I am often asked at cocktail parties, social gatherings, and at other events where non-lawyers congregate, “So, should I blow or not blow?” Every time I try to give a straight answer, and every time I fall back on the best answer to every legal question—“It depends.” Invariably, this answer is met with a corny or degrading joke about lawyers, to which I forcefully laugh, finish my watered-down drink, and quickly change the subject. Elaborating on the merits of submitting to a breath test may not be great happy hour conversation, but it is a good blog topic. So, here we go.
To answer this question fully, you must understand what happens if you don’t blow.
Because driving is considered a privilege as opposed to a right, Florida citizens are extended the privilege to drive in exchange for the promise to submit to a breath test after an arrest for DUI.
If you refuse, and have never refused in the past, the DMV will suspend your license for one year. A person accused of DUI who has refused a breath test for the first time may be eligible for a hardship license after 90 days and upon proof of enrollment in the Alcohol Education Safety Class. While your license will be suspended for a year, a hardship license will allow you to drive for business purposes only.
However, refusing to blow a second time has more serious consequences. Foremost, the failure to submit to a breath test on a second occasion is a separate crime. This crime is a first degree misdemeanor punishable by up to a year in jail and a $1,000 fine. Also, you will not be eligible for a hardship license and your license will be suspended for 18 months.
In making the decision to blow, you need to be honest with yourself about how much you have had to drink, whether you have refused in the past, and whether you can withstand a license revocation.
The penalties for refusing are proportionally higher than submitting to a breath test. For instance, a first time DUI offender who submits to a breath test and blows .08 or higher will lose the privilege to drive for six months. However, a first time DUI defendant who submits to a breath test may receive a hardship upon request and enrollment in the Alcohol Safety Education Class.
A DUI offender who has had two DUIs within a five-year period will not face as harsh license consequences as long as there is a submission to a breath test. While a second DUI within five years will be subject to a five-year driver’s license suspension, submission to a breath test will allow this offender to receive a hardship license after one year. A refusal under the same scenario will result in no hardship, meaning no driving whatsoever for 18 months. To blow or not to blow—potential driving privilege ramifications should be considering before submitting to a breath test.
To make an informed decision about whether to blow, you should have a basic understanding of how the breath test machine works. In Florida, we use the intoxilyzer breath test machine. This machine shoots infrared light through your breath sample. If there is alcohol in the sample, the infrared light will be absorbed by the alcohol in your breath sample. The rate of infrared absorption will dictate your blood alcohol level.
Florida criminal defense lawyers have litigated the reliability and legitimacy of the intoxilyzer machine itself, but since we are still using it, those broad sweeping arguments have obviously failed. However, body composition, food intake, length of time between driving and submission of a sample, as well as the presence of mouth wash or alcohol remnant in the mouth are all factors that can affect whether the intoxilyzer is painting a true picture of a person’s impairment.
In addition to personal factors that can affect the subjective reliability of how a breath test demonstrates impairment, there are dozens of technical requirements that must be met in order for a breath test sample to be admissible in court. The most basic of all is whether the breath test machine is working properly.
As a person faced with the game time decision of whether to blow, you will not be able to inspect the machine—but your lawyer can investigate this at a later date. Every breath test machine in the state is inspected monthly by the operating agency and on a yearly basis by the Florida Department of Law Enforcement. If a machine has failed an inspection or shown irregularities in testing, a good DUI lawyer will understand how to properly move to exclude the breath test from admission at trial or make compelling arguments against reliability at trial.
In addition to the meeting the requirements of state-mandated testing, a breath test must be conducted by a properly state-licensed Breath Test Operator, and be conducted after a 20 minute observation period wherein you have not consumed or ingested anything. Because of the many technicalities associated with the breath test process, keep in mind that if you chose to refuse, you can help make your life and your lawyer’s job a little easier by providing a simple “No”. Less is more. If you think that slurring to the officer, “Well, my lawyer told me not to blow because the machine is unreliable,” helps your case, you are wrong! The lack of a breath sample certainly gives the State arguments as to the reason for your refusal, but it can also open the door to arguing the reliability of a sample, or mistrust of the breath test machine or the officer.
Defending a criminal case is like a chess match. Don’t help your opponent by shouting out your moves in advance. Certainly, the best advice is to never put yourself in a situation where you are forced to make the decision of whether to blow. Regardless of whether you chose to blow, when the request for a breath sample is made, you are already under arrest. You should not make the decision to blow because you believe your “right to refuse” will set you free or that you are anticipating or setting up a legal argument.
On the roadside, if you are faced with such a decision, you should understand the ramifications of a refusal on your driver’s license, understand that your body absorbs alcohol faster on an empty stomach as opposed to one filled with pizza, and that guzzling mouth wash as the officer approaches your car will not help your blood shot eyes. Refusing a breath test can have serious consequences on your liberty and your ability to drive. The criminal defense team at Delgado & Romanik is well equipped to fight your suspension with the DMV and in the courtroom. Call us 24/7 at 386-222-6677.