If a person is arrested for a DUI, they may elect not to take a breath or blood alcohol concentration (BAC) test. However, a refusal to do so does have significant negative consequences due to Florida’s implied consent law.
A person who refuses to take a breath or BAC test after they have been legally arrested for a DUI loses their driver’s license for 1 year for a first refusal. This is mandatory. In addition, they may be charged with a criminal misdemeanor for second or subsequent refusals.
The penalties for refusing to take a BAC test are in addition to the standard penalties for a DUI. Again, the penalties for refusal are as follows:
- First Refusal: License suspension for 1 year;
- Second and Subsequent Refusals: License suspension for 18 months and first-degree misdemeanor charges.
Also, refusing to take a breath or BAC test does not stop a person’s prosecution for DUI. The district attorney can still prosecute the person for DUI on the basis of evidence other than the results of chemical tests.
What Is a Breathalyzer Test?
A breathalyzer is a standard breath-testing instrument that can detect whether alcohol is present in a person’s system. Someone suspected of drinking and driving may be asked by law enforcement to take a breathalyzer test. They are instructed to exhale into the mouthpiece of the device.
If ethanol, the intoxicating ingredient in alcohol, is present in the person’s breath, the device detects it through a chemical reaction and changes color from red to green. The apparatus and similar breath testing devices can calibrate the change in color and translate this change to a blood alcohol concentration (BAC) number.
A reading with a BAC of 0.08% or higher is considered lawfully impaired in most of the U.S. without additional proof. However, a person can still be convicted of DUI if they have a BAC of less than 0.08% based on other evidence of alcohol consumption and impaired driving.
Are Breath Tests Accurate?
Police officers across the country often administer breath tests to drivers they pull over on the road because they suspect that the drivers may be intoxicated. For example, an officer may stop a person for speeding and then detect the odor of alcohol and other evidence of possible intoxication.
The breath test calculates the driver’s BAC to gauge their intoxication. However, the results of a breath test may not always give an accurate measure of whether a person is, in fact, intoxicated.
Urine and blood tests are other chemical tests that can give a read on a person’s BAC. While urine and blood tests are typically more reliable than breath tests to show a person’s BAC, they are not as practical to administer during a traffic stop.
Breath tests are generally reliable, although, in a particular situation, they may not provide a reliable reading.
What Are the Issues With Breath Tests?
Because breathalyzer-type devices are not as dependable as other tests, the validity of the outcomes from the breath tests comes into question.
Some of the problems with breath tests include the following:
- The measurement of alcohol levels in the blood versus the measurement of concentrated alcohol in a breath sample is disproportionate, and therefore, results from the breath tests can be inconsistent;
- Machine calibration efforts are often inadequate to ensure accuracy in the performance of the breath test machines;
- Factors, such as the presence of vomit in the mouth or cell phone interference, can affect the BAC reading by raising the figure inaccurately.
What Is a DUI?
The term “DUI refers” to the criminal offense of driving under the influence of alcohol or drugs. In some states, the crime is referred to as “DWI,” which stands for “driving while impaired by alcohol or drugs.” The acronym DWI can also mean driving while intoxicated, also known as drunk driving.
The nuances of a DUI or a DWI may vary from state to state. At the same time, they encompass the same offense: it is unlawful to drive a motor vehicle while impaired by the influence of alcohol or drugs.
What Is Florida’s Implied Consent Law?
When a person drives on public roads and highways, it indicates that they have consented to take a breathalyzer or blood test to detect the presence of alcohol in their system if they are arrested for DUI. A person has the right to consult a local Florida attorney before making their decision about testing. However, this does not relieve the person of the obligation to participate in the testing process.
What Are the Penalties for Refusing to Take a Breath or Blood Test After Being Arrested for DUI?
As noted above, a person is subject to mandatory suspension of their driver’s license suspensions if they are legally arrested for a DUI and refuse to submit to a breath or blood test. Further, they may be charged with a criminal misdemeanor for 2nd or subsequent refusals to test.
The penalties for refusing to take a BAC test are in addition to the standard penalties for a DUI.
The penalties for refusal are as follows:
- First Offense: License suspension for 1 year;
- Second and Subsequent Offenses: License suspension for 18 months and first-degree misdemeanor charge. The misdemeanor charge for the test refusal may be separate from and in addition to a charge for DUI.
What Constitutes a DUI Arrest?
A DUI arrest usually happens after a police officer has effected a DUI traffic stop for a traffic violation. After the stop, the officer witnesses evidence that makes the officer believe they have probable cause to arrest. This is because the driver is under the influence of alcohol or drugs and too impaired to operate a motor vehicle safely.
After the stop has been made, the officer often performs a field sobriety test. At that time, the next stage of the criminal process in a DUI case starts when the officer places the driver under arrest.
When Can an Officer Make a DUI Arrest?
A police officer who has stopped a vehicle for a traffic violation may place the driver under arrest for a DUI when the officer has probable cause to believe that the person is intoxicated and the intoxication has impaired the person’s driving ability.
A police officer may also place a driver under arrest after a traffic stop if the officer has a valid warrant for the person’s arrest issued by a judge or a magistrate.
When Does a Police Officer Have Probable Cause?
If the police officer personally sees or thinks that the driver has committed a crime, the officer may legally arrest that individual. For example, suppose the police officer believes that the driver is driving under the influence because the driver smells like alcohol or the officer notices empty beer bottles in his vehicle. In that case, the officer may arrest the driver based on probable cause that the driver has been driving under the influence.
When Has a Police Officer Made a Lawful Traffic Stop?
An officer has made a lawful stop when the officer has probable cause to believe that a driver has done something that violates the law, e.g., traveling over the speed limit, which leads to the traffic stop.
What Happens After the Officer Makes a DUI Arrest?
After an officer has arrested a driver for DUI, the officer takes the driver either to the hospital, police station, or jail for a required chemical blood or breath test to determine the BAC of the driver. The driver may be subjected to either of two types of chemical tests: a blood test or a breath test. Breath test results are available instantly, while blood tests must be sent to a laboratory for analysis.
The officer then alerts the driver that their license will be suspended in 30 days and will take the license and issue the driver a temporary license that is valid until the suspension goes into effect.
After all the DUI tests have been conducted or refused, the officer books the driver into jail. Depending on the driver’s criminal history and present DUI case, the driver may be released on bail or be released instantly after providing a written promise that they will appear in court on the assigned date. Typically, the driver is held in custody for several hours before being released.
The arresting officer then ends the police report investigation and submits the report to the prosecuting agency. After examining the case, the prosecution either charges the driver for a DUI or declines to charge the driver for a DUI because there is not enough evidence to support a formal charge.
Do I Need a Lawyer for Help With My Implied Consent Issue?
DUI arrests are serious and can have several negative consequences. If you refused a chemical BAC test when arrested, you need to consult with a Florida DUI lawyer immediately. LegalMatch.com can connect you to a lawyer who will help you fight any criminal charges and license suspension and protect your rights.
