An Analysis of Whether a Person Arrested for DUI Should Take or Refuse the Breath Test

The question more people ask me in my capacity as a Tampa DUI and Criminal Defense Attorney is whether a person should take the breath test if they are stopped for Driving Under the Influence, DUI.   To Blow or Not to Blow, that is the question.  The answer is not an easy one.

There are consequence for refusing to take a breath test or a blood test in the State of Florida:

• Refusing to take a Breath, Blood or Urine test after being arrested for DUI results in an immediate one-year suspension of your driving privilege, assuming it is the first time you are refusing to take the test.  If you have a prior refusal on your record, the suspension is 18 months and you can also be charged with the Crime of Second Refusal, a misdemeanor criminal charge.  If it is your first refusal, you will be eligible to obtain a temporary driving permit or hardship license that will allow you to drive for work and other necessities.  However, if you have a prior refusal on your record, you will not be eligible for a hardship license.  Put another way, if a second refusal suspension sticks, you will not be able to drive for any reason for an 18 month period.
• A Prosecutor will use your refusal to take a breath or blood alcohol test against you at trial in a courtroom.  The prosecutor will jingle a set of car keys in the air, throw them into a conveniently located garbage can and tell the Jury “The Defendant knew he was drunk and would rather lose his driving privilege for one year than to let you know his alcohol level.”  This is a convincing argument.

Given these consequences, you might think you should always take the breath test.  Not so fast, my friend.  Even though the consequences of refusing a breath or blood test are significant, there are other factors that mitigate these consequences, and there are also consequences to taking the breath or blood test.

• First and foremost, a very high alcohol breath test result can make it next to impossible to win your case.  An argument to a Jury that your alcohol level was twice the legal limit is devastating, and extremely difficult to overcome.
• If you take the breath or blood test, everyone will know your alcohol level.  If it is high, a Prosecutor will not want to make a favorable plea offer during the negotiation phase of the case.  Knowing that anyone can look at the file and see the breath test results, the prosecutor will not want to be seen as weak on the enforcement of DUI offenses.
• If your alcohol level is above 0.15, your DUI will be considered to be an Enhanced DUI.  This means the minimum fine will increase from $500 to $1,000, and that you will be required to install an ignition interlock device on your vehicle for a minimum of 6 months.  These enhancements are greater if you have a prior DUI conviction.  If you refuse the breath test, the State Attorney generally has no way to prove your alcohol level is above .15, so you cannot be charged with an enhanced DUI.
• If you take the breath test and your alcohol level is above .08, you will lose your privilege to drive for 6 months anyway.  No one is going to tell you this during the investigation.  Refusing the test will only cost you an additional 6 months of suspension if your level is going to be above the legal level of .08.
• If you have never been arrested for or charged with a DUI, the 6 month or 12 month suspension will not mean you are not able to drive.  You will be eligible to obtain a temporary driving permit to drive for necessities during the length of the suspension.  This option is not available to someone that has been previously arrested for or charged with DUI.  Keep in mind that you will have only 10 days to make this election after your arrest.  Accordingly, you should call me at your earliest convenience to discuss how to handle the suspension.

Has your opinion changed yet? There are 3 very important factors you must consider when deciding whether To Blow or Not to Blow.

• How much have you had to drink?
• Is this the first time you have been arrested or charged with a DUI?
• Do you have a prior breath, blood or urine test refusal?

General Rules:

• If you have never refused to take a breath, blood or urine test and you have had a lot to drink, you should not submit to a breath or blood test.
• If you have a prior refusal and you cannot go 18 months without driving, you should strongly consider taking the breath test to avoid the 18 month suspension.  However, if your alcohol level is high, you will likely lose the Criminal DUI case.
• In all circumstances if you have not had very much to drink, perhaps 2 beers, you should take the breath or blood test.  It will prove you are under the legal limit.
• If you have no chemical or controlled substances in your system, like cannabis, cocaine, anti-depressants, opiats, and the like, and you are asked to take a urine test, take the test.

These are some general guidelines, but the answer to the question is not absolute and is almost never an easy consideration.

My best advice to someone that is going to be drinking alcohol and driving is to plan ahead.  Don’t drink and drive.  There really is no excuse these days.  With Uber and Lyft available to take you home, it does not make sense to jeopardize your freedom and your driving privilege for $10 to $20.  If you are like me, you don’t want to leave your car in the parking lot of a bar or in Ybor City.  That is why you should take Uber or Lyft from your home at the beginning of the night.  This strategy will keep you from making poor judgments later when you have had too much to drink.

If you or someone you know has been arrested or charged with DUI in the Tampa Bay Area, you should call my office to obtain legal advice and representation that has been tested over the years.  It might surprise you to know that many DUI criminal charges are reduced to Reckless Driving.  It takes a good lawyer to be able to review your case to find the legal flaws in the case.  Sometimes there are no flaws in the case, but a good lawyer can present your case to the Assistant State Attorney handling the case, and convince the Assistant State Attorney that the charge should be reduced.

Anthony S. Arena is a former Prosecutor and has been practicing law in the Tampa Bay area for over 30 years.  Anthony has handled many DUI cases in Hillsborough County, Pinellas County, Dade City and in the surrounding areas.  Anthony’s relationship with Assistant State Attorneys in these jurisdictions can help you if there is an issue that needs attention or if you need the hair to be split in your direction.

Let my experience work for you.  If you have any questions about this blog, please let me know in the comments or call or email my office.

Arena Law Firm, P.A.