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Fighting the DUI Breath Test
Most people arrested for DUI believe the case ended the moment the machine printed a number over .08. Prosecutors are happy to let them believe it. The truth from inside the system: breath numbers can be excluded, field exercises can be neutralized, and “failed everything” cases have been won — because both kinds of evidence depend on humans, machines, and procedures that can be put under oath and examined.
Chad Seibel prosecuted DUI cases before defending them. Here is where the State's evidence is weakest — and why you shouldn't plead to the number before a lawyer has attacked it. Call or text 407-846-8008.
The Breath Test: A Machine With a Paper Trail
Florida's evidentiary breath program runs on one instrument, operated under detailed administrative rules — and every requirement is a potential exclusion point:
• The 20-minute observation period. Before the samples, the operator must continuously observe you to rule out anything in the mouth — burps, reflux, vomiting — that contaminates results with mouth alcohol. Watch the video: “continuous observation” frequently wasn't.
• Maintenance and inspection records. Each instrument requires monthly agency inspections and annual department inspections, all documented. Gaps, failed inspections, and repair histories have gotten results excluded across Florida — and those records only surface when the defense subpoenas them.
• The two-sample agreement rules and volume requirements; “low volume” and out-of-agreement samples are not valid results.
• Rising alcohol. The number at the station — often an hour or more after driving — is not the number while driving. For drivers near the limit, the science of absorption is genuine reasonable doubt.
• Medical realities. GERD, diabetes/ketosis, and dental work can corrupt readings — facts for an expert, not a police report.
• Refusals. If you refused, the State lost its favorite exhibit — but refusal now carries its own criminal consequence and license penalty. See DUI Refusal; the defense of a refusal case is its own craft.
Field Sobriety “Exercises”: Graded by the Person Arresting You
Florida officers use three standardized exercises — the eye test (HGN), walk-and-turn, and one-leg stand — plus add-ons like the finger-to-nose. What the jury rarely hears without a defense lawyer:
• The grading is subjective, done by an officer who had usually decided to investigate you before the first instruction — and the scoring sheets count “clues” a sober person routinely exhibits.
• The conditions matter: roadside gravel, sloped shoulders, passing traffic and strobe lights at 1 a.m., heels or work boots, age, weight, injuries, fatigue after a long shift — none of which the scoring forgives on its own.
• The eye test (HGN) has strict administration requirements and limited admissibility in Florida courts — yet it drives arrest decisions constantly.
• The video is the cross-examination. Jurors watching the tape regularly see a nervous, tired, compliant person — not the stumbling drunk the report describes. The gap between the narrative and the footage is the case.
And before any of it: the stop itself. No lawful basis for the stop, no case — everything after an unlawful stop gets suppressed. Weaving within a single lane, anonymous tips, and “left early from a bar parking lot” stops are all litigated territory.
What This Means for Your Case
Every DUI should begin with the full evidence audit: stop video, roadside video, breath room video, instrument records, operator permits, and the dispatch timeline. Only then does anyone know what the State can actually prove. That audit is the difference between pleading to the number and making the State earn it — and it's where reductions to reckless driving and outright suppressions come from. See First-Time DUI for how these outcomes play out.
Frequently Asked Questions
I blew a .09. Isn't that automatic?
A .09 an hour after driving, on a machine with margin-of-error and maintenance questions, is anything but automatic. Near-limit numbers are the most defensible numbers.
I “failed” the exercises but I have bad knees.
Medical conditions, age, and footwear are recognized confounders. Document them now; they matter.
Should I have refused everything?
That decision is behind you, and both paths are defensible. What matters now is the audit of what the State actually has.
Can my lawyer really get the machine's records?
Yes — inspection reports, repair logs, and operator credentials are all discoverable, and we get all of it, every case.
Make the State Prove the Number
Call or text 407-846-8008 for a free consultation and a full evidence review with former prosecutor Chad Seibel. Office visits are by appointment only.