Breathe test refusals

DUI and refusing a breath test

In Section 316.1932 of the Florida State Statutes it states that:

“Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including…test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath…”

This part of our state law is called “implied consent”.  By accepting a driver’s license you also are agreeing to the police’s right to test your breath, blood or urine for the presence of alcohol, drugs or controlled substances while operating or in physical control of a vehicle. If you refuse to take a test then the law states that your license will be suspended for the period of one year for a first refusal and a period of eighteen months for second and subsequent refusals.  Additionally, if there has been a prior refusal then this current refusal will be charged as a misdemeanor. The law also states that the refusal to submit to a test when requested to do so by law enforcement officers can be used as admissible evidence in any DUI proceedings.

The suspension of your license is actually carried out by the Florida DMV. Often one is able to schedule a DMV hearing to get a license reinstated if done within 10 days of the DUI arrest. Refusing a breath test can actually work very heavily against you in these hearings. The DMV hearing representative is likely to deny reinstatement in the case of a test refusal.  In these situations it is very important to have skilled legal representation from a West Palm Beach DUI attorney as you will need a solid presentation in this situation.  With skillful address to your case it may be possible to avoid the loss of your license if procedural errors in the arrest or failure to have probable cause can be proven.

How accurate are breath tests and breathalyzers?

There is tremendous controversy over the accuracy of breathalyzers and their use in the field. The issues are with how often and recently the devices have been tested and calibrated for accuracy.  There are also significant issues regarding the procedure in administrating the test. There have been a number of studies done to determine the accuracy of these devices in use and research has demonstrated a high level of deviation when measured against actual blood alcohol content.

There is a strong body of evidence to indicate that the results can show a variance as of 15% or more from actual Blood Alcohol Concentration (BAC). Other studies have indicated that as many as one out of four tested will read higher than their true BAC. At Dire Nzo & Wick we have years of experience and familiarity in challenging the legality and validity of these tests.