Understanding Your Rights, the Law, and How an Attorney Can Protect Your Future
If you were arrested in Florida with a blood alcohol concentration (BAC) just over the legal limit of .08, you may be asking yourself if you have any chance of beating the charge. Many people assume that once the breath test shows a result above .08, the case is unwinnable. That assumption is wrong. A DUI case in Florida involves far more than just a number on a machine. The law requires the State to prove every element beyond a reasonable doubt, and small differences in how evidence is gathered, tested, and presented can change the outcome.
As a Florida DUI defense attorney, I have helped clients in situations just like yours. Some walked into my office convinced they were destined for a conviction because the machine showed .082 or .09. Yet, through thorough defense work, I was able to challenge the reliability of the test, expose weaknesses in the State's case, and secure dismissals or reduced charges. The law gives us powerful tools to fight back, but you must have an attorney who knows how to use them.
Florida DUI Law and the .08 BAC Threshold
Florida's DUI law is found in Florida Statutes §316.193. The relevant portion states:
Florida Statutes §316.193(1):
"A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;
or
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood or a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath."
This statute makes clear that the State can try to prove DUI in two ways:
- By showing your normal faculties were impaired, or
- By showing your BAC was .08 or higher.
But ".08 or more" is not the end of the story. Breath machines are not perfect. Testing procedures are subject to strict rules. The State must prove beyond a reasonable doubt that the number is reliable and accurate. When your result is just slightly over .08, it gives your DUI attorney multiple avenues to attack the case.
Why a Slightly Over .08 BAC Can Be Challenged
One of the most important things I explain to my clients is that a BAC reading is not an absolute truth. Here are some of the reasons why:
Breath Test Machine Accuracy
The breath test device used in Florida, typically the Intoxilyzer 8000, must be maintained, calibrated, and operated correctly. Florida law requires compliance with Florida Administrative Code Rule 11D-8, which sets forth rules on machine inspections, calibration checks, and operator certifications. If the State cannot prove the machine was working properly at the time of your test, the results may be thrown out.
Margin of Error
Even when properly calibrated, the Intoxilyzer has an accepted margin of error. Studies show that a reading of .081 could actually represent a BAC slightly below .08. That means if you blew just barely over the limit, there is real doubt about whether you were truly above the legal threshold.
Rising BAC Defense
Alcohol takes time to absorb into your bloodstream. It is possible that your BAC was under .08 while driving, but rose above .08 by the time you were tested. If there was a significant delay between the stop and the test, this defense can create reasonable doubt.
Health and Medical Factors
Medical conditions such as acid reflux, GERD, or diabetes can cause false positives or exaggerated BAC readings. These issues can make a number slightly above .08 unreliable.
Every one of these points can be used to attack the State's case. This is where having a private DUI defense lawyer matters. Prosecutors do not give away dismissals without a fight, and public defenders often carry heavy caseloads that make this level of detailed work impossible.
Penalties for a DUI Conviction in Florida
To understand why it is so important to fight a DUI charge even when your BAC is just slightly over .08, you need to know what is at stake. Under Florida Statutes §316.193(2):
"Except as provided in subsection (3), any person who is convicted of a violation of subsection (1) shall be punished:
(a) By a fine of:
- Not less than $500 or more than $1,000 for a first conviction.
- Not less than $1,000 or more than $2,000 for a second conviction.
- (b) By imprisonment for:
- Not more than 6 months for a first conviction.
- Not more than 9 months for a second conviction."
Even a first DUI conviction comes with license suspension, probation, fines, mandatory classes, and the possibility of jail. A conviction also leaves you with a permanent criminal record. These are life-altering consequences, which is why it is critical to challenge a weak case.
Defenses That Apply in Slightly Over .08 DUI Cases
When your BAC is just above the legal limit, several defenses become powerful tools in your case.
Challenging the Stop
If the officer lacked a lawful reason to pull you over, everything that followed can be suppressed, including the breath test. Florida law requires reasonable suspicion or probable cause for traffic stops.
Challenging the Arrest
Even if the stop was legal, the officer must have probable cause to arrest you for DUI. If the arrest was based only on vague observations, the defense can argue that the arrest was unlawful.
Attacking the Breath Test
Your attorney can demand records showing when the Intoxilyzer was calibrated, whether the operator was properly certified, and whether all procedures were followed. If not, the results can be excluded.
Presenting Alternative Explanations
Cross-examination can show that any alleged impairment was due to fatigue, stress, or medical conditions rather than alcohol.
These defenses do not work automatically, but they are highly effective when applied correctly. That is why retaining an experienced attorney is essential.
A Real Case Example
Several years ago, I defended a client in Sarasota who was pulled over for speeding late at night. The officer claimed he smelled alcohol and administered field sobriety exercises. My client complied but did not perform perfectly. He was arrested and later blew a .082.
On paper, it looked like a clear-cut DUI. But when I examined the records, I discovered the Intoxilyzer had failed an accuracy check shortly before his test. I filed a motion to suppress the breath results, and the judge granted it. Without the test, the prosecutor's case was based only on the officer's observations, which were not strong enough to prove impairment beyond a reasonable doubt. The State dropped the DUI and allowed my client to plead to a civil infraction. He avoided a criminal record, license suspension, and thousands in fines.
This case illustrates exactly why numbers just over .08 should never be taken at face value. With the right defense, these cases can be beaten.
Why You Need a Private DUI Defense Lawyer
Every section of this discussion circles back to one point: you need a private lawyer who has the time, resources, and skill to fight for you. A DUI charge in Florida is technical. It involves science, strict rules, and constitutional protections. The State will not point out weaknesses in its own case. Without a lawyer pressing the issue, those weaknesses remain hidden.
I have seen countless clients save their licenses, avoid criminal records, and protect their futures by hiring a defense attorney early in the process. If you try to handle it alone or rely on an overburdened public defender, you risk losing defenses that could have changed everything.
DUI Frequently Asked Questions
What does it mean if my BAC was .08 but I did not feel impaired?
It means the State will likely still try to charge you with DUI because the statute allows conviction based on BAC alone. However, not feeling impaired supports the defense argument that your normal faculties were not affected, which can cast doubt on the case. An attorney can use this to your advantage.
Can I get my case reduced to reckless driving if my BAC was just over .08?
Yes, many prosecutors will consider reducing a DUI to reckless driving, especially when the BAC is barely above .08 and the case has weaknesses. This outcome, often called "wet reckless," is far better than a DUI conviction. It depends on strong defense negotiations and presenting mitigating evidence.
Will I lose my driver's license automatically?
If you blew over .08, the DMV will attempt to suspend your license administratively. You have 10 days from the arrest to request a formal review hearing. An attorney can represent you at that hearing and fight to keep your driving privileges.
What if I refused the breath test instead of blowing over .08?
Refusal creates its own set of penalties, including a one-year license suspension for a first refusal. However, refusal cases often leave the State with weaker evidence, which can sometimes lead to better outcomes in court.
Can the officer's dashcam or bodycam help my case?
Yes, video evidence can be powerful. If the footage shows you speaking clearly, walking steadily, and following directions, it can contradict the officer's claims of impairment. A private attorney will always demand and review this footage.
Is there a difference between blood tests and breath tests in DUI cases?
Blood tests are generally considered more accurate, but they are subject to strict chain-of-custody rules. Breath tests are easier to challenge because of the machine's limitations and procedural requirements.
Do prior convictions matter if my BAC was only slightly above .08?
Yes, prior DUI convictions significantly increase penalties, including mandatory jail. However, each case is judged individually, and a skilled attorney can still challenge the current charge even if you have priors.
Can stress or fatigue mimic DUI symptoms?
Absolutely. Red eyes, slurred speech, and unsteady movements can result from exhaustion, allergies, or nerves. These alternative explanations can be used to challenge the officer's testimony.
How long will a DUI conviction stay on my record in Florida?
A DUI conviction stays on your record permanently. It cannot be sealed or expunged. This is why avoiding a conviction is so critical.
Can hiring a private lawyer really make that much of a difference?
Yes, because DUI defense is complex and time-sensitive. An experienced private attorney has the ability to scrutinize every piece of evidence, file motions to suppress, and negotiate aggressively. This kind of defense work is the difference between conviction and dismissal in many cases.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
If you were arrested in Florida with a BAC just over .08, do not assume your case is lost. Small numbers can mean big opportunities for the defense. An experienced DUI attorney can challenge the evidence, protect your license, and fight for dismissal or reduction.
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.