Should You Refuse a Breathalyzer in Florida During a DUI Stop?

By |2024-02-03T08:03:24-05:00April 12th, 2022|Categories: DUI Driving Under the Influence|Tags: , , |

Updated February 3, 2024 by Sean McQuaid

If you are at the point where you are being asked to blow into the intoxilyzer, it means that you have already been arrested. My advice is that if you have drunk any alcohol, always refuse because you are going to get charged with a DUI. Don’t give the police any more evidence to help them convict you!

Should I Take a Breath Test in Florida?

The police do not ask you to take a breath test if they don’t suspect you of being impaired. They know what they are doing and are tricky about making you look bad. Keep in mind that everything that they ask you to do is done for the purpose of proving that you are impaired.

  • If you’ve had nothing to drink, then you should always take the test and blow .000. But, you should expect to be asked to provide a urine sample next.
  • If you know you’re over Florida’s Blood Alcohol Content (BAC) legal limit of 0.08 or are in doubt, it is always better to refuse the breathalyzer test.

What Will Happen If I Refuse an Intoxilyzer Test in Florida?

Florida Implied Consent Law

In Florida, there is an ‘implied consent law‘ for DUI breathalyzer tests. This means by having a driver’s license, you give consent to take an approved breath test when asked. However, this doesn’t mean you have to actually take the test. Although there will be consequences for refusing, you can’t be forced into blowing.

License Suspension

If you do refuse a breathalyzer test in Florida, your driver’s license will be suspended immediately. You will be unable to drive for at least one year. A second or third offense with refusal will result in 18 months of license suspension and separate criminal charge.

What They Don’t Tell You About the License Suspension

The police are very misleading. They will try to scare you into blowing. They know that if you blow over the legal limit that they have you. So, they will tell you that if you don’t blow, your license will be suspended for a year. But, what they don’t tell you is that if this is your first DUI, you can get a hardship license for the entire year! You actually won’t have to go a single day without driving. If you knew that, you would never blow, right?

Why You Shouldn’t Take a Breath Test

By refusing to take the test, there will be no evidence of your BAC level. They have to base their entire case on their observations of you. Your refusal can be introduced as evidence against you, but this can be a better scenario than handing over proof of impairment.

There may even be ways to justify your refusal to take a breathalyzer test, such as:

  • Medical Issues: Some people may have anxiety or mental health issues with taking a test. In these scenarios, a law enforcement officer may document a refusal rather than the reality of the scenario.
  • Language Barriers: If your English isn’t perfect you may struggle to understand the instructions, resulting in the law enforcement officer documenting a refusal.
  • Impatience: Some officers may lose their patience and claim there was a breath test refusal because you didn’t take the test immediately when requested or asked questions about it.
  • Inaccurate Results: The intoxilizyer isn’t perfect. It measures alcohol in your breath. It isn’t a blood test. So, the exact number is always a little off. You shouldn’t trust your freedom with this test.

Law enforcement officers may become aggressive and frustrated by your refusal. Remain calm, be polite and respectfully decline the test.

Should I Refuse a Field Sobriety Test in Florida?

A Field Sobriety Test is used by a police officer to assess a person’s impairment from intoxication. For example, you may be asked to follow a finger with your eyes, stand on one leg or walk in a straight line.

  • In Florida, you are not legally required to perform a field sobriety test when you’re stopped for a DUI. The police will not tell you this fact.
  • If you have had more than a couple of drinks, it is usually better to refuse rather than perform the test poorly. The tests are difficult, so anything that will affect you will be detected.
  • Always remain calm and be polite.
  • The police officer may get frustrated and try to pressure you, but don’t give in.

What Should You Say About Why You Refused the Intoxilyzer?

I have heard my clients give a lot of reasons over the years. Here are some of the most effective:

  • My lawyer told me to never blow.
  • I read a news story about how they threw out a bunch of results because they were inaccurate.
  • I will only give a blood test.
  • I don’t trust the results of that machine.

What Should I Do if I’ve Been Arrested for a DUI in Florida?

If you’ve been arrested for a DUI in Florida, you should contact a Florida DUI defense attorney immediately.

You have only 10 days to sign up for DUI school after an arrest and to get your hardship license. Our criminal defense attorneys can guide you through this process and aggressively fight to have your charges dropped or reduced. Doing so can protect your license, employment and future.

Read our guide on what you should do after being stopped for a DUI in Florida.

Different BAC Results in Florida

Florida’s Blood Alcohol Content (BAC) legal limit is 0.08. Driving with this level of alcohol is driving under the influence (DUI) offense. Here’s what happens depending on the different results that are blown:

.05 or Less

If you blow a breathalyzer test in Florida and the evidence reveals you had a BAC level of .05 or less, then you are not presumed as driving under the influence of alcohol. However, if your normal abilities are clearly impaired then you may still be charged with a DUI. For example, if you fail a Field Sobriety Test.

Over .05 but less than .08

If your breath samples show that you had a BAC level of more than .05 but less than .08, then you are not presumed to be under the influence of alcoholic beverages. In these scenarios, other evidence is usually required to prove a DUI offense. Such as driving behavior in the police report, a urine sample and Field Sobriety Test.

.08 or More

If your breath test results show more than .08 then this is evidence that you were driving a vehicle while under the influence of alcohol. In Florida, there is no tolerance for driving over this legal limit.

How Many Drinks Is .08?

Every drink is different and the effects of each drink will vary depending on age, weight and time since consumption.

Responsibility.org has a virtual bar, where you can calculate your approximate BAC by entering your drinks, weight, height, age and time since consumption.

Contact a DUI Defense Attorney in Florida

If you’ve been arrested for a DUI in Florida, then our DUI defense lawyers can help. Our Florida criminal defense attorneys can fight on your behalf to help you avoid jail time and avoid a criminal record.

Free Consultations

Sean McQuaid and Ranger Jackson are top-rated criminal defense attorneys at Battaglia, Ross, Dicus & McQuaid, P.A., one of Tampa Bay’s most prestigious law firms with the reputation and connections to make things happen.

Contact us today for a free consultation to get started or CALL (727) 381-2300

Sean McQuaid