Just say no? Or should I blow? It’s not that simple…


Let me be clear: No attorney can ever tell you that you should “always blow,” or “always say no,” if you are ever invited to take a breathalyzer test. Too much is involved in this very critical decision, and every case is as unique as one’s fingerprints. So, how do I handle this question that has been asked of me approximately 17,000 times?

First, I have to explain that anything I say can never be deemed legal advice. What lawyers should do in these situations is stick to what the law says, or the different types of legal interpretations that may be applied to a given set of facts. So, with that in mind, let’s take a look at how our DUI laws are written with respect to breath and blood tests.

In Florida, and in most states, the type of test requested has its own set of laws and procedures. Let’s start with breath testing. When you signed for your license, you agreed that you would provide a breath sample to an officer if requested after being lawfully arrested. This law is known as the “Implied Consent” law. Although some lawyers say that there is a “right” to refuse the test, it’s probably more accurately referred to as an “option” to refuse.

The catch is that if you refuse the test, your license will be suspended for 12 months for a first refusal, but that goes up to 18 months if there is a prior refusal on the person’s record. A temporary hardship license can be obtained in many cases. A civil hearing, referred to as a formal review hearing, can be set up to allow the person or his/her attorney to challenge that suspension.

What most people aren’t told, however, is that if you do blow and you blow over the limit, your license will be suspended just the same, albeit for a shorter period of time. For those who blow over, their suspension can be challenged, as well, at a formal review hearing. These proceedings are civil and are not a part of the separate criminal prosecution that occurs in the criminal courts.

In Florida, if you refuse the test and have a prior refusal, you could also be charged with an additional criminal count of what they call “criminal refusal.” This is why attorneys cannot haphazardly in a few sentences tell someone that they should either blow or not. The truth is, many people refuse the breath test for a multitude of different reasons. Some question the machine’s reliability. Some simply have a firmly rooted distrust for law enforcement. Others have been told to never take the test. Still, others refuse because they mistakenly believe they can call an attorney right there on the spot and seek real time advice.

Until very recently, the consequences for refusing a blood test were similar to breath cases. However, just last year the United States Supreme Court, in a landmark case known in legal circles as “Birchfield,” ruled that a warrant for blood must be obtained instead of using the Implied Consent laws to obtain a blood sample. Blood draws, the court reasoned, is a more intrusive procedure and invokes more privacy interests than obtaining a sample of one’s breath. As a result, one can argue now that there is a “right” to refuse a blood test, unlike a breath test.

So, as you can see, the decision to submit to such testing is a difficult one. Ideally, you’d be able to call an attorney on the spot, but reality tends to eliminate that option. Now, if I could only regurgitate this information Saturday when I’m sure this topic will surface. It’s St. Patrick’s Day, so be safe!

Lee Lockett, of LockettLaw, is a Jacksonville DUI and criminal defense attorney.