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Florida’s .08 Per Se Standard for DUI Explained



Florida’s .08 Per Se Standard for DUI Explained

Florida’s .08 Per Se Standard for DUI is a critical aspect of DUI law in the state. This section will explain what the .08 Per Se Standard means, how it is applied in DUI cases, and its legal implications for drivers in Florida.

The .08 Per Se Standard refers to the legal limit for blood alcohol concentration (BAC) in Florida. According to Florida Statute Section § 316.193(1)(c), a person is guilty of DUI if they are driving or in actual physical control of a vehicle and have a BAC of 0.08 or more grams of alcohol per 210 liters of breath. This standard is applied regardless of whether the driver shows signs of impairment.

What is the .08 Per Se Standard? The .08 Per Se Standard in Florida DUI law means that a person is guilty of DUI if their blood alcohol concentration (BAC) is 0.08 or higher, regardless of impairment.

Florida Statute Section § 316.1934(2)(c) further clarifies that a person with a BAC of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle with an unlawful blood-alcohol level or breath-alcohol level. This means that the state does not need to prove that the driver was impaired; the BAC level alone can result in a DUI charge.

Application in DUI Cases

When a driver is arrested for DUI in Florida, the prosecutor might charge them under one or both of the following methods:

  • DUBAL: This stands for “Driving with an Unlawful Blood/Breath Alcohol Level.” If the driver’s BAC is 0.08 or above, they can be charged with DUI regardless of whether they were impaired.
  • Impairment: The driver can also be charged with DUI if their normal faculties were impaired by alcoholic beverages or controlled substances, even if their BAC is below 0.08.

This dual approach allows prosecutors flexibility in proving DUI charges. Even if a driver does not appear impaired, a BAC of 0.08 or higher can still lead to a conviction under the DUBAL theory.

Is DUBAL a Form of Strict Liability?

Sometimes, courts equate the DUBAL theory of proving DUI with “strict liability.” For example, in Tyner v. State, 805 So. 2d 862, 866 (Fla. 2d DCA 2001), the court reasoned that “the strict liability theory is the offense… more commonly referred to as driving with an unlawful blood alcohol level (DUBAL).” This means that the mere fact of having a BAC over the legal limit is sufficient for a DUI charge, without needing to prove impairment.

Is DUBAL a form of strict liability? Yes, under the DUBAL theory, having a BAC of 0.08 or higher is sufficient for a DUI charge, regardless of impairment.

The Florida legislature continues to recognize the offense of driving with an unlawful blood alcohol level as an alternative to an impairment DUI offense. In other words, section 316.193 allows proof of a BAC of 0.08 percent or higher to be substituted for proof of impairment — not as an unconstitutional presumption, but as an alternate element of the offense (State v. Rolle, 560 So. 2d 1154, 1156 (Fla. 1990)).

The availability of the DUBAL theory makes the presumption of impairment a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level (Cardenas v. State, 867 So. 2d 384, 391 (Fla. 2004)). For this reason, the presumptions in section 316.1934, Florida Statutes, are inapplicable to a DUBAL case because the crime consists of driving with a blood-alcohol level of 0.08 percent or more (Haas v. State, 597 So. 2d 770, 774 (Fla. 1992)).

Foundational Requirements for the DUBAL Theory

What are the requisite foundational requirements for the DUBAL theory? In State v. Komara, 14 Fla. L. Weekly Supp. 648a (Fla. Hillsborough Cty. Ct. Feb. 21, 2007), the court explained:

In Florida, an unlawful blood or breath alcohol level can be proven by admission of evidence “under either the common law governing scientific test results or the implied consent law” (Cardenas v. State, 867 So.2d 384, 390 (Fla. 2004)).

The common law method requires the State to establish what has come to be known as “the traditional scientific predicate.” This predicate includes evidence regarding reliability, qualifications of the technician, and the meaning of the results. See e.g. Robertson v. State, 604 So.2d 783 (Fla. 1992); State v. Strong, 504 So.2d 758 (Fla. 1987); State v. Bender, 382 So.2d 697 (Fla. 1980).

However, the Florida legislature has chosen to make it easier for the State to admit breath test results in criminal cases through the enactment of a statutory and administrative scheme known as the “Implied Consent Law.” See §§ 316.1932; 316.1933 and 316.1934(5), Fla. Stat.

It is well settled that the “Implied Consent Law” allows the State to admit breath test results in a criminal trial by an affidavit instead of the traditional scientific predicate. David A. Demers, Florida D.U.I. Handbook, § 6.2 (2007 ed.).

The State’s ability to use a breath affidavit in lieu of the traditional scientific predicate is not absolute. An affidavit in lieu of the traditional scientific predicate is available to the State only if the breath test was conducted in accordance with §§ 316.1932 or 316.1933, Fla. Stat. See Bender, 382 So.2d at 700; State v. Miles, 775 So.2d 950, 953 (Fla. 2000).

This shortcut requires that the breath test was conducted under §§ 316.1932 or 316.1933, Fla. Stat. See Bender, 382 So.2d at 700; State v. Miles, 775 So.2d 950, 953 (Fla. 2000).

Therefore, “in order for the results of a defendant’s breath test to be admissible in evidence in a DUI prosecution, the tests must be made in compliance with the statutes and administrative rules.” State v. Friedrich, 681 So. 2d 1157, 1163 (Fla. 5th DCA 1996).

For more information on the legal processes and potential defenses, consider exploring our Beginner’s Guide to DUI in Florida.

To understand how to defend against a DUI charge, you can also check out our guide on beating your DUI case.

DUBAL Theory of DUI

Florida's .08 Per Se Standard for DUI Explained

The DUBAL Theory of DUI stands for “Driving with an Unlawful Blood/Breath Alcohol Level.” This section will explore the concept of DUBAL, its application in DUI cases, and how it differs from other DUI charges in Florida.

Understanding DUBAL

DUBAL is an alternative way to prove DUI in Florida. Under this theory, a driver can be charged with DUI if their BAC is 0.08 or higher, regardless of whether they exhibit signs of impairment. This theory is often referred to as “per se DUI” and is considered a form of strict liability, meaning the mere fact of having a BAC over the legal limit is sufficient for a DUI charge.

What does DUBAL mean? DUBAL stands for “Driving with an Unlawful Blood/Breath Alcohol Level,” which allows for DUI charges based solely on a BAC of 0.08 or higher, regardless of impairment.

The legal framework for DUBAL is outlined in Florida Statute Section § 316.193(1)(c). This statute states:

“A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and. . . [t]he person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”

Additionally, Florida Statute Section § 316.1934(2)(c) provides:

“[A] person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.”

These statutes underscore the strict liability nature of DUBAL, making it clear that the state does not need to prove impairment if the BAC is 0.08 or higher. This simplifies the prosecution’s job but also means that drivers need to be extremely cautious about their BAC levels.

DUBAL vs. Impairment-Based DUI

In Florida, DUI charges can be brought under two main theories:

  • DUBAL: Charges based on a BAC of 0.08 or higher, regardless of impairment.
  • Impairment-Based DUI: Charges based on evidence that the driver’s normal faculties were impaired by alcohol or drugs, regardless of BAC.

The key difference between these two theories lies in the evidence required. For DUBAL, the prosecution only needs to show that the driver’s BAC was 0.08 or higher. In contrast, impairment-based DUI requires evidence that the driver was impaired, which can include erratic driving, slurred speech, or failed field sobriety tests.

What is the difference between DUBAL and impairment-based DUI? DUBAL charges are based solely on a BAC of 0.08 or higher, while impairment-based DUI requires evidence of impaired driving abilities.

One of the most significant aspects of DUBAL is its strict liability nature. Courts have often equated DUBAL with strict liability, meaning that the mere fact of having a BAC over the legal limit is enough for a conviction. For example, in Tyner v. State, 805 So. 2d 862, 866 (Fla. 2d DCA 2001), the court reasoned that “the strict liability theory is the offense… more commonly referred to as driving with an unlawful blood alcohol level (DUBAL).”

This strict liability approach simplifies the prosecution’s job but also means that defendants have fewer defenses available. The availability of the DUBAL theory makes the presumption of impairment a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level (Cardenas v. State, 867 So. 2d 384, 391 (Fla. 2004)).

For more details on DUI charges and defenses, you can explore our guide on beating your DUI case.

Foundational Requirements for DUBAL

Proving a DUBAL charge requires meeting certain foundational requirements. In State v. Komara, 14 Fla. L. Weekly Supp. 648a (Fla. Hillsborough Cty. Ct. Feb. 21, 2007), the court explained that an unlawful blood or breath alcohol level can be proven by admission of evidence “under either the common law governing scientific test results or the implied consent law” (Cardenas v. State, 867 So.2d 384, 390 (Fla. 2004)).

Under common law, the state must establish a “traditional scientific predicate,” which includes evidence regarding the reliability of the test, the qualifications of the technician, and the meaning of the results. However, Florida’s implied consent law allows the state to admit breath test results by affidavit, simplifying the process. This shortcut is available only if the breath test was conducted in accordance with §§ 316.1932 or 316.1933, Fla. Stat.

For a deeper understanding of DUI laws and procedures, check out our Beginner’s Guide to DUI in Florida.

Implications of the .08 Per Se Standard

The .08 Per Se Standard has significant legal implications for drivers in Florida. This section will discuss the consequences of violating this standard, including potential penalties, and how it affects DUI cases.

Penalties for Violating the .08 Per Se Standard

Drivers found to have a BAC of 0.08 or higher face severe penalties, including fines, license suspension, and possible jail time. The exact penalties depend on various factors, such as prior DUI convictions and the presence of aggravating circumstances. Understanding these penalties is crucial for anyone facing a DUI charge under the .08 Per Se Standard.

  • First Offense: A first-time DUI offense in Florida can result in fines ranging from $500 to $1,000, up to six months in jail, and a license suspension of six months to one year. Additional penalties may include probation, community service, and mandatory DUI education programs.
  • Second Offense: For a second DUI offense within five years, penalties escalate to fines between $1,000 and $2,000, up to nine months in jail, and a mandatory minimum of 10 days in jail. The driver’s license suspension period increases to five years, and the installation of an ignition interlock device (IID) is required.
  • Third Offense: A third DUI offense within 10 years is classified as a third-degree felony. Penalties include fines up to $5,000, up to five years in prison, and a mandatory minimum of 30 days in jail. The driver’s license can be suspended for up to 10 years, and an IID is required for at least two years.

What are the penalties for violating Florida’s .08 Per Se Standard? Penalties include fines, license suspension, and jail time, with severity increasing for repeat offenses.

Impact on Insurance Rates

One often overlooked consequence of a DUI conviction under the .08 Per Se Standard is the impact on insurance rates. A DUI conviction can cause your insurance premiums to skyrocket, as insurance companies view DUI offenders as high-risk drivers. This increase can last for several years, significantly affecting your financial stability.

For more information on the financial implications of a DUI, visit our cost of a DUI page.

Professional and Personal Consequences

Beyond legal penalties, a DUI conviction can have far-reaching effects on your personal and professional life. Many employers conduct background checks, and a DUI conviction can hinder job opportunities. Additionally, certain professional licenses may be revoked or suspended, affecting your career.

Moreover, a DUI conviction can strain personal relationships and cause emotional stress. The stigma associated with a DUI can lead to social isolation and impact your mental health.

The .08 Per Se Standard simplifies the prosecution’s job in DUI cases. Under this standard, the prosecution does not need to prove that the driver was impaired; they only need to show that the driver had a BAC of 0.08 or higher. This makes it easier for the state to secure a conviction.

However, this also means that defendants have fewer defenses available. Challenging the accuracy of the breathalyzer test or the legality of the traffic stop becomes crucial in such cases. For detailed strategies, refer to our guide on beating your DUI case.

Aggravating Circumstances

Aggravating circumstances can lead to even harsher penalties for DUI offenses. These circumstances include having a minor in the vehicle, causing property damage or injury, or having a BAC significantly higher than 0.08. In such cases, penalties can include longer jail sentences, higher fines, and extended license suspensions.

What constitutes an aggravating circumstance in a DUI case? Aggravating circumstances include having a minor in the vehicle, causing property damage or injury, or having a significantly higher BAC.

Administrative Penalties

In addition to criminal penalties, drivers who violate the .08 Per Se Standard face administrative penalties from the Florida Department of Highway Safety and Motor Vehicles (DHSMV). These penalties can include immediate license suspension and mandatory attendance at DUI school.

Drivers have the right to request a formal review hearing to contest the administrative suspension. For more information, visit our guide on DUI formal review hearings.

Long-Term Consequences

A DUI conviction can have long-term consequences that extend beyond the immediate penalties. These can include:

  • Employment Challenges: Difficulty finding or maintaining employment due to a criminal record.
  • Travel Restrictions: Complications with international travel, as some countries may deny entry to individuals with a criminal record.
  • Educational Barriers: Issues with enrollment in certain educational programs or obtaining scholarships.
  • Financial Strain: Increased insurance premiums and legal fees can cause significant financial hardship.

Understanding the full scope of these consequences can help individuals make informed decisions and seek appropriate legal assistance. For a comprehensive overview of DUI implications, refer to our Beginner’s Guide to DUI in Florida.


Defending Against DUBAL Charges

Defending against DUBAL charges requires a thorough understanding of Florida DUI laws and the specific circumstances of the case. This section will outline common defense strategies and legal considerations for those charged under the DUBAL theory.

Common Defense Strategies

Several defense strategies can be employed to challenge DUBAL charges. These include questioning the accuracy of the breathalyzer test, challenging the legality of the traffic stop, and presenting evidence of procedural errors. An experienced DUI attorney can help navigate these defenses and build a strong case to fight the charges.

What is the DUBAL Theory? The DUBAL theory stands for “Driving with an Unlawful Blood/Breath Alcohol Level,” which means having a BAC of 0.08 or higher, regardless of impairment.

Florida's .08 Per Se Standard for DUI Explained

Questioning Breathalyzer Accuracy

One of the most common defense strategies is to question the accuracy of the breathalyzer test. Breathalyzers are not infallible and can produce inaccurate results due to various factors:

  • Improper Calibration: Breathalyzers must be regularly calibrated to ensure accurate readings. If the device was not properly calibrated, the results may be deemed unreliable.
  • Maintenance Issues: Like any other machine, breathalyzers require regular maintenance. Lack of proper maintenance can lead to faulty readings.
  • Operator Error: The person administering the test must follow specific procedures. Any deviation from these procedures can result in inaccurate BAC readings.

For more on how calibration and maintenance affect breathalyzer results, visit our page on breathalyzer accuracy.

Challenging the Legality of the Traffic Stop

Another effective defense strategy is to challenge the legality of the traffic stop. If the initial stop was not based on reasonable suspicion or probable cause, any evidence gathered during the stop may be inadmissible in court. This can significantly weaken the prosecution’s case.

For a comprehensive overview, refer to our guide on defending unlawful DUI stops.

Presenting Evidence of Procedural Errors

Procedural errors during the arrest and testing process can also be grounds for a strong defense. These errors can include:

  • Improper Arrest Procedures: If the arresting officer did not follow proper procedures, the arrest could be deemed unlawful.
  • Incorrect Test Administration: Any mistakes made during the administration of the breathalyzer test can cast doubt on the accuracy of the results.
  • Failure to Advise of Rights: If the officer failed to inform the driver of their rights, it could invalidate the arrest.

For more details on procedural errors, visit our page on motions to suppress.

Scrutinizing Officer’s Observations and Procedures

The observations and procedures followed by the arresting officer are critical components of a DUI case. Any deviations from standard protocols or inconsistencies in the officer’s report can be used to cast doubt on the prosecution’s case. For instance, if the officer’s observations do not align with the breathalyzer results, it can raise questions about the validity of the charges.

To understand how officers’ observations can be challenged, read our article on mistaken signs of impairment.

Medical Conditions and Medications

Medical conditions and medications can sometimes cause symptoms that mimic intoxication, such as slurred speech or unsteady gait. Conditions like diabetes, hypoglycemia, or neurological disorders can affect the results of a breathalyzer test. Additionally, certain medications can interact with alcohol and exacerbate its effects, leading to higher BAC readings.

Can medical conditions affect DUI charges? Yes, medical conditions and medications can cause symptoms that mimic intoxication and affect breathalyzer results.

Alternative Explanations for BAC Levels

There are several alternative explanations for elevated BAC levels that do not necessarily indicate impairment:

  • Mouth Alcohol: Residual alcohol in the mouth from recent consumption or use of mouthwash can lead to falsely high BAC readings.
  • Ketosis: People on low-carb diets can produce acetone, which breathalyzers may mistake for alcohol.
  • Medical Conditions: As mentioned earlier, conditions like GERD (gastroesophageal reflux disease) can cause alcohol to be present in the mouth, affecting breathalyzer results.

For more on alternative explanations, check our page on blowing over the limit but not drunk.

Consulting an Experienced DUI Attorney

Given the complexities of defending against DUBAL charges, consulting an experienced DUI attorney is crucial. A skilled lawyer can evaluate the specifics of your case, identify potential defenses, and guide you through the legal process. At Leppard Law, we have extensive experience in handling DUI cases and can provide the personalized legal representation you need.

For more information on DUI defenses, visit our ultimate guide to DUI defenses.


Infographic depicting the words Florida's .08 Per Se Standard for DUI Explained

What is the .08 Per Se Standard for DUI in Florida?

The .08 Per Se Standard for DUI in Florida means that a driver is considered legally impaired if their blood alcohol concentration (BAC) is 0.08% or higher. This standard is applied regardless of whether the driver shows signs of impairment.

What does DUBAL stand for in DUI cases?

DUBAL stands for “Driving with an Unlawful Blood/Breath Alcohol Level.” It refers to DUI charges based solely on having a BAC of 0.08% or higher, regardless of any signs of impairment.

What are the penalties for violating the .08 Per Se Standard in Florida?

The penalties for violating the .08 Per Se Standard in Florida include:

  • Fines
  • License suspension
  • Possible jail time
  • Mandatory DUI school
  • Community service

The exact penalties depend on factors such as prior DUI convictions and the presence of aggravating circumstances.

How can an attorney help defend against DUBAL charges?

An experienced attorney can help defend against DUBAL charges by:

  • Questioning the accuracy of breathalyzer tests
  • Challenging the legality of the traffic stop
  • Presenting evidence of procedural errors
  • Scrutinizing the officer’s observations and procedures

Consulting a skilled DUI attorney is crucial for navigating these defenses and building a strong case.

What is the .08 Per Se Standard for DUI in Florida? The .08 Per Se Standard means that a driver is considered legally impaired if their BAC is 0.08% or higher, regardless of any signs of impairment.

What does DUBAL stand for in DUI cases? DUBAL stands for “Driving with an Unlawful Blood/Breath Alcohol Level,” referring to DUI charges based solely on a BAC of 0.08% or higher.

What are the penalties for violating the .08 Per Se Standard in Florida? Penalties include fines, license suspension, possible jail time, mandatory DUI school, and community service.

How can an attorney help defend against DUBAL charges? An attorney can question breathalyzer accuracy, challenge the legality of the traffic stop, present procedural errors, and scrutinize the officer’s observations.

If you need more information on DUI defenses, visit our ultimate guide to DUI defenses.

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Florida’s .08 Per Se Standard for DUI Explained

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