That’s the question I am constantly asked when people find out that I’m a DUI lawyer. “If I get pulled over, should I take the breath test?" The short answer is – that depends. The long answer is below (and it’s long!)
I have a feeling you could ask a bunch of DUI lawyers this question and get a bunch of different answers. I think it is best to tell you what the consequences of blowing and not blowing are so you can make the call for yourself.
First of all, in Florida, the State can prove that you are driving under the influence either by proving that (1) you are intoxicated to the extent that your normal faculties are impaired, or (2) that you have a blood alcohol level of .08 or more grams of alcohol per 100 milliliters of blood or a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath. Most cases do not involve a blood draw for several different reasons and obviously if there is a blood draw, there is no need to blow into the breath machine. On a side note, many people tell me that they refused a breath test but requested a blood test. You don’t have that right. However, if you take a breath test and request a blood draw thereafter, the police officer must make reasonable accommodations to have that blood drawn at your expense.
As indicated above, the State can prove a DUI with or without a breath test, so it’s not the only deciding factor. I guess the first factor to consider is whether you have had anything to drink! If not, you are probably safe to take the breath test. If you fail the breath test and you know you have had nothing to drink (and no controlled substances in your system), this may be one of the few times when requesting the blood draw at your own expense makes sense.
Most people fall into the gray area. They went out to dinner or to a friend’s house, had a few, got behind the wheel and got pulled over. They don’t feel drunk, but what does .08 feel like anyway? Only law enforcement and prosecutors know because they have had the opportunity to test out the machine at their training session without the fear of jail. Typically, the officer asks you to step out of the vehicle and perform roadside tasks. These are optional and while they don’t say it, sure seem like they are designed to fail. If you choose not to do them, there is less evidence to prosecute you with – just know that if you refuse to do the roadsides you will probably spend the next few hours being booked into the county jail and scrambling to make bail. Your name will be in the newspaper. Any benefit to refusing the tests will not be realized that night. Regardless, I would ask the officer whether the tests are being videotaped for use as evidence. If they are not, there is really no point to doing them as the only evidence of the results will be the officer’s interpretation. If they are video taped, then you have your first decision.
The roadside tasks are by far the best or worst evidence in a DUI trial. I truly believe that it doesn’t matter what you blow in the machine if you look perfect on video. You can always find an expert (if you can afford it) to explain a million different reasons to the jury why the breath testing machine is not credible. The State will get their expert and the games begin. The truth is most jurors are bored to death by the experts who often have no idea how to speak in regular English; They pretty much end up neutralizing each other. But jurors trust what they see on video. If you look good, you will likely get the benefit of the “Reasonable Doubt" standard of proof – especially if the officer is knit picky on factors that most of us don’t care about. If you don’t look good and have no valid excuse, you probably will lose. It is often that simple. Also, the more excuses that you or your lawyer has to make for this or that, the weaker your case becomes, unless of course they are rock solid (which they usually aren’t).
So the bottom line is, in a criminal case the breath test is just one factor to consider. If you look good on video, the breath test can be neutralized by an expert (and so blowing may not hurt you). If you look bad on video, you will probably get convicted unless there is some other technical defense.
But the Breath Test is more than just evidence in a criminal trial. It is also a controlling factor on whether or not you can continue to drive in Florida. Every person gives “implied consent" to a breath or urine test when they purchase a driver’s license. If you then refuse to take the test when requested by an officer after a legal arrest, the DMV will suspend your driver’s license for a period of 1 year or 18 months if you have ever refused before. Additionally, A SECOND or subsequent REFUSAL in your lifetime will be charged as a MISDEMEANOR. This misdemeanor is generally difficult to win at trial and often results in a jail sentence. Therefore, it may not be in your best interest to refuse a second time. As I stated earlier, if you look good on video, you can hire a qualified expert and a good lawyer to present reasonable doubt about the breath test machine. If you look bad on video, what’s the difference? You are just piling on charges.
The “implied consent" law will almost certainly be read to you off of a card by the arresting officer or by the officer requesting a breath sample. What is not told to you at the time of the arrest is that if you blow a .08 or higher, your license will be suspended anyway by the DMV for a period of 6 months. (Plus another 6 months by the judge from the date of conviction if you are found guilty). This suspension by the DMV – whether for refusal or for blowing above .08 is generally what your insurance company will look at in determining whether to raise your rates. They seem less concerned with the outcome in the criminal case. Additionally, if you blow above a .15, you will receive enhanced penalties if you are convicted of the DUI which include a minimum fine increase (from $500 to $1,000.00) and you will be required to blow into a device to get your car started for a minimum of 6 months from when you get a license or permit to drive.
Whether or not you take a breath test, you may get a hardship license under most circumstances. However if you blow above a .08 you must wait 30 days from the date of suspension without a license before you are eligible for the hardship license. If you refused to blow, you must wait 90 days. If this is a second or subsequent incident involving a breath test, you may not be eligible at all for a hardship license. Often these issues involving the driver’s license are much more important to a person’s employment and survival than whether or not they have a misdemeanor on their record. If your biggest concern is your license and you would rather get it back in 30 days rather than 90, then take the test. Again, if you look good on video and can hire an expert, you may still win the criminal case regardless. On the other hand, if you suspect you might blow a .15 or higher (almost twice the legal limit) but don’t want to deal with increased fines and penalties, maybe it is better not to blow. Just know that next time you had better blow or you will get charged with the additional crime and probably sentenced to some jail time.
For the reasons explored above, the answer to the age old question really is, it depends. Each person has a unique situation and a unique set of facts. You can use the information above to decide what decision is right for you. Then, make sure you have a good lawyer. If you would like a free review of your DUI case, contact the lawers of the Ferraro Law Group at firstname.lastname@example.org