As an experienced DUI attorney the most frequently asked question is whether to blow on the breathalyzer test if pulled over for drunk driving. Unfortunately, there is no clear answer to this question.

A person is guilty of the offense of Driving Under the Influence if he or she is driving or in actual physical control of a vehicle within the state of Florida and the person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath or has 0.08 or more grams of alcohol per 100 milliliters of blood. An important part of the State’s case is proving that the defendant’s breath-alcohol level is above a .08 reading.

Let’s start with the fact that when you refuse the breath test in Florida your Drivers License will be automatically suspended for one year without the ability to obtain a hardship license for 90 days. If you can’t live without a Drivers License for three months, then you should take the breath test. It is possible to avoid the 1 year automatic suspension as well as the 90 day hard suspension but an appeal must be filed with the DHSMV within 10 days of the DUI stop. These hearings are very difficult to win so always consult with an experienced DUI lawyer prior to the hearing. You can subpoena the officer who arrested you to attend the hearing and answer questions about the arrest. This is an excellent way for your lawyer to obtain evidence about your case.

By refusing to take the breath test you have deprived the State Attorney of an important piece of evidence needed to convict you of a DUI. This improves your chances of getting your DUI dismissed or reduced to Reckless Driving by over 50%. Of course, this is assuming that on the police videotape you’re not dancing around the police car singing “Tequila”. You are probably thinking this sounds crazy. However, as a young lawyer, I spent a night with the Pinellas County Sheriffs Office riding around with the DUI unit. One of the Defendants we arrested that night was actually dancing around the breathalyzer room singing “Tequila.” Needless to say, he was later convicted of a DUI.

When giving advice to my clients and friends on the breath test issue, I break drivers into three different classes of (1) Wasted, (2) Tipsy and 3) Had a Couple. I tell everyone to figure out which category they are in (go ahead and place yourself in the wasted category if you are too drunk to figure this out) and make an informed decision. Below is how I classify each different situation.

1) A Wasted person is someone who has had several drinks over a short period of time, hasn’t eaten in more than 5-8 hours and knows their intoxicated. I would advise them to refuse the breath test…..but remember it will result in a 1 year DL suspension.

2) A Tipsy person is someone who has had several drinks over a long period of time, has eaten in less than 5-8 hours and does not feel intoxicated. The tipsy person is a close call but I would advise taking the breath test unless you absolutely can not have a DUI on your record…. but remember, if you’re above the .08 level, you’ve just given the State the evidence they need to convict you of a DUI.
3) A Had a Couple person is someone who has had a couple of drinks socially, whom has eaten a meal within a couple of hours and is not feeling drunk. I would advise take the breath test….. but remember, if you’re above the .08 level, you’ve just given the State the evidence they need to convict you of a DUI.

The important thing to remember when deciding weather to “blow or not to blow” is that you should make a careful decision based on the above set of factors. Remember the above discussion applies only to the breath test and not the urine test. Look for future articles from The Adamy Law Firm concerning the blood and urine tests.

This entry was posted on Friday, May 2nd, 2008 at 4:35 pm and is filed under DUI BREATH TEST. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.