Florida’s Legal BAC Levels
In Florida, the legal limit for the Blood Alcohol Concentration (BAC) when operating a motor vehicle is currently set at 0.08% for all drivers who are 21 years of age and older. This is known as the "Standard Limit," and it applies to the vast majority of everyday motorists on the road. However, Florida laws also provide for lower legal limits based on certain circumstances, such as the type of vehicle a person is driving and their age.
For commercial drivers, who operate large trucks or vehicles that transport goods across the state, the legal limit is reduced to 0.04%. This enhanced enforcement of impairment standards is implemented for commercial drivers in order to ensure the safety of the general public and to minimize the number of accidents that may occur as a result of impaired drivers who are behind the wheel of such large vehicles .
Additionally, for underage drivers under the age of 21, the legal limit is lowered to 0.02%. Florida’s "Zero Tolerance" policy for underage drinking and driving means that a driver who is under the legal drinking age can be charged with a DUI simply for having a trace amount of alcohol in their system. In many cases, this could lead to a DUI charge despite the fact that the level of impairment may not have been above the legal limit if they were 21 years of age or older.
Because a DUI charge can have serious consequences, from civil penalties to criminal prosecution, it’s important for all Florida residents to be mindful of the fact that the legal BAC limit can vary depending on the situation. In order to protect yourself on the road, and to avoid the myriad of consequences that can arise from a DUI arrest, remember to always drink responsibly and never operate a motor vehicle if you have been consuming alcohol.
Penalties for Exceeding Florida’s Legal BAC Levels
The penalties for exceeding the legal blood alcohol content limit range from a fine to imprisonment with several other sanctions in between. One problem is that these penalties are not applied uniformly throughout the State of Florida.
A police officer will often decide what to charge based upon any field sobriety tests and any lack of cooperation during the DUI stop. A lack of cooperation or perceived refusal to provide breath will often lead to a DUI charge if a request for breath is made by the officer at the scene. A refusal to provide breath at the station is usually charged as a refusal which may result in harsher penalties.
Penalties for a DUI conviction range from administrative sanctions to criminal sanctions. Usually an administrative suspension for driving with an unlawful blood or breath alcohol level will result in a driver’s license suspension for six months which requires the driver to acquire a hardship license for six months. The provision of a hardship license, which is usually required six months after an administrative suspension, is no longer offered in Florida as of July 1, 2013. An Administrative hearing is necessary within ten days of the arrest for the suspension to be valid and the request for the hearing must be filed within ten days. If you don’t request the hearing the Administrative License Suspension (ALS) becomes effective at eleven days.
If the driver has previously been convicted of DUI, the administrative suspension will be longer and the hardship license provisions are not available. Drivers who have been previously convicted of DUI, and have a BAC above .02 may also suffer in their ability to enjoy places to drink alcohol. For example, under Florida Statute 561.01(14) and 561.42 a person refuses to sell alcoholic beverages may be a misdemeanor or felony depending upon the prior record.
Penalties for a conviction resulting in a guilty or no contest plea are also variable. A first conviction can lead to a four page list of potential penalties. Even a first time offender faces jail time and a license suspension. There are many potential plea agreements however, that can lead to a reduction of the conviction to less than a DUI.
A second conviction results in increased penalties. A second conviction typically results in a license suspension with no provision for hardship. Additionally, there is a mandatory period of incarceration required by Florida Statutes.
A third conviction results in increased penalties including felony charges and a felony conviction could result in imprisonment.
If the driver has a BAC above .15, the DUI penalties will be higher including longer periods for incarceration when there are no other convictions. Remember however, very few cases result in a trial. Most cases are negotiated and resolved to provide a reasonable resolution to the client and the courts.
Determining BAC in Florida
The measurement of BAC by law enforcement in Florida depends upon the method used. The most common methods of testing are breath, blood, and urine. Breath tests measure alcohol vapors. In general, blood and urine tests will only be performed after the breath test, although there are a few circumstances where breath testing might not be performed. For example, there may not be an available breath testing machine or the suspect has sustained injuries which would cause the breath test to not be accurate.
Most law enforcement officers administer a breath test about 45 minutes after the stopped suspect is arrested for allegedly driving under the influence. A breath test also may be performed at a local hospital when the suspect is additionally being tested for drugs or other substances, including prescription drugs.
Many people think that breath testing machines are reliable. In actuality, that is not the case. A breath testing device is designed to measure the amount of alcohol vapor that a person breathes out. However, the problem is that alcohol vapors are in a very small concentration in a person’s breath. This means the machine has to make exponential assumptions about how much alcohol is in the person’s alcohol in their blood stream. A breath testing machine can very easily provide an inaccurate reading.
Thousands of DUI breath tests are administered annually in Florida. In fact, it is the primary law enforcement method use for suspected drunk driving cases. A breath test is conducted by having the suspected drunk driver blow into the breath testing machine for an extended period of time, or about four seconds. After the end of the test, the machine will read out the amount of alcohol on a person’s breath in terms of grams for 210 liters of breath. The breath test will also give a number called a "wet." The wet is the same as the blood alcohol level only shown in as a percent. For example, if the breath testing machine says the breath test result is .08 or .08/100, this means the person’s blood alcohol level is .08. In Florida a blood alcohol level of .08 or above is the legal limit for operating a vehicle.
A breath test also will give a graph on a readout sheet. This graph, called a "visual graph," attempts to give a representation of the amount of alcohol at each point in time throughout the breath test. Of course, this is only a visual approach. Some agencies display the entire breath tests given during a stop on their website, so that it is clear exactly what the breath testing machine read.
After the breath test is completed, the breath testing officer will complete a form called an Intoxilyzer 8000 Alco-Sensor Operating Record/ Observation Checklist (form 40-4). The form will say that the officer observed the suspect for a period of 20 minutes to guarantee he did not consume any alcohol or substances during the time of the observation. The officer will mark through all of the items on the form, resolutions to the right of the notation, suggesting the test was performed correctly. The report will then be signed and dated by the officer. This form will then be placed in the law enforcement files along with the breath machine print out from the breath machine which will be in electronic format.
What Impacts BAC Levels
A number of factors affect an individual’s BAC. Several of the factors are interrelated, and often depend on each other to have the same effect.
Gender
Gender differences affect BAC because men metabolize alcohol more effectively than women. This is because men usually have a larger body mass, and the body is better at metabolizing alcohol into fatty tissue than into blood. Men also tend to have more body water than women, and less alcohol dehydrogenase, an enzyme that helps in the break down of alcohol in the liver. With these two differences, the body is able to absorb alcohol more effectively. Because of this, men can have a higher BAC and still be at a point within the law.
Alcohol Tolerance
Alcohol tolerance refers to the more you drink, the better your body becomes at handling alcohol related toxins. This means the more times you drink alcohol, the better your body can handle it.
Eating
Drinking on a full stomach can have a major effect on an individual’s BAC. Close to half of the alcohol consumed will be absorbed into the stomach lining. If a person has food in his stomach, the alcohol will be absorbed into the intestine, where it will be regulated by the liver. If a person has food in his stomach , more alcohol will make its way to the liver and therefore raise the BAC.
Gender Differences
The difference in gender related to BAC is a sensitive subject. But the reason that the difference in gender exists is simply biological. Women’s bodies are built differently than men. Although the eyes and liver are affected by alcohol in both men and women, the liver has a negative effect on BAC levels in women. Body water makes up more of a percentage of men than women. Men generally have a higher volume of water and blood than women do. The higher amount of water and blood helps the body absorb and break down the alcohol. Women on the other hand have lower levels of water and blood, which means they absorb the alcohol more quickly. The alcohol immediately gets into the system, and spreads through the body, raising the BAC levels. A woman who weighs 165 pounds could have the same BAC levels as a man who weighs 130 pounds. The woman is 165 pounds, so she has more water in her body, which will dilute the alcohol. The man has more blood in his body and therefore its spread out more. This causes the alcohol to work more slowly on the man than it will on the woman.
Strategies for Fighting BAC Offenses
Florida criminal law provides a wide range of possibilities for challenging and defeating the charge of exceeding legal limits on BAC. Those who are charged with a DUI vehicle operating offense based on a blood or breath test that shows BAC in excess of .08 percent (and less than .15 percent) may be able to effectively argue one or more of the following defenses: In many situations, a DUI charge arising from a chemical test showing BAC at or within the legally permissible limits could lead to a criminal conviction. In other words, a person whose BAC tests at .05 percent might not be convicted because evidence indicates that they were not under the influence of alcohol while driving. An attorney with experience fairly evaluating the facts and considering whether to challenge an arrest could be of great assistance to those facing these charges . A competent DUI lawyer will ask critical questions: An experienced lawyer will address all of the following possible defenses based on the answers to the above questions: Representing oneself in a BAC case is risky. The penalties for a DUI conviction are severe: fines, license suspension, mandatory minimum jail time, and a tarnished reputation. The longer the record remains available to be seen by employers or banks, the worse the damage. There is no appeal from a BAC-related conviction, only post-conviction relief vis-à-vis a motion for early termination of probation or modification of sentence, if such relief is even available at all. In short, saving time, money, interstate travel, and damaging publicity are all rational and compelling reasons for obtaining experienced legal representation when facing DUI charges. An experienced, capable lawyer will be on the cutting edge of fighting to win a case. BAC cases are often very winnable—preferably before the jury is even empaneled.
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