To Blow or Not to Blow? That is the Question
Written by Moses & Rooth Attorneys at Law on November 6, 2018
When an officer pulls you over for DUI, they should have probable cause that you are operating the vehicle while legally intoxicated. For example, the officer might have seen you swerving on the road or drifting into a lane—behavior that is consistent with someone who is drunk.
However, the state would also like some scientific proof that you are legally impaired, and the officer who pulls you over will probably ask you to blow into a breathalyzer. This machine will test your blood alcohol concentration, or “BAC.” In Florida, a BAC of 0.08 or higher creates a presumption you are intoxicated.
Of course, you have the right to refuse to take a breathalyzer or consent to a blood or urine test. But should you blow nonetheless? Below, we analyze the pros and cons.
Reasons Not to Give a Breathalyzer
The primary reason not to take the test is strategic—you are gambling on the state not having enough evidence to convict you of driving under the influence (DUI). The easiest way to prove you are guilty would be to introduce a breathalyzer test with a BAC of 0.08 or higher. However, if you refuse to blow, the state can’t identify your BAC.
Of course, you need to realize that the state can still convict you of DUI without knowing your BAC. The officer and other people can testify that they saw you driving erratically, and witnesses can also testify that they saw you drinking before getting into your vehicle. An officer can also testify that your breath stank of alcohol, your speech was slurred, and that you could not walk on your own. Depending on the circumstances, this evidence might be enough to convict you.
Also, the state can introduce evidence that you refused to take a breathalyzer test as some proof that you were probably intoxicated. In fact, many jurors will probably come to that conclusion themselves.
However, if the state does not have strong evidence that you are impaired, it might make sense not to blow. If you are someone who drinks a lot, your BAC might be over the limit, but you could still be in full control of your physical and mental faculties. It’s a gamble not to blow, but not an entirely unreasonable one.
Reasons to Give a Breathalyzer
There are many reasons to give a breathalyzer. First, if you really aren’t intoxicated, then a result below 0.08 could help you.
Second, you can lose your license simply for refusing to take a breathalyzer. Driving is a privilege, not a right, in Florida; and all motorists give implied consent to take a chemical test if pulled over for DUI. If you refuse to take a breathalyzer, you will lose your license for at least a year. Each subsequent refusal to take a test results in longer suspension—18 months.
Third, refusing to take a breathalyzer is also a misdemeanor if you have previously refused to blow. So you can be convicted of DUI and also have a misdemeanor conviction—doubling the trouble you are in.
Speak to an Orlando DUI Attorney Today
Whether to take a breathalyzer or not is an individual decision. At Moses & Rooth, we have helped countless motorists picked up for DUI.
Remember, an arrest is not a conviction, and there are ways you can fight the charges. For example, the police might have stopped you without probable cause, or the breathalyzer machine might be defective.
To better understand your options, please reach out to us today. We offer a free consultation, which you can schedule by calling 407-377-0150.