the breathalyzer test

The DUI breathalyzer: to blow or not to blow, that is the question

The DUI breathalyzer test

One of the most frequent questions that I get from people is probably:

“If I’m arrested for DUI should I provide a breath sample?”

The answer is, it depends. Shocking, right – never a straight answer from a lawyer! So what things can have an impact on whether or not you should blow?

It is important to understand how they charge DUI cases in Florida. The state can charge you two different ways:

  1. That you were driving while under the influence of alcohol to the extent that your normal faculties were impaired or;
  2. You were driving with a breath-alcohol level over a .08. For this article, we will focus on the .08 way of charging DUI; let us leave ‘normal faculties’ for another day’s discussion.

The State of Florida has what is known as the “Implied Consent Law.” Take out your driver’s license and look at the bottom. You will see the following language: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” Whether you knew it or not, by simply driving on the roads of Florida (even if you are an out of state resident) you have agreed to provide a breath test assuming that your DUI was lawful.

The State of Florida considers driving a privilege, not a right, which means that the government can take that privilege away if given reason. If they arrest you for DUI, the police are going to take you to the station, sit you down in front of a breathalyzer machine, and ask you to take the test.

Unless you say yes immediately, they will tell you about what happens if you refuse to take the test:

  • If you refuse to take the test then your license will be suspended for a period of 12 months for a first refusal and;
  • a period of 18 months for a second refusal.
  • Additionally, if you have previously refused they will charge you with a first-degree misdemeanor criminal offense.

The police want to scare you into providing a breath test by telling you that if you refuse they will take your license away and you will not be driving for a year. That is pretty convincing! However, they do not tell you that if you blow over the limit the same thing will happen, and that either way, odds are you will never go a day without being able to get around in your car.

What the police will not tell you (because legally they are not required to) is that if you blow over a .08 they will suspend your license for a period of six months. They also do not tell you that, if it is your first DUI, then you will likely be able to get a hardship license right away and you will not go a day without being able to drive to work, the grocery, etc.

This brings us back around to the way that the state can charge you with, and prove, DUI. If the state chooses to charge you as driving with a breath alcohol over .08 there job is not going to be that difficult when all they need to show the jury is a piece of paper the breathalyzer prints out that says “John Doe has a .12 breath alcohol level.”

Checkmate, game over! (There are ways to fight this at trial, which will be the topic of a different article). If you do not blow, the state cannot prove that you were over a .08. Instead, the state will have to prove beyond a reasonable doubt that alcohol was impairing your normal faculties – including the ability to drive.

This is a much more difficult challenge! You will have a much better chance of winning your case.

At the end of the day, unless you are certain that you would pass a breath test, exercise caution before blowing into the machine. Odds are you are going to be doing the government a huge favor and making their case for them. If you have any other questions regarding your rights related to the breath test, give my office a call.

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