When someone first learns that I am an Orlando criminal attorney who has handled many DUI cases both as a prosecutor and as a defense attorney, they often have many questions, such as: “if I’m pulled over, should I take the breath test?”
There is no simple answer to this question. However, you should know that many people believe that the machines are not accurate and could lead to a false high result – causing them not to want to place their fate in such a gadget. As a general rule, a person should not give evidence that may be used against them. Therefore, refusing to take the breath test may be prudent, unless the person is sure that they can rely on the machine to show that they have no alcohol in their system. However, even if a person chooses to take a breath test, the results may be thrown out by the court (due to deficiencies in the approval, maintenance, calibration, or implementation of the machine), which makes it harder for the government to get a conviction.
The choice of whether to take a breath test also has legal consequences. If a person takes the breath test and has a .08 result or higher, the result will be used as presumptive evidence of impairment at trial (unless suppressed) and the person’s driver license immediately suspended for 6 months. If a person refuses the breath test, the refusal may be used against them in court and their license immediately suspended for 12 months, if it is the first refusal. A second refusal is charged as a separate misdemeanor and causes an immediate 18 month driver license suspension. Furthermore, Florida recently enacted new laws adding stiffer penalties for people who are convicted of a DUI with a breath test result of .15 or higher.
If a person’s driver license is suspended because of being over a .08 or refusing the breath test, that person’s attorney may challenge the suspension by requesting a hearing within 10 days. A good attorney can not only fight to win a person’s license back, but can also assert legal challenges in court that may lead to a DUI charge being thrown out or reduced. The most important piece of information to remember is that if a person is charged with a DUI, getting a skilled attorney is the best way to protect and assert their rights.