Is It Worth Fighting a DUI If I Failed the Breath Test in Florida?

Why a Breath Test Failure Is Not the End of Your DUI Defense

If you’ve been arrested for DUI in Florida and the breath test shows a result above the legal limit, you might feel like there’s no point in fighting the charge. Many people assume that once they blow over a 0.08, their fate is sealed. I want you to know that’s not true. I’ve helped many clients challenge DUI charges even after they failed a breath test, and we’ve won.

You have a constitutional right to fight back, and breath test results are not the final word. In fact, those machines are far from perfect. They’re machines operated by people, and both can be wrong. That’s why you need a private defense attorney who will look at every part of the case, not just the number printed on a piece of paper.

Florida DUI Law and the Role of the Breath Test

Florida Statute § 316.193 makes it a crime to drive or be in actual physical control of a vehicle while under the influence of alcohol or a controlled substance. There are two ways the state can try to prove a DUI:

• If your normal faculties are impaired, regardless of BAC
• If your breath or blood alcohol level is 0.08 or higher

Here’s the statute’s language:

“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… to the extent that the person’s normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.” — Fla. Stat. § 316.193(1)

If the state believes your breath alcohol level was over the limit, they will likely pursue your case under subsection (c). But even if the breath test showed a BAC of 0.08 or higher, the machine’s reading is only evidence, not absolute truth. It can be challenged, and it should be.

How We Challenge Breath Test Results

There are many ways to attack a breath test result. These machines can be affected by technical issues, human error, medical conditions, and more. That’s why a private defense lawyer can make a real difference. I’m not limited by public defender resources. I have access to breath test experts, former law enforcement trainers, and toxicologists who can dig into the evidence.

Some of the defenses we use include:

Machine Malfunction or Improper Maintenance

Florida law requires that breath test machines be regularly inspected and maintained. If the machine wasn’t properly calibrated, we can challenge the reliability of the result. The Florida Administrative Code (F.A.C. 11D-8) lays out the required inspections. If the Intoxilyzer 8000 used in your case failed inspection or had calibration issues, that’s grounds to suppress the result.

Operator Error

Only certified breath test operators can administer a lawful test in Florida. If the officer was not certified, skipped steps in the procedure, or waited too long between breath samples, we may be able to exclude the test result.

Medical Conditions

Certain medical conditions can cause elevated readings or interfere with the machine. GERD (acid reflux), diabetes (especially ketoacidosis), or residual alcohol in the mouth can all affect the outcome.

Rising Blood Alcohol

Alcohol takes time to absorb into your bloodstream. If you drank shortly before driving, your BAC may have been below the legal limit while you were driving, but rose above 0.08 by the time you took the test. That’s called a rising BAC defense. Timing matters, and a private attorney can present scientific evidence to explain this to the court.

Real Case Example: Breath Test Thrown Out, Charges Dropped

One of my clients was pulled over in Sarasota after leaving a restaurant. The officer claimed he swerved and had bloodshot eyes. My client submitted to a breath test at the jail about 50 minutes later, and the machine showed 0.11.

Most people would think that’s a losing case. But we looked deeper. The arresting officer had failed to observe my client for the full 20 minutes before the test, which is required to ensure nothing affects the reading. Even worse, the machine had not undergone its monthly inspection on time, which we confirmed through FDLE records.

We filed a motion to suppress the breath test result. Once that evidence was excluded, the prosecution had little to work with. The field sobriety exercises were improperly administered, and the traffic stop video didn’t show any clear signs of impairment.

The prosecutor dropped the DUI and offered a non-criminal reckless driving plea. No jail, no DUI conviction, and no license suspension. This is why I always tell clients not to give up just because they blew over the limit.

Why Hiring a Private DUI Defense Lawyer Matters

When you’re up against a DUI charge backed by a breath test, it’s not the time to hope things work out. The system is complicated. The rules are specific. And the state is already building its case against you.

Public defenders work hard, but they’re overloaded. A private defense lawyer can dedicate the time your case deserves. I can subpoena the machine maintenance records, obtain bodycam and dashcam footage, cross-examine the officer’s training, and consult with forensic toxicologists.

I work for you—not the system. And I make sure the state meets its burden in every aspect of the case.

Consequences of a DUI Conviction in Florida

If you decide not to fight and just plead guilty because of a breath test result, the penalties are steep, even for a first offense:

• Up to 6 months in jail
• License suspension
• DUI school
• Ignition interlock device (in some cases)
• Increased insurance premiums
• Permanent criminal record

For a second or third offense, the consequences increase dramatically, and the court may treat it as a felony. Don’t assume that a guilty plea will go unnoticed. It will follow you, impact your job, affect your driving privileges, and possibly lead tofuture enhancements.

Florida Implied Consent Law: What It Means and What It Doesn’t

Under Florida Statute § 316.1932, you’re deemed to have consented to a breath test if you drive on Florida roads. Refusing the test can result in a one-year license suspension for a first refusal and up to 18 months for a second.

But here’s the important part: even if you consent and fail the breath test, it’s not an automatic conviction. The breath test is just one part of the case. The officer’s observations, your behavior, field sobriety exercises, and the legality of the stop all matter too.

How We Build Your Defense

Every DUI case has its own story. That’s why I start by reviewing every piece of evidence. I don’t assume the breath test result is accurate. I examine:

• Body camera footage
• Intoxilyzer 8000 logs and service history
• Officer certification and training records
• Timeline from stop to arrest to testing
• My client’s health, diet, and medical conditions
• Statements made during the traffic stop and afterward

I fight aggressively at every stage. From bond hearings to motions to suppress, I press the prosecution to prove its case the right way—or dismiss it.

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.

DUI Defense Frequently Asked Questions (FAQs)

Can I fight a DUI if I failed the breath test?

Yes. A failed breath test doesn’t automatically mean a conviction. Breathalyzers are machines, and they can malfunction.The officer who administered the test must be properly trained and follow strict procedures. If those steps aren’t followed, the test result can be suppressed. Many DUI cases have been dismissed or reduced even when the driver blew over 0.08.

Is the breath test result the most important evidence in a DUI case?

It’s important, but it’s not the only thing that matters. The state must prove beyond a reasonable doubt that you were impaired or had an unlawful BAC at the time you were driving. That includes the officer’s observations, field sobriety tests, and the lawfulness of the traffic stop. If we weaken any part of the case, it can result in dismissal or reduction of the charges.

What if I have a medical condition that affected my breath test?

Medical conditions like GERD, diabetes, and asthma can impact breathalyzer results. These conditions can introduce alcohol from the stomach or lungs that does not reflect actual impairment. A private defense lawyer can have a medical expert evaluate your health records and testify about how your condition could have distorted the reading.

Can breath test machines be wrong?

Absolutely. The Intoxilyzer 8000 used in Florida is subject to human and mechanical error. If the machine wasn’t calibrated correctly, wasn’t inspected on time, or was operated incorrectly, the result may not be admissible in court. I’ve had cases where the breath test was thrown out entirely because of those issues.

Should I still hire a lawyer if the breath test result was high, like 0.15 or more?

Yes. Even if the reading was above 0.15, that doesn’t mean the result is accurate or admissible. A high BAC carries enhanced penalties, but that also means the stakes are higher and your defense needs to be even stronger. A private DUI lawyer can explore every possible defense and work to avoid those enhancements.

What is the 20-minute observation period?

Before administering a breath test, Florida law requires that the officer observe you continuously for at least 20 minutes to ensure you don’t burp, vomit, or place anything in your mouth. If this procedure is not followed, the breath test result may be invalid. I review all video footage and reports to see whether the officer followed this rule.

What if I just want to plead guilty and get it over with?

You can, but you may regret it later. A DUI conviction carries long-term consequences, including a permanent criminal record, license suspension, higher insurance costs, and possible job loss. Many clients come to me after pleading guilty and ask how to undo it. It’s better to fight now while we still have options.

How long do DUI cases take in Florida?

It depends on the complexity of the case, the court’s schedule, and whether we file motions. Some cases resolve in a few months, while others take longer. I keep my clients updated throughout and prepare every case as if it’s going to trial. That’s often how we get better results.

What if I passed the field sobriety tests but failed the breath test?

That can actually help your case. If the officer claimed you were impaired but the video shows you performed well on field tests, that contradiction can be used to attack the officer’s credibility. It also supports the idea that your BAC was rising and hadn’t reached 0.08 at the time of driving.

Can a DUI be reduced even after a failed breath test?

Yes. I’ve secured reductions to reckless driving or even dismissals for clients who failed breath tests. It comes down to the strength of the evidence and how the case is built. A private attorney has more flexibility to challenge evidence, negotiate with prosecutors, and present mitigating circumstances.

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.