When the State has a breath test in your case, two questions decide how we fight it. First, can we keep the result out before trial? Second, if it comes in, how do we take it apart in front of a jury? We work both questions at once, and the answers come from the records, the science, and the way the test was run.
Most of this work happens long before a courtroom. It starts with reading the procedure, pulling the machine’s history, and finding the gap between what the State claims and what the evidence shows.
Some cases are won before trial by keeping the test out. Others are won at trial by taking the science apart. Both start the same way.
Keeping the Test Out
The strongest outcome is a breath result that never reaches the jury. A breath test is admissible only if the State shows it was run in substantial compliance with the methods the Florida Department of Law Enforcement approved, so a motion to suppress asks the judge to hold the State to that standard and throw the test out when it falls short. A few issues come up again and again.
01 No Probable Cause to Arrest
A breath test follows a lawful DUI arrest. When the stop or the arrest was not supported by probable cause, the test that came after it can fall with it. No lawful arrest means no valid breath test.
02 Implied Consent Problems
Florida’s implied consent warning has to be read correctly and at the right time. Reading it before a lawful arrest, misstating what it says, or denying your right to an independent test can each be grounds to exclude the result. If you declined the test, see refusing the breath test.
03 Missing Records or Witnesses
The State has to produce the certificate of inspection, the operator, and the records behind the number. When a required record is missing or a necessary witness is unavailable, the result may not come in at all.
Two of these turn on the machine’s own paperwork. The 20-minute observation period and the inspection and calibration records are where many breath tests come apart.
Do not miss this
A breath reading at or above 0.08 also starts the 10-day license clock.
A breath result over the limit triggers an administrative suspension on top of the criminal case. You have 10 days from the arrest to demand a formal review hearing with the DHSMV in Clearwater, which protects your license and can secure a 42-day permit. We file that request the same day you hire us. Call or text (727) 761-4318.
The Records We Pull
Before any of that, we gather the evidence. These are the records we request as a matter of course, and compare against the night you blew.
- The certificate of inspection for the exact Intoxilyzer 8000 used in your case
- The instrument’s maintenance and agency inspection logs
- The CAD dispatch records that fix the timeline of your arrest
- The breath test printout, with the control checks and both subject samples
- The breath room and jail video
- The transport video from the patrol car
A machine with a troubled history, or a timeline that does not add up, gives a jury a reason to doubt. More on the FDLE inspection and calibration records.
Attacking the Result at Trial
When the test comes in, we take the science to the jury. It starts with the gap between the number and the person.
The Disconnect Defense
Sometimes the number on the printout does not match the person the jury sees on video. The driving was clean, the speech was clear, the field sobriety tests went well, and then the machine reports a high reading. That gap is the defense. The State answers with tolerance, the idea that a seasoned drinker hides impairment. A person with real tolerance still fails the divided-attention field sobriety tests, so strong performance on those tests alongside a high breath number is a powerful argument that the number, and not the person, is wrong. See the disconnect and tolerance defense in full.
From there, we attack the science directly. Each link goes to the full breakdown.
Do You Need an Expert?
Sometimes the best testimony comes from the State’s own analyst. A careful cross-examination, built on the published science, can get the State’s witness to concede the limits of the machine. When a case calls for it, an independent expert adds weight. We make that call based on the facts of your case.
I started out as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, and today I am one of six ACS-CHAL Forensic Lawyer-Scientists in Florida, with forensic training in how these instruments work. A breath result is an estimate produced by a machine, and I read its calibration history, its agreement checks, and the assumptions built into the number, so I can show a jury where it does not hold up. Learn more about my background.
Questions We Hear About Fighting a Breath Test
Can a breath test be thrown out?
Yes. A motion to suppress can exclude a breath result when the arrest lacked probable cause, the implied consent warning was wrong, the observation period was not followed, or required records are missing. When the test is excluded, the State loses its central piece of evidence.
What is a motion to suppress?
It is a pretrial request asking the judge to keep certain evidence out of your trial because it was obtained improperly or is unreliable. Winning one on the breath test can change the entire case before a jury is ever seated.
Do I need an expert to fight a breath test?
Not always. Many breath cases are won by cross-examining the State’s own analyst with the published science. When a case calls for an independent expert, we bring one in. We make that call based on the facts.
Is it better to keep the test out or attack it at trial?
We pursue both. Keeping the test out before trial is the cleanest result. If it comes in, we take the science apart in front of the jury. The two tracks run at the same time.
This is the strategy overview. Start with the breath test defense overview, or go straight to the 20-minute observation period, the partition ratio, or the FDLE records.
This page is general information, not legal advice, and it does not create an attorney-client relationship. Breath testing in Florida is governed by Fla. Stat. 316.1932 and 316.1934 and the Florida Administrative Code chapter 11D-8. Procedures and rules change, and every case turns on its own facts. Past results do not guarantee a similar outcome.
