You were arrested. The cuffs were put on.
But you followed your gut and refused to blow into the breath test machine.
However, the arresting officer said that it could be “used against you”. He took your Florida driver license from you because you refused the to do the breath testing in the breathalyzer.
Now you want to know:
- Did you make the right decision?
- What are the consequences of refusing?
- How does your DUI lawyer defend your refusal to blow?
Let’s go over exactly what you need to know about refusing A DUI breathalyzer test in Florida. First, let’s discuss whether you made the right decision by refusing to blow.
Did I Make the Right Decision by Refusing the Breath Test Machine?
Let’s get this out of the way: whether it was the right decision for you to blow into the machine depends on the specific circumstances of your situation.
If the law enforcement officer asked you to blow into the machine, that means there was some indicator in his mind that you were under the influence and alcohol content has affected your ability to drive.
If you blew into the machine and the results came back showing that you did not have any blood alcohol coursing through your veins, then, of course, you made the right call.
But if you blew into the machine and produced a result higher than the legal limit then you voluntarily provided damning evidence to the state attorney who’s prosecuting your case.
So the good news is that if you refused to provide a breath sample the prosecuting attorney cannot have any additional damning evidence to use to prosecute you and put you through license revocation.
Rather, we simply have evidence that
- You were provided with an opportunity to give a breath sample to the cops.
- You were told that failing to blow into the breathalyzer might be used against you in court.
- You exercised your rights and refused to give a breath sample.
The bad news is that it can be inferred potentially that you thought you were under the influence to the extent you were impaired by alcohol and that’s why you chose not to blow.
(Of course, there are any number of reasonable reasons not to blow into the breath test machine that have nothing to do with consciousness of guilt, such as a fear that the machine is bogus science and would give bogus evidence against you).
The other bad news is that a refusal can lead to longer driver’s license suspensions than blowing a result above .08 if your DUI lawyer is unable to invalidate your license administrative suspension.
Frankly, if you thought there was a good chance you would fail the test if you blew into it and you refused, then you did the right thing. A potentially longer driver’s license suspension is not so bad if by refusing to blow into the breath test machine you’ve increased your odds of avoiding a DUI jail time.
Consequences of Refusing to Blow into the Machine
So you made your choice and refused that breath test. Let’s talk about the consequences for refusing to blow into the breathalyzer machine.
First, the officer took your license! Florida believes driving is a privilege, not a right. To have the privilege of driving in Florida, you agree at the time you get your driver’s license that you will submit to a breath test if one is ever asked from you.
So, if you refuse to blow after getting arrested, the cop has every right to take your driver license in Florida. Don’t worry, there are a few methods available to help you get your license back quickly, depending on your circumstances in your case. In every case, we have a chance to appeal the suspension.
The first time you refuse to blow into a breath machine you are facing a possible 12-month suspension. While the Department of Motor Vehicles will often grant restricted “hardship” permits when an individual’s unrestricted license gets suspended, this 12-month suspension includes a 90 day “no mercy” period where you are ineligible for any hardship license.
If you have refused to blow at some point previously in your life and you now do it again your license can be suspended for 18 months. What’s worse, the Department of Motor Vehicles will refuse to consider you for any hardship permit.
Perhaps you have never refused a breath test request, but you do have a couple of DUI convictions in your past.
If you have two DUI convictions in your past and are arrested a third time and you refuse to blow but you never refused before your prior DUI cases, you’re looking at a 12-month suspension. And not, the Department of Motor Vehicle will not consider giving you a hardship permit.
And if this is your third DUI arrest and you have previously refused to give a breath sample at one of those prior DUI arrests, then the Department will suspend you license for a full 18 months. No hardship permits allowed.
The prosecutor is allowed to argue that your refusal is consciousness of your guilty mind. This is the part we can infer that because if you refused you must have known that you were guilty.
Again, while this can be a nice piece of evidence for the prosecutor, there are plenty of reasonable alternatives that we can use in defending you to explain why you refused.
The Worst Consequence for Refusing to Blow Is That It Is A Criminal Charge if You Refused Previously
This gets a little crazy, but if you’ve refused to blow before and you refuse again, the prosecutor can charge you with an additional crime purely for refusing to blow into the machine.
That’s because our lawmakers have created a first-degree misdemeanor charge that consists only of refusing to blow when you have refused before.
You’ll know if you’re dealing with this situation when the law enforcement officer gives you two yellow citations after your arrest: one for the driving under the influence and a second one for the refusal.
Defenses to a Refusal
Now for some good news.
We can often defend your decision to refuse to provide a breath test result. We have quite a few technical and creative defenses that have been successful in helping people in a situation just like yours.
Lack of Compliance with the Implied Consent Statute: if you’re like most people, this concept that you can get in trouble for not doing something with the cops doesn’t sit well. After all, don’t you have a right to remain silent and not incriminate yourself?
Generally speaking, the answer is yes. However, Florida has made it acceptable for there to be penalties associated with refusing a breath test result by specifically creating laws and statutes that do so.
However, the beauty of that is if the officer does not substantially comply with these laws then we may be able to get the refusal tossed out of court.
Looking at the statute, we see that an officer that requests a test must have reason to believe you are either driving or in actual physical control of your car while under the influence of an alcoholic beverage or controlled substance.
Our case law has interpreted this to mean the officer needs to have probable cause that you’re under the influence of alcoholic beverages or controlled substance.
That means, if the officer can’t prove legally that he had probable cause to arrest you at the time he asked for the breath test result and you refused, then your act of refusal could be tossed out of court during the review hearing.
We usually bring this defense as a pretrial motion so that we can go to the judge and specifically argue this one thing. Often, that means you can watch us cross-examine the cop on this issue and you probably don’t even have to say a word.
The officer also needs to read a very specific warning before you blow.
Think back to after your arrest right before the officer asked if you would blow into the breath test instrument.
Did it seem like the officer had to read from a teleprompter, pulling out and reading his request directly from a card in his back pocket?
If he did, then he made a smart move.
That’s because lawyers like us can get refusals tossed out if they use the wrong word or say something the wrong way.
The reading of the language from the statute is usually recorded. In every case, we review the reading of the language to make sure it’s above par. If it’s not above par, that can be grounds for us to defend against the refusal.
“I Was Confused”: The Confusion Doctrine
Did the officer read your Miranda Rights?
Most people are listening out for Miranda warnings and will bring it to their lawyer’s attention if they were not read their rights.
In an interesting twist in Florida DUI refusals, if your Miranda rights were given to you close in time to the implied consent warning, there may be a defense that you refused because you are confused.
See, Miranda is all about the officer informing you that you have a right to an attorney. Technically, this is a right to an attorney before you say anything that might incriminate you.
But then these officers a split second later will often tell you that you do not have a right to an attorney before giving a breath test result.
Technically this is true. Technically, you have a right to an attorney before you speak words that can incriminate you, but not before you blow breath that could incriminate you.
It’s a sixth amendment constitutional thing.
But, this can get…. confusing.
The confusion doctrine states that if you are confused by this Miranda warning mixing with the implied consent warning, then that might be why you refused and the refusal can be tossed out of court.
The Rude Defendant
What if you stuck out your tongue at the officer so he “wrote you up” as a refusal?
Consider the case of Johnson v. Commissioner of Public Safety.
Johnson had blown into the breath test machine a couple of times but never long enough to produce an adequate breath sample.
There was disagreement between Johnson and the cop as to whether Johnson was going to continue to try. Johnson got pissed off and stuck his tongue out at the officer. The officer was angry and considered it the end of the test. The officer wrote up Johnson as a refusal, which led to Johnson’s license being suspended
In this case, the court determined that Johnson hadn’t actually refused. If the officer had not gotten upset that Johnson stuck his tongue out at him, presumably Johnson would have had the opportunity to blow into the machine.
“Weak Lungs” Defense
What about the situation where a driver blows into the test machine but doesn’t blow enough volume from his or her lungs in order to register a result?
What we find is cops are not concerned with why a person has not been able to register a result. Instead, DUI cops will simply chalk it up as a refusal.
The whole point of having penalties for refusing to blow into a breath test machine is because somebody intentionally chose not to.
The weak lungs defense can be used when somebody tried to register a result with the breath test but was unable to comply.
Note however that we have to be creative in presenting this defense. Without question, you can expect an officer to come in and say that the incomplete test was really because the driver was being intentionally uncooperative.
The “Foreign Language” Defense
What if English is not your first language? What if you’re not fluent in language the officer read the implied consent statute to you?
Florida statute requires that the implied consent be read clearly and unequivocally. We have been able to set aside suspensions in refusal suppressed cases where we could show our client was unable to understand the implied consent rules due to a language barrier.
“I Changed My Mind. I Will Take the Test”
An interesting situation arises when a driver initially refuses but then very shortly changes his or her mind and is willing to consent to the test.
In some cases, the arresting officer will be more than willing to comply. In other cases, the arresting officer may be put off by the original refusal and tell the driver that it’s “too late”.
We can provide a defense to a refusal in a situation where the driver has changed their mind quickly and the officer could have taken the test but just didn’t do it. If we succeed on this defense, then your refusal to blow could be thrown out of court.
Head Trauma and Accident Defense
What if there was an accident and in the accident, the driver hit his head and may be suffering from some head trauma?
Head trauma that renders a driver unable to intelligently make a decision as to whether or not to blow into a breath test machine right after an accident is grounds to move for throwing the refusal out of court.
Officer Talks Too Much
The very nature of this implied consent statute that creates the obligation for a driver to blow into the breath test machine is that it is coercive. Don’t blow into the machine and your license will be suspended.
What if the officer can’t shut his mouth and tells you penalties that aren’t even real? Or the officer misstates the law while chatting after the officer has read the implied consent statute?
It can be a defense to the refusal if the officer starts saying things that are not true or that are wrong. In some of these late-night DUIs we hear officers say all sorts of crazy things that can be confusing to a driver.
For example, we’ve had officers tell our clients the length of time for a driver’s license suspension. This incorrect information is a defense to the refusal.
Failure to Provide an Alternative test
Interestingly, if you demand the officer provide you with an opportunity to take a blood test after you refused a DUI breathalyzer in Florida, the officer must comply.
Of course, you’ll have to pay for it, but if you want to go and get a blood test taken immediately after refusing a breath test, the officer needs to allow you to do it.
Officers get tired and lazy. If you have demanded this alternative test and the officer would not allow you to do it, this can be an absolute defense that allows us to suppress the refusal.