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Should I Take a Florida Breathalyzer Test if I'm Suspected of DUI?

Police Officer Holding Breathalyzer Test

It's a question no one wants to think about, but everyone should know their answer to: if you are stopped and suspected of Driving While Under the Influence (DUI), should you take the breathalyzer test?

Under Florida’s Implied Consent Law Refusal Equals Suspension

Under Florida's implied consent law, drivers must submit to a chemical test if a police officer has a reasonable suspicion that the driver is under the influence of alcohol or another intoxicating substance. If you refuse to take the test, your driver’s license will be suspended immediately, and you will not be able to drive for at least a year.

Some people believe that refusing to take the test will strengthen their case by not giving the prosecutor evidence that could be used to secure a DUI conviction. However, by refusing to blow you subject yourself to a mandatory license suspension. If you refuse to blow on a first-time DUI charge, your license will be suspended for one year. If you refuse to blow for a second or third charge, your license will be suspended for 18 months, and you could face jail time.

A BAC of .08% or Greater Creates a Presumption of Impairment

In Florida, if you drive with a Blood Alcohol Content (BAC) of .08% or higher the judge or jury can presume that you were legally intoxicated. This means that if the results of the breath test are admitted into evidence, a jury can presume that your normal faculties were impaired.

The best way to understand Florida’s presumption of impairment law is to read the instructions that a jury would hear in a Florida DUI trial:

  • Breath of Blood Test Reading of .05 or Less - If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired.
  • Breath of Blood Test Reading of more than .05 but less than .08 - If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired.
  • Breath or Blood Test Reading of .08 or More - If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that the defendant's normal faculties were impaired.

Refusing a Florida Breathalyzer Test Makes You Ineligible for Florida’s Diversion Program

In most situations, it is not helpful to refuse to take a breathalyzer test. If you are convicted of a first-time DUI in Florida, you face fines, possible jail time, and could be required to have an ignition interlock device (IID) installed. But that’s the worst case scenario. In many instances, you would qualify for a Florida diversion program, which will result in a lighter sentence than what you would receive for a refusal to blow. Refusing to take the breathalyzer test makes you ineligible for the diversion program.

In a pre-trial diversion program, you would likely be sentenced to community service, a Drivers Intervention Program (DUI School), and possibly a Victim’s Awareness Program. You may be required to pay fines and the costs associated with the programs, but at the end, the DUI charge would be dropped and you could have your record expunged.

Refusing the Breathalyzer Test Does Not Guarantee You Won't Be Convicted of DUI

Refusing to take the breathalyzer test does not guarantee that you will avoid a DUI conviction. The prosecutor would use evidence that you were driving erratically or did not properly perform the Field Sobriety Tests as evidence that you were intoxicated. The prosecutor would also point to your refusal to take the test as evidence that you knew you were intoxicated.

Refusal to Blow Will Not Be Considered if Officer Lacked Probable Cause

One of the few exceptions to the advice that you should take a breathalyzer test is if the arrest was unlawful. In 2011, the Florida Supreme Court held that a person’s driver’s license could not be suspended for refusing to take a sobriety test if the DUI arrest was unlawful. This means that if you were stopped without reasonable suspicion or if the arrest was made without probable cause, then your refusal to blow cannot be used against you to deny you driving privileges. However, it would be difficult for you to determine, during the arrest, whether or not the police officer had probable cause.

Contact The Law Office of Jody L. Fisher Today

With offices in Leesburg, the Law Office of Jody L. Fisher defends people throughout central-Florida who have been charged with DUIs. If you're facing Florida DUI charges, or have questions about Florida DUI law, contact me today to schedule a free 30 minute consultation. Call 352-364-4408, email info@attorney-fisher.com, or complete our online form. A member of my team will be happy to assist you.

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