To blow or not to blow: That
is a tough question. Unlike last week in
part 2 when you learned that other than for entertainment purposes with your
friends, there is no real benefit to performing field sobriety exercises,
deciding whether or not to provide a breath sample can be tricky. Hopefully
after reading this blog you will have the information necessary to make
the right choice if you are ever arrested for
DUI and forced to decide.
I recently defended 2 particular clients against DUI charges; one in St.
Johns County who refused, and one in Duval County who blew. Given the
other facts of their cases, if they had made the opposite choice their
cases would have likely never been filed or easily reduced or dismissed.
K.D. refused to provide a breath sample after being arrested for DUI.
The problem with her refusal was that she had credible witnesses who corroborated
her statement that she only had 2 drinks while out with friends. But because
she had an open container of alcohol in her car and performed very poorly
on the field sobriety exercises the prosecutor felt confident in their
case. Had K.D. blown, she would likely have been well below the legal
limit and charges may not have been filed against her.
C.A., on the other hand, blew a .12 and was promptly charged with DUI.
The problem with him blowing was that his stop and field sobriety exercises
were on video. He looked great on the video, listening attentively, cooperating
with the Florida Highway Patrol Officer, and performing very steadily.
Had he not blown, the prosecutor admitted to me she would not have filed the case.
As with K.D. and C.A., the importance of having a good idea of how much
you have had to drink can not only save your life, but can also help your
criminal defense attorney if you find yourself charged with DUI. There
are many factors that go into the rate at which your breath alcohol content
(BAC) raises as you drink alcohol, including:
- the concentration of the drink
- the quantity of the drink
- your size
- whether or not you have food in your stomach
As a general rule of thumb, if you only drink one standard drink (shot,
beer, glass of wine) per hour most people will remain under the legal
limit of .08. Even though a breath test result above a .08 can be detrimental
to the criminal case, there are other consequences of refusing that warrant
The Penalties for Refusing to Blow
FACT: Driving is a privilege, not a right. As such, by accepting a Florida
driver’s license you agree to provide a breath sample if you are
ever arrested for DUI. This doesn’t mean you must, but it does mean
your privilege to drive can be suspended if you don’t.
Refusing to do the breath test for the first time will result in your license
being suspended for one year. If you refuse a second or more times the
suspension is for 18 months. In addition, if you refuse a second or more
times you can actually be charged with an additional misdemeanor crime
pursuant to Florida Statute 316.1939. Even worse, if the person holds
a commercial driver’s license (CDL) their privilege to operate a
commercial motor vehicle will be permanently revoked for a second refusal.
The Implications of Refusing or Accepting a Breath Test
With such harsh, potentially career ending, penalties for refusing to blow,
why would anyone ever do so? Simple, the single most powerful item of
evidence in most Driving Under the Influence (DUI) investigations and
cases is the Breath Test result. To prove a DUI in Florida the State needs
to prove that a person was driving or in actual physical control of a
motor vehicle while they were either under the influence of alcohol or
drugs to the extent their normal faculties were impaired, or while they
had a BAC of .08 or higher. In most DUI cases whether a person is driving
or actual physical control of a vehicle is not at issue. The issue typically
is whether the person was impaired or had an unlawful BAC. If a person
gives a breath sample below a .08 it is often a very powerful piece of
evidence for the defense that could result in the charge being reduced,
or in some cases even dismissed, depending on the facts of the case. However,
it is important to realize that even if a person agrees to a breath test
and blows below a .08 they still may be found guilty of DUI if a jury
believes beyond a reasonable doubt that their normal faculties were still
last week’s blog on field sobriety exercises for how a jury could believe this.
On the other end of the spectrum, if you blow above a .15, you will face
enhanced penalties in your DUI. Specifically, if you are convicted and
the high blow is found true, the court fines will increase and you will
be required to install an ignition interlock device on your vehicle. This
is basically a breath test device you must blow into to start your car.
You must also blow into it intermittently while driving to ensure you
aren’t consuming alcohol on the go. Aside from the stigma of having
an interlock device in your car, the equipment is very expensive to have
installed and maintained.
Took the breath test? Contact our defense attorneys.
If you do decide to provide a breath sample and are over the legal limit
there still may be a defense to the DUI charge. There are many legal protocols
that must be followed for the breath result to be valid. For instance:
- the officer administering the test must be certified
- the machine must have the requisite maintenance and calibration logs up to date
- you must have been observed for 20 minutes prior to providing the sample
As an experienced DUI Defense attorney I know what to look for, and that
can mean the difference between the blow result being used against you
or getting it suppressed.
Ultimately the decisions whether or not to do field sobriety exercises
or provide a breath sample are not ones you ever want to face. I hope
this DUI blog has been informative and will aid you in those decisions
if you do. When in doubt, refuse to perform field sobriety exercises,
use the 1 drink per hour rule of thumb to decide on the breath test, make
no statements to law enforcement and
contact the Albaugh Law Firm at your first opportunity.