South Florida Criminal Attorney
Free Case Evaluation

DUI: Refusing The Breath Test

Previous posts have discussed breath-alcohol testing, and the inherent problems with the Intoxilyzer 800, the breath test machine used by law enforcement agencies all throughout Florida. However, as you may or may not know, you have the option of refusing to submit to a breath, blood, or urine test if you are being investigated for a DUI.
People refuse the breath test for many reasons. The first reason is that they don't trust the police officers administering the test. Miami-Dade County has some excellent, well-trained DUI officers, who treat all those under suspicion of DUI with integrity and respect. However, there are some officers who are mean, unprofessional, and sometimes abusive. If you encounter a police officer who doesn't treat you with respect, you may not want to submit to a breath test.
A refusal of the breath test is not a crime if it if your first time refusing to submit to a breath test. If you have previously refused (from a prior DUI arrest) and your driver's license was suspended for that refusal, then a subsequent, or second refusal, will cause you to be charged with a crime. This crime is known as "second subsequent refusal," and is a misdemeanor of the first-degree, punishable by a maximum of 364 days in jail.
As a Miami-Dade County DUI attorney and a Broward DUI attorney (I practice in both counties), I must warn you of two things: 1) a DUI refusal is admissible in court against you; and 2) a DUI refusal has penalties.
A DUI refusal is admissible in court against you. The prosecutor is allowed to argue what's known as "consciousness of guilt" to the jury. This means that the prosecutor can claim that you refused a breath test because you were drunk and knew it. The prosecutor can also introduce the fact that you were informed that your driver's license would be suspended for a period of one year if you refused. Yet you still decided not to take the test.
I am a former Miami-Dade Assistant State Attorney. I know these things. It may sound unfair but it's the law. If you refuse, it will be used against you.
Additionally, as I just mentioned, if you refuse a breath test, your driver's license will be suspended for one year. That is why it is so important to hire a DUI lawyer within ten days of your arrest so that the DUI lawyer can set a DUI administrative hearing in an effort to preserve your driving privilege.
However, the benefit to refusing a breath test is that there is no conclusive evidence of your blood-alcohol level. Officer observations (which almost always include flushed face, odor of alcohol, bloodshot, watery eyes, and slurred speech), performance on roadside tests (field sobriety exercises), and statements made may not be enough to convict you. However, a breath test reading is not necessary for the State of Florida to prosecute you for DUI. The State may proceed with or without a blood-alcohol reading or .08.
DUI is a serious crime with serious penalties. The penalties for a first DUI are harsh, and they only get worse. Second DUIs, third DUIs, and felony DUIs (DUI manslaughter, DUI with great bodily harm) can lead to significant jail or even prison time.
If charged with a DUI, call a Miami or Broward DUI lawyer as soon as you are able to get to a phone. I practice DUI law in both of those counties and would be happy to assist you with your case. Please contact me today.