Should I Take the Breath Test?

I know a lot of very smart and knowledgeable people who say that the Intoxilyzer 5000 © (the breath testing device used in Florida) is a reliable testing device. I tell my clients that if they really only had two beers over the course of the whole night (a statement I hear with surprising regularity) then they should take the breath test. The breath testing machine can be used to prove innocence as well as guilt. Generally, even a small person who is in reasonably good health can drink two normal sized beers over the course of an evening and still pass the test, that is, still have a lawful breath alcohol level. If you know that you can pass the breath test, you would have to be an idiot to refuse to take the breath test. The problem arises, however, when you are not confident that you will pass the breath test.


Do not read this as my permission to you to drive after having consumed two beers. I have no idea what your tolerances are, and if you come back later and say that I said it was ok for you to drink and drive, then you are too stupid to pound sand with a hammer and should not be allowed to drive anyway. Please exit my web page immediately and feel free to undertake some dangerous sporting activity that does not involve innocent bystanders.”

A person cannot be required to submit to a breath test against their will in Florida.

A blood alcohol test is different.

The only way a person stopped in a traffic situation can be forced to submit to a blood alcohol test, in Florida, is if that person has been involved in an accident that has involved a death or serious bodily injury. In that case, it does not matter if the driver refuses the blood alcohol test because the law enforcement officers are empowered to use physical force to draw blood for the alcohol test. What follows is a legal truism: It is generally a bad idea to do anything that causes a law enforcement officer to believe that he or she can use physical force to get blood out of you.

Assuming that you have not been involved in a traffic incident involving death or serious bodily injury, and you have been arrested for DUI, you are going to have to ask yourself if you are going to submit to the breath test. On one hand, if you refuse the test you will lose your driving privilege for one, or one and a half, years. In addition, your hard suspension time (the time during which first offenders cannot get a work permit or hardship license) will triple to 90 days. Furthermore, if your license has been previously suspended for refusing to submit to a breath test and you refuse to take a breath test a second time, you can be charged with a crime that is punishable by up to one year in the county jail. In addition, if you refuse to submit to the breath test, the prosecutor will be allowed to tell your jury that the reason that you refused the breath test was because you had a conscious knowledge that you were guilty of DUI and that you refused to submit to the breath test in order to avoid being proven guilty by the machine. On the other hand, I have spoken with individuals who have given me plausible reasons for why they do not trust the officers or their breath testing machines. I have spoken with people, some of whom are former law enforcement officers, who believe that a breath testing devices can be caused to give higher readings under certain circumstances. I have spoken with many individuals who were surprised by the attitude taken by their arresting officer. Many of these people have told me that after having witnessed the behavior of, and the statements made by, their arresting officer(s), that they would never trust any testing process in which that officer had any ability to affect the test results. Many of these individuals took the breath test, then lost their driving privilege and had to face a criminal prosecution where the breath test was going to be used against them and where they did not believe they were given a fair test.

You might have noticed that the above paragraph only re-stated the problem and that it did not answer the question. Do you recall the question? The question was, “SHOULD I TAKE THE BREATH TEST”. I have not yet answered the question because it has several answers. Here are a few of the questions that you could ask yourself in order to come up with your best answer.



1. TAKE THE TEST AND PASS THE TEST: Remember, you can’t be required to take the test unless you are under arrest. That means that you will not be presented with the question of whether you are going to take the test until you have reached the stage where the officer has already decided to arrest you and transport you, physically, to a breath testing facility. If you feel that you will pass the breath test, then I think you would be foolish not to take the breath test. It