Refusing a Breathalyzer Test

Answer:

If you’ve been pulled over in Orlando, Florida, and you’re being investigated for driving under the influence, or a DUI, what we tell potential clients is, when they ask about the breathalyzer test – this actually comes up more so when we’ve had other clients – they just generally ask me, “If I ever get pulled over and I’m dealing with a DUI or a DUI investigation, should I do the breathalyzer test?” This is a big question that we get all the time from many different people. The question isn’t really do you have to take the breathalyzer test, the question is should you take the breathalyzer test. We would advise that, in that state of Florida, if you’re being investigated for a DUI and you’re presented with a breathalyzer test, you should take the breathalyzer test as it will cause you more harm by refusing to do it than it will by taking it.

For example, if you refuse to take the breathalyzer test in Florida, that has its own sanctions; that’s its own crime in Florida. What that will result in is two major things that will affect you and your case. First and foremost is it will automatically make you ineligible for any type of DUI diversion program. That is huge if you’re talking about you being a first-time DUI defendant. This could be huge. Maybe the case and the facts are stacked against you, and you would have to take a plea which is in your best interest, or you would have to take diversion, but, unfortunately, you would not be able to because of the refusal to take the breathalyzer test. That is something, in particular if you’re a first-time offender for DUI, that is very critical to do the breathalyzer test and deal with those consequences later. That will allow you to engage in the DUI diversion program if you are otherwise qualifying for that program. Number two, if you refuse to do it, then your license becomes suspended automatically for a year. These two negative consequences come directly from refusing to take the breathalyzer test.

If you do take the breathalyzer test, there are different ways that we can attack that. Once you refuse to take it, though, that’s said and done; you can’t go back and take it. If you do take it, the ways that we can attack it are we can take a look at the way that the test was done. There are certain requirements that the state of Florida mandates, in terms of getting a test that is permissible in the courts of law; there’s certain time limits; there’s certain training that has to be done. All of these things we can attack if the test was done. Oftentimes we can find deficiencies in those that will help defeat or get around that test, but if the test is refuse, unfortunately, we can’t use anything like that to help you, and the prosecutors can actually use the fact that you didn’t take the test against you as well.

I would always advise that if you’re presented with a breathalyzer test to go ahead and take that test, as at the end of the day it will do you more benefit than detriment to take that. If you have any other questions about how a breathalyzer test may affect your DUI case, please contact the Victory Law Firm.