As a Daytona Beach DUI lawyer and former DUI Assistant State Attorney in Daytona Beach Kevin J. Pitts has handled hundreds of DUI cases. The fourth phase of a Florida DUI case is the chemical test of your breath blood and or urine. When arrested decisions will have to be made on the breath test and/or urine test (you can be requested to do both breath and urine). Blood tests are most common in felony DUI cases. In a DUI with serious bodily injury or fatality a blood test is mandatory and can be taken by force. The decision to refuse or submit to a test is very important. Many individuals believe that if they have had a few drinks they should automatically refuse. The problem is that a refusal carries substantial consequences.
The first question that needs to be asked is are you more concerned about a DUI conviction or not being able to drive. No matter how high you blow you will be able to drive in a restricted capacity after 30 days without driving if the proper steps are taken. A first refusal would have a 90 day hard suspension without any hardship license.
When should you submit to a breath test? If you primary concern is the restriction on your ability to drive. If your breath alcohol content is likely to be near or under the legal limit. If you are slightly over .08% the intoxilyzer has a 3 point or 3% inaccuracy disclosed by the manufacturer in paperwork. This is on controlled lab tests and is likely minimized for marketing. The breath test machine also uses a .02 tolerance to verify the results. Two tests are taken for verification. If you blow a .08% any result between .06% and .10% would be valid for the second test. If your breath alcohol content is near .08% these built in inaccuracies help you. A separate method to attack the results if they are around .08% is retrograde extrapolation. Retrograde extrapolation is the mathematical process by which the accused’s blood alcohol concentration at the time of driving is estimated by projecting backwards from your test result. You are not DUI for sitting in the police station over .08%. The blood alcohol content could increase or decrease between .015% and .02% per hour. If it could be higher or lower.That .02 could be your reasonable doubt and gives you a fighting chance of beating the case.
Some counties in Central Florida will reduce cases with lower breath alcohol content and some counties in Central Florida will divert the case allowing you to have an opportunity to have your DUI case dropped. Refusals sometimes receive reductions and diversions but it is generally a policy of prosecutors to fight harder when the accused refuses.
When should you refuse a breath test? If it is clear that your breath alcohol content will far exceed the legal limit but only if punishment and convictions are your primary concern. You could still receive the administrative suspension regardless of the outcome of your criminal case. The administrative suspension on a first DUI refusal is 12 months with no driving for the first 90 days. A first DUI breath test suspension is 6 month with the first 30 days without driving. If your result is over .15% you will face an increased fine and interlock on your car but you will still be able to receive a hardship 30 days after your license is suspended. A DUI conviction can end some careers. If that is the case a double refusal might be the best option. No field sobriety exercises and no breath test. If you are a commercial driver refusing can cause additional issues by being calculated as a strike against you. If later convicted of DUI the two strikes could permanently suspend your CDL. You can always request a blood test and the officer has to reasonably accommodate you (give you a phone book and phone) or the case could be thrown out. It also lays the groundwork for refusing because of distrust of the machine not fear of guilt. Information provided by Daytona Beach DUI attorney Kevin J. Pitts.