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What if I blow over the legal limit, but I’m not actually drunk?



Understanding the DUBAL Theory of DUI

The term “DUBAL” stands for “Driving with an Unlawful Blood/Breath Alcohol Level.” This theory is also known as “per se DUI” and is a common basis for DUI charges 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 with 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) states that a person with 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. This means that even if you do not feel impaired, you can still be charged with DUI if your blood alcohol level exceeds the legal limit.

What is the DUBAL Theory of DUI? The DUBAL Theory of DUI stands for “Driving with an Unlawful Blood/Breath Alcohol Level,” and it means you can be charged with DUI if your blood alcohol level is 0.08 or higher, regardless of impairment.

Under the DUBAL theory, the prosecution does not need to prove that your normal faculties were impaired. Instead, they only need to show that your blood alcohol level was above the legal limit at the time you were in control of the vehicle. This is a significant aspect of DUI law in Florida, making it easier for the state to secure convictions based solely on blood alcohol levels.

Florida’s DUI laws are strict, and the DUBAL theory is a critical component. If you are arrested for DUI and your blood alcohol level is 0.08 or above, the prosecutor might charge you under one or both of the following ways:

  • DUBAL: Being at 0.08 or above regardless of impairment.
  • Impairment DUI: Driving or being in actual physical control while your “normal faculties were impaired” by alcoholic beverages or controlled substances.

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 “[t]he strict liability theory is the offense… more commonly referred to as driving with an unlawful blood alcohol level (DUBAL).” This means that the state only needs to prove that your blood alcohol level was 0.08 or higher, regardless of whether you were actually impaired.

In other words, “section 316.193 allows proof of a blood-alcohol level 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).

For more information on DUI laws and defenses, consider exploring our Beginner’s Guide to DUI in Florida.

Understanding the legal implications of blowing over the legal limit in DUI cases

Blowing over the legal limit of 0.08 can lead to severe legal consequences, even if you do not feel drunk. Under the DUBAL theory, the prosecution does not need to prove that your normal faculties were impaired. Instead, they only need to show that your blood alcohol level was above the legal limit at the time you were in control of the vehicle.

Strict Liability and DUBAL

In Florida, DUBAL is often considered a form of strict liability. This means that the state only needs to prove that your blood alcohol level was 0.08 or higher, regardless of whether you were actually impaired. This strict liability approach simplifies the prosecution’s case, making it easier to secure a conviction based solely on your blood alcohol level.

What is strict liability in DUI cases? Strict liability in DUI cases means that the state only needs to prove your blood alcohol level was 0.08 or higher, regardless of actual impairment.

Under strict liability, the nuances of your behavior or how you felt at the time of the arrest become irrelevant. The focus shifts entirely to the quantifiable measurement of your blood alcohol content (BAC). This can be particularly frustrating if you were not exhibiting typical signs of impairment but still found yourself on the wrong side of the law.

Immediate Consequences of Blowing Over the Limit

Once you blow over the legal limit, several immediate consequences can unfold:

  • Arrest: You will likely be arrested on the spot and taken to a local jail or detention center.
  • Vehicle Impoundment: Your vehicle may be impounded, leading to additional fees and complications.
  • License Suspension: Your driver’s license will be automatically suspended for a minimum of six months.
  • Temporary Permit: You may be issued a temporary permit, allowing you to drive for 10 days until your formal hearing.

These immediate consequences can disrupt your daily life significantly, affecting your ability to work, attend school, or manage personal responsibilities. For a detailed understanding of what to do after a DUI, visit our What to Do After a DUI in Florida page.

The long-term legal implications of blowing over the legal limit can be even more severe. These may include:

  • Criminal Record: A DUI conviction will result in a permanent criminal record, which can affect employment opportunities and other aspects of your life.
  • Fines and Penalties: You may face substantial fines, court costs, and other penalties.
  • Probation: Probation terms can include mandatory alcohol education programs, community service, and regular check-ins with a probation officer.
  • Increased Insurance Rates: Your car insurance rates will likely skyrocket, making it more expensive to maintain coverage.

For more information on DUI penalties, check out our Florida DUI Penalties Guide.

Impact on Professional Licenses and Employment

Blowing over the legal limit can also have severe implications for your professional life:

  • Professional Licenses: Certain professions, such as healthcare providers, lawyers, and commercial drivers, may face disciplinary actions, including suspension or revocation of their professional licenses.
  • Employment: A DUI conviction can lead to job loss or difficulty finding new employment, especially in roles that require a clean driving record or background check.

Understanding the comprehensive impact of a DUI on your career is crucial. For more details, you can explore our guide on Professionals Charged with DUI in Florida.

Financial Burden

The financial burden of a DUI conviction can be overwhelming. Beyond fines and court costs, you may face:

  • Legal Fees: Hiring a skilled DUI attorney can be expensive but is often necessary to navigate the complexities of DUI law.
  • Lost Wages: Time spent in court, attending mandatory programs, or serving jail time can result in lost income.
  • Insurance Premiums: As mentioned, your car insurance rates will increase, adding to your financial strain.

To understand the full scope of DUI-related costs, visit our page on the cost of a DUI in Florida.

Given the severe legal and financial implications of blowing over the legal limit, it is crucial to seek experienced legal representation. A knowledgeable DUI attorney can help you navigate the legal system, challenge the evidence, and work towards the best possible outcome for your case.

Defending Against DUBAL Charges

Defending against DUBAL charges can be challenging, but it is not impossible. One common defense is to challenge the accuracy and reliability of the breathalyzer or blood test results. This can involve questioning the calibration and maintenance of the testing equipment, as well as the qualifications of the person administering the test.

Challenging the Evidence

Another defense strategy is to challenge the procedural aspects of how the test was conducted. For example, if the breath test was not conducted in compliance with Florida’s Implied Consent Law, the results may be inadmissible in court. Additionally, the defense can argue that external factors, such as medical conditions or improper testing procedures, affected the test results.

What is the Implied Consent Law? The Implied Consent Law in Florida requires drivers to submit to chemical tests if suspected of DUI. Non-compliance can lead to penalties.

Defense attorneys often scrutinize the procedural accuracy of the breath tests. If the breathalyzer was not properly calibrated or maintained, the results could be flawed. Additionally, the qualifications and training of the officer administering the test can be questioned. For more information on the procedural aspects of DUI tests, visit our Florida DUI Investigations Guide.

Questioning the Accuracy of Chemical Tests

Breathalyzers and other chemical tests are not infallible. Factors such as improper calibration, maintenance issues, and operator error can lead to inaccurate results. An experienced DUI attorney can scrutinize these aspects to challenge the validity of the test results.

Some common issues that can affect the accuracy of chemical tests include:

  • Improper Calibration: Breathalyzers must be regularly calibrated to ensure accuracy. If the device was not properly calibrated, the results can be questioned.
  • Maintenance Issues: Regular maintenance is crucial for the accurate functioning of breathalyzers. Lack of maintenance can lead to erroneous readings.
  • Operator Error: The person administering the test must be properly trained and follow specific procedures. Any deviation from these procedures can affect the test results.

For a deeper dive into the factors affecting chemical test accuracy, you can explore our article on breathalyzer calibration and maintenance.

Medical Conditions and External Factors

Medical conditions and other external factors can also play a significant role in the accuracy of breath and blood tests. Conditions such as diabetes or acid reflux can result in falsely elevated BAC levels. Additionally, the presence of residual mouth alcohol from recent consumption of alcohol or use of mouthwash can skew the results.

Some medical conditions that can affect BAC readings include:

  • Diabetes: Diabetics can produce acetone, which may be detected as alcohol by breathalyzers.
  • Acid Reflux: Acid reflux can bring up alcohol from the stomach, leading to higher BAC readings.
  • GERD: Gastroesophageal reflux disease (GERD) can cause similar issues as acid reflux.

Understanding these medical conditions can be crucial in building a robust defense. For more information on how medical issues can be mistaken for signs of impairment, visit our page on medical issues and DUI cases.

Procedural Defenses

Procedural defenses focus on the legality and correctness of how the evidence was obtained. 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.

Some procedural defenses include:

  • Illegal Stop: If the police did not have a valid reason to stop you, any evidence obtained during the stop could be thrown out.
  • Improper Arrest: The arresting officer must follow specific procedures. Failure to do so can invalidate the arrest.
  • Chain of Custody Issues: The prosecution must prove that the evidence was handled correctly from the moment it was collected until it was presented in court. Any break in this chain can be grounds for dismissal.

For a comprehensive guide on procedural defenses, check out our article on challenging the legality of a DUI stop.

Given the complexities involved in defending against DUBAL charges, it is essential to seek experienced legal representation. A knowledgeable DUI attorney can help you navigate the legal system, challenge the evidence, and work towards the best possible outcome for your case.


Alternative Explanations for High BAC Readings

There are several alternative explanations for high blood alcohol content (BAC) readings that do not necessarily indicate impairment. For instance, certain medical conditions, such as diabetes or acid reflux, can result in falsely elevated BAC levels. Additionally, residual mouth alcohol from recent consumption of alcohol or use of mouthwash can also affect the test results.

What is residual mouth alcohol? Residual mouth alcohol refers to the presence of alcohol in the mouth, which can come from recent consumption of alcoholic beverages or the use of mouthwash. This can lead to falsely elevated BAC readings.

Understanding these alternative explanations can be crucial in building a strong defense against DUBAL charges. By presenting evidence of these factors, the defense can cast doubt on the accuracy of the BAC readings and argue that the defendant was not actually impaired at the time of the arrest.

Medical Conditions Affecting BAC Readings

Various medical conditions can impact the accuracy of BAC readings, making it appear as though an individual has a higher BAC than they actually do. Some of these conditions include:

  • Diabetes: Diabetics can produce acetone, which breathalyzers may detect as alcohol, leading to a false positive.
  • Acid Reflux: Acid reflux can cause alcohol from the stomach to enter the mouth, resulting in higher BAC readings.
  • GERD: Gastroesophageal reflux disease (GERD) can have similar effects as acid reflux, impacting BAC results.

For individuals with these conditions, it is critical to inform your attorney so they can present this information as part of your defense. To learn more about how medical conditions can affect DUI cases, visit our article on medical issues mistaken for DUI impairment.

Impact of Residual Mouth Alcohol

Residual mouth alcohol can significantly impact BAC readings. This phenomenon occurs when alcohol is present in the mouth, either from recent drinking or the use of products like mouthwash. Breathalyzers are designed to measure alcohol in the breath from deep within the lungs, but residual mouth alcohol can skew these readings.

Some common sources of residual mouth alcohol include:

  • Recent Alcohol Consumption: Drinking alcohol shortly before a breath test can leave residual alcohol in the mouth.
  • Mouthwash: Many mouthwashes contain alcohol, which can affect breathalyzer results if used before a test.
  • Dental Work: Certain dental procedures can trap alcohol in the mouth, leading to false positives.

For more information on how residual mouth alcohol can affect breathalyzer results, check out our comprehensive guide on common breathalyzer errors.

Improper Testing Procedures

Improper testing procedures can also lead to inaccurate BAC readings. Breathalyzer tests must be conducted according to specific protocols to ensure their accuracy. Any deviation from these protocols can result in unreliable results. Some common issues include:

  • Improper Calibration: Breathalyzers must be regularly calibrated to maintain accuracy. If the device is not properly calibrated, the results can be questioned.
  • Operator Error: The person administering the test must be properly trained and follow specific procedures. Any deviation from these procedures can affect the test results.
  • Environmental Factors: Factors such as temperature and humidity can impact the accuracy of breathalyzer tests.

Understanding these procedural issues is vital for building a strong defense. For a deeper dive into the factors affecting breathalyzer accuracy, you can explore our article on breathalyzer calibration and maintenance.

Challenging the Reliability of BAC Tests

Given the potential for inaccuracies in BAC tests, challenging the reliability of these tests can be an effective defense strategy. An experienced DUI attorney can scrutinize the testing procedures, the qualifications of the person administering the test, and the maintenance records of the equipment used. These factors can all contribute to casting doubt on the accuracy of the BAC readings.

Some common challenges to BAC test reliability include:

  • Questioning the Calibration: Ensuring that the breathalyzer was properly calibrated and maintained.
  • Scrutinizing the Operator’s Training: Verifying that the person administering the test was adequately trained.
  • Investigating Environmental Factors: Examining whether external factors could have influenced the test results.

For more insights into challenging BAC test reliability, visit our guide on beating DUI charges.

High BAC readings and DUBAL theory explained

In conclusion, understanding the alternative explanations for high BAC readings is crucial in building a robust defense against DUBAL charges. By addressing these factors, you can challenge the accuracy of the BAC readings and argue that you were not actually impaired at the time of the arrest. If you find yourself facing DUBAL charges, it is essential to seek experienced legal representation to navigate the complexities of your case.


Infographic depicting the words What if I blow over the legal limit, but I'm not actually drunk?

What happens if I blow over the legal limit but I’m not drunk?

If you blow over the legal limit but do not feel drunk, you can still be charged with DUI under the DUBAL theory. This theory states that driving with a blood alcohol content (BAC) of 0.08 or higher is illegal, regardless of actual impairment.

Can medical conditions affect BAC readings?

Yes, certain medical conditions can impact BAC readings. Conditions like diabetes, acid reflux, and GERD can result in falsely elevated BAC levels. It’s essential to notify your attorney if you have any such conditions.

What are the legal consequences of blowing over the legal limit?

The legal consequences of blowing over the legal limit include fines, license suspension, and potential jail time. Even if you do not feel drunk, a BAC over 0.08 can lead to a DUI charge. The severity of the penalties can vary based on prior offenses and other factors.

How can I challenge a high BAC reading?

Challenging a high BAC reading involves questioning the accuracy and reliability of the breathalyzer or blood test results. This can include examining the calibration and maintenance of the equipment, as well as the qualifications of the person administering the test.

For more information on DUI laws and defenses, check out our Beginner’s Guide to DUI in Florida and our guide on beating DUI charges. If you need legal assistance, don’t hesitate to contact our Orlando DUI Defense Lawyers.

Explore additional practice areas related to DUI cases that we handle at Leppard Law:

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  • John Vallillo: As a stalwart in the Florida legal scene, John Vallillo has earned his stripes through a consistent record of case dismissals and proactive defense. His background as both a prosecutor and defense attorney enriches his strategic defense planning with invaluable insights.
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What if I blow over the legal limit, but I’m not actually drunk?

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Legally reviewed by Joe Easton and the content team, this article reflects the firm’s 60 years of combined criminal defense expertise. Joe Easton, with his extensive experience and strategic prowess in DUI and criminal defense, offers more than just legal representation; he brings a commitment to turning legal challenges into triumphs. His approach, combining tenacity in the courtroom with personalized client care, ensures your DUI case is not just defended but championed with dedication and expertise.

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