There are few feelings more depressing than believing you are under the limit, cooperating with police, blowing into the breath machine.... and being told that you blew over the limit. The typical reaction is a mixture of disbelief, fear and outrage, that this machine could convict you regardless of your level of sobriety. There are genuine questions about the reliability of the Intoxilyzer 8000. But, in the State of Florida, you do have one more line of defense. That defense is a single request that can SAVE YOUR SKIN.
What is that request?
In the State of Florida, the law gives every citizen who gives a breath sample the right to an independent blood test. Here is what it says:
The person tested may, at his own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his own choosing administer a test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in his blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his blood or urine, or by chemical or physical test of his breath.
What does this mean to me?
What this means to you is this: If you blow into their little machine, then you have a right to request a blood test. Blood tests are significantly more accurate than breath tests, so you might find that the blood test exonerates you. This, of course, is a good thing.
There is, however, another consequence of requesting an independent blood test. The police almost NEVER respect your right to an independent test. Almost no one ever requests it, and most police agencies have no procedures in place to assist you to get your blood test. And if the police don't render reasonable assistance to you to get the independent test, the state cannot use your breath test against you!!
The Florida Supreme Court says that "where an arrestee's right to an independent blood test effectively has been denied by law enforcement's failure to render reasonable assistance, suppression under Florida Rule of Criminal Procedure 3.220(n) is a proper sanction."
In other words, if the police don't help to get you to a hospital or a lab, your breath test might not not be admissible against you!!
So the lesson is this: If you ever blow over .08, you should immediately request an independent blood test. And if the police do not make a written note of your request for the test, you should do it yourself. Write it on anything they give you to sign. "I want a blood test!" That way, you at least have proof that you made the request at the police station.
A request for a blood test can be your best defense. Don't forget.