If you’re pulled over on the suspicion of driving under the influence (DUI) in Florida, is refusing breathalyzer testing legal? What happens if you do refuse?
When Will an Officer Ask Me Take a Breathalyzer Test?
An officer can pull you over only if they have probable cause, such as speeding, driving very slowly, driving erratically, or having a lapsed registration or broken taillight. If you’re then arrested for a DUI, the officer will ask you to take a breathalyzer test to determine your blood alcohol content (BAC). The officer may also perform a breathalyzer test on you if you’re incapacitated or unconscious. In both cases, the test is performed for your safety and theirs.
However: If you believe you were illegally or unfairly tested, we advise you to call us right away.
What About My Right to Refuse Testing?
Florida has an “implied consent” rule regarding breathalyzer and other DUI tests. If you refuse to take a breathalyzer test after being arrested for DUI, you’ll suffer the automatic suspension of your driver’s license for one year. The law isn’t as clear about whether you can refuse a test if you haven’t been arrested. However, if you do refuse, the officer may then arrest you for probable cause to force the test. Justifications for probable cause may include but are not limited to:
- Erratic driving.
- Slurred or incoherent speech.
- Bloodshot eyes.
- Lack of coordination, especially during a field sobriety test.
- The smell of alcohol or drugs on your person or in your vehicle.
Just one of the above is insufficient to clear the hurdle of probable cause. Two or more, however, can be.
What Does Implied Consent Mean?
If you’re arrested for a DUI, your consent to taking a chemical test is “implied,” meaning you legally have to agree to it even if you don’t want to. Your only other option is to accept the loss of your license. The police can also ask you to take multiple tests for any reason, including blood and/or urine tests.
Should I Insist on My Rights Anyway?
It depends on whether you’re willing to pay the price. Florida’s DUI laws are harsh. They’re applied even to people who invoke their Fifth Amendment right not to incriminate themselves, or who don’t believe the state has the right to force a test on a private citizen. Whatever your reason for refusal, the police will assume you refused because you were guilty. It’s easiest just to take the test, especially if you’re sober, because the results can help clear you later.
You don’t have to take the test, and the officer can’t force you to. But realize that you’ll almost certainly be punished for refusing breathalyzer testing after a DUI arrest.
What If I’ve Been Punished for Refusing Breathalyzer Tests Before?
The first refusal results in one year’s suspension of your driver’s license. If you refuse a second or third time, you will:
- Be charged with a misdemeanor crime that will stay on your permanent record.
- Lose your license for 18 months.
- Possibly face other charges, even jail time.
Subsequent refusals may result in harsher penalties.
Please note that if you refuse to take a chemical test, you can still be charged with DUI and face a wide array of criminal charges, hefty fines, and other penalties that are much worse than the test refusal penalty — even if you’re sober.
Contact a DUI Lawyer to Learn More About Refusing Breathalyzer Tests
If you’ve been arrested for DUI and lost your license for refusing breathalyzer testing, call The Law Office of A. Sam Jubran at (904) 360-6100, and we’ll help you straighten things out.
If you have been charged with a criminal offense in Alaska, contact Criminal Attorney Anchorage.