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Understanding the Role of 'Odor of Alcohol on Breath' in DUI Cases

drunk driving pulled over

Knowing your legal rights after a DUI charge in Florida is crucial.

If you have been charged with driving under the influence (DUI) of alcohol in Florida, the police officer who initiated the investigation may have done so because you had the smell of alcohol on your breath when you were pulled over.

But is that legal? Can a police officer in Florida conduct a DUI investigation because they smelled alcohol on your breath? Or do police need more evidence to establish probable cause and start a DUI investigation?

Our Florida DUI defense attorneys at Aguilar & Sieron, P.A. can help you understand your legal rights. That’s because our criminal defense lawyers have been fighting for the rights of people facing DUI charges in Florida for years.

What is 'odor of alcohol on breath'?

'Odor of alcohol on breath' is a phrase police officers use to describe a situation in which they smell alcohol on a driver’s breath. Many police officers cite odor of alcohol on someone’s breath as a reason for establishing probable cause for starting a DUI investigation.

Probable cause and the 4th Amendment

Without probable cause, police officers cannot initiate an investigation, which could result in someone’s arrest. If a police officer conducts an investigation without probable cause, such an investigation would violate someone’s 4th Amendment rights.

Adopted in 1791 as part of the Bill of Rights, the 4th Amendment prohibits unlawful and unreasonable police searches and seizures. In addition, the 4th Amendment prohibits police and other law enforcement agencies from obtaining an arrest warrant without probable cause, according to the U.S. Congress’ Constitution website.

Can police in Florida initiate a DUI investigation due to odor of alcohol?

If a police officer in Florida smells alcohol on your breath after the officer pulls your vehicle over, can the police officer start conducting a DUI investigation due to the odor of alcohol on your breath? It depends.

Some Florida police officers defend such DUI investigations as lawful. However, Florida’s laws and courts are clear – a police officer cannot launch a DUI investigation based solely on the smell of alcohol on a driver’s breath. The smell of alcohol simply suggests that the driver may have been drinking, not that they’re legally intoxicated.

Florida Statute Section 901.15(5) was cited in a legal case in Florida in 2000, in which the judge ruled that “probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.” (State of Florida vs. Kliphouse, 771 So.2d 16, 22 (Fla. 2000)).

Can I be charged with DUI due to odor of alcohol on breath?

The answer to this question is a clear “no.” Police officers in Florida cannot charge a driver with DUI simply because the investigating police officer smelled alcohol on someone’s breath. The police officer must have evidence that the driver is legally impaired, meaning the driver’s blood alcohol concentration (BAC) is 0.08 percent or higher. Different BAC rules apply to drivers under 21 years old.

Can I refuse a field sobriety test if a police officer smells alcohol on my breath?

This is another straightforward question – you never have to take a field sobriety test in Florida. Field sobriety tests are voluntary, and there is no penalty for refusing to take a field sobriety test. Such tests normally include:

  • Walk-and-turn test
  • One-leg stand test
  • Horizontal gaze nystagmus (HGN) test

How can a Florida DUI defense attorney help?

If you have been charged with DUI in Florida and the arresting police officer’s investigation was initiated based solely on the odor of alcohol on your breath, don’t simply assume there’s nothing you can do. With the assistance of a DUI attorney, you may be able to get your DUI charge dismissed since the investigation was conducted without probable cause.

Even if the arresting police officer had probable cause to charge you with DUI, your attorney may still have the opportunity to get your charges dismissed on other legal grounds. That's why it's crucial to consult with a DUI defense lawyer.

Get the Florida criminal defense law firm that gets results. Contact us and schedule an appointment to review your potential legal options. Our office is in Green Cove Springs, and we handle criminal cases throughout Clay County and Northeast Florida.

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