No. If you are arrested and charged with a DUI, you may elect not to take a breath or blood BAC (blood alcohol content) test.

However, a refusal to do so will have severe consequences due to Florida’s implied consent laws.

What Is a Breathalyzer Test?

A breathalyzer is a standard breath testing instrument that can detect whether alcohol is present in a person’s system. Someone suspected of drinking and driving may be asked by law enforcement to take a breathalyzer test. They are instructed to exhale into the mouthpiece of the device.

If ethanol, the intoxicating ingredient in alcohol, is present in the person’s breath, the device detects it through a chemical reaction and changes color from red to green. The apparatus and similar breath testing devices can calibrate the change in color and translate this change to a blood alcohol content (BAC) number. A reading with a BAC of 0.08% or higher is considered lawfully impaired in most of the United States.

Are Breath Tests Accurate?

Police officers across the country often administer breath tests to people they pull over on the road and suspect that they may be driving under the influence. The breath test calculates the driver’s BAC to gauge intoxication. However, the results of a breath test may not always give an accurate measure of whether an individual is, in fact, intoxicated.

Urine and blood tests are other chemical tests that can give a read on a person’s BAC. While urine and blood tests are typically more reliable than breath tests to show a person’s BAC, they are not as practical to administer during a traffic stop.

What Are the Issues With Breath Tests?

Because breathalyzer-type devices are not as dependable as other tests, the validity of the outcomes from the breath tests comes into question.

Some of the problems with breath tests include the following:

  • The measurement of alcohol levels in the blood versus the measurement of concentrated alcohol in a breath sample is disproportionate, and therefore results from the breath tests can be inconsistent;
  • Machine calibration efforts are often inadequate to ensure accuracy in the performance of the breath test machines; and
  • Factors, such as the presence of vomit in the mouth or cell phone interference, can affect the BAC reading by wrongly raising the figure.

What Is a DUI?

The term DUI refers to driving under the influence of alcohol or drugs. In most states, it is deemed a criminal offense. Some jurisdictions refer to the crime as a DWI, which stands for driving while impaired by alcohol or drugs. The acronym, DWI, can also mean driving while intoxicated, also known as drunk driving.

While the nuances of a DUI or a DWI may vary from state to state, they encompass the same offense: it is unlawful to drive a motor vehicle while under the influence of alcohol or drugs.

What Is Implied Consent?

Florida’s implied consent law states that any individual who accepts the right of operating a motor vehicle within the state is, by so using such vehicle, deemed to have given their consent to submit to an approved chemical test or physical test. These tests include an infrared light test of their breath to determine the alcoholic content of their blood or breath if the person is lawfully arrested for any offense allegedly committed while driving or was in actual physical control of a motor vehicle while under the influence of alcohol.

Further, Florida law specifies that in DUI cases involving serious bodily injury or death, an officer may use reasonable force to direct the driver to submit to the administration of a blood test. Even if you refuse, reasonable force may be used to draw blood for a BAC test under these circumstances.

What Are the Penalties for Refusing to Take a Breath or Blood Test After Being Arrested for DUI?

You will be subjected to mandatory license suspensions if you are legally arrested for a DUI and refuse to submit to a BAC test. Further, you may be charged with a criminal misdemeanor for subsequent refusals.

The penalties for refusing to take a BAC test are in addition to the standard penalties for a DUI.

The penalties for refusal are as follows:

  • First Offense: License suspension for one year
  • Second and Subsequent Offenses: License suspension for 18 months and first-degree misdemeanor charges

What Constitutes a DUI Arrest?

A DUI arrest usually happens after the officer has stopped the driver for a traffic violation. After the stop, the officer has probable cause to think that the driver is under the sway of alcohol or drugs or is otherwise too impaired to operate a motor vehicle safely.

After the stop has been made and the officer has performed a field sobriety test, the first stage of the criminal process in a DUI case starts once the officer has placed the driver under arrest.

When Can an Officer Make a DUI Arrest?

A police officer that has stopped a vehicle for a traffic violation may place the driver under arrest for a DUI in the following circumstances:

Police Officer Has Probable Cause

If the police officer personally sees or thinks that the driver has committed a crime, the officer may legally arrest that individual. For example, suppose the police officer believes that the driver is driving under the influence because the driver smells like alcohol or the officer notices empty beer bottles in his vehicle. In that case, the officer may arrest the driver based on probable cause that the driver has been driving under the influence.

Police Officer Made a Lawful Traffic Stop

The officer had probable cause to believe that the driver was under the influence. The officer must show that they did not stop the vehicle erratically or for no reason.

There must be evidence that the driver did something in transgression of a law, which led to the traffic stop.

Police Officer Has an Arrest Warrant

The officer could place the driver under arrest after the traffic stop if the officer had a proper arrest warrant issued by a judge or magistrate.

What Happens After the Officer Makes a DUI Arrest?

Four phases occur after the officer has placed the driver under arrest:

Chemical Tests
After the officer has put the driver under arrest for a DUI, the officer takes the driver either to the hospital, police station, or jail for a required chemical blood or breath test to calculate the blood alcohol level of the driver. The driver may be subjected to two types of chemical tests: a blood test or a breath test. Breath test results are available instantly, while blood tests must be sent to a laboratory for analysis.

License Suspension
The officer will then alert the driver that their license will be suspended in 30 days and will take the license and issue the driver a temporary license that is valid until the suspension goes into effect.

Booking and Release
After all the DUI tests have been conducted or refused, the officer will book the driver into the county jail. Depending on the driver’s criminal history and present DUI case, the driver may get released on bail or be released instantly after providing a written promise that they will appear in court on the assigned date. Typically, the driver is held in custody for several hours before being released.

The arresting officer then ends the police report investigation and submits the report to the prosecution agency. After examining the case, the prosecution will either charge the driver for a DUI or decline to charge the driver for a DUI because there are not enough elements that could assemble a formal charge.

Do I Need a Lawyer if I Have Been Charged With Refusing to Submit to or Failure to Complete a Chemical Test?

DUI arrests are serious and can have harsh consequences. If you refused a chemical BAC test when arrested, you need to contact a Florida DUI lawyer immediately. Your Florida attorney will help you combat any charges and may be able to help you lessen your penalties.