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  1. #1
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    Apr 2017
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    Post How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    My question involves criminal law for the state of: Florida
    My son was on his way to work at 3am. His cigarette pack fell on the floor so when he had to stop at a red light, he leaned down to pick it up. When he sat up, not only did he notice the light was green, he also noticed a police car behind him with his lights on. So the cop and his trainee ask him has he been drinking and my son said not in the last 48 hours. So he had him do 3 FST which he passed all 3 with no problem. He then asked if he can search the car. With this being his first experience with the law, my son doesn't know what he can and can't do so does everything they asked him to do. Anyway, he found an empty package of synthetic marijuana but makes the comment that he couldnt arrest him for that since it was empty. But then asked him to blow. He did and blew a 0.07. So he was arrested. The cop told him a DUI could be anything. Drugs, alcohol or being to tired. We have no money for an attorney and neither does he. We told him to get a public defender but we're not sure what could happen to him. Is there anything he has to even fight? All this just because he didn't go as soon as the light turned green. We don't know the law and this is our family's first experience with this. Please help, Thanks

  2. #2
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    He blew a 0.07 on the PBT. Did they perform another test at the police station? If so, what was the result? If not, then they are probably predicating the DUI charge on his driving conduct as opposed to BAC. What other driving conduct are they alleging to reflect impaired driving, beyond the delay at the traffic light?

    What is your son's explanation for his BAC? Does he take any medications or have any medical conditions that could give a false positive? (In most cases, the reason for a test score that high when a person denies drinking is that the denial is untrue.)

  3. #3
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    Sep 2010
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    Never take legal advice from the cops. Your son needs a lawyer. If he is indigent, he can get a public defender. If he's not, he'll need private counsel.

    Being "to [SIC] tired" isn't sufficient to convict on DUI. The state will need to show some actual impairment. That can be the chemical tests as well as the results of the FSTs. Everybody thinks they handled the FSTs "no problem."

    The lawyer will determine if there indeed was reasonable suspicion for the stop. If the fact he delayed going on green is the only thing they can come up with, that sounds like he may have a reasonable chance of questioning that.

  4. #4
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    Staying stopped at a green light is a huge red flag when looking for impaired drivers.

    I suspect that there was more to this tale than his being tired and then being asked to blow in a PBT device at the roadside. Unless the officer was a dunderhead, he will also articulate observations consistent with impairment including what he saw, smelled, heard, etc. Something besides simply not moving led the officer to believe he was impaired.

    And while many portable PBT/PAS devices can be poorly calibrated, hitting a .07 with zero alcohol is highly unlikely. But, that will depend upon the device used and the maintenance. And, as asked, when he was arrested, did they perform another test? Breath? Blood? Urine? Those can be used to determine BAC or the presence of other impairing substances.

    If your son is indigent, he can ask for court-appointed counsel - as previously mentioned. He can provide his attorney with all the facts and make a decision on how to proceed from there. I strongly suspect that in his tale to you, he left a few key details out.
    **********
    Retired Cal Cop Sergeant & Teacher

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    Love mercy,
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  5. #5
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    Apr 2017
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    They did not do any further tests at the station. My son, his wife and child have been sick with some intestinal virus prior to this and he was sleep deprived. I don't know if he had taken any medication for it or not. He did howeve, get a public defender. Thanks for your response.

  6. #6
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    Quote Quoting Gabrielle7
    View Post
    They did not do any further tests at the station. My son, his wife and child have been sick with some intestinal virus prior to this and he was sleep deprived. I don't know if he had taken any medication for it or not. He did howeve, get a public defender. Thanks for your response.
    Very odd that they did not conduct any additional chemical test. Unless, of course, he refused. A refusal could result in a loss of his license if that was the case, even if he is not ultimately charged or convicted.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  7. #7
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    He was not given any further testing at the police station. It wasn't until after the cop searched the car and found an empty wrapper from synthetic marijuana that he decided to do a BAC. The cop told my son that being to tired is also considered a DUI. I do know he, his wife and little boy had been sick which cause them all to be vomiting, therefore he didn't get much sleep. He did get a public defender today so we will see what happens. Also, the public defender told my son that he doesn't have to apear in court because he's representing him and he (the public defender) will show up for him. Now my question is is this true? Because my name is on his bond and I don't want to have to pay that money if he doesn't show up and was supposed to. Like I said before, this is our first experience with the law and we don't want to do anything that's gonna make it worse. Thanks for your response.

    He fully cooperated with everything that was asked of him. He didn't refuse any tests. He was scared and said he didn't have anything to hide so he never thought anything would show up on the BAC. He had been sick the few days prior to this with vomiting, he couldn't even keep food down. He had been up late because his 6 year old son and wife were also sick. I do know he was very exhausted though. Since the cop told him being to tired and driving is considered a DUI, that's probably why he was arrested.

  8. #8
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    I can only assume that his attorney knows the rules and the law in your state, so if he says that your son does not have to appear, I suspect that's true.

    As for being "tired" also being a DUI, I don't think so. That may cause you to commit another violation of the traffic codes, but as impairment under the law? I don't see any indication that is the case in your state (or any other that I have heard of).

    I'd still be concerned about the .07 BAC he blew in the field. If entirely true, that he consumed no alcohol in 2 days, then it should have been goose eggs. There are a few things that can cause a false reading, but, these are very few. He can go over these with his attorney. It is also possible that his perceived impairment had to do with general weariness, but that's unlikely. Why was he out at 3 AM? To the outside observer, that indicates that he was on his way home from a night out involving alcohol. It is also possible that he was taking medication that could have caused the observed impairment. Though, absent any additional tests, that would be difficult to prove. Though, a case for DUI can be made simply through observations (including the FSTs), and there is likely a recording of these.

    When his attorney receives the report and any other evidence through discovery, he'll have a better idea of how strong the state's case might be.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  9. #9
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    Apr 2017
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    He has to be at work at 3:15am. But I understand what you're saying. Thank you for your response, greatly appreciate it.

  10. #10
    Join Date
    Jul 2015
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    Florida
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    Default Re: How Can You Have a Positive BAC Despite Not Having Consumed Alcohol

    DUI in Florida requires being under the influence of alcohol or controlled substances. It does not include being tired. The Intoxilyzer 8000 is the instrument most commonly used in Florida - perhaps exclusively. They must be inspected annually by the FL Dept. of Motor Vehicles, and they must be inspected monthly by the agency. To use the results at trial there must be an agency inspection report for the month of arrest as well as the month before and after. There are also certification standards for the breath test operator, agency inspector, etc. There is zero chance that a person with no alcohol in their system blew a .07. Zip, zilch, zero, nada. There are also rules for how long the officer has to wait before administering the breath test to make sure mouth alcohol is not being measured, and there are volume requirements to make sure it is "deep lung" air that is analyzed.

    While .08 is presumptive of impairment by alcohol, .07 can certainly give rise to a DUI conviction combined with indicators of impairment. There's no such thing as "passing" FSE's in Florida. A person either performs the exercise to standard, or not. In fact "pass/fail" are terms that cannot be used to describe performance to a jury. The officer most certainly completed a standardized "Alcohol Influence Report". Your son's lawyer should review this form to see how he performed on the FSE's. My guess is it tells a different story than your son does.

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