DUI: The Breathalyzer Question
Should I take the breathalyzer test if stopped as a suspect in a DUI case?
In Florida, they teach us at advanced criminal law seminars never to give a “stock” answer. The reason is because a lawyer must know the answer to a lot of questions that are particular to that person’s arrest. For example, how many alcohol drinks did you have? When did you last eat and drink? How much do you weigh? Have you ever refused a breath test previously? How did you do in performing the “roadside” tests, such as walking the line and touching your nose? Have you admitted to the police you were drinking or that you were impaired? Do you have any medical conditions that might affect the alcohol test results or the ability to do roadside tests? Did you have an open container of alcohol in your car or any illegal drugs they found?
However, generally speaking, if you are confident you will pass the breath test by making a score below the legal limit of .08, you would be well off to take the test. This gives your lawyer substantial bargaining power to get the charges reduced or potentially dismissed. There is also a Pre-Trial Diversion program available in some counties which would allow you to avoid a DUI trial entirely.
However, if one takes the breath test and makes a very high score of .15 or above, the mandatory punishments are more severe and include a required breath machine in the vehicle you operate, even for a first DUI. If you refuse the breath test and have a prior refusal, this second refusal is a separate crime under Florida law and your administrative driver’s license suspension will be longer.
Another important thing to know, in Florida, the Court cannot withhold adjudication in a DUI case. With every first DUI conviction, there are numerous mandatory sanctions, including Court costs, the immobilization (booting) for 10 days of the vehicle driven, a mandatory DUI class and a Victim’s Advocate class. A second DUI within 5 years requires a mandatory jail sentence of at least 10 days.
The best advice: Let someone else drive anytime you may be impaired and enjoy the ride home. If you chose not to follow our best advice, contact an experienced criminal lawyer at DSK Law or another reputable firm if you are arrested. In many jurisdictions today, the police will have video of your arrest, roadside tests and the breath tests. An experienced lawyer can help interpret the results and provide you with the best possible defense.
For further statutory information, see: §§316.193; 316.1934 and 322.2715, Florida Statutes (2019).