A breath case often comes down to a contradiction. The State leads with one tidy number, and then the rest of the record refuses to line up with it: the report, the bodycam, the field exercises, the timeline, and sometimes the machine’s own two readings, which do not even agree with each other. When the sources point in different directions, a jury is allowed to ask which one to believe.
This is the heart of the miles apart defense. It is about contradiction across the evidence. The closely related question of why a sober-looking, sober-performing person blew high, and how the State answers that with a tolerance argument, lives on the disconnect and tolerance defense page.
Two Stories, One Night
The State’s version of your night is built from a report and a reading. The other version is the one captured by the camera, the silent witness that does not round off, forget, or fill in the blanks. When the report describes a stumbling, slurring driver and the video shows a person who drove smoothly, answered clearly, and kept their balance, the contrast is evidence in itself.
A jury hears the State lead with a number, then watches a video of a person driving, speaking, and standing normally. The wider the distance between the two, the harder the number is to trust.
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.
When the Two Readings Disagree
Sometimes the numbers are miles apart from each other. Florida requires two breath samples that agree within 0.020. When the two results sit far apart, that spread is a warning sign about the machine or the sample, and it can put the whole result in doubt. We always compare the two readings against each other and against the tolerance the rule sets. More on that on the margin of error page.
Two numbers, and two very different stories
There are really two kinds of distance worth talking about here. The first is between your own two breath samples, the 0.020 window just discussed, and even inside that window the way the two numbers move can hint at whether your level was still rising or already falling. The second distance is the one that decides cases. It is the gap between a high number on a printout and the person on the video, the one who drove without incident, answered questions clearly, and moved through the roadside exercises like someone who was not impaired. When those two stories are miles apart, the jury cannot believe both. My job is to make the human story, the one they can see and hear, the one they trust, and to show that a lone number is a thin thing to set against a whole person behaving normally.
What We Do With the Gap
We line up every objective source: the breath number, the report, the bodycam and breath room video, the field exercises, and the timeline. Where the State’s number cannot be squared with what the camera shows, we make that gap the center of the case. When the objective record pulls against the number from every direction, the number is the piece that has to explain itself.
Why This Matters in Your Case
Jurors trust their own eyes. A number on a page is abstract, and a video is concrete. When the two are miles apart, the contrast does more work than any argument, and it is often the difference between a conviction and a reasonable doubt. This pairs closely with the disconnect defense.
When one tidy number sits against driving, video, field exercises, and a timeline that all point the other way, the question for the jury becomes which to believe.
Building the Contrast
The miles-apart defense is built piece by piece from the record. We line up the dashcam and bodycam, the officer’s own notes, the field exercises, the timeline of the night, and the two breath readings, and we show how little of it matches a person at the level the machine reported. A number that high should come with visible signs, and when those signs are absent across the whole record, the number is the part that does not fit. The contrast is not argument, it is the evidence the State itself created.
Letting the Jury See It
Jurors understand a contradiction they can see for themselves. Played side by side, the video of a composed, articulate person and a number that claims serious impairment do real work. We pair that contrast with the science of why the number can be wrong, the partition ratio, breath temperature, and the margin of error, so the jury has both a reason to doubt the number and their own eyes telling them to. Together they are far stronger than either alone.
The State wants the case to be about one number, and I want it to be about the whole night. I set the reading next to the driving, the body-camera video, and the field exercises, because when the machine says one thing and the person on the screen says another, the jury has to pick, and a real human behaving normally is hard to argue with. I know how to build that contrast and how to show that a single number, however confident it looks, does not outweigh everything a jury can see with their own eyes.
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 About the Miles Apart Defense
What is the miles apart defense?
It is a trial approach that places the State’s breath number next to the objective evidence of how you drove, spoke, and moved. When the two are far apart, the contrast itself raises doubt about the number.
Can the two breath readings disagree?
Yes. Florida requires two samples that agree within 0.020. When the two results are far apart, that spread is a warning sign about the reliability of the test.
Why does the video matter so much?
The video is an objective record that does not round off or misremember. When it shows a person behaving normally, it can contradict a high breath reading in a way a jury can see for itself.
Do I need an expert for this defense?
Not always. The contrast between the number and the video is something a jury can weigh directly, though a forensic review often sharpens why the number is unreliable.
What if my breath number does not match how I acted?
That contrast can be powerful. A high reading set against video of you driving normally, speaking clearly, and performing the roadside exercises well gives a jury two stories that cannot both be true. Florida’s own rule tolerates a 0.020 spread between your two samples, and the larger gap between the number and the person is often where reasonable doubt lives.
Related: the main breath test defense page, how we challenge a breath test, and the margin of error.
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.
