Do I take the breath test or not? – A practical approach by DUI Defense Attorney Christopher J. O’Toole
This is a tough question. There is no bright line answer. Let’s examine the options.
If you have a Florida license, you have already agreed to take the breath test. When you go to the driver’s license bureau to take your driving test, then take your picture, you are asked to sign a form. Nobody really reads the form and we just sign it.
If you knew what you were signing, you probably would not sign it. What it states is that driving is a privilege in Florida. By accepting this privilege, you are agreeing to take a breath test if asked by a police officer if they have probable cause to believe you are impaired while driving. If you do not take the breath test, your driving privileges will be suspended for 1 year for your first refusal and 1 ½ years for your second refusal.
This is basically a contract between you and the State of Florida. By not taking the breath test, you have breached the contract. The State of Florida is then allowed to take back the privilege that they gave you. That is, they will take back the license for 1 year.
But, what if you take the breath test and blow under the legal limit? The good news is that nothing will happen to your driver’s license. Well, nothing…unless the State Attorney’s Office picks up the charges and you are eventually found guilty based upon impairment. This scenario is quite possible. However, it is discussed in another article.
What if you take the breath test and blow over the legal limit? In this case, you will still lose your privilege to drive. However, it will be for 6 months instead of 1 year. Even if it is not your first DUI.
So, do you blow or not? Let’s look at another consideration. If it is your first DUI and you refuse, you will be entitled to a hardship after 90 days. If you blow over the legal limit, you will be entitled to a hardship after 30 days.
Now, one last consideration to examine. You will be punished greater than someone who refused if you take the breath test and blow above .20. That’s right! In the State of Florida, there are enhanced penalties if you blow over .20. Some judges and prosecutors (I am not naming names) will request jail time – even on a first DUI – if you are over .20. The minimum fine is also increased from $250.00 to $500.00 if you are over .20.
The bottom line is this: if you want to give yourself the best shot at winning your DUI case, do not blow. That is, if you can handle the 1 year suspension. Just remember, if it is not your first time refusing, the State can also charge you with an additional crime for refusing the breath test.
If your license is more important to you than winning your DUI case, then certainly take the breath test. Just don’t blow too high - or you might be punished more severely than someone who refused the breath test!