Ask a Lawyer - August 25, 2011

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Smell of alcohol gives officer right to test, arrest driver

By Pierce Kelley

Question: M.T., of Horseshoe Beach, writes, “I was stopped by a police officer the other night because I had kind of drifted through a stop sign. He said I didn’t come to a complete stop. He smelled alcohol on my breath and asked me to step out of the car and perform some field sobriety tests. 

I did as he requested, and passed them all with flying colors, but then he gave me a roadside breathalyzer test, but I didn’t do so good on that.

I was charged me with a DUI. He said my blood alcohol level was above the legal limit of .08 and he could do that, even if I had passed the field sobriety tests. Can he do that?”

Answer: Dear M.T.,

I’m afraid so, M.T. From what you have told me, the officer had a basis to stop you, that being the traffic violation, and if he then smelled alcohol on your breath, he had the right to ask you to perform field sobriety tests. If you did as well as you say you did, the situation becomes a little more problematic for the officer, because if what you say was true, he couldn’t arrest you for being an “impaired driver.” Now, he may not have had a sufficient legal basis to require you to submit to a breathalyzer, but he could “ask” you to do so. If you voluntarily submitted to that test, you gave him the right to obtain the evidence to be used against you in a court of law.

Pursuant to Florida Statute 316.193(1)(c), it is against the law to operate a motor vehicle in the state of Florida with a breath alcohol level above .08. It is also against the law to operate a motor vehicle in the state of Florida with a blood alcohol level above .08 as well. It is, of course, always always against the law to operate a motor vehicle in the state of Florida if you are under the influence of alcohol, or other substances, if you are affected to the extent your normal faculties are impaired. Please notice that you can be convicted of DUI if the State Attorney’s Office can prove any one of those three situations.

So, since your blood alcohol level was above .08, you can be convicted of DUI even though your normal faculties were not, according to what you’ve told me, affected to the extent that you were an impaired driver. The State is still required to prove its case, of course, and that means proving the equipment operators were qualified, the machines worked properly and the rest.

Now, the better question to ask is should you have submitted to the breathalyzer tests in the first place, and the answer to that question, in my opinion, is this: if you knew that you have had more than four (4) beers, or more alcohol than you should have had, then you also knew that the breathalyzer reading was going to be above .08, (figure that each 12 ounce beer is a .025). If that was the situation, why would you submit to the test if you knew it was going to be a bad result? Why would you give the law enforcement authorities the evidence they need to convict you?

The answer is, of course, that in most cases if you don’t submit to the breathalyzer test they will suspend your driver’s license. That is what is called being between Scylla and Charybdis (an idiom from Greek mythology), or a “rock and a hard place.” Your case was a little different, though. I’m not so sure you would have lost your license if you refused under those circumstances. I don’t think so.

However, the best answer to the riddle is, of course, not to drive if you’ve had so much to drink as to put yourself over the legal limit of .08. 

It is not enough to say “I’m fine. I can hold my liquor. I’m not impaired.” If you have so much alcohol on your breath or in your blood that you are above the legal limit of .08 then you should not drive. It is as simple as that. Be smart.  

The financial consequences of a DUI alone, including attorney’s fees, costs and all the rest, can amount to as much as $10,000, not to mention the possibility of jail and the rest, and it could be worse, much worse, especially if there is an accident involved. You don’t want to go there.

I hope I have answered your question, M.T., although it’s probably a little too late to help you this time. I also hope that you’ve learned your lesson and it won’t happen again. If it does, you’ll be better equipped to handle the problem. Good luck.


Any readers with specific legal questions for this “Ask a Lawyer” column are invited to submit those questions to the Editor of this newspape,r who will pass it along to the attorney. If you need assistance with a consumer matter, such as an unfair and deceptive collection practice, or garnishment of wages, a mortgage foreclosure or other such things, and you cannot afford an attorney, call the Legal Services office closest to you, which provides free legal assistance to qualified individuals, or call the Florida Bar Referral service at 1-800-342-8011. I wish you good luck in obtaining access to our legal system, no matter what your income and asset level might be. 

The foregoing was written by attorney Pierce Kelley, who is a member of the Florida Bar Association. The contents reflect his personal opinions and beliefs.