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! 

Holiday Drinking: More Problems than a Hangover

With Thanksgiving, Christmas and New Year’s coming up we should all be aware of Florida's DUI laws. If you drink, please do so responsibly.

Did you know that it takes very little alcohol to put an average-sized man over a .08? Two martinis will do the trick. And for a woman, two glasses of champagne in an hour is enough to put her over the top. What that can mean is that a lapse in judgment or simply being in the wrong place at the wrong time (DUI roadblock, for example) can earn a set of silver bracelets and a ride to jail for Christmas.

Here are some things you should know:

Florida's administrative suspension laws will affect your driving privileges if you refuse the breath test or blow over a .08. There is also a 10 day time limit for filing an appeal of this suspension. Any conviction for DUI results in a permanent criminal record and can never be sealed or expunged.

There are a number of other consequences that flow from a DUI arrest/conviction such as fines, probation, DUI school, a possible ignition interlock device and guaranteed increased insurance rates.

Do I Take The Breath Test?

Having a .08 BAC you will set in motion an immediate DHSMV suspension of your driving privileges for six months and refusing the test will result in a suspension period of one year. DHSMV will impose an 18 month DUI refusal suspension, with no permit, for a second refusal. It's also important to know that a second refusal can be added as an additional charge punishable by up to one year in county jail.

Defenses to DUI Cases

There are dozens of valid legal defense to any DUI charge. I can determine which of those may be applicable in your case. I have had great success over the years while defending over 3,000 DUI and suspended license cases.

Jonathan Blecher is a former state prosecutor and a criminal defense attorney with offices in the Downtown Dadeland area. He has 31 years of criminal law experience. Contact Jonathan Blecher to schedule an appointment to learn more about any Miami DUI arrest.

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.

Can police charge me with breath test refusal even if I tried to blow?

According to Florida Law, any person who accepts the privilege of operating a motor vehicle consents to submit to an approved chemical test to check for illegal alcohol content or the presence of a controlled substance.  Authorities use a breath or blood test for alcohol and a urine/blood test for drugs.

There is no requirement that the person must submit and register a breath alcohol reading. (Florida Implied Consent Law) This is significant, since the state will attempt to offer evidence of "refusal" at trial, and will be damaging as the state will argue that the refusal constituted consciousness of guilt. As any other evidence, the admissibility of it is judged by the standards of the following: 

• relevancy
• reliability
• accuracy
• probative value

A defendant is not required to submit repeatedly to breath test analysis until he or she provides a satisfactory result or try to urinate in a cup if she honestly can't do it. All that is required is to submit to the best of his or her ability. It's for this reason that many courts across the country that all that is required by law is that the subject submit to the test, not pass or fail it, if in fact the defendant legitimately attempted to take the test and could not do so for medical, physical or mechanical reasons.

Learn more about breath testing regulations by watching a short informative video!

Have questions about your case? Call me. 

If you submitted to a breath test and weren't able to produce a result, then contact my office for a free consultation. I am an experienced DUI attorney in Miami who has defended thousands of people who have been wrongfully accused.