As a DUI attorney this is one of the most common questions I hear. The answer is it depends. Many people seem frustrated with this but I will explain. It depends on 4 things 1) location 2) amount you had to drink 3) what you are trying to avoid 4) your prior history.
1) The location of your arrest can make a difference in your decision. This has to do with a couple different issues. Some counties are more lenient on low breath tests. Some counties in Central Florida tend to reward cooperation to some extent. This is done by allowing diversions in some of the counties in Central Florida. Other counties have unwritten policies of when to reduce cases. The prosecutor is not bound by the policy. Other counties claim to not allow equitable reductions. The counties were left out because policies are subject to change. Seminole County has had issues with breath test admissibility and the Seminole County breath test machines have recently registered readings with nearly a 10% variation between machines on control tests. The company that designs the machines (CMI) claims that the machines are accurate within 3% or .003 whichever is greater. If the machine is inadmissible your refusal could be used against you but the breath test result could not. Office policies are subject to change so that should also play a roll in your situation. It is impossible to know which Judge will handle your case prior to arrest so the admissibility cannot be determined prior to making the decision unless the jurisdiction has had the issue addressed on appeal or En banc. For more information about this issue go to Seminole County DUI attorney for my contact information.
2) The amount you had to drink is important to your decision. I always here "I had two drinks all night and didn't know if I would pass so I refused". Blood represents about 7% of the body mass or about 4.5 kg (volume ~ 4.4 liters) in a 64 kg (141 lb) person. Cameron, John R.; James G. Skofronick & Roderick M. Grant.Physics of the Body. Second Edition. Madison, WI: Medical Physics Publishing, 1999: 182. This equals about 149 ounces in a 141lb human. This means that a 141lb human could consume 1.192 ounces of alcohol in an hour. This is basically 2 12 oz. beers assuming 100% absorption and no metabolism by the liver. It gets more complicated when you calculate metabolism, digestion and after multiple hours of drinking the math becomes much more important. Your liver can metabolize approximately 1 drink per hour. The simple math would be 2 drinks in an hour 3 drinks in 2 hours 4 drinks in 3 hours and so on. If you have only consumed 2 drinks the entire night you might want to consider taking the breath test unless you are smaller than 140 lbs., the drinks contained more alcohol than a 12 oz. beer or you have impaired liver function. The defense usually contends that the cutoff is 2 drinks and as a prosecutor you are told that it is more like 4-6 drinks.
3) What you are trying to avoid should play a substantial role in your decision. This sounds like a stupid question but the answer should have a big impact on your decision. If you are trying to avoid losing your driver’s license the breath test might be a better option for you. The odds are stacked against the accused in a DUI. You will face two separate suspensions. After a criminal DUI suspension you are eligible for a hardship immediately as long as the appropriate class in your jurisdiction is completed (counter attack in Seminole and Orange and Alcohol Safety and Education Class in Volusia) on a first DUI. The problem is that the criminal suspension is only half the battle. You will also face an administrative suspension. The administrative suspension can be successfully challenged but they are designed to be difficult. The suspension automatically occurs if a hearing is not requested within 10 days. It is also based on a substantial competent evidence standard. The United States Supreme Court defines “substantial competent evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552. This is relevant because the first time refusal hard suspension is 90 days. A first time BAC over .08% hard suspension is 30 days. The stop challenges are the same either way. With a refusal implied consent can be challenged but the accused does not have standing to challenge the machine. If you blow then you would have standing to challenge the machine. The success rate is lower in the administrative review cases than in the criminal case. A new law that was passed last year basically allows the officer to skip the hearing. The accused license prior to the law would be restored if the officer did not show up. The new law states that A party may seek enforcement of a subpoena by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. This does not mean that the administrative review cannot be won it just shows that an attempt has been made to stack the odds in the states favor. Technical errors in the documents can be very successful grounds for overturning the administrative suspension. The hearing also allows the defense an opportunity to question the officer under oath prior to speaking with the state in most cases. If you are more worried about a DUI conviction than the license suspension the state will have less evidence if you refuse. Although if you are under the limit and refuse the state will have a case against you based on consciousness of guilt. This argument is not as strong as a high breath test result but does carry some weight.4) Your prior history makes a big difference in your case. If you have a prior refusal the second refusal is a first degree misdemeanor punishable by up to 364 days in jail or 12 months of probation and a $1000 fine. The second refusal also carries an 18 month hard administrative suspension without the possibility of a hardship permit. A second DUI within 5 years has a minimum 10 day jail sentence. A third DUI with a prior in the last 10 years can be charged as a felony and results in a 10 year to lifetime license suspension. A fourth DUI carries an automatic lifetime license revocation. A new law makes it possible to get the license reinstated after 10 years with significant restrictions. On a second DUI outside of 5 years with a prior refusal it might be in your best interest to take a breath test because you would be exposed to a 30 day hard suspension compared to 18 months if you refused. The maximum suspension would be 1 year. If you are looking at a fourth DUI and feel that you will be over the limit the 18 month administrative suspension is the least of your worries because the criminal is required to give you a lifetime suspension if convicted. If the case is negotiated and the state stipulates that it is a first DUI you will still face a permanent revocation when The Department of Highway Safety and Motor Vehicles receives the conviction. The decision to blow or refuse can be complex and requires many factors to be considered. What is in your best interest depends on your individual circumstances.
