Written by attorney Jason Kristian Scott Porter

Refusing a Breathalyzer Test

Breathalyzers capture a person’s breath, measure the breath alcohol content and convert to BAC. According to recent news reports, “Four out of 10 drivers stopped for DUI in Florida refuse breathalyzers." This statistic is surprising considering that the following statement is printed on Florida driver’s licenses, “Operator of a motor vehicle constitutes consent to any sobriety test required by law." In two Florida counties, drawing blood was conducted after DUI suspects refused breathalyzer tests. However, currently, blood draws are only allowed after someone has been hurt or after a DUI suspect has been stopped for at least the third time.

The topic, “Under what condition should you refuse a breathalyzer," has created a lot of disagreement. In some instances, if your BAC level is .16 or higher it could be advantageous for you to refuse the test as you will avoid jail time, counseling, yellow plates and higher fines. Conversely, if your BAC level is .08, it is a good idea to take a breathalyzer test, because then you won’t have to face a year long license suspension (like you do when you refuse to take a breathalyzer test).

Many people have said that if you don’t take the breathalyzer test than they can’t convict you, but this is not true. In Florida, a refusal to take the breath test is an admission of guilt. What constitutes a refusal to submit to a breath test?

  • If you become argumentative to the arresting officer
  • If you fail to blow enough air into the machine to register a reading
  • If you blow into the machine once, but fail to a second time
  • If you refuse to answer either “yes" or “no" to an arresting officer’s request that you submit to a breathalyzer test

In many cases it is not advantageous to refuse a test, because in two of Florida’s counties (Orange and Osceola) you could be admitted into the pretrial diversion program, upon conviction, if it is your first DUI offense and you blew under .16. After completing a pretrial diversion program, the state drops all charges against you.

Before exercising your freedom to not take a breathalyzer test, keep in mind these important considerations:

  • In Florida, you will lose your license for one year if you refuse a breathalyzer
  • For a second or subsequent refusal, your license will be suspended for 18 months and you could face jail time and be convicted of a misdemeanor
  • Because the state does not have to prove that your BAC was over .08%, you can be convicted of a DUI even if you refused a breathalyzer

Florida considers it a separate crime if you refuse a breathalyzer test more than once. Under Florida Statute Section 316.1939, a subsequent refusal to submit to DUI testing can result in a first degree felony, a $1,000 fine and 12 months in county jail. As you can see, there are many complex laws and factors that surround refusing a breathalyzer test. If you have already refused to take a breathalyzer test, this could be used against you in court- seek legal representation immediately!

Additional resources provided by the author

The law office of Jason K.S. Porter is a DUI defense firm based in Jacksonville, Florida. The firm has achieved an AV® Preeminent™ rating from Martindale-Hubbell® for legal excellence and has experience handling a wide range of cases from boating under the influence to commercial DUI to DUI with manslaughter to leaving the scene of an accident to multiple DUI. The firm offers a free initial consultation and has more than 30 years of legal experience to offer its clients. If you have been charged with a DUI, contact the firm today!

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