In that situation, the only evidence the State of Florida will have on which to prosecute you are the observations of the police officer(s) and statements, if any.
Refusing a breath test is not without consequences. When you obtained your Florida driver's license, you impliedly consented to submit to a lawful breath test should you ever fall under suspicion of DUI. Don't believe me? Read the fine print at the bottom of your Florida driver's license.
If you refuse for the first time, you will lose your license for 1 year. The only way to remedy this is to win your DUI administrative hearing, which will permit the DHSMV to conduct a review of the evidence against you and determine whether a license suspension is appropriate.
If your driver's license has been previously suspended for refusal to submit to a breath test, your driver's license will be suspended for 18 months and you will be charged with a misdemeanor in addition to the DUI charge.
However, if it is your first DUI, it may be in your best interest to refusal all tests, roadside and breath.
A South Florida criminal defense tactic in fighting DUIs is to limit the State's evidence against you. DUIs are not always won in trials but rather through the filing of motions which attack the sufficiency of the State's case.
If you refuse both the roadside tests and the breath test, the State will argue (provided the refusals were lawful) what's called "consciousness of guilt." In the State's eyes (and I should know, I was a Miami-Dade prosecutor once) a person charged with DUI only refuses to submit to roadside tests and a breath test because they are drunk and know that they will fail. As a prosecutor, I had a hard time uttering those words because I know how untrue that statement is.
First of all, people refuse for a variety of reasons. The most common reason for refusal? The accused person doesn't trust the cop.
Now I am not anti-cop, don't get me wrong. We need police. But we need police who are respectful, competent, and honest. Sometimes in a traffic stop situation, an overly aggressive or downright rude cop may turn somebody off. You may think that this guy is out to get you and you may not trust that he will administer the tests properly, or more so, will judge your performance fairly.
Regarding the breath test, the same rationale applies. If you have had a particularly unpleasant experience with the police up to the point where you are asked to take the breath test, you may feel as if the cops are out to get you. You may not trust them to administer the test properly. Also, you may not have faith that the breath test machine is working properly. If the machine is not working properly, your results will not be accurate.
By refusing both tests, yes, you will have to defend against the accusation that you knew you were drunk and refused for that reason. The State will say that you knew your driver's license would be suspended but you refused anyway. However, that is only an argument. It is not tangible evidence. A breath test reading is tangible evidence. An believe me, a high breath reading is more likely to hurt you than a refusal.
On a double refusal, the evidence will be as follows: observations regarding your driving pattern, your physical appearance, your statements, and that's it.
The case will hinge entirely on officer testimony. In this day and age will all of the police corruption out there, officer testimony ain't what it used to be. Especially in Miami-Dade and Broward where a good number of citizens come from countries where police officers are crooked and have absolute power. I notice these jury pools to be particularly skeptical when it comes to officers as witnesses.
If the case is a double refusal, it is also much easier to get a breakdown to reckless driving. The State understands how difficult it is to prove a double refusal DUI.
If you have questions regarding your DUI case, please call me today.