Top 100 Trial Lawyers
Super Lawyers
Avvo Client's Choice Award
Avvo Top Contributor
Avvo Rating Superb
American Inns of Court

DUI Breath Tests

Breath tests are the single most important piece of evidence the State has in a trial for DUI. Whether you performed a breath test or refused, our attorneys know how that evidence will be presented, the arguments the Tampa State Attorney will make, and how to poke holes in their allegations. We have not only defended those accused of drinking and driving, but as a former prosecuting lawyer, Jason Mayberry has convicted many of those accused of driving under the influence. We are familiar with both sides of the fence in a driving under the influence trial and will methodically evaluate your case and map out a plan to eliminate breath test evidence against you or reduce the impact it has on your case. Our DUI lawyers use their knowledge of the system to ensure that you get the best possible result on your case.

Your decision to take a breath test its results carry a wide range of implications. Breath test results impact a potential driver’s license suspension period in addition to a possible presumption that you are impaired in a trial setting. Even if you refuse the breathalyzer you are not shielded from its effect at trial. Refusals are admissible as evidence of guilt and convictions can be achieved using an argument that you refused the breath test because you didn’t want to give the State valuable evidence of your impairment. Here is what you need to know about breath tests as they relate to your case:

  1. If you refuse a breath test on a first offense, your Department of Highway Safety and Motor Vehicles suspension will be 12 months as opposed to 180 days had you provided a breath test.
  2. A second breath test refusal results in an 18-month Department of Highway Safety and Motor Vehicles suspension as opposed to 12 months had the individual given a breath test.
  3. A second breath test refusal prevents the individual from obtaining a hardship license during the pendency of their driver’s license suspension period.
  4. After a breath test refusal, if your attorney is unsuccessful in overturning your Department of Highway Safety and Motor Vehicles suspension, you will endure a period of 90 days of “hard time” without any ability to drive prior to eligibility for a hardship license. If you give a breath test above .08 your “hard time” period is 30 days.
  5. Giving a breath test that registers below a .08 generally prevents the Department of Highway Safety and Motor Vehicles from issuing their administrative suspension.
  6. Giving a breath test that registers under 0.05 will actually help your criminal case. The Florida Jury Instructions note that a breath test of 0.05 or below gives rise to a jury instruction that jurors “shall” presume that the driver was NOT under the influence of alcoholic beverages.
  7. Under Florida Jury Instruction 28.1, a breath test that registers between 0.05 and 0.08 gives rise to NO PRESUMPTION at all during a trial that the driver was or was not under the influence of alcoholic beverages.
  8. Florida Jury Instruction 28.1 also notes that a breath test registering above a 0.08 gives rise to a presumption at trial that the driver was under the influence of alcoholic beverages to the extent his or her normal faculties were impaired. That evidence by itself is sufficient to find the individual is under the influence of alcohol without any other evidence submitted.
  9. If you have previously refused to provide a breath test sample on a prior arrest, you can be charged with an additional first degree misdemeanor under Florida Statute 316.1939 for a second or subsequent refusal. This Refusal to Submit to Testing charge carries with it a possible county jail term of up to 11 months, 29 days and a $1000 fine.
  10. For those under 21, driving with a breath or blood-alcohol level above a .02 results in a suspension of 6 months for a first offense and 12 months for a second or subsequent blow above .02. A first time refusal of a breath test by one under 21 results in a 12-month suspension period and 18 months for a second refusal.

Any criminal allegation in Florida involving the use of breath or blood-alcohol testing carries with it a myriad of penalties and possibilities. Each DUI attorney at The Mayberry Law Firm is equipped with knowledge of the criminal process in addition to the administrative review process so as to ensure you have the best chance to fight your charge. Give us a call at 813-444-7435 or contact us online!

Client Reviews
"...I would not have gotten my life back with out Jason Mayberry and the hard work of him and his firm. He became a friend... My wife and I highly recommend the Mayberry law firm and we will only use him in the future if we need an attorney..." JB
"..After speaking with Jason on the phone, I stopped the search. There was just something about this friendly, No BS professional that told me this is the one. During my consultation, it was like talking to a long time buddy. I was totally at ease..." NH
"Having never been arrested before I was completely terrified and ignorant to the judicial process. Jason provided emotional support and the knowledge and experience I needed. He was available 24/7 for all of my concerns and questions. He was efficient..." LH
"My wife was facing false accusations that she misrepresented her Income on mortgage applications and was facing serious time as this was a federal crime. Jason worked diligently with her and myself daily on all the details of the sentencing potentials..." Anonymous
"...I called various attorneys and researched for four hours straight. After speaking with roughly 20 attorneys and reading various reviews, I knew that Attorney Mayberry was the best..." J.H.
10 News
abc Action News
Tampa Bay News
the Street
Tampa Bay Business Journal