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 impact whether or not you should blow?

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

1. 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 .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: “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 arrest was lawful.

The State of Florida considers driving a privilege, not a right, which means the government can take that privilege away if given reason. If they arrest you for DUI, the police will 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:

• Your license will be suspended for 12 months for a first refusal;
• Your license will be suspended for 18 months for a second refusal; and
• They will charge you with a first-degree misdemeanor criminal offense if you have previously refused a breath test.

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 legal limit, the same thing will happen for six months. Either way, for a first offender, odds are you will never go a day without being able to get around in your car.

The police will not tell you (because legally they are not required to) that if you blow over a .08, they will suspend your license for six months. They also do not tell you that if it is your first DUI, 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 to how the state can charge you with and prove DUI. If the state chooses to charge you as driving with breath alcohol over .08, their job will not 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.

Exercise caution before blowing into the machine at the end of the day unless you are sure you will pass a breath test. If you provide a breath test, you are likely 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.