Should You Take A Central Florida DUI Breath Test

When a driver is accused of driving under the influence, a breath test is almost always requested. Consent to a breath test is implied but it is not mandatory in Florida. If a driver elects not to take a breath test they will face additional exposure to license suspension and in some cases additional criminal charges.

With all of the factors to consider is it better to blow or refuse? This is not a question that can be easily answered and the reality is that it depends on several factors. One factor is obviously the amount of alcohol the driver consumed but another consideration is what the driver is trying to avoid. For some drivers the actual DUI conviction is more damaging and for other drivers the inability to drive may be more damaging. It may be surprising to learn that the suspended license and DUI conviction do not necessarily go hand in hand. In Daytona Beacha DUI conviction does result in a driver’s license suspension but if the driver takes proper steps they will be able to drive to and from work, church, doctor visits and to maintain their livelihood just hours after a conviction. On the other hand, if the DUI case is dismissed, the driver could still lose their license as a result of an administrative driver’s license suspension on a first DUI for 6 months with no driving for 30 days for a breath test above .08% or a year with no driving for the first 90 days for a refusal. The reason for this is the fact that when a driver is accused of a DUI in Florida they actually face two separate cases. They face the criminal DUI case and they face an administrative case only dealing with the privilege to drive.

The advantages of submitting to a breath test include a shorter administrative driver’s license suspension exposure. The administrative suspension for a breath test is 6 months with no driving for the first 30 days. The legality of the stop, detention and arrest can still be challenged. If the defense is able to successfully challenge the elements of the case prior to the breath test the results may not be admissible. The accuracy of the machine can be challenged. The Intoxilyzer 8000 has a .02% tolerance which means a .08% sample could actually be .06% to .10%. In Florida often the breath test is an hour or two after the initial encounter. Retrograde extrapolation can be used to show that the breath alcohol (BrAC) content was actually much lower when the driver was driving. One of the disadvantages of submitting to a breath test is that if you have a high BrAC and proper procedures are followed it will be very difficult to get a reduction or acquittal. Another disadvantage is on a first DUI with a BrAC over .15% the driver faces an additional $500 fine and will be required to have a interlock device on their vehicle. Many prosecutors will stipulate to a BrAC below .15% in first DUI cases. The biggest advantage of the breath test is that a driver will be able to drive after 30 days regardless of how high the BrAC is.

An advantage of a Daytona Beach DUI refusal is the prosecutor cannot attach a numerical result to the alleged impairment. A refusal with poor performance on field sobriety exercises does not help the case. In Florida field sobriety exercises are not mandatory. If a driver decides they are going to refuse a breath test they should also refuse to perform field sobriety exercises. If the officer has a history of arresting drivers under the legal limit this can be used effectively on cross examination on DUI refusal cases. The disadvantage of a refusal is that a driver will face a 12 month administrative license suspension with no driving for the first 90 days. Refusals also generally do not get you sympathy with the prosecutor and can also be frowned upon by a jury. A second refusal is a first degree misdemeanor in Florida.

Drinking and driving is serious and the consequences are severe. It is always cheaper to call a cab than to fight a DUI. The decision to submit to a breath test or refuse is unique to the individual involved and the facts of the case. For more information on DUI cases contact Daytona Beach criminal defense attorney Kevin J. Pitts.

Florida DUI Daytona Beach DUI Lawyer Phase 4 Breath Test or Refuse

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.

Florida Implied Consent

The Florida Implied Consent can vary but it should be very similar to this. "If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor [per Florida Statute 319.1939]. Refusal to submit to the test I have requested is admissible into evidence in any criminal proceeding. If you still refuse to submit to this test, knowing that your driving privilege will be suspended for a period of at least one (1) year and that you may be charged criminally for any subsequent refusals?"

The purpose of implied consent is to insure that the accused is aware of the consequences of refusal. Consent is implied because it is a pre requisite to getting a Florida driver’s license.  In a perfect world the officer will advise the accused which test they are requesting. You can bet if you take the breath test and blow .000 they will change their mind and ask for urine. The only other option would be for the officer to admit they made a mistake. Once they make the determination that you are impaired they will not release you even if your results for the breath test are below .08%. What typically happens is if you are below the legal limit they will request urine. It takes 60-90 days to get the urine results so the truth will likely come out months later.

The timing of implied consent is incident lawful arrest. For the refusal to be admissible the State must show that the arrest was lawful. Statute permitting a police officer to suspend a motorist's driver's license for refusal to submit to a lawful breath test did not allow suspension to be predicated on refusal to take a breath test following an unlawful arrest, even though statute was amended to omit mention of a motorist's arrest or its lawfulness; obligation to take the breath test arose from Implied Consent Law, which required a lawful arrest. Dep't of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. Dist. Ct. App. 2008) review denied, 984 So. 2d 519 (Fla. 2008).

Breath Blood or Urine. Currently the appellate courts are split on the issue of requesting blood, breath or/and urine. Some of the recent case law has come out in favor of the state but the law might vary depending on the jurisdiction you reside in. A Florida Driver's license could not be suspended under implied consent law after driver refused to submit to breath test to determine blood alcohol content, where law enforcement officer gave driver implied consent warnings that erroneously informed driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test, when statute only authorized a breath test. State, Dept. of Highway Safety & Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. Dist. Ct. App. 2007). The position is acknowledged as dicta in a footnote by the 3rd DCA in Boesch but was not ruled upon. “As Boesch's counsel certainly seems to have known, the separate implied consent statute applicable to blood tests, subsection 316.1933(1), Florida Statutes (2006), did not warrant a blood test in this case. Although we have not ruled (and do not here) on this point, at least one district court of appeal has held that the erroneous inclusion of the blood test implied consent warning may invalidate the breath test warning, preventing suspension of the defendant's license.” State, Dept. of Highway Safety & Motor Vehicles v. Boesch, 979 So. 2d 1024, 1027 (Fla. Dist. Ct. App. 2008), reh'g denied (Apr. 18, 2008). Other appellate courts have taken a different opinion focusing on the and/or meaning. Request that drivers who were arrested on suspicion of driving under the influence of alcohol (DUI) submit to a test of their “breath, blood, or urine” did not mislead drivers into thinking that they were required to submit to the more invasive blood or urine tests and, thus, did not preclude suspension of drivers' licenses to drive, pursuant to the implied consent law, based on their refusal to take any of the tests, even though implied consent law required only that drivers submit to a breath test; use of word “or” suggested that drivers had a choice as to the test to which they wished to submit. Dep't of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. Dist. Ct. App. 2009) review granted, 36 So. 3d 84 (Fla. 2009). Implied consent warning that asked motorist to submit to a “breath, urine, or blood” test was not improper, and thus motorist's refusal to submit to a breath alcohol test in a driving under the influence (DUI) investigation warranted suspension of her driver's license, even if the circumstances justified only a breath test. Stevenson v. Dep't of Highway Safety & Motor Vehicles, 17 So. 3d 1260 (Fla. Dist. Ct. App. 2009).

Incorrect Implied Consent. The officer is not required to strictly comply with the reading of implied consent. Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence. Grzelka v. State, 881 So. 2d 633, 634-35 (Fla. Dist. Ct. App. 2004). Menna stands for the proposition that evidence can't be used against you if the request is believed to be optional without negative consequences. The trial court concluded that Menna was not told of any adverse consequences associated with refusing to take the test. Moreover, according to the officer, she was asked to submit to the test in a manner that made it seem optional. Thus, there were viable alternative explanations as to why she refused to take the test, including her desire to seek “safe harbor” or choosing to take the safest possible path totally devoid of negative consequences. Menna v. State, 846 So. 2d 502, 508 (Fla. 2003). Menna deals with a gunshot residue test but the logic is relevant to a breath test refusal without knowledge of the consequences. If you are arrested for a DUI contact Daytona Beach DUI attorney Kevin J. Pitts. 

Should I Take The Breath Test After A DUI Arrest?

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. Daytona Beach DUI attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. For free DUI information go to Free DUI information.