DUBAL in Florida

As explained in Florida Standard Criminal Jury Instruction 28.1, to prove the general crime of DUI, the State must prove the following two elements beyond a reasonable doubt:

1. Defendant drove or was in actual physical control of a vehicle; and
2. While driving or in actual physical control of the vehicle, Defendant was either:
   • under the influence of alcoholic beverages to the extent that his normal faculties were impaired; or
   • had a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath.

In some cases, the State might decide to prosecute the accused based solely on the theory that Defendant had a breath or blood alcohol level of .08 or higher while driving. This theory of prosecution is often called “DUBAL” which stands for Driving with an Unlawful Breath Alcohol Level.

Florida law for the DUBAL version of DUI creates strict liability for someone driving with an unlawful blood or breath-alcohol level. Under this theory of prosecution, if the State proves DUBAL beyond a reasonable doubt, the issue of impairment becomes moot. See Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

In other words, under a DUBAL prosecution theory, the prosecutor takes advantage of the “strict liability theory.” Under this theory, the State need not prove impairment beyond a reasonable doubt. Therefore, there is no need for a “presumption of impairment” instruction when a Defendant’s blood or breath-alcohol level is .08 or higher.

Attorney for the DUBAL Version of DUI in Tampa, FL

If you were arrested for DUI and accused of having a breath or blood concentration of .08 or higher, then contact an experienced criminal defense attorney at Sammis Law Firm. We help clients at every stage of the case. We can file your demand for a formal review hearing and secure your 42-day permit so you can keep driving to school, work, and church.

We can also enter your “not guilty” plea as you fight the DUBAL DUI in court. We can demand a copy of the prosecutor’s file, all evidence related to the over .08 reading, and video evidence. After completing our investigation, we can file all viable motions, including a motion to suppress illegally obtained evidence, exclude unduly prejudicial evidence, or dismiss the charges for lack of evidence.

Contact us to schedule a free and confidential consultation. Our main office is located in downtown Tampa, FL. We have additional offices in New Port Richey and Clearwater, FL.

Call 813-250-0500.

Is Evidence of a Lack of Impairment Still Admissible at Trial?

In a DUBAL case, the blood or breath test results are not the only evidence that can be introduced to prove or disprove whether the BAC or BrAC was over the legal limit at the time of driving.

During a DUBAL trial, the accused is allowed to present evidence that would disprove having an unlawful alcohol level at the time of driving. That evidence might include showing no odor of alcohol, slurred speech, trouble exiting the vehicle, swaying, or unsteadiness.

The defense might also show the accused performed well on field sobriety exercises. The defense is also permitted to argue that this evidence shows the test results do not accurately reflect the BAC or BrAC level at the time of driving.

Likewise, the prosecution might present other evidence relevant to corroborate the blood or breath-alcohol level at the time of driving.

The Legislative History of Florida’s DUBAL Statute

The legislative history of Florida’s DUBAL statute was outlined in State v. Rolle, 560 So. 2d 1154 (Fla. 1990). In that case, the Florida Supreme Court explained:

“In determining whether the challenged statute and jury instruction constitute a permissive inference or an unconstitutional presumption, a review of the relevant history of chapter 316 is both instructive and enlightening.

Prior to 1974, driving under the influence (DUI) could be proven in only one way, by proof of impairment. § 316.028(1), Fla.Stat. (1973).

In 1974, the legislature created the offense of driving with an unlawful blood-alcohol level (DUBAL). Ch. 74-384, § 1, Laws of Fla. (codified at § 316.028(3), Fla.Stat. (Supp.1974)).

At that time, DUBAL was clearly a separate offense from DUI.

It was located in a separate paragraph of the statute from DUI, and contained separate, and lesser penalties for conviction. Compare § 316.028(1), (2), Fla.Stat. (Supp.1974) with § 316.028(3)-(4), Fla.Stat. (Supp.1974).

Under this statutory scheme, if the state could not prove impairment the defendant could still be convicted of DUBAL. This Court upheld DUBAL against constitutional attack in Roberts v. State, 329 So.2d 296 (Fla.1976).

However, in 1982 the statutory landscape changed dramatically. The legislature substantially reworded the statute, consolidating DUI and DUBAL and providing identical penalties for conviction. Ch. 82-155, § 2, Laws of Fla. (codified at § 316.193(1)(a)-(b), Fla.Stat. (Supp.1982)). It is this statutory framework which concerns us today.”

In 1985 version of Section 316.193(1), Florida Statutes, provided:

“A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle within this state and:

• (a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired [DUI]; or
• (b) The person has a blood-alcohol level of 0.10 percent or higher [DUBAL].

It is clear that this statute now creates one offense, driving under the influence, which may be proven in either of two ways:

• (a) by proof of impairment, or
• (b) by proof of a blood-alcohol level of 0.10 percent or higher.

Because proof of either (a) or (b) is sufficient, if the state proves beyond a reasonable doubt that the defendant was “driving or in actual physical control of a vehicle within this state,” and had a blood-alcohol level of 0.10 percent or higher, then the state need not prove impairment. However, if the state cannot prove that the defendant had a blood-alcohol level of 0.10 percent or higher, it may still obtain a conviction if it can prove impairment beyond a reasonable doubt.”

Rolle, 560 So. 2d at 1154-1155 (footnote omitted).

Foundational Requirements for the DUBAL Theory of DUI

In State v. Komara, 14 Fla. L. Weekly Supp. 648a (Fla. Hillsborough Cty. Ct. Feb. 21, 2007), a trial court in Hillsborough County explained:

“[i]n Florida, an unlawful blood or breath alcohol level can be proven by admission of evidence “under either the common law governing scientific test results or the implied consent law.” Cardenas v. State, 867 So.2d 384, 390 (Fla. 2004).

The common law method requires the State to establish what has come to be known as “the traditional scientific predicate.” This predicate includes evidence regarding reliability, qualifications of the technician, and the meaning of the results. [citations omitted].

However, the Florida legislature has chosen to make it easier for the State to admit breath test results in criminal cases through enactment of a statutory and administrative scheme known as the “Implied Consent Law.” See §§316.1932; 316.1933 and 316.1934(5), Fla. Stat. It is well settled that the “Implied Consent Law” allows the State to admit breath test results in a criminal trial by an affidavit instead of the traditional scientific predicate. David A. Demers, Florida D.U.I. Handbook, § 6.2 (2007 ed.); [citations omitted].”

The State’s ability to use a breath affidavit in lieu of the traditional scientific predicate is not absolute. An affidavit in lieu of the traditional scientific predicate is available to the State only if the breath test was conducted in accordance with §§ 316.1932 or 316.1933, Fla. Stat. [citations omitted].

Id. (footnote omitted).