Blew Over 0.08 in Florida? What Happens Next
A breath result of 0.08 or higher is serious evidence in a Florida DUI case, but it does not decide the case by itself. The number has to come from a test done under specific rules. It has to be connected to the time of driving. And it starts two separate processes: a criminal case and a driver license suspension. Here is what the law says and what a defense review usually looks at.
What "0.08" means under Florida law
Section 316.193(1), Florida Statutes, lists three ways to commit DUI while driving or in actual physical control of a vehicle:
Being under the influence of alcohol or certain substances to the extent that normal faculties are impaired;
Having a blood-alcohol level of 0.08 or more grams per 100 milliliters of blood; or
Having a breath-alcohol level of 0.08 or more grams per 210 liters of breath.
The second and third are often called the "unlawful BAC" or per se theories. Under section 316.1934(2), a level of 0.08 or higher is also prima facie evidence of impairment. A level of 0.05 or less creates a presumption that the person was not impaired. A level above 0.05 but below 0.08 creates no presumption either way.
The breath test must follow FDLE rules
Section 316.1934(3) says a breath test is valid only if it was performed substantially according to methods approved by the Florida Department of Law Enforcement (FDLE), by an operator holding a valid FDLE permit. FDLE's rules in Florida Administrative Code chapter 11D-8 include:
Two samples within 15 minutes. An approved breath test needs at least two samples collected within fifteen minutes of each other, with results within 0.020 g/210L of each other. If the first two differ by more than that, a third sample is required.
A 20-minute observation period before testing, to make sure the person did not eat, drink, smoke or regurgitate.
Instrument inspections. Agencies must inspect evidentiary breath instruments at least once each calendar month, and FDLE also inspects and registers instruments.
Operator permits issued by FDLE.
A defense review may ask for the breath test affidavit, the instrument's inspection and maintenance records, the operator's permit, and video of the observation period. Problems in these areas do not automatically exclude a result. Insubstantial differences do not invalidate a test under section 316.1934(3). Substantial problems can matter, though. See breath test defense.
The number has to relate to the time of driving
Breath tests are usually given at a jail or station, often well after the stop. The legal question is the person's level while driving or in actual physical control. Timing evidence matters:
When drinking ended.
When the stop happened.
How long transport took.
When each sample was given.
Your license: the 10-day deadline
Under section 322.2615, an officer who finds a breath or blood alcohol level of 0.08 or higher suspends your driving privilege on behalf of FLHSMV. The officer issues a notice of suspension that also serves as a 10-day temporary permit, if you are otherwise eligible. The suspension is 6 months for a first offense, or 1 year if your license was previously suspended under that section.
You have 10 days from the notice to:
Request a formal or informal review of the suspension, or
Request review of eligibility for a restricted business-purposes license under section 322.271(7). For eligible first-time drivers, accepting that restricted license waives formal and informal review.
If an unlawful-BAC suspension is sustained, the business-purposes license is generally not available until 30 days after the temporary permit expires (s. 322.2615(10)(b)). Read the 10-day rule, formal review hearings and hardship licenses.
Section 322.2615(16) also provides that FLHSMV will invalidate an unlawful-BAC suspension if the person is found not guilty at trial of the underlying DUI.
What the criminal penalties look like
For a first DUI conviction, section 316.193 sets a fine of $500 to $1,000 and up to 6 months in jail. Required conditions include probation, 50 community service hours, DUI school and 10 days of vehicle impoundment. A license revocation of 180 days to 1 year also applies (s. 322.28). At 0.15 or higher, the ranges increase and an ignition interlock is required. See high BAC DUI and first DUI in Florida.
Other defense questions that matter
The stop. Was there a lawful basis to stop or detain you? Evidence from an unlawful stop may be challenged.
Probable cause to arrest. What did the video show about driving, speech and the roadside exercises? See field sobriety tests.
Statements. Were questions asked after custody began, and were warnings required?
Reduction. Some cases are resolved with a reduced charge such as reckless driving. That depends on the evidence and the prosecutor, and it is limited by statute at 0.15 or higher. See DUI vs. reckless driving.
Frequently asked questions
If I blew over 0.08, am I automatically guilty?
No. The State still has to prove the case, including that the test was valid under FDLE rules and that the result relates to the time of driving. The breath result is strong evidence, though, and should be reviewed carefully with counsel.
What if my two breath samples were different?
FDLE rules require two results within 0.020 g/210L. If the first two are farther apart, a third sample is required. The affidavit shows each result.
Is the license suspension automatic?
The officer issues the suspension at the time of arrest, and you have 10 days to request review or a restricted license. If you do nothing, the suspension stands.
Does a breath result under 0.08 mean no DUI?
Not necessarily. Impairment of normal faculties is a separate way to prove DUI. Below 0.08 and above 0.05, there is no legal presumption either way.
What should I do now?
Mark the 10-day deadline, gather your paperwork, write down a timeline of the evening, and get advice before choosing a license option.
Talk with a DUI lawyer about your breath result
Call (941) 920-5514 or request a free consultation with former prosecutor Daniel D. Nawara. Ask about DUI fees and payment plans. For local information, see Sarasota DUI and Bradenton DUI.
Updated October 1, 2026. General information only, not legal advice. Every case depends on its facts and the law in effect on the offense date. No outcome is guaranteed. Contacting the firm does not by itself create an attorney-client relationship.
Sources: Fla. Stat. § 316.193, § 316.1934, § 322.2615, § 322.271, § 322.28; FDLE rules, Fla. Admin. Code ch. 11D-8 (rules 11D-8.002, 11D-8.006, 11D-8.007).