Refusing a Breathalyzer in Florida: Understanding the Consequences

December 20, 2013

Anti-DUI enforcement efforts in South Florida will be in full swing this month, with police and state highway patrol troopers launching their annual "Drive Sober, Get Pulled Over" and "Booze it and Lose It" campaigns. beerisking.jpg

Primarily, these initiatives will include numerous DUI checkpoints and saturation patrols during the evening hours. Central to these efforts will be the use of breathalyzer tests.

Even though the accuracy of these tests remains highly suspect and continues to be challenged in courtrooms across the country, they are still heavily relied upon by police and prosecutors. As such, those staring down a possible arrest need to understand the benefits and consequences of refusing a breathalyzer test in Florida.

First, it's important to point out that Florida drivers are bound by something called implied consent. That is, drivers are required to undergo chemical testing to determine their blood-alcohol level if they are suspected of drunk driving.

That said, the mechanics of breathalyzer machines such as the Intoxilyzer 8000 used in Florida are such that they will not work without your cooperation. That means that you do have the ability to refuse the test.

However, if you do this, you will receive an automatic, one-year license suspension per Florida law. That is true even if it is later determined you had zero alcohol in your body.

For this reason, if you haven't been drinking (or if the primary source of your intoxication is drugs) we recommend submitting to the test. It's difficult for prosecutors to argue with a BAC reading of 0.00 percent.

If, however, you have been drinking and further you suspect that your blood-alcohol level may be over the 0.08 percent legal threshold, you have a tough choice to make. You will lose your license if you refuse. However, if you submit to that test, you will be providing prosecutors with strong evidence that can be used to convict you of a DUI. As a first-time offender, you will still face a suspension, plus a $1,000 fine, six months in jail and a permanent criminal record.

Even with this evidence, a good attorney can often work to have those penalties reduced. But you need to know that this is what you are up against, and proving an allegation of intoxication is much harder for prosecutors if there is no chemical test.

In some cases, particularly those involving DUI crashes that resulted in property damage, injury or death, officers will want to conduct a blood test. Earlier this year, the U.S. Supreme Court ruled that officers in most cases cannot do this without first attempting to obtain a warrant from a judge.

That step is not typically all that difficult, but we have seen it happen since the ruling where officers have forgotten to do it. The exception, however, is if you consent to the test. If you agree to be tested then it doesn't matter whether the officer obtained a warrant. In these situations, you will want to make it clear that you wish to decline testing. It doesn't mean they won't still conduct the blood test, but it will provide your attorney with potential legal grounds on which to have that evidence suppressed. Particularly in a felony DUI case, that kind of a win could be key to a major reduction of the charges against you.

If you have been arrested for a DUI in Florida, contact Fort Lauderdale Criminal Defense Lawyer Carlos Canet today. Call toll-free at 1-866-727-5384. In Broward, (954) 463-1919. In West Palm, (561) 832-4542. In Miami-Dade, (305) 547-6568.

Additional Resources:
Holiday party experiment: You may be drunker than you think, Dec. 17, 2013, By Jeff Rossen, Avni Patel and Jovanna Billington, TODAY News

More Blog Entries:
South Florida DUIs Increase During Thanksgiving Holiday, Nov. 15, 2013, Fort Lauderdale DUI Defense Lawyer Blog