Should you refuse a breathalyzer test in Florida?
Driving under the influence in Florida is dangerous to the driver and those on the road. Police conduct stops of cars they suspect of drunk driving to keep the roads safe. Police are not always right in determining whether a person is under the influence and this is in part due to the fact that the tests they use are often subjective, such as the field sobriety tests. In order to strengthen their case, police will ask for a person to submit to a breathalyzer test.
Breathalyzer tests are not without fault and different factors go into why a test may not always be correct. You may have heard it is best to refuse the breathalyzer test, which may be true in some instances, but it is important to understand the legal implications of refusing to blow.
If you or a loved one are faced with a legal issue for refusing to blow, contact Fletcher & Fletcher Criminal Defense where you can get expert legal advice and have an experienced criminal defense attorney help you through the process.
Here are some things you should know about refusing to blow here in Florida:
In Florida, Do I Have a Right to Refuse to Blow?
In short, not really. Can you? Yes, however there are consequences for refusing to submit to a breathalyzer test. There is something called Implied Consent in Florida. You may not have noticed it before, but if you look at your Florida driver’s license, it has stated on there that you have agreed to submit to any sobriety tests required by law. By violating the law, your rights and privileges to drive can be suspended.
What is Implied Consent?
Implied Consent is found in Florida Statutes § 316.1939. It is an administrative rule and states that by driving, you agree to submit to state-approved chemical tests when asked to do so by law enforcement.
Field sobriety tests, such as horizontal gaze nystagmus, the walk and turn, and the one-leg stand do not fall under the Implied Consent law and therefore do no have criminal or administrative sanctions if you refuse these tests.
Should I refuse to blow?
Every situation is different and while it is not always advisable to refuse to blow, there may be some instances where there is an exception. Breathalyzers are not without fault and it is best to contact an experienced criminal defense attorney to help guide you through the legal process. The Fletcher Law Practice can go over your case with you to help determine what the best course of action is.
Is There Ever an Instance Where it is Better to Refuse a Breathalyzer?
If the arrest is unlawful, it is better to refuse, however, it can hard to determine whether the arrest is unlawful or not. If there is not probable cause to make the arrest, the refusal will not be upheld. To try and figure this out in the middle of a DUI investigation will be hard to do and it is not advisable to try and make this determination. You should seek qualified counsel to see if your situation applies here.
You may also think that if you refuse to take a breathalyzer test, you will have a better chance of not being charged or convicted of DUI. This is not entirely true because the police look at a multitude of factors in making the arrest, which will be considered by the State Attorney. Those factors include erratic driving, failed sobriety tests, observations by the police, such as smell and mannerisms of the driver, and the driver’s overall appearance.
The State can even use a refusal of a breathalyzer test as evidence that you knew you were intoxicated at the time.
On the flip side, if you blow, you are providing the State Attorney with additional evidence that they can use against you. We discussed that a 0.08% or above BAC is intoxication, if you blow above a 0.15% BAC, there are additional penalties, such as higher fines and a required ignition interlock device for a first time DUI. Also consider that a blow above .15 will make you ineligible for some DUI diversion programs, including the DROP program implemented in Pinellas and Pasco counties. The potential for an enhanced penalties and disqualifications should be taken into consideration if you are deciding whether to blow or not to blow.
What Are the Consequences if I Refuse to Blow?
Under Florida law, driving with a Blood Alcohol Content (BAC) of 0.08% or higher is considered legal intoxication.
If you refuse to blow, your license will immediately be suspended for 12 months if it is your first refusal. For any subsequent refusal, your license will be suspended for 18 months. A second refusal can also be charged as a separate misdemeanor charge from the DUI charge, which can carry up to a year in jail.
If you are in this situation, it is best to retain an experienced attorney and Fletcher & Fletcher Criminal Defense can help guide you and advocate on your behalf.
I Have Been Charged With a DUI; Now What?
If you have been charged with a DUI and your license has been immediately suspended, you may have recourse in getting it back, but it is crucial to act fast. There is a DHSMV administrative hearing that you may request, however, this hearing must be set up within 10 days of your arrest. It is best to contact The Fletcher Law Practice and get started on your legal defense.
Contact The Fletcher Law Practice To Get Expert Legal Representation
It is important to have someone who is qualified, knowledgeable, and dedicated to your case if you find yourself needing legal representation. If you were arrested for refusing to blow, if your license was suspended due that refusal, and if you are facing DUI charges, we can help mitigate the consequences and work to get you the best possible outcome.
We cover the Tampa Bay area, including Pinellas, Hillsborough, Pasco, and Manatee Counties.
*Disclaimer: This blog post is not legal advice. We highly recommend speaking with an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*