refusing to take a breathalyzer, Refusing to Take a Breathalyzer? Understand Your Rights

Refusing to Take a Breathalyzer? Understand Your Rights

Driving while intoxicated is a danger to both the driver and everyone they encounter on the road. To keep roads safe, officers will stop anyone suspected of intoxicated driving. They may conduct field tests for sobriety or ask you to submit to a breathalyzer test. 

While this test is a common tool for police officers, the breath test is not a foolproof measurement of intoxication, and you may be tempted to refuse the test. For example, in a tense situation like a police traffic stop, you may adamantly refuse to cooperate and refuse to take a breathalyzer test. However, this can have negative outcomes, and it is important to understand your legal duty and the potential outcomes when it comes to refusing to take a breathalyzer. 

If you or a loved one is facing legal consequences for failing or refusing a breathalyzer test, contact criminal defense attorney  Mike G Law. In the meantime, here are the need-to-knows when it comes to refusing to take a breathalyzer and Florida law. 

What Rights do Floridians Have When It Comes to Breathalyzer Testing?

Your driver’s license is more than a piece of plastic identification. It is the personification of certain rights, privileges, and duties granted to you under state law. Taking to the Florida roadways is a privilege, and every driver is expected to drive responsibly. When you violate the law, those rights and privileges can be suspended. 

Under Florida law, operating a motor vehicle and holding a license means you have implicitly given consent to breathalyzer testing if you are suspected of drunk driving. In Florida, driving with a Blood Alcohol Content (BAC) of 0.08% or higher qualifies as legal intoxication. 

While you must submit to the breath test in most situations, you do still retain certain rights when it comes to field sobriety testing. The implied consent, detailed below, only covers state-approved blood tests and breath tests. Other testing, like the walk and turn, horizontal gaze nystagmus, and one leg stand, are not mandatory testing options. You can refuse these without criminal or administrative penalties. 

Given the inherent unreliability of these tests, it is usually in your best interest to exercise your right to refuse these subjective tests. Just know that every action taken during the stop will be used in the event that the matter makes it to court. Refusal to take tests of any kind could possibly be used against you later. 

Now, the same cannot be said for refusing to take a breathalyzer test. That implied consent law is codified in Florida Statutes § 316.1939. The implied consent law is an administrative rule which states that by driving, you agree to submit to state-approved chemical tests when asked to do so by law enforcement. 

Is it Ok to Refuse a Breathalyzer Test? 

Given the implied consent law, refusing to take a breathalyzer is generally not advisable. There are specific, limited exceptions to this. The team at Mike G Law can help determine if an exception applies based on the facts of your case and the law. 

What Happens if I Refuse to Take a Breathalyzer?

Refusing a DUI breath test results in an immediate suspension of your license for 12 months for the first offense. If you refuse again on subsequent occasions, your license will be suspended for 18 months. A second refusal in a separate incident can also result in misdemeanor criminal charges. 

License suspension is purely an administrative penalty. There is a possibility you could have additional criminal penalties, and refusal is not a guaranteed route to avoid a DUI charge. Florida’s prosecutors could still decide to bring criminal DUI charges even without test results. A DUI conviction can be supported by other evidence. 

The best decision at this point would be to retain counsel from experienced defense attorneys in Tampa, FL. With the help of experts like the team at Mike G Law, you may still be able to retain your license. 

Are There Cases Where it is Better to Refuse a Breathalyzer Test than Take One?

In very few situations, an exception to refusal may apply. If the arrest is unlawful, it is better to refuse the test. This exception was upheld in a 2011 Florida Supreme Court decision. The court determined a license could not be suspended for refusing to submit to a sobriety test if the arrest itself was unlawful. 

Unlawful arrests can be hard to identify in the heat of the moment. Generally, if you are stopped without reasonable suspicion or there is no probable cause, the refusal will not be grounds to deny driving privileges. Now, ascertaining if there is probable cause or reasonable suspicion in a rapidly developing situation can be hard to do. It rests on the officer’s determination of the facts and if that is enough to allege probable cause. 

Some people erroneously believe that refusing to take a breathalyzer test will help avoid a DUI conviction. However, even without your exact BAC on record, you could still be charged with a DUI. Other evidence can be admitted, like erratic driving or failed field sobriety tests. Prosecutors may also point to the refusal as evidence you were aware of intoxication at the time. 

Contact Mike G Law For Expert Legal Advice

If you find yourself in legal trouble from refusing to take a breathalyzer test during a suspected DUI stop, you have options. Working with expert defense attorneys is crucial to receive the best outcome for your case. 

At Mike G Law, we bring over 25 years of legal expertise on DUI cases and breathalyzer refusals. If you were arrested after refusing a breathalyzer test, let us help you. Our team can help mitigate the consequences, whether that is administrative license suspension or potential criminal misdemeanor charges. 

Contact us to set up a confidential initial consultation. Our coverage extends to the Tampa area and beyond, including Hillsborough, Hernando, Pinellas, Pasco, and Polk counties. 

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