To Blow or Not to Blow

To blow or not to blow when you’re stopped on suspicion of driving under the influence is a question I am asked with some frequency. It’s not an easy one to answer. DUI arrests are two-pronged. They involve criminal charges as well as administrative challenges in the form of the DHSMV hearing you’re permitted to schedule within 10 days of your arrest to address the issue of retaining or losing your driver’s license. Taking or refusing a breath test affects both factors.

If you do blow and your BAC is .08 or higher, you could potentially lose your driving privileges for six months at the DHSMV hearing. Florida allows you a special license so you can drive for business or work purposes only, but you can’t request this until you’ve been without your license for a month. That said, you now have to address the repercussions of blowing over in criminal court. In some counties, your breath test results are not admissible as evidence. This takes an important weapon out of the prosecution’s arsenal when trying to convict you. However, in other counties, the results are admissible. If you blew over .08, you may be doomed to a conviction if you took the breath test.

Alternatively, if you do not take the breath test, the DHSMV will not be happy. If you refuse the breathalyzer, you’ll lose your driver’s license for a year. If you ever refused before, that time period extends to 18 months. And you can’t apply for a special license to drive for work purposes for three months. The impact of not taking the breath test can affect your criminal proceedings in one of two ways. On one hand, it makes it more difficult for the prosecutor to prove beyond a reasonable doubt that you were impaired – he’s missing the concrete black-and-white evidence of your reading and will probably have to rely on the testimony of the arresting officer regarding your condition when you were stopped. However, an experienced attorney can often present a good case for why you refused. Maybe you wanted to talk to a lawyer first and couldn’t. Maybe you wanted to take a blood test instead. Maybe you’ve heard that the breathalyzer is often inaccurate and can be affected by other factors besides how much you’ve had to drink. Maybe you didn’t want to risk that. You’d have to testify to convince a jury of this, but if you’re a believable witness, this could work in your favor. By the same token, the law allows the prosecutor to try to convince the jury that you’re fibbing about your reasons. He’ll try to convince them that you refused the breath test because you knew you were intoxicated and that you’d probably blow over. In legal terms, this is called “consciousness of guilt,” and the prosecutor will try to use it against you.

Finally, the issue of whether to blow or not to blow is further complicated if you’ve ever found yourself in this situation before. If you previously declined the option to blow when involved in another DUI matter, and if you do it again, the stakes go up. The state of Florida can charge you with a first degree misdemeanor. This carries a penalty of a year in jail, a year of supervised probation, or a $1,000 fine, and possibly all three.