DUI- Should you take a breathalyzer test ?

A common question I encounter at social gatherings is whether one should submit to a breath test or refuse? Or, more generally, what do I do if I get pulled over and I have been drinking?

Unfortunately, there is no simple answer to this question.

Now I am not writing this article to delve into the intricacies of the current state of Florida Law on DUI (DUI law is far more complicated than you might think), and I certainly am not writing this article to encourage anyone to go out and drive under the influence, or to arm anyone with a “game plan” should they get pulled over while under the influence. Simply, this article is meant to answer the title question, or more accurately , explain the consequences should you be in the self-induced unfortunate situation of being pulled over for driving under the influence.

A DUI is a criminal offense that can be closely likened to a misdemeanor, which is handled in the County Courts. (However, a fourth DUI is a felony in Florida and therefore handled in the Circuit Court, or if you seriously injure or kill someone, that is a felony, too). But in addition to the Court system, there are also administrative penalties through the DHSMV, more formally the Department of Highway Safety and Motor Vehicles (hereinafter “DMV”), who maintain the awesome power of being able to suspend your license. These Administrative remedies which are handled through the DMV are independant of the criminal action for DUI.

I am sure by this point, you think I have strayed off course from our intiail inquiry into whether you should blow into the Breathalyzer  machine or not, but I really haven’t, this is all background information that you need to know in making an informed decision on the question presented.

As is taught in any high school civics class, you are innocent until proven guilty. Further, to be convicted of a crime the government has the obligation to demonstrate your guilt “beyond a reasonable doubt.” A natural consequence to these precepts is that the less evidence available to the government the less likely they can establish your guilt beyond a reasonable doubt.  Accordingly, no breathalyzer (or roadside sobriety tests for that matter, and you also keep your mouth shut) you provide no more evidence than the officers’ observations of your drunk stumbling behind.

The less evidence- the better you will fair at trial. Up to this point, you are probably thinking if I do nothing, provide no breath sample, answer the officer in short “yes” or “no” answers, I can beat this. Well you maybe right, but consider this. Your driving pattern, the observations of the officers, and the fact that you refused the breath test are admissible and can be sufficient to prove your guilt. Of course, with only those  limited pieces of evidence it does make the prosecution’s job more difficult. (Note, however, your lack of cooperation will piss off the judge and if you are found guilty, even in spite of your tactical uncooperativeness, your sentence may reflect the judge’s disdain.)

Moreover, the State of Florida is not as stupid as you think. They know that you can do nothing, provide little evidence, and otherwise make the prosecution’s job more difficult. But the State has another tool at its disposal. If you ever taken a close look at your driver’s license you will notice text on the bottom indicating that by the operation of a motion vehicle you are consenting to any sobriety test as required by law.

This is where the administrative penalties come in. The effect of this is that if you refuse a legally required test(breath, blood, or urine depending on the situation) your license  will be suspended for 1 year, and you will not be eligible for a hardship until after 6 months. Also note, that if you do take a breath test and you are over the limit your license will be suspended for 6 months but your are eligible for a hardship license after 30 days. This is completely independent of the criminal DUI penalties which  includes a completely separate license suspension.

As you can see while the refusal may provide the benefit of less evidence in the criminal case it will likely cause a one year license suspension (6 month with no hardship license which would only be 30 days if you took the test and were over the legal limit.)

In sum, there are consequences to any choice you make. If you don’t submit to the test, there is a  greater administrative suspension but less evidence for the prosecution. The choice is yours. Your best choice, however, don’t drink and drive.

Just for completeness you should know.

1. That refusing a required test for the second time is a crime itself and you can be charged with a count for DUI and a count for Refusal.

2. The current minimum sentence for DUI is as follows:

Adjudication plus court costs,$500 fine, 50 community service hours, 6 monts probation, 6 month driver license suspension, 10 day vehicle impoundment, level 1 DUI school.

3. The aforementioned administrative DMV license suspensions can be challenged. However, the legal standard to overturn such suspension is not favorable to the challenger.

Article by: Andrew Douglas, Esq., Andrew Douglas, P.A., 954.474.4420

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