A very common question that a lot of people wonder is, “if I’m stopped for a suspected DUI (driving under the influence), should I refuse the breathalyzer test?” This is a question that I myself had wondered about. What is the right thing to do?
It is your right to refuse the breathalyzer test. People don’t realize this, but when you get stopped for a suspected DUI, it is 100% within your legal rights to refuse to submit a breathalyzer test. However, this is a two sided sword.
A DUI is comprised to two different parts. First, there is the criminal law part. Here is where you have to prove your innocence, that you weren’t actually drunk, in a court of law. If it is your first DUI and no one was injured, most likely you will not be facing jail time. In many instances, a first time offender with no injured persons involved, can have their charge reduced to a “reckless driving” by taking the “Back on Track” course that is offered. Another option is to prove your innocence and get off completely scott free. Here is where refusing the breathalyzer is the most beneficial. To be guilty of a DUI, your blood alcohol or breath alcohol level must be .08 or above. Without an actual breathalyzer test conducted, there is no proof you were actually drunk. All that the Judge or jury will have to go on would be the police officer’s impression of you at the time.
The second part of a DUI is the DMV (Department of Motor Vehicles). In Florida, your license is automatically suspended for 1 year if you refuse to give a breathalyzer test. However, you can appeal this decision. You must request a Formal Administrative Hearing within ten days of your arrest. At the hearing, the DMV does not have to prove that you were actually drunk. On the contrary, all they have to prove is that you were in control of a vehicle at the time and you refused the breathalyzer test. They have a relatively low burden to meet. If you win the appeal, your licence is reinstated. But, if you lose, your license is suspended for one year. An alternative to this is a BP license, also known as a hardship license. This type of license allows you to drive to and from work, school and emergencies etc. The restrictions last one year.
Every case is different, but generally speaking, my advice is that if you have been drinking and you are stopped for a suspected DUI, you should refuse the breathalyzer test. A DUI is a very serious matter that can have lasting affects on your driving record, car insurance rate and your ability to move around freely. Driving is a privilege and not a right. The state’s burden to strip you of your driving license is low. With the help of a qualified attorney, they can guide you through this process and determine the best possible option for your case. If you or someone you know has been involved in a DUI, give us a call at 786-815-6296.