Refusing a Breathalyzer

April 30, 2015

Patricia Ebels, of Naples, a bikini-clad 49-year-old grandmother, was arrested for driving under the influence after rear ending a car stopped at a traffic light. She and her 10-year-old grandson were not injured, but the driver of the other car was taken to the hospital with non-life-threatening injuries. At the scene of the crash, police administered several sobriety tests, which Ebels failed. She smelled strongly of alcohol and declined to take a breath test.

Implied Consent to Chemical Testing

Florida law states that if a person is arrested for driving under the influence by an officer who has probable cause to make the arrest, that person impliedly consents to chemical testing to determine blood alcohol levels or the presence of drugs. Every Florida driver’s license includes the statement, “Operator of a motor vehicle constitutes consent to any sobriety test required by law.” Chemical testing most often refers to breathalyzer tests, but can also include blood or urine testing.

What Is Refusal?

Most people who refuse chemical testing after being arrested for a DUI simply verbally decline to be tested. However, there are other things a driver can do that will be deemed to constitute refusal:

• Being argumentative or combative with the arresting officer,
• Purposefully failing to blow enough air into the breathalyzer to  register a reading,
• Failing to blow into the machine a second time in fifteen minutes, or
• Refusing to answer the officer after being asked to submit to chemical testing.

In most situations when a driver refuses, the officer cannot force testing. But if drivers are unconscious or otherwise incapable of refusal, the law deems them to not have withdrawn consent, so officers can still give them blood tests.

Consequences of Refusal

Some people falsely believe that refusing chemical testing means that they can avoid a conviction for DUI. However, refusing to take a chemical test can have serious consequences.

After the arrest, police officers must inform drivers that if they refuse chemical testing, that fact can be used against them in court, and that their driver’s licenses will be suspended.

For a first refusal, the driver’s license will be suspended for 12 months. If the driver has refused chemical testing before, the driver’s license will be suspended for 18 months, and the subsequent refusal is a misdemeanor. This means that the driver faces fines and jail time.

A driver may be convicted of a DUI even if he or she refuses chemical testing. This is because the refusal can be used against the driver in the DUI trial. The refusal implies guilt, though it is not as strong evidence as a failed chemical test, and the prosecution will have to use other evidence as well.

A driver who refuses testing cannot be penalized if the arrest was unlawful, for example, if he or she was stopped with no reasonable suspicion, or arrested without probable cause. If a driver has been arrested for a DUI and not been given chemical testing, he or she may ask for testing, and the officer is required to administer a test.

If you have been arrested for a DUI or have refused chemical testing, an experienced attorney can help you present your best case. Please contact West Palm Beach criminal defense attorney William Wallshein for a free initial consultation.