Should You Refuse to Take a Breathalyzer Test?

According to Florida Statute 316.1932 any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.” This long, wordy statute is describing the concept of “implied consent.”


Implied consent laws require vehicle drivers to submit to some form of chemical test if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. Often, license sanctions for test refusal are much more harsh than those imposed for DUI test failure. If you refuse, you still end up with a DUI conviction and 12 months for refusing to take the breathalyzer will be added to what will result from your conviction, making the whole situation much worse. In Florida and most other states, a driver's refusal to submit to a breathalyzer test may be used to enhance the penalties imposed if he is eventually convicted for DUI.


Implied consent is used by law enforcement in order to determine whether you are intoxicated or not. It is a misdemeanor of the first degree per Florida Statute 316.1939(e) and you will be fined $1,000 per Florida Statute 775.083(d) in addition to losing your license for a year. When you are arrested for driving under the influence of alcohol, the arresting officer must read you an Implied Consent Notice to make it clear to you that your license will be suspended for a year if you refuse to comply.


Refusing a breathalyzer test has potential ramifications in your criminal case if you fight your DUI charge. By refusing, you are not giving the prosecutor any evidence of what the breathalyzer machine says your blood alcohol content is. Therefore, the prosecutor will not be able to argue that you are guilty of a DUI because your blood alcohol level exceeds .08. However, the prosecutor will be able to argue that your refusal to take the breathalyzer test is evidence of your consciousness of guilt, or your guilty mind (mens rea). In other words, the prosecutor can argue that you didn’t take the breathalyzer test because you knew that you were driving drunk. The prosecutor can further argue that no one would knowingly let his license be suspended for 12 months unless he was trying to hide something. Fortunately, the prosecutor is limited in how far he takes this argument. For example, the prosecutor cannot say that you could have proven you were not guilty simply by taking the test.


If you refuse to take a breathalyzer test when a police officer asks you to do so, the police officer will fill out paperwork, document your refusal, and then transport you to the hospital for a forced evidentiary blood test. You cannot refuse to provide evidence. According to the United States Sentencing Commission, a police officer can legally compel blood as evidence after you refuse to take a breathalyzer test.


It is always wise to hire a lawyer if you have been charged with a DUI and your blood alcohol content exceeded .08. Sometimes police officers make inaccurate statements about your arrest that are motivated by their own prejudices and this can be devastating to the prosecuting attorney’s case against you. Sometimes, the circumstances and conditions under which the exercises were given and what the officer considers “failing” the test may be forms of police misconduct. Sometimes the breathalyzer machine has not been serviced or calibrated, and this could be grounds for suppression. Lastly, sometimes police officers do not show up at your hearing and your case may be thrown out of court.

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