Written by attorney David Ashley Haenel

No Thank You: What Happens When You Refuse a Breathalyzer Test in Tampa, Florida?

A recent investigation has found that four out of every ten drivers that are stopped for suspected DUI in Florida refuse to take a breathalyzer test. Some individuals may believe that it is better to refuse to take the test so that evidence cannot be used against them, while others may refuse to take the test because they are not sure about what their legal rights are. Refusing to take a breathalyzer test may result in some serious consequences, but it may be the best approach in some situations.

Legal Consequences for Failure to Take a Breathalyzer Test

Each person who acquires a Florida's driver's license gives informed consent that he or she will consent to the test because each driver's license includes the statement, "Operator of a motor vehicle constitutes consent to any sobriety test required by law." If a Florida driver refuses to give a breathalyzer test, he may lose his right to legally drive. For the first offense, he can lose his license for 12 months. For a second or third refusal to take a breathalyzer, the suspect may lose his license for 18 months. Refusing a breathalyzer may also imply guilt on the suspect's part if he is later tried before a jury.

Legal Considerations Regarding Breathalyzers

The Florida Supreme Court made a ruling in June 2011 that a person's driver's license could not be suspended for refusing to take a breathalyzer test if the DUI arrest was unlawful. That means that if a person was stopped when there was no reasonable suspicion to stop the individual, or if the arrest was made without probable cause, the suspect's refusal to take the breathalyzer cannot be used against him to take away his driving privileges. Although Brevard and Hillsborough counties permit drawing blood from a person who refuses to take a breath test, one conviction against a person was overturned based on this scenario. However, some other court decisions outside Florida have ruled that taking a person's blood is not in violation of a person's fifth amendment rights. For now, blood draws will be permitted only when a person is hurt or if a suspect is stopped for the third time.

When to Refuse to Take a Breathalyzer Test

A breathalyzer can be used to establish evidence that can later be used against a person to convict him or her of a DUI offense. However, breathalyzers are not 100 percent accurate. Some machines have been proven to provide inaccurate results. The machine may not be calibrated correctly, the person administering the test may not be properly trained or conducting the test appropriately, or there may be a false positive based on something that the suspect ate, drank or came in contact with. A DUI attorney can provide you with legal advice if you refuse to take a breathalyzer and can explain your reasoning for the refusal to the jury. He or she can also help a person obtain a Business Purposes License during a license suspension period. Consulting a DUI attorney can help a person assess whether refusing a breathalyzer is the best course of action.

Additional resources provided by the author

Free Q&A with lawyers in your area

Avvo DUI email series

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer