Posts Tagged ‘breath test’



Thursday, May 5th, 2011

In Florida, when a person is arrested for DUI, they are often asked to perform a breath test.  Many people are familiar with common defense attacks on the breath test machine (currently, it is the Intoxilyzer 8000).  But have you ever heard of the “denture defense”?

Hypothetically, it goes something like this:  “Yes, I blew over the limit, but not because I was DUI.  I blew over the limit because I was wearing dentures.  I drank alcohol earlier in the day and there must have been some residual alcohol left over in my dentures.  That’s why I blew so high.”  There are several variations of the defense, but you get the overall argument.

Unfortunately, in Florida, wearing dentures during a breath test does not invalidate the breath test results…and yes, there is a case on point.

Schofield v. State, 867 So.2d 446 (Fla. 3d DCA 2004) held that the presence of dentures in a DUI defendant’s mouth during the breath test does not invalidate the results, so long as the test is conducted according to the governing statute and administrative rules.  The Court went on to hold that Florida law does not require the removal of denture devices nor does the law impose an obligation on the officer to even inquire about the use of dentures prior to or during administration of alcohol tests.

In the Schofield case, the Defendant’s first breath sample resulted in a reading that stated “Invalid Sample–Mouth Alcohol”.  The officer then asked the Defendant to rinse her mouth with water and obtained two additional breath samples which had readings of .114 and .111.  Defendant’s defense expert testified that the invalid mouth alcohol reading was due to the presence of alcohol and that the dentures probably caused the alcohol presence, and that the failure to remove the dentures before rinsing her mouth with water rendered the subsequent breath test results unreliable.  The State’s experts could not explain how the invalid reading resulted in this case but one said the latter two results were valid because they followed the proper procedures.  The Court held that any effect of the dentures on the breath test goes only to the weight, not the admissibility, of the test results.

This holding aligned itself with the prevailing view from numerous jurisdictions.

(Disclaimer: This blog does not constitute legal advice.  If you are charged with DUI, please consult a criminal defense attorney to discuss your situation.)

Matthews Law Firm, P.A., offices in Polk County, Florida.

Criminal Blog Week Day 4: “No Refusal” DUI Roadblocks

Thursday, April 14th, 2011

“No Refusal” DUI Roadblocks

The Bill of Rights and the Florida Constitution are commonly quoted to guarantee each person freedom from unreasonable searches and seizures.  Over the years, American jurisprudence has focused much more on the word “unreasonable” rather than “freedom.”  Traditionally, the U.S. Supreme Court has decided what is “reasonable” by balancing government interests with personal liberty.  A close examination of that balancing process would require a significant (i.e., long and boring) analysis.  Here, it is sufficient to say that the importance of the government interest is balanced against the degree of intrusion upon the individual.

With regard to standard DUI roadblocks, the Florida Supreme Court held that they can be implemented without violating the U.S. or Florida constitutions.  Noting that stopping a car is “unquestionably” a seizure under the Constitution, the Court used the Balancing Test to compare the government’s interests against the individual driver’s constitutional rights.  The Court held that, “The state’s compelling interest in protecting the public from drunk drivers outweighs any minimal intrusion into their privacy which a proper roadblock might cause.”  State v. Jones, 483 So. 2d 433 (Fla. 1986).

The government’s typical public relations justification for DUI roadblocks is, “We must protect you.”  The government avoids talking about the “minimal intrusion” part of the equation.

The Matthews Law Firm, along with criminal defense attorneys in Bartow and throughout central Florida, are now confronted with a new challenge to personal freedom and liberty.  Building on the Supreme Court’s approval of DUI roadblocks, police forces in central Florida are joining other states in implementing “no refusal” DUI roadblocks.

The “refusal” typically refers to the driver “refusing” to help police convict him.  It apparently has confounded police forces when a person, in this case not stopped for any wrong-doing, chooses to stand on his rights to be free from unreasonable searches, be free from unreasonable seizures, be free from self incrimination, have advice of an attorney, or have Due Process in his interaction with the government.

In Florida, if a person arrested for DUI refuses to submit to a breath test, there are already penalties set out by law.  In Florida, the law also sets out when and how the government may obtain a blood sample in a DUI case.

The “no refusal” DUI roadblock initiative seeks to get around these laws.

At a “no refusal” roadblock, police seek to force a person to submit to a breath test by threatening to forcibly take blood upon refusal of a breath examination.  In case of a refusal, police have a judge standing by, ready and waiting to sign a pre-printed fill-in-the-blank search warrant to draw blood.

Many are alarmed at the idea of judges simply rubber-stamping police investigations based on no individual suspicion, much less probable cause.  After all, police “hunches” have long been rejected as legitimate grounds for a warrant.  However, a much more sinister danger posed by this doctrine is the idea that demanding one’s constitutional liberty is, all by itself, probable cause to pierce those very rights.

Piercing a person’s body is not a “minimal intrusion” or a “minor inconvenience.”  Coercing a person to forfeit their rights is unconstitutional, whether done at the point of a needle or the barrel of a gun.  The coercion itself is the evil.  A police force unrestrained by law and exempt from constitutional limitations does not make anyone safer.