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It's very possible to win a DUI even though you blew a .08 or higher on the Intoxilyzer 8000.  The Intoxilyzer 8000 is often called the "breathalyzer" or "breath test."  All Florida law enforcement agencies use the Intxoilyzer 8000 for alcohol breath testing.

The number that an individual blew on a breathalyzer is one of the last factors that needs to be considered when defending a DUI.  The reason why is because the test ticket, which contains the reading, is only one piece of evidence that's to be considered by a jury in a DUI case.  Contrary to prevalent belief, there is absolutely no presumption of guilt from blowing a .08 or higher.  A basic fundamental principal of American law is that a Defendant is innocent until proven guilty.  Before a jury can convict, all 6 individuals in the jury have to be convinced beyond a reasonable doubt that the driver had a .08 or higher BAC.  There's a huge difference between showing the jury a piece of paper saying .08 and proving to the jury beyond a reasonable doubt the reading was correct.

In every criminal defense case, there will be police citizen contact.  DUI's are no exception.  So the very first area that has to be thoroughly examined is what events caused the traffic stop.  An officer must have probable cause to conduct a traffic stop.  This can be either probable cause for a traffic violation or probable cause to suspect a driver of DUI.  If the officer didn't have sufficient facts to support a traffic stop, the State's evidence might be suppressed.  That means that the evidence is not able to be presented during a trial.  Every now and then, an officer will witness sufficient facts to generate a traffic stop for a traffic infraction, but doesn't have the requisite degree of suspicion to continue the traffic stop for a DUI investigation.  The result is the same.  Supression of the illegally obtained evidence.  If the evidence is suppressed, it makes absolutely no difference what your reading was since the State will be unable to introduce it at trial.  An example of this matter was a DUI case that I handled in another State.  The driver of the vehicle drove through a marked checkpoint at a high rate of speed without stopping.  A police officer chased her down, arrested her for DUI and she blew a .18.  That is over twice the legal limit.  The Judge dismissed the case ruling that the stop was illegal since the checkpoint had been set up in an illegal manner.  

If the traffic stop ends up being proper, you can still prevail in a DUI trial.  DUI trial work is very complex and it takes years to learn the intricacies of DUI cases.  I follow a three step approach to trying a DUI breath test case if the result is over a .08.  First, I examine what my client did right.  The State wants the jury to focus on 3 or 4 things that my client did wrong out of 100 or so different possible indicators.  So highlighting what my client did right is very important.  The next thing that I do is do a detailed analysis of my clients behavior.  This includes how my client performed on the road side sobriety exercises, attitude, demeanor etc.  The point of this is quite simple, did my client behave like he or she was drunk.  This is a very powerful technique to argue a DUI case because everybody sitting on the jury has seen somebody who has been drunk and knows how drunk people behave.  I take all of the information that I've gathered and I compare it to what kind of behavior and actions should be expected by someone with that type of blood alcohol content.  If a client blew a .27 and can walk a straight line and never slur words, the test is wrong.  I illustrate to the jury that all of the evidence pointing towards guilt needs to be consistent.  If the reading is high, however the video doesn't show a drunk driver stumbling from the car and slurring speech, then that evidence is inconsistent with the test reading.  All benefits of the doubt must be resolved in favor of the defendant.

While very often it isn't necessary to put on any evidence whatsoever in a DUI trial, sometimes the issue of guilt or innocence is close.  In this case, I recommend highering an expert to attack the scientific validity of the machine.  Being a science nerd I feel very confident saying the Intoxilyzer 8000, and other breath testing equipment, misapply basic scientific principals.  In addition to the misapplication of scientific principals, the machines depend on a series of assumptions based on what the psudoscientists consider a "normal person."  An extremely strong point to make to a jury in these cases is the United States Constitution doesn't say "assume beyond a reasonable doubt", but rather "proof beyond a reasonable doubt."

Winning a DUI case is often very difficult, but the consequences of losing can be severe.  An experienced DUI attorney will be able to answer your specific questions regarding your case.


The Law Offices of Michael A. Dye, P.A. is a DUI defense law firm located in Fort Lauderdale, Broward County, Florida.  Mr. Dye welcomes inquiries as to [http://alcoholanddruglaw.com/criminaldefensecaseresults.html his case results.]  For more information, please call (954)745-5848 or visit [http://alcoholanddruglaw.com http://AlcoholAndDrugLaw.com].