Refusing a Breathalyzer in Florida

July 30, 2019

In Florida, individuals who refuse to submit to a breath, blood, or urine test to determine their blood alcohol content level when lawfully arrested by a police officer who had probable cause can face very severe penalties. Despite the negative consequences, a news station located in central Florida found that four out of every ten drivers stopped for driving under the influence in the state will refuse to take a Breathalyzer test. 

Screenings Are Required In Florida 

Drivers in Florida are required by law to submit to this form of testing. Under the implied consent law, any person who accepts the privilege of driving in Florida has effectively given their consent to submit to an approved blood alcohol content screening when requested during a lawful arrest. Drivers who do not submit to BAC screenings face a mandatory license suspension. When a driver refuses to take a Breathalyzer test, the arresting officer must tell them immediately if they have a prior license suspension for refusal and that the current refusal can result in misdemeanor charges and a second license suspension.

In addition to a driver’s license suspension, refusal can bring forth more severe penalties. For a first offense DUI, a driver will have their license suspended for one year for refusing a Breathalyzer test. A second and third DUI can result in an 18-month suspension and possible jail time for refusing to take a Breathalyzer test.

Fortunately, the Supreme Court in 2011 determined that individuals would not face suspension of their driver’s licenses for refusing to submit to a Breathalyzer or Intoxilyzer test if they were arrested unlawfully. When officers arrest drivers without probable cause, and they refuse to take a Breathalyzer, their refusal cannot be used against them to deny their driving privileges. 

To Blow Or Not To Blow?

Many drivers ask themselves – is it better to refuse to take the Breathalyzer test and suffer the mandatory license suspension or should I agree to submit to the test and provide evidence that can be used against me later on? In most cases, it is not helpful to refuse to take a Breathalyzer test when arrested for DUI in the state of Florida, even though the consequences of doing so may be less severe than those imposed for cooperating and being charged with a DUI. It is also crucial to note that refusing to take a Breathalyzer test does not guarantee that you won’t still be charged with a DUI.

Individuals who are charged with DUIs in Florida face possible jail time, thousands of dollars in fines, and may even be required to have an ignition interlock device placed on their vehicle. Fortunately, individuals who are arrested for their first offense, and blow a BAC lower than .16, and meet all the criteria, may be able to qualify for a Florida diversion program. These programs are designed to lessen sentences for first-time offenders. Individuals who refuse to blow are ineligible for this program.

What Are Pretrial Diversion Programs?

Pre-trial diversion programs are available for first time DUI offenders, so long as they meet the criteria to qualify. When accepted, these programs result in a sentence of community service, attending DUI school, and possibly having to take a program known as the Victim’s Awareness Program. Additionally, offenders may have to pay fines and the cost of the program. Once offenders complete the diversion program, their DUI charges are dropped. Once dropped, offenders can apply for an expungement of their charges and remove the arrest from their records.

Refusing A Breathalyzer Test Without Actually Refusing

Although you may be inclined to think that refusing to take a Breathalyzer is as simple as saying “no,” it is actually much more complicated. There are ways in which you can be judged to have refused a Breathalyzer test. Some ways include:

  • You agree to take a Breathalyzer test, but were unable to provide adequate breath samples;
  • You provided two breath samples, which were not within .02 of each other, then refused to take the third test; or
  • You become abusive or argumentative toward the officer.

Can You Be Forced To Take A Blood Test for BAC?

Although you cannot be forced to take a breath, blood, or urine test in most situations, the state is allowed to force a blood BAC screening on a person if they are unconscious, regardless of whether they have been arrested for a previous DUI. These forced blood draws are permissible when a person is injured in a car accident or if they were stopped for a third DUI offense. Some counties further grant law enforcement officers the legal right to force blood draws on drivers who refuse breath tests regardless of whether they are awake or stopped for a subsequent DUI offense. However, the state must obtain a search warrant before taking a blood sample.

Problems With Breathalyzers

The Breathalyzer test has been administered to drivers across the United States since 1954. The theory behind the test is that the level of ethanol in your breath is the same as in your system. However, the theory behind the test is flawed in several ways. Some common problems associated with the Breathalyzer include:

  • The officer was not adequately trained on how to use the machine;
  • The machine itself was not properly maintained or calibrated;
  • The machine was not warmed up sufficiently before testing;
  • The proof of the 2100-to-1 blood to breath ratio is assumed and not proven accurate;
  • Individuals who smoke may have higher BAC levels; and
  • An improper breath temperature can result in a higher reading.

Additionally, poor dental hygiene, heartburn, some diets, diabetes, mouthwash, lip ointment, slower metabolism, and being exposed regularly to gas or vapors can result in falsely high results.

You Should Always Fight Your Florida DUI Charges

Refusing to submit to a Breathalyzer test is sometimes viewed as a driver admitting that they are driving while impaired. Rather than take a route with no possible escape plan, it is crucial to submit to the Breathalyzer test and prepare yourself to fight against the charges in court.

Hiring an experienced DUI lawyer will ensure that you obtain the best possible outcome for your DUI arrest. Attorneys at Musca Law work diligently to help those arrested for DUI offenses have their charges reduced or dismissed in court. Contact our law office today at (888) 484-5057 to schedule a free case review.