When a driver is accused of DUI, a breath test is almost always requested. Consent to a breath test is implied but it is not mandatory in Florida. If a driver decides not to take a breath test they will face additional exposure to license suspension and in some cases additional criminal charges.
With all the factors to consider is it better to blow or refuse? This is not an easy question and the reality is that it depends on several factors. One factor is obviously the amount of alcohol the driver consumed but another consideration is what the driver is trying to avoid. For some drivers the actual DUI conviction is more damaging and for other drivers the inability to drive may be more damaging. The suspended license and DUI conviction do not necessarily go hand in hand. In Daytona Beach, a DUI conviction does result in a driver’s license suspension, but if steps are taken they will be able to drive to maintain their livelihood just hours after a conviction. On the other hand, if the DUI case is dismissed, the driver could still lose their license as a result of an administrative driver’s license suspension on a first DUI for 6 months with no driving for 30 days for a breath test above .08% or a year with no driving for the first 90 days for a refusal. When a driver is accused of a DUI in Florida they actually face two separate cases. They face the criminal DUI case and an administrative case only dealing with the privilege to drive.
The advantages of taking a breath test include a shorter 6 month administrative driver’s license suspension exposure. The first 30 days with no driving. The legality of the stop, detention and arrest can still be challenged. If those challenges are successful the breath test might not matter. The Intoxilyzer 8000 has a .02% tolerance which means a .08% sample could actually be .06% to .10%. This is easier to challenge when the driver takes a breath test which could be an hour or two after the initial encounter with police. Retrograde extrapolation can be used to show that the breath alcohol (BrAC) content was actually much lower during the stop. One of the disadvantages of submitting to a breath test is that if you have a high BrAC and proper procedures are followed, it will be very difficult to get a reduction or an acquittal. Another disadvantage is on a first DUI with a BrAC over .15% the driver faces an additional $500 fine and will be required to have an interlock device on their vehicle. Prosecutors often stipulate to a BrAC below .15% in first DUI cases. The biggest advantage of the breath test is that a driver will be able to drive after 30 days regardless of how high the BrAC is.
An advantage of a refusal is the prosecutor cannot attach a numerical result to the alleged impairment. A refusal with poor performance on field sobriety exercises does not help. In Florida field sobriety exercises are not mandatory. If a driver decides they are going to refuse a breath test they should also refuse to perform field sobriety exercises. If the officer has a history of arresting drivers under the legal limit this can be used on cross examination in refusal cases. The disadvantage of a refusal is that a driver will face a 12 month administrative license suspension with no driving for the first 90 days. Refusals do not get you sympathy from the prosecutor and can be frowned upon by a jury. A second refusal is a first degree misdemeanor in Florida.
Drinking and driving is serious and the consequences are severe. It is always cheaper to call a cab than to fight a DUI. The decision to submit to a breath test or refuse is unique to the individual involved and the facts of the case. For more information on DUI cases contact Daytona Beach DUI attorney Kevin J. Pitts. Mr. Pitts is the CEO of the Daytona Beach criminal defense firm The Law Offices of Kevin J. Pitts.