If You Refuse to be Tested on the Blood, Breath, or Urine Tests, Will You Lose Your License?

Chemical tests go hand-in-hand with DUI charges. Blood, breath, and urine tests are often the cornerstone of the case against an individual arrested for drunk driving. Because of the significance of these tests, it can be tempting to refuse when asked to take one by a police office. After all, if they don’t have concrete evidence against you, they certainly can’t arrest you, right?

Unfortunately, it is not always so black and white. Refusing to take a chemical test has serious consequences and doesn’t guarantee that you will avoid DUI charges. Before you refuse an officer’s request, it is important to first understand your rights.

The Basics of Florida’s Implied Consent Law

In Florida, there is something called the implied consent law. This law states that if you are lawfully arrested by a police officer who has probable cause to believe you have been drinking and driving, then you consent to taking a chemical test – blood, breath, or urine. The officer can require you to take more than one test and you must consent to each request, except in the case of a blood test where other pre-conditions are in play.

This law also imposes penalties on those who refuse to comply. The penalty for refusing to take a chemical test is based on your criminal record and the circumstances of your arrest. According to state law, the penalties for refusing to take the test are:

• First offense: one year license suspension
• Second offense:18 month license suspension
• Third offense: 18 month license suspension

Second and any subsequent refusals can also invoke jail time and possible fines. While the consequences for refusing to take a chemical test are certainly lighter than those for a DUI, they can still be permanently damaging. Additionally, just because you didn’t take the test does not mean you’re off the hook for a conviction.

In short, whether you are facing the penalties for a chemical test refusal or are at risk of a DUI conviction, you need an experienced DUI attorney on your side. Accused individuals turn to my firm because they trust my legal background and unmatched devotion to their case. With 30 years of experience behind me, no charges are too complex for me to handle.

Fight for the outcome you need. Get in touch with my firm in Miami to schedule your free consultation! 

Margin of Error in a Breathalyzer Test

To this day, breathalyzer results are often relied upon as strong and conclusive evidence that an individual is guilty of drunk driving. Unfortunately, it has slowly become more apparent that these results don’t hold the irrefutability some have claimed. Researchers, scientists, and attorneys have spent years analyzing breathalyzer machines to arrive at similar conclusions: things are not as they seem.

Why are breathalyzers so faulty?

It is helpful to first understand how a breathalyzer machine operates. The suspect blows air into a device, which is then supposed to calculate the amount of alcohol in their system. However, the calculations are based on mere averages and therefore not unique to each test-taker.

The breathalyzer determines a person’s blood alcohol content (BAC) by multiplying the content of alcohol in the air by 2,100. This number is used because the “average” person typically has 1/12100^th the amount of alcohol of an equal gallon of blood when they exhale. Clearly, what is average for one person may be far from correct for another.

Studies have shown that breathalyzer results vary at least 15 percent from the actual BAC. This is a significant deviance that officers fail to take into consideration. Compounding this problem is the fact that at least 23 percent of all tested individuals will get results that are higher than their actual BAC!  

There are also numerous factors that can influence a breath test reading, but are often ignored by law enforcement.

Results can be tainted by any of the following:

• Carbonation
• Body type
• Age
• Fat/muscle content
• Alcohol intolerance
• Food consumption

What officers are taking at face value is clearly far from the truth. Many times, tests are administered improperly and the alleged offender suffers as a result. It is imperative that you retain a lawyer who will challenge your breathalyzer results. Simply sitting back and expecting a breath test to work in your favor rarely bodes well for those facing DUI charges.

The sooner you take action, the higher your chances for a favorable outcome. My firm’s Miami DUI lawyer has more than 30 years of experience and has successfully challenged countless breath test results for his clients. 

Schedule your free consultation by calling Attorney Jonathan Blecher today!

Margin of Error in a Blood Test

 Some drivers assume that a blood draw test will prove that they are not driving drunk; however, this can be a false assumption. There is little room to argue that the blood alcohol instrument (Gas Chromatograph) has a significant error, sufficient to create reasonable doubt that the defendant is guilty.

When it comes to testing for blood alcohol concentration (BAC) in a driver’s system, blood testing is a relatively reliable method. Defendants can still attempt to challenge blood test results, but they should have an understanding of the margin of error in a blood test.

One such claim from defendants is that the blood testing instrument measured and reported something other than ethyl alcohol, in effect artificially increasing the reported BAC. Gas chromatography happens to be the method used by most, if not all labs to test alcohol in the blood, and it is a universally accepted separation science.

With this method, an instrument separates the sample in the column, and measures the amount of the substances it tests; each substance comes out of the column at different, yet specific times. Because this method separates volatile substances such as ethyl alcohol and isopropyl alcohol before the analysis, gas chromatography is highly specific and does not allow the interference of other substances.

Gas chromatography has been proven to differentiate other volatile substances from ethyl alcohol, and this validation has been conducted extensively by the scientific community. Further, the lab that conducted the analysis should be able to provide supporting testimony in court.

In an effort to ensure accuracy when testing a defendant’s blood for alcohol, state labs are in the practice of conducting duplicate tests on DUI blood samples. This methodology analyzes a subject’s blood twice by using separate portions of the sample. Additionally, dual columns are often used, thereby testing each portion of a duplicate twice.

In the scientific and legal communities, dual column gas chromatography is considered the “gold standard” for analyzing a defendant’s blood alcohol.

Arrested for DUI? Contact me today!

If you are facing DUI charges in South Florida, know that you do have options! As a Miami DUI defense attorney, I have defended over 3,000 cases since 1982, and I welcome the opportunity to help you, too.

Not only am I a member of the National College for DUI Defense, but I am a former prosecutor. I understand Florida’s DUI laws inside and out and I know which DUI defenses work, and which ones have less chance for success in court.

Contact my office today to schedule your free case evaluation!

The Need of Search Warrants for Blood Samples

It might seem as if the laws are stacked against drivers who might possibly be convicted with a DUI, but there's still hope for them thanks to the 4^th Amendment and its ban on unreasonable searches, especially in regards to blood tests for the purpose of obtaining a BAC reading.

Recently, the Supreme Court ruled against a prosecution's appeal to exempt the requirement of a search warrant in the case of an arresting officer and a DUI driver who would not consent to a blood test. While prosecution argued that the forcible nature of the blood test was necessary in getting dissipating evidence from the offender, justices were steadfast on the law that requires officers to obtain a warrant. And the fact that getting one by phone or computer was a viable option and can be done within a matter of minutes supported the case of the defense even more.

Advantages for DUI Drivers

The Fourth Amendment guards against unreasonable searches and seizures that would invade an individual's privacy and a search warrant along with probable cause is the only way to get around this ban. DUI drivers can utilize their rights according to this amendment when a blood test is being requested of them. If the police officer does not present a search warrant sanctioned by a judge, then they are not required to comply with having their blood drawn.

In addition, this also gives DUI drivers an advantage over any incriminating evidence that might be gathered against them. Even if somehow law enforcement was able to obtain blood sample from the offender and their blood alcohol levels are exceedingly above the limit, this evidence is inadmissible in a court hearing if a search warrant was never issued. This could also result in the case being dismissed.

If the arresting officer follows through with applying for a search warrant, the process can take several minutes or even hours. This allotted delay will give the driver more time for their BAL to dissipate which may or may not put them within the legal BAC limit.

Case by Case Contingency

While this can greatly affect the outcome of several cases in favor of the defense, not all DUI drivers will be able to benefit from the Fourth Amendment. Because according to the Supreme Court, warrantless blood draws can still be a possibility but only on a case by case basis and will rely hugely on the "totality of circumstances". So for now, the privacy of your blood is safe until a search warrant is present; unless of course you just happen to be one of the exceptions to the rule.

Have more questions about your DUI case? Call Attorney Jonathan Blecher, P.A. to discuss your situation during a free case evaluation. Attorney Blecher has been defending DUI cases in Miami for over three decades and has the knowledge you need on your side.

What Happens if I Refuse a Breath Test in Florida?

Any person who gets a Florida driver license consents to submit to a breath, blood or urine test if requested by an officer who has probable cause to believe that they are driving under the influence of alcohol or a controlled or chemical substance. The police officer gets to decide which test they want you to perform.

In Florida, a refusal will result in an immediate suspension of your driving privileges for one year. The DUI ticket will be a temporary license for 10 days and you will have only this same 10 day period to request an appeal of this suspension with the Department of Highway Safety and Motor Vehicles.

The state will attempt to use the refusal to submit as evidence of guilt against you at trial, but there are ways to combat this. For example, some police officers charge a "refusal" if the arrestee is unable to provide the sample, not intentionally refusing, just physically unable. The law requires that a driver submit to the test to the best of his ability.

Often police will confuse the arrestee with the reading of Miranda warnings prior to the breath test request. While an arrestee is not entitled to an attorney before submitting to a breath test, if they are advised that they have a right to not answer any questions and have a lawyer present, that creates confusion and may be grounds to suppress the evidence of refusal.

Sometimes, arrestees will initially refuse yet change their minds a short time later. Police officers will lose patience with this type of situation and will most often write it up as a "refusal". In fact, provided there was no impediment to providing the test, no unreasonable amount of time lapsed and the defendant was constantly being observed, courts have held the arrestee "cured" the refusal.

Forced Blood Tests in DUI Cases

Missouri v. McNeely was decided earlier this year. The Supreme Court of the United States affirmed the judgment of the Missouri Supreme Court holding, that in a DUI investigation, "the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant."

What that means for the average person is that a police officer cannot hold you down while he sticks a needle into your arm to take your blood by force, at least not without a warrant. If the Court ruled differently officers might could have begun routinely taking blood by force if the person refused to submit to a breath test.

The attorney who represented McNeely, Steven Shapiro, offered his opinion:
 "We know from experience that drunk-driving laws can be strictly enforced without abandoning constitutional rights. Today's decision appropriately recognizes what half the states have already demonstrated – that maintaining highway safety does not require sacrificing personal privacy."

I came across a video posted by Justin McShane, a DUI attorney in Harrisburg, Pennsylvania, showing what happens during weekend DUI saturation event when the arresting officer wanted blood.

In Florida, however, police officers cannot get a warrant to take blood after a person suspected of a misdemeanor DUI refuses to submit to breath or urine testing. What does result is the following:

• A "refusal" can be used against the person at trial as consciousness of guilt
• A second refusal can is an additional criminal offense (up to 12 months in jail)
• A one year administrative suspension of driving privileges, even if they are found not guilty at trial. Eighteen months for a second refusal.

 If your blood was drawn without your consent after a DUI arrest, then please contact my office to discuss your case.