Can I Fight a Felony DUI in Florida If I Failed a Breath Test?

Understanding Your Rights, Defenses, and Why a Private DUI Attorney is Critical to Protecting Your Future

Facing a felony DUI charge in Florida is a frightening experience, and it becomes even more overwhelming if you were told you failed a breath test. Many people assume that failing a breathalyzer means the case is already lost. I want you to know that this is not true. Over the years, I have defended countless clients charged with DUI, including felony-level offenses, even when the state claimed there was “hard evidence” from a breath test. Breathalyzer results are not flawless, and there are multiple defenses available that can change the outcome of your case.

Below, I will explain how Florida law defines felony DUI, what the statutes say about breath tests and DUI penalties, the defenses that may apply even if you blew over the limit, and why having a private DUI defense attorney is vital if you want to fight these charges successfully. I will also share a real-life case where a failed breath test did not lead to a conviction because of strategic defense work.

Understanding Florida’s Felony DUI Laws

Under Florida Statute § 316.193, DUI becomes a felony under several circumstances:

Statute Text: “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and 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.”

A DUI is typically a misdemeanor for a first or second offense. However, § 316.193(2)(b) elevates it to a third-degree felony if:

• It is a third DUI conviction within 10 years,
• It is a fourth or subsequent DUI, or
• The DUI results in serious bodily injury to another person.

Additionally, DUI manslaughter, defined in § 316.193(3)(c)(3), is a second-degree felony punishable by up to 15 years in prison.

Even with a failed breath test, the state must prove every element of the offense beyond a reasonable doubt. This is where your defense begins.

How Breath Test Results Are Used in Florida DUI Cases

Florida law recognizes breath test results as evidence of impairment under § 316.1934(2)(c):

Statute Text: “If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or more, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.”

This statute allows prosecutors to argue that failing a breath test automatically shows impairment. However, prima facie evidence does not mean conclusive evidence. It only allows the jury to infer impairment unless the defense successfully challenges the reliability of the test or other elements of the charge.

Defenses Against Felony DUI Charges Even With a Failed Breath Test

Many clients believe that once they blow over 0.08, there’s no way to fight the case. That is not true. I have successfully challenged breath test results using several legal strategies. These defenses require immediate investigation and access to evidence, which is why hiring a private attorney is crucial.

1. Challenging the Breathalyzer’s Accuracy

Breath test machines must be properly maintained, calibrated, and operated according to Florida Administrative Code Rule 11D-8. If the device was not calibrated or maintained correctly, results can be thrown out.

I routinely request maintenance records, operator certifications, and test logs. A public defender often does not have the time to dig this deep. As a private attorney, I can hire independent forensic experts to analyze whether the test result is scientifically reliable.

2. Medical and Physiological Factors

Certain medical conditions, such as acid reflux, diabetes, or specific diets like keto, can create falsely high breath alcohol readings. Florida courts allow scientific testimony challenging breath test accuracy under these conditions.

If we can show that your result was caused by a health issue rather than impairment, the state’s main evidence becomes unreliable.

3. Illegal Stop or Lack of Probable Cause

Before a breath test result is even admissible, the state must prove the stop or arrest was lawful. Under Fourth Amendment protections and Florida case law, an officer must have reasonable suspicion to stop you and probable cause to arrest you.

If the stop was unlawful, I can file a motion to suppress, excluding the breath test and any other evidence gathered afterward. No test result, no case.

4. Issues with the Breath Test Procedure

Florida law requires that breath tests be performed within a reasonable time after driving and that you be observed for at least 20 minutes before testing. Officers must also follow strict protocols during testing. Any deviation can make results inadmissible.

5. Challenging the Felony Enhancement

Even if a misdemeanor DUI can be proven, felony status depends on prior convictions or injury. I often review past DUI cases to see if they were lawfully counted as priors. If there’s a legal defect in a prior conviction or insufficient evidence of injury, I can fight to reduce the charge from felony to misdemeanor.

Real Case Example: Breath Test Suppressed and Felony Reduced

One client came to me after being charged with a third DUI within 10 years, making it a third-degree felony under § 316.193(2)(b). He had blown a 0.13 on a breathalyzer after being stopped late at night in Tampa. Prosecutors believed they had an easy conviction.

Upon review, I discovered that the officer had not observed my client for the required 20-minute period before administering the test. Video evidence from the patrol car showed the officer leaving my client unattended. We filed a motion to suppress the breath test based on this procedural violation.

Without the breath test, the state had little evidence of impairment beyond the officer’s subjective observations. The judge agreed and suppressed the test results. With the main evidence gone, the felony charge was reduced to reckless driving, and my client avoided a felony conviction and potential prison time.

This case demonstrates why having a private attorney makes a difference. We had the resources and time to obtain video footage, hire an expert, and challenge the breath test successfully.

Why You Need a Private Attorney for Felony DUI Cases

Felony DUI charges carry serious consequences, including years in prison, thousands in fines, permanent license revocation, and a lifelong felony record. A failed breath test is not the end of the road, but you need a skilled defense attorney to uncover weaknesses in the prosecution’s case.

Public defenders are often overburdened with cases and may not have the ability to retain forensic experts or conduct independent investigations. A private attorney can:

• Subpoena calibration and maintenance logs for the breathalyzer machine
• Hire toxicology experts to review your test results
• Challenge prior convictions used to enhance your charge
• Negotiate aggressively with prosecutors for reduced or dismissed charges
• Take your case to trial if necessary

Your future, your freedom, and your ability to provide for your family are on the line. Do not assume that failing a breath test means you have no defense.

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.

Florida Felony DUI Defense Frequently Asked Questions

Can I still win a felony DUI case if I failed a breath test?

Yes. A failed breath test does not guarantee a conviction. Breath tests can be inaccurate due to machine errors, improper procedure, medical conditions, or unlawful police conduct. A skilled attorney can challenge the test results and other evidence to fight for a dismissal or reduction of charges.

What is considered a felony DUI in Florida?

Under Florida Statute § 316.193, DUI becomes a felony for a third offense within 10 years, a fourth or subsequent DUI, or if the DUI causes serious bodily injury or death. DUI manslaughter is a second-degree felony carrying up to 15 years in prison.

What happens if my prior DUI convictions were out of state?

Florida can use out-of-state DUI convictions to enhance your charge to a felony. However, those convictions must meet Florida’s legal definitions. A private attorney can challenge whether the priors were valid or comparable to Florida law.

Can I refuse a breath test in Florida?

You can refuse, but under Florida’s implied consent law (§ 316.1932), refusal leads to an automatic license suspension. A second refusal can result in a separate misdemeanor charge. Even with a refusal, you can still be prosecuted for DUI based on other evidence.

What are the penalties for felony DUI in Florida?

Penalties may include up to 5 years in prison for a third-degree felony, fines up to $5,000, license revocation, a mandatory ignition interlock device, and a permanent criminal record. DUI manslaughter carries up to 15 years in prison and fines up to $10,000.

Will I lose my driver’s license after a felony DUI arrest?

Yes, you may face both administrative and criminal license suspensions. A private attorney can request a formal review hearing to challenge the administrative suspension and may negotiate for hardship driving privileges.

How long do prosecutors have to file felony DUI charges?

Generally, the statute of limitations for a third-degree felony in Florida is three years, but serious injury or death cases can have longer periods. A private attorney can verify deadlines and ensure your rights are protected.

Should I accept a plea deal if I failed the breath test?

Not without first consulting an attorney who has reviewed all the evidence. Many cases with failed breath tests can be reduced or dismissed once procedural flaws or reliability issues are exposed. Pleading guilty too soon can leave you with a permanent felony record unnecessarily.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

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.