Tampa DUI Lawyer on Refusing to Take a Breathalyzer
Shortly after the police officer arrests you for DUI and handcuff’s your hands, he will ask you to submit to a lawful test of your breath, blood or urine. If he smells alcohol on your breath, and you’re not in the hospital, he is referring to a breathalyzer test. He will ask you nicely to take his breathalyzer test. If you decline, he will then inform you that if you fail to submit to the test requested of you, then your privilege to drive will be suspended for one (1) year for a first refusal, or eighteen (18) months if your privilege to drive has previously been suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. He will then ask you to submit to a test again.
What does it mean if you say no?
First, as the officer said, if you refuse, then your license will be suspended for 12 months or 18 months, depending if you have declined to take a breath test before. This administrative suspension comes from the DMV, or the Department of Highway Safety and Motor Vehicles, and has nothing to do with your criminalcharge. If you have never refused to take a breathalyzer or other lawful test before, then you will be eligible for a hardship license in Florida after 90 days. Otherwise, you will be without a license for an entire 18 months.
Second, the refusal has potential ramifications in your criminal case should your fight your DUI charge. You may think that by refusing, you are not giving the State Attorney any evidence of your guilt. That is not correct. By refusing, you are not giving the prosecutor any evidence of what the Breathalyzer machine says your Blood Alcohol content is. So the prosecutor will not be able to argue that you a DUI because your blood alcohol level exceeds .08.
However, the prosecutor could still argue (and he will) to the Jury that your refusal to take the Breath test is evidence of your consciousness of guilt, or your “guilty mind”. In other words, the prosecutor can say that you didn’t blow because you knew that you were driving drunk. The prosecutor can further argue that 1. Driver’s licenses are vital and necessary to people’s everyday lives, and 2. Who would knowingly let their license be suspended for 12 months unless they were trying to hide something?
Fortunately, the prosecutor is limited in how far he takes this argument. For example, the prosecutor cannot go so far as to say that you could have proven you were not guilty simply by taking the test. Any statements that shift the burden of proof from the prosecutor to the defendant is inadmissible in court.
What to do if I did not blow into the breathalyzer test?
It is imperative that your Tampa or Pasco DUI Attorney do three things:
- Try to keep out evidence of the refusal, if possible.
- If the refusal is admissible, then explain or offer reasons to the Jury that refusing to submit to a breathalyzer machine that you know nothing about is a reasonable decision given the circumstances, and
- Keep the State Attorney in check in how he argues the refusal to the Jury.
Your DUI Attorney may be able to keep out evidence of the refusal if the officer did not read the implied consent warnings correctly, if he misstated the law regarding the consequences of the refusal, or if he failed to advice you of the consequences of a refusal entirely. Some courts have suppressed evidence of a refusal when the arresting officer read the implied consent warnings properly but also read Miranda warnings around the same time. This is known as the “confusion doctrine”.
Your Drunken Driving Attorney should be able to explain to the Jury that, in America, every man or woman has the right to tell the Police “no” when they request something, like a Breath Test. Certainly, a reasonable person may choose not to blow into a machine he knows nothing about, in the hopes that it will magically convert the contents of his breath into the results of his blood alcohol level.
At the very least, your lawyer must keep the prosecutors arguments in line with what is permissible by law.
Refusing to submit to a breathalyzer is a perfectly reasonable response to the officer’s post arrest request. After all, you will not be un-arrested, regardless of the result of the test. However, it is important to have an experienced Tampa Bay, Pinellas, or Pasco criminal defense DUI lawyer on your side.
In Tampa: Denmon & Denmon 918 W Kennedy Blvd, Tampa, FL 33606 813-554-3232
