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Things to consider when asked to submit to a breathalyzer

by | Apr 22, 2021 | DUI |

A DUI prosecution is like any other criminal prosecution. In order to get a conviction, the State must prove beyond and to the exclusion of any reasonable doubt that the defendant has committed the offense with which he/she was charged. The statute requires the State to prove that the defendant was driving (or in actual physical control of) a motor vehicle while his normal faculties were impaired or while his BAC was at or above .08.

This is why the police ask the defendant to give a breath sample. Without a breath sample, it’s harder to prove a BAC level at or above .08. With a breath sample, it’s easy to prove whether it’s above the legal limit or not above the legal limit.

What are “normal faculties?”

Proving that the defendant’s normal faculties were impaired is much more difficult. Nobody really knows what anyone else’s normal faculties are. There are people who have never used drugs or alcohol who are particularly uncoordinated. Maybe their hand-eye coordination stinks. Maybe their balance is poor. Their normal faculties might be similar to your drunk faculties. Likewise, there are some people who can drink, and then juggle knives while riding a unicycle.

The purpose of field sobriety tests

In my opinion, field sobriety tests are not designed to rule out impairment. They are designed to give the officer a reason to make the assessment that a person is impaired. Police officers are not unlike the rest of us.  They want to make a difference. They want to look good for their peers and their supervisors. They do not want to spend a couple of hours investigating a potential DUI only to conclude that the driver was not impaired.

I’m not suggesting that law enforcement is corrupt. In my opinion, it is not. Just about every member of law enforcement officer that I deal with is just trying to do his/her job right and is genuinely interested in serving the public. They see the worst of society every day. They hear a lot of ridiculous lies and excuses. They can become a little jaded. In the context of a DUI, if they smell alcohol, they are not letting the driver back in their car. The driver is going to take a ride. That’s where the phrase “You may beat the rap, but you won’t beat the ride” comes from.

What can happen if you refuse to blow?

If you don’t blow, your license suspension is even longer than blowing over a .08 up to .01499, even if you are not convicted of DUI. In other words, the refusal might make it impossible for the State of Florida to prove its DUI case, but the licensing body (Department of Highway Safety and Motor Vehicles) can, and does, suspend the license if it can prove that the driver refused to blow. So, you could end up being acquitted of DUI, or the State issues a Nolle Prosequi and gives up on the prosecution, but your license is still suspended. In other words, no DUI conviction, but a one year suspension of your driver’s license. You are not convicted, in large part due to the refusal, but you still have a one year suspension. There is a separate traffic offense for a refusal, BUT you still have the option to refuse. They cannot make you blow.

Sometimes It boils down to exposing one’s self to a longer driver’s license suspension, in exchange for depriving the prosecutor of potentially powerful evidence against the defendant.  Many, probably even most,  DUI defendants, and even those convicted of a DUI, are eligible for  a business purposes license. So let’s suppose you refused, and perhaps because of the refusal, the State’s case fell apart.  In this example, yes, you will have a longer period of suspension, but the State will have lost it’s enthusiasm for the prosecution.  Some drivers may decide that the longer license suspension is a better choice than voluntarily providing the State with powerful evidence.  Longer suspension, but a weak prosecution case.  Maybe the driver in this hypothetical is willing to live with the longer license suspension because he, or she, knows that the job of the prosecutor is made more difficult by virtue of the prosecutor having no BAC evidence.  And the business purposes license is still a valid license.  With restrictions.  When faced with these two bad choices (DUI conviction with shorter license suspension period vs. no DUI conviction and longer DL suspension) you have to select the one that affects you in the least harmful manner.

Suppose you had not consumed any alcohol at all and a law enforcement officer observed you weaving, or otherwise driving erratically.  Maybe you were distracted by your phone, or you were swerving to dodge a squirrel.  So a police officer activates the squad car lights and siren, stops you, and begins asking questions about your erratic driving.  After questioning you for awhile the officer (in error) concludes that you are impaired by alcohol and calls the DUI squad to begin a DUI investigation.  Eventually the DUI squad officer requests that you perform field sobriety tests.  So you perform the tests and you are terrible at them.  Maybe you’re frightened, or just uncoordinated. But you know that you are not impaired by alcohol.  Now the officer requests that you submit to a breathalyzer test.  Under these circumstances, the breathalyzer results would work in your favor.  You’d register a 0.0  BAC level, so there would be no logical reason to refuse the breathalyzer.

When can they draw blood without your permission?

They could take your blood against your will if serious bodily injury arose from a DUI crash. That includes a single car crash. The old adage in the Hillsborough DUI courtrooms was “If the officer sees blood, the officer can take blood”. You can drive into a brick wall, and if you are injured, law enforcement can take your blood without your consent. You can also drive into a pedestrian, or another driver’s car, and if someone is hurt, you’re giving blood whether you consent to it, or not. As a practical matter, I say to anyone “If you are confident that you will register below a .08, submitting to a breathalyzer is a good idea. But how can you be confident?” If you have had no alcohol, you can be confident, and there is little downside to blowing. On the other hand, if you are confident that you will blow at or over .15, it’s deemed an “enhanced DUI.” Penalties are considerably more severe than the blowing in the range from .08 up to .01499. If you are completely obliterated, blowing is a horrible idea.

Officers making mistakes leaves room for defense

But the officer on the scene is human. Sometimes the officer makes critical errors during the encounter. They leave openings for the defense attorney to mount an effective defense. I remind juries all the time that it is not against the law in the State of Florida to drink and drive. This is why restaurants and bars have parking lots. It’s against the law to drink to the point of impairment and drive. It’s against the law to drink to the point that one’s BAC level is at or above .08 and drive. Driving while smelling like alcohol is not a crime.


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