

Court: Sarasota County Court

Tom Hudson

Known nationwide as a leading DUI defense lawyer, Tom has tried over 350 jury trials, including numerous death penalty cases. He now limits his criminal practice to DUI defense. His civil practice is devoted to getting fair compensation for the victims of negligence. Tom has attained multiple verdicts and settlements in excess of $1 million, and is a Life Member of the Multi-Million Dollar Advocates Forum. In 2008, Tom Hudson passed the National Board Certification Test for DUI Attorneys in Honolulu, Hawaii. NOTE: The State of Florida does not yet recognize DUI defense as a Specialty.

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.