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Breathalyzer Test Given Before Defendant Was Arrested Was Not Valid in Florida

With DUI cases in Florida, a lot of people assume that the defendant is arrested only after he/she has submitted to a breathalyzer test that showed the defendant was drunk driving or impaired by alcohol. Otherwise, people understand that an arrest before a high breathalyzer reading is likely to be based on the completely subjective assumptions of the police officer who already assumes the driver is drunk when he/she is formulating his/her opinions.

But that is not how it works. Breathalyzer tests are administered only after the defendant is arrested based on the subjective conclusions of the police officer. With many DUI arrests, it is a case of, arrest first (based on assumptions) and get the evidence later.

In a recent DUI case south of Jacksonville, Florida, the police officer observed a driver swerve out of his lane. The police officer ran a check of the driver’s tag and learned that he had an outstanding warrant for driving with a suspended license. The police officer stopped the driver, arrested him for driving with a suspended license and took him to the police station. Only after the driver arrived at the police station did the officer indicate he noticed an odor of alcohol, slurred speech, bloodshot and glassy eyes and all the standard things that go into every DUI police report. The police officer asked the driver to take a breathalyzer or breath alcohol test. The driver refused. At that point, the police officer arrested the driver for DUI.

The criminal defense lawyer was able to have the driver’s refusal to take the breath alcohol test thrown out because the request was made before he was actually arrested for DUI. Had the driver agreed and submitted to the breathalyzer test, the results would have been thrown out of court because the law requires a person to be arrested for DUI before he/she takes the breath alcohol test.