DUI Elements Explained – Unlawful Blood Alcohol Level (UBAL) DUI

You Have to Know Your Limits

In addition to proving a DUI based upon impaired normal faculties, Florida’s DUI law also sets an absolute limit on BAC at which no one may legally operate a vehicle, regardless of their impairment level. That limit, in Florida, is set at .08% BAC or more, at the time of driving. This is a separate way to commit, and for the State to prove, a DUI and it is called an Unlawful Blood Alcohol Level (UBAL) DUI. In addition, there are enhanced penalties for anyone operating a vehicle at a BAC of .15% or more. In Florida, a breath or blood test result could result in nearly absolute proof of the crime of DUI and lead to substantially harsher penalties than for a mere impaired faculties DUI, making it even more important to stay aware of how drinking effects your blood’s alcohol level.

You Already Consented

The primary means of enforcing DUI laws in Florida, and many other states, is through chemical testing of a suspected driver’s breath, blood or urine. The results of these tests enable the police and prosecutor to show evidence of either Unlawful Blood Alcohol Level DUI, or impaired driving DUI through the statutory presumptions. In Florida it is a pre-requisite to getting a driver’s license that you first consent to take any alcohol or drug test that is required by law. That consent, called an “implied consent”, is written on the bottom of your license and states that you agree to take any tests for alcohol or chemical substances which are required by law. The law requires a breath and / or urine test if a police officer has probable cause to believe that you have been driving, or in actual physical control of, a vehicle while under the influence of alcohol to the extent that your normal faculties are impaired. If you are, for some reason, unable to give a breath test, you can be required to submit to a blood draw in order to test your blood alcohol and chemical substance levels. Blood tests are also required by law in cases of accidents involving death or serious bodily injury.

Even though you have already consented to giving breath, blood or urine for DUI testing when you applied for and received your license, you will still be given an opportunity to refuse such tests in most cases. Only if the police have probable cause to suspect you of DUI in an accident involving death or serious bodily injury does the law allow the police to use force in order to draw your blood. Otherwise, you can refuse to give samples of your breath, blood or urine. However, a refusal to provide such samples will result in greater penalties than if you provided them. The first time in your life that you refuse a lawful request by police for a breath, blood or urine test your driver’s license will be administratively suspended by the Florida Department of Motor Vehicles for one year, with a ninety-day “hard” suspension before you are eligible for a hardship work or business-purposes license. The second time in your life that you refuse the tests you will receive an eighteen month suspension, with no chance of getting a hardship license. In addition, the second and subsequent refusals are also criminal charges, punishable as a first degree misdemeanor (same as a standard DUI, maximum of up to one year jail or probation). Therefore, the decision whether to submit to DUI chemical testing is very important and should not be taken lightly.

Under the Law Everyone is Average

The use of BAC to provide evidence of a DUI was made possible by the development of measuring instruments which are capable of determining the amount of alcohol in an individual’s blood. Although all are machines and thus capable of erroneous results if not calibrated, maintained or operated properly, the most accurate of these test instruments measure alcohol content directly from a blood sample. At times, Florida law allows the police to request, or obtain a blood sample from drivers suspected of DUI. The request for a blood sample generally occurs when a DUI suspect is unable to provide a breath sample, or when the DUI investigation results from an accident causing death or serious bodily injury. Otherwise, because drawing blood is considered somewhat intrusive and a burden, the police have come to rely upon machines which attempt to measure blood alcohol from a sample of breath. Mathematical formulas have been developed which determined a ratio of alcohol in the blood to alcohol in the breath. In Florida law, that ratio is set at 1 unit of blood to 2100 units of breath. In other words, breath test machines, by law, all work under the assumption that the amount of alcohol present in 1 unit of blood is the same amount that is present in 2100 units of breath. The fact that this is a mere average which is applied to every person necessarily results in inaccurate results for some people whose metabolism are not average. This potential inaccuracy is another very important factor in defending a DUI case based upon breath test results and the subject of a future article.

What Goes in Must Come Out

Another factor in blood alcohol DUI cases which is very important to review for a defense at trial is the absorption and elimination of alcohol in your body. Alcohol enters the body once it is drunk through the linings of the esophagus, stomach and small intestines. Roughly 80% of the alcohol that ends up in the blood is absorbed from the small intestine. Before it enters the intestine, the alcohol first must pass through your stomach. If you have not eaten recently, the alcohol will generally pass through the stomach more quickly. Consuming food while or just before you drink will slow down its passage to the intestine and also slow its absorption into the blood stream. Thus, the amount of time for the alcohol in your drink to make its way to your blood stream can vary from between thirty minutes on an empty stomach to a couple of hours on a full stomach.

In addition, alcohol is continuously being eliminated from your body by being metabolized and by leaving through your breath and urine. The rate of elimination varies from person to person, depending upon physical factors and metabolism, but on average is about equal to the amount of alcohol in one standard drink per hour. There is little that can be done to increase this rate, so dancing or other physical exertion will generally not lessen the time that you are intoxicated. So, even as you are drinking and your body absorbs alcohol into your blood stream, it is also getting rid of about one drink’s worth per hour by either burning it off or eliminating it through your breath and urine.

It’s All a Matter of Timing

The significance of the absorption – elimination roller-coaster ride that alcohol takes in your body is that your blood alcohol content is continually changing over time. Thus, the blood alcohol reading that you get when you take a breath, blood or urine test at the request of the police will probably not be the same blood alcohol level that you had when the police saw you driving and pulled you over. And it is the alcohol content of your blood at the time you were driving that is legally significant for proof of a DUI, not the blood alcohol level nearly an hour later at the police station where you took the breath test! That is why an experienced, knowledgeable DUI attorney will ask you to recall not only the time period and number of drinks you may have had, but also about your food consumption before, during and after you drank. This delayed timing of the level of alcohol in your blood can also be deceptive in your self-evaluation of your condition of impairment for driving, since you can easily become more impaired even several minutes after you finish drinking and while you are already driving. Thus it is extremely important to understand how the amount that you drink and the timing of any drinks you have consumed are related to your blood alcohol level and your ability to drive safely and legally. In the next post we will discuss methods to keep track of how your drinks are effecting your blood alcohol content.

In every Florida and Clearwater, St. Petersburg and Tampa Bay area DUI case, there are many factors which need careful analysis by an experienced and aggressive DUI attorney. Sometimes what might seem to be an “open and shut” DUI case may actually be incapable of proof beyond a reasonable doubt by the prosecutor and could result in a dismissal, a not-guilty verdict or a reduction of the DUI charge to a lesser offense. If you or someone you know is facing a DUI in the Tampa Bay area, call the Office of Clearwater DUI Attorney Garry Potts at (727) 538-4166 today to schedule a free consultation.

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8 Responses to DUI Elements Explained – Unlawful Blood Alcohol Level (UBAL) DUI

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  4. Philadelphia says:

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  5. T Freed says:

    Please explain in here to all of your readers that they must immediately request an administrative review and contest the UBAL within 10 days. Because even if you are not convicted of DUI You can still be slapped with a UBAL as my 21 year old son found out. He thought proving he was not the driver was enough and it was to get rid of the DUI but not the UBAL and still has to do DUI school, and pay dui fees and will have an alcahol related offense on his driving record because he did not know he had to also contest the ubal as well as prove he was innocent.

    • GPottsLaw says:

      Thanks for your comment! As I mention on the front page of this website, ten days after an arrest for DUI the driver’s license administrative suspension begins. It is crucial to file for a formal review hearing with DMV before the ten day period expires. Although this is not called a “UBAL” (unlawful blood alcohol level), as you suggest, it is a very important administrave civil proceeding which is separate to the criminal DUI charge. UBAL refers to one of the two ways in which a DUI charge can be proven. The other way is by proving impairment from drugs or alcohol while driving. The State must prove either UBAL or impaired driving beyond a reasonable doubt in order to convict of a criminal DUI.

      However, for the administrative suspension civil formal review hearing, the DMV merely has to find that there is “substantial competent evidence” to show that the driver was either impaired while driving, driving while UBAL or refused the breath test. This is a much more lenient standard of proof than for the criminal DUI. Although losing at this formal review administrative hearing will not result in criminal penalties or a criminal record, it will uphold the driver’s license suspension and require the individual to enroll in DUI school before they become eligible for a hard-ship license. They will also have to complete the DUI school before getting their full driver’s license back.

      The back of the DUI ticket (Uniform Traffic Citation) which the police officer gives following a DUI arrest explains the procedure and time limits for the administrative suspension and formal review hearing. Unfortunately, many people choose not to read that information or to otherwise make themselves knowledgeable on their charges by consulting with an experienced DUI attorney soon after their arrest.

  6. Joe says:

    I have been charged with a second dui and the breathalyzer has been dismissed from court. I feel my attorney is not being aggressive enough and the state is pursuing a DUI 2 (outside of 5 years) under .21 bac…Any advice should I seek new counsel?

    • GPottsLaw says:

      Hi Joe,

      Sorry to hear that you have a DUI charge. It sounds like you might not be in Florida, since the enhanced BAC here is .15% and not .21% as you mentioned. Howevever, one thing that matters greatly in any DUI case is how the driver appears on any videos taken by the police. So, if there is a video in your case and it appears that you are impaired in the video, the prosecutor likely feels that a jury will find you guilty even without the breath test results being introduced. If you appear solid and sober in the video, or if there is no video, then perhaps the prosecutor is just depending on the testimony of the police officer to sway the jury and is willing to take the chance in trial. Either way, as long as the officer testifies that you were driving, there was a good reason to pull you over, you had alcohol on your breath and that you acted impaired, there probably are no grounds for an attorney to demand that the judge simply dismiss the case. Instead, the case would have to be heard at trial by a jury or judge in order to determine a verdict of guilty or not-guilty.

      However, it never hurts to ask for a second opinion from another experienced DUI attorney. That attorney would need to see all of the discovery documents, including any police reports, videos and Intoxilyzer documents in order to give you good advice. So, get a copy of the discovery in your case and call some criminal defense attorneys in your area and make an appointment with one so that you know whether or not to put your faith in your current attorney. Good luck,

      Garry Potts

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