"Should I Refuse?" – New Florida Laws Change My Answer

Over my 30 years of criminal law practice I have frequently been asked the following question, “If I get stopped for DUI, should I agree to take the breath test or should I refuse?”

My first answer was usually, “It depends.”

It depends on how much you think you had to drink, how much you really had to drink, how much time elapsed since your last drink and whether you can remember all of that with police lights flashing in your face at 2 a.m.

Changes in Florida law, effective July 1, 2013 made me rethink my equivocal answer. Now, for a first DUI arrest, the truth is that you might be better off refusing to take the breath test—understanding, however, that a second refusal is a crime.

The Main Reason for Refusing Has Been Eliminated

Florida law eliminated the primary justification for refusing to take the breathalyzer test. Prior to July 1, 2013 a refusal to submit to a breath test could result in a year suspension and a mandatory no permit period of 90 days. Under the current law, however, it doesn’t matter whether you take the breath test or whether you refuse; you will still be eligible to request a business purposes reinstatement, provided you apply within 10 days of the DUI arrest.

Florida’s Breath Testing Machines are No Longer State-of-the-Art

Florida’s Intoxilyzer 8000 machines went on the line over 7 years ago. Since these machines age, the odds of inaccurate and unreliable results increases. When put into service the machine costs over $5,000 and they need repair more frequently and the repairs become more expensive.

Florida’s Budget Cuts May Result In Broken Breath Testing Machines

Recent state budget cuts at FDLE reduced the number of Departmental Inspectors in the field. The FDLE used to require Departmental Inspectors to visit Miami at least once a year for annual inspections. They were responsible for inspecting the site where the breath testing machines were located. This was done in an effort to ensure that the machines were working properly and that FDLE rules were being followed. Now, the breath testing machines in Miami-Dade County are now carted-up and sent to Tallahassee for the inspections.

Enhanced Penalties for a Breath Test Over .15

Florida law provides for several enhanced penalties if you blow over a .15, but no additional penalties for a first refusal. In fact, the fine is double for a “high blow DUI” as opposed to a DUI refusal. You will also be required to have the ignition interlock device installed in your vehicle for at least 6 months if you blow over the .15, but not for a refusal.

Evidence Gathering

If you’re stopped by the police and you remember some wise advice, you put the police and prosecutors at a disadvantage. If you don’t make any statements or admissions, refuse the roadside tests and refuse the breath test, the state has very little evidence to use against you in court. They are simply left with a driving pattern (if any) and physical observations by the officer of you and your demeanor. That’s it. When you take a breath test, you add another arrow to the quiver of the state.

For over 30 years and over 3,000 cases defended, I have been representing otherwise good people who have been arrested for DUI and other serious crimes. Call my firm to find out more about how I can help you.