Refusing to Take a Breathalyzer was last modified: March 21st, 2018 by Howard Iken

refuse breathalyzer test florida

Refusing to Take a Breathalyzer in Florida – to Blow or Not to Blow

refusing to take a breathalyzer test in floridaA news station in central Florida found that four out of every ten drivers who are stopped for DUI in the state will refuse a breath test. This is despite the fact that if you are lawfully arrested in the state of Florida by a police officer who had reasonable probable cause, under the state’s implied consent laws you must submit to a breath, blood or urine test to determine your BAC—or suffer a penalty. The implied consent law holds that any person who accepts the privilege of driving in the state of Florida has effectively given consent to submit to an approved chemical or physical test. Such tests could include a Breathalyzer test, a blood test, a urine test or field sobriety tests.There is one important caveat to Florida’s implied consent law. In 2011, the Florida Supreme Court held that a person’s driver’s license could not be suspended for refusing to take a Breathalyzer or Intoxilyzer test if the DUI arrest was unlawful. This means if you were stopped without reasonable suspicion, or if your arrest was made without probable cause, then your refusal to blow cannot be used against you to deny your driving privileges.


Otherwise, the penalty for refusing to take a Breathalyzer test in Florida is a mandatory license suspension. At the time of your refusal, the police officer must tell you that if you have a prior license suspension for refusal to blow, the current refusal can bring misdemeanor charges in addition to a second license suspension. For a first offense DUI, refusal to take a Breathalyzer test could result in a one year suspension of your license. A second and third offense will result in an 18-month license suspension. Additional consequences, even jail time, could result from a second or third refusal to blow.


To Blow or Not to Blow in a DUI Stop?


So, the question remains—is it better to refuse to take a breath test and suffer the mandatory license suspension, or should you agree to the breath test, thereby effectively providing evidence against yourself if the results are above the legal limit? In most situations it is not helpful to refuse to take a breath test when arrested for DUI in the state of Florida, even though the consequences for refusal could be milder than those for a DUI conviction.Should you be convicted of DUI in the state of Florida, you face fines, possible jail time, and could even be required to have an ignition interlock device installed on your vehicle. That is the worst case scenario. If your DUI arrest is your first offense, you blow under a .16 percent and meet all additional criteria, you could qualify for the Florida diversion program, which is a significantly lesser sentence than you would receive from refusing the blow. (Refusing to blow makes you ineligible for the diversion program.)


Bruce Przepis on DUI police stops

The pre-trial diversion program would result in a sentence of community service, attendance at DUI school, and possibly taking a program known as the Victim’s Awareness Program. You might also have to pay fines and the cost of the programs, however at the end, your DUI charges would be dropped. Following the dropping of the charges, you could choose to have your record expunged, which would remove the arrest from your record, however this is a separate process and is not automatic. If you submitted to a breath test, your Ayo and Iken attorney could be able to assist you in obtaining a temporary driver’s license while your DUI is pending, or could potentially have your DUI charges reduced to a reckless driving charge, with far fewer adverse consequences.


It is important to know that refusing the test does not guarantee you won’t be convicted of DUI. Absent proof your BAC is .08 percent or above, if you were driving extremely erratically, you could still be convicted of driving under the influence. Further, the state prosecutor is likely to use your refusal to blow against you by arguing you refused because you knew you were guilty of DUI.


A Refusal without Actually Refusing


While it may seem as though “refusal” is a simple matter of saying “no” when the officer asks you to take a Breathalyzer test, in fact, it is somewhat more complicated. There are other ways you can be judged to have refused a Breathalyzer test, including the following:


  • Should you agree to submit to a Breathalyzer test, then be subsequently unable to provide two breath samples of sufficient quantity within the allowed time period, you may be considered to have refused the test.
  • Should you provide two breath samples, which are not within .02 of one another, then refuse a third Breathalyzer test, this action could be considered a refusal.
  • Should you become abusive or argumentative toward the arresting police officer, he or she may count such actions as a refusal.


Can You Be Forced to Take a blood (BAC) Test?


blood test in dui stopWhile in most situations you cannot be forced to take a breath, blood or urine test, the state is allowed to administer a blood test if you are unconscious, even if you have not yet been arrested for DUI. Forced blood draws are also permissible when a person was injured or if you are stopped for the third time for DUI. Brevard and Hillsborough counties permit a blood draw from a person who refuses a breath test, even if they are fully conscious and don’t fall under the laws of the two counties. While a forced blood draw is legal in these two counties, one DUI conviction was overturned, based on such a blood draw. Other Florida courts have ruled taking blood under these circumstances is not a violation of Fifth Amendment rights. It is likely this issue will continue to be battled out by Florida courts. The state does require police officers to obtain a search warrant—barring exigent circumstances—prior to taking a blood sample from an unwilling DUI suspect. Should you find yourself in the unlikely position of being arrested for DUI without being asked to provide breath or blood sample, you can ask to have a test administered.


Problems Associated with the Breathalyzer Test


The science involved in breath analysis includes gas chromatography, infrared spectrophotometry, fuel-cell detection and chemical analysis. The Breathalyzer machine has been in use since 1954. The blood alcohol levels in your system are measured through the amount of ethanol in one exhaled breath. The theory is that the level of ethanol on your breath is the same as that in your system, however this is a flawed theory in many ways. As strange as it sounds, in 2013 the Kentucky Supreme Court was charged with determining whether a burp prior to blowing into a Breathalyzer machine could significantly skewer the results of the test.


In this particular case, it was determined a police officer must observe a suspect for twenty minutes prior to administering a Breathalyzer test—and if the suspect burps during that time, another twenty minutes. Because the Breathalyzer operates under the assumption it is only measuring breath alcohol rather than mouth alcohol—created when a subject burps—the resulting BAC reading can be overly high. Other issues associated with the Breathalyzer test include:


  • The Florida police officer who administers the Breathalyzer test may not have undergone the required training for the machine or have the necessary qualifications.
  • The Breathalyzer machine may not have been properly calibrated or maintained.
  • The machine itself could not have been warmed up sufficiently prior to the test, or the necessary deep lung sample may not have been obtained.
  • roadside breath test for duiThere are questions regarding the assumption of a 2100-to-1 blood to breath ratio. New scientific data indicates this accepted model of alcohol exchange results in a variable of as much as 40 percent, particularly when readings are close to the legal limit.
  • The theory behind the Breathalyzer is that the breath is measured by the Breathalyzer after the suspect exhales 1.5 liters of air. Lung volume, however varies significantly by gender, size and age. A young, healthy male who is over six feet tall could have a lung volume of as much as 6 liters. An elderly woman who is 5 ft. 2 inches could have a lung volume of 1.5 liters. If a respiratory condition or lung disease is present, even lower lung volumes could be present. As you can see, the amount of air exhaled by any given person could vary by a wide margin.
  • Those who smoke may deliver a higher BAC reading, as a result of the nicotine which is absorbed through the airways and bronchial tubes.
  • Those with particularly slow metabolisms may take much longer than normal to absorb alcohol consumed which will result in a higher BAC reading as compared to the actual amount of alcohol in the bloodstream.
  • Although most people have a breath temperature which is close to 35.5 degrees centigrade, the Breathalyzer machine is calibrated to test at 34 degrees centigrade which can result in a higher reading—by as much as 10-20 percent.
  • Dental issues, hyperventilation, severe heartburn, some special diets, diabetes, trauma, fever or eardrum rupture can all result in an unreliable Breathalyzer test.
  • Mouthwash, lip ointment or breath spray can negatively affect Breathalyzer test results.
  • Those who are regularly exposed to gas or vapors can have falsely high Breathalyzer results. This could include those in the painting business, or those exposed to plastics, adhesives or varnish.


Howard Ellzey - Our Team

In addition to the issues associated with all Breathalyzer and Intoxilyzer machines—even those which operate as they are intended to operate—the state of Florida uses older Intoxilyzer testing machines, many of which are ten years old or older. Since the factory warranty on these machines is only 90 days, this raises the question of just how accurate these machines really are. Because of the scientific lack of accuracy associated with Breathalyzer and Intoxilyzer machines, in many cases it could be better for you to take the test, then have us challenge the results based on those inaccuracies.


Obviously there are many factors which can significantly alter the results of a Breathalyzer test, yet these machines continue to be accepted as proof of intoxication. A number of uncontested studies have shown a margin of error as high as 50 percent, when Breathalyzer results are compared with actual blood alcohol content. This means a person accused of driving under the influence who blew at .1 percent could actually have had a BAC anywhere between .05 percent and .15 percent.


Why You Should Always Fight Your Florida DUI Charges


fighting dui charges in floridaMany people fail to fight their DUI charges for a variety of reasons. If you were drinking, you may decide it is less embarrassing, not to mention easier, to just accept your punishment and have it over and done with. Even if you feel you were wrongly charged, you may feel there is no reason to fight, because the state always wins anyhow. It is definitely to your advantage to re-think the issue. According to Florida DMV records from 2011, of the roughly 55,000 DUI tickets issued in the largest Florida counties, less than two-thirds of those received a DUI conviction. This makes it well worth your while to speak to a knowledgeable Ayo and Iken DUI attorney and fight having a DUI conviction on your record which could affect your future for many years to come. A DUI conviction could result in fines, fees, a potential jail sentence, a sentence of community service, a license suspension, the necessity to take educational courses or you could be forced to enroll in a substance abuse prevention program.


You could be required to have an ignition interlock device installed on your vehicle, adding even more expense to your DUI conviction. Following the criminal penalties, you could find your auto insurance rates go up to the point they become unaffordable and the DUI conviction comes up each time you apply for a new job. You will also have to deal with the social stigma which accompanies a DUI conviction. An experienced  DUI attorney will be able to determine whether mistakes were made during your DUI stop and subsequent arrest, and whether the results of your BAC can be challenged.


The laws relating to the Breathalyzer change on a constant basis. All things being equal, there are probably no benefits to refusing to blow when stopped on suspicion of DUI. Whether you choose to blow or refuse the test, the very most important thing you can do following a DUI arrest in the state of Florida is to call a highly experienced Florida DUI attorney.


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