Breathalyzers have been around long enough that virtually every driver knows what they are: machines that a driver blows into to test their level of alcohol consumption. In Florida, a breathalyzer is one of several types of chemical tests a driver may be asked to take when arrested for driving under the influence (DUI). While a driver who has been out drinking might consider refusing to take a breathalyzer test, it is important to understand Florida's Implied Consent Law and the penalties assessed for refusal.
Legal Impairment Limit in Florida
In Florida, a person who drives a motor vehicle while their ability to do so is substantially impaired by alcohol can be arrested and charged with DUI. To convict the driver, the prosecutor must convince the jury of the driver's impairment beyond a reasonable doubt. Obviously, the more intoxicated the person is, the easier it is to get evidence of impairment. This includes witness testimony and the testimony of the arresting officers, as well as any videos taken of driving behavior.
However, there is also a legal limit in Florida. This doesn't mean a limit on how many drinks a person can have and still drive a vehicle. That would not be effective since drinks can be big or small, hard alcohol or beer, and they affect people of different weights differently. Rather, the Florida legal limit refers to the blood alcohol concentration (BAC).
A BAC of 0.08 percent or higher creates a presumption that the person's driving ability is impaired by alcohol and serves as the basis for a "per se" DUI. That means that no additional proof of impairment need be produced to convict the driver when chemical testing shows a BAC over that limit.
Zero Tolerance for Drivers Under 21
For a driver under the age of 21, a BAC of 0.02 percent or higher triggers the Zero Tolerance Law. The penalties for a violation of this law are different from the penalties for a DUI charge, since it is considered a civil offense, not a criminal violation. However, the same penalties apply for refusal to take the breathalyzer test for a young driver as for an older one.
Testing for BAC Levels
A driver's blood alcohol content can be tested in a number of ways. In Florida, the laws authorize a breath test, a blood test and a urine test. Blood tests are widely recognized as offering the most accurate result for BACs, while urine tests are thought to offer the least accurate results.
Breath tests, administered with a breathalyzer, are the most common tests given for several reasons. Taking a breathalyzer test is easy – anyone can do it, and a person need not be a medical professional to administer it. Many precincts in Florida have machines and employees trained to use them. The driver is simply asked to exhale, blowing deeply into the machine.
Blood tests are more invasive, since a blood draw is required, and this test must usually be performed in a medical or clinical setting.
Florida's Implied Consent Laws
It is easy to guess what would happen if drivers in Florida who are stopped for DUI offenses have a free choice to take the breathalyzer test, or not, as they prefer. Drivers who have been imbibing would likely refuse. In order to prevent that from happening, the Florida legislature passed the Implied Consent Law, found in Florida's Motor Vehicles Code Section 316.193. This law provides that when anyone drives on Florida streets and highways, they consent to taking a chemical test if they are stopped and arrested on DUI charges.
In order for the implied consent laws to apply to a refusal to take a chemical test, the traffic stop and the arrest must be legal. That is, the police must have had reasonable cause to stop the vehicle for driving under the influence and they must also have had probable cause for the DUI arrest. The implied consent laws apply only to the driver of the car, not to passengers who are not required to submit to chemical testing.
Refusing a Breathalyzer Test in Florida
The implied consent law has only been partially successful in getting Florida drivers to submit to breathalyzer tests. According to WFTV9, a news station in central Florida, 40 percent of all drivers stopped for DUIs in Florida refuse to take the breath test. Yet these drivers face significant penalties for refusal to take the test. These penalties are imposed in addition to criminal penalties for the DUI charge.
The penalties for refusing to take a chemical test depend on whether the driver has previously refused to submit to testing. For a first-time refusal, a driver will have their license suspended for a period of one year. This suspension is automatic and occurs immediately after an arrest and before a criminal trial. It is imposed for refusal to take the test even if the driver is later found innocent of the DUI charge.
If the driver has previously refused to take a chemical test, the administrative license suspension will be for 18 months. A second or subsequent offense can also be prosecuted criminally as a separate misdemeanor, punishable by up to a year in jail.
A Driver Can Be Charged for a Refusal and a DUI
Note that the fact that a driver refuses to take a breathalyzer test doesn't mean they won't be charged with DUI. It is entirely possible for the prosecutor to charge a person with DUI after they refuse a chemical test in Florida. And the state is permitted to tell the jury of the driver's refusal, since it can be viewed as a sign that the driver suspected that the test results would show their guilt.
Types of Refusal
If a driver is asked to take a test and says no, that is a clear refusal. But a verbal refusal is not required as long as the driver makes it clear that they will not blow in the breathalyzer machine.
But other actions can also constitute a refusal. It is considered a refusal to take a breathalyzer test if the driver cannot provide the two breath samples required within the permissible time period or if the driver produces two samples that are not within 0.02 percent of each other and the driver refuses to take a third test. It's also considered a refusal if the driver argues with the officer or becomes abusive.
Verbal Notice of Penalties Required
Florida police officers are required to advise someone stopped for a DUI of the consequences of a refusal to take a chemical test. Often, the police officer reads directly from the statute, and records the notice as well. If an officer does not give the driver this notice, the person's refusal to take the test cannot be used against them to suspend their license or as implied guilt at a DUI trial.
Administrative Hearing for Suspension
A driver in this situation should request an administrative hearing with the Bureau of Administrative Review of the Florida Department of Highways. This must be done within 10 days of the date of the administrative suspension, which is usually the day of the arrest. The driver can appear alone or be represented by an attorney, and can cross-examine the arresting officer, breath test operator and any other witnesses in the case. Dash or bodycam videos can be introduced as well.
- The 2019 Florida Statutes: Motor Vehicles Code Section 316.193
- Enjuris: Florida BAC Laws
- Sammis Law Firm: Administrative Suspension
- My Florida Law: Refusing to Take a Breathalyzer in Florida – to Blow or Not to Blow
- Crime Lawyer Tampa Bay: Florida Law DUI Refusal of Breath Test: What You Must Know
- WFTV9: DUI suspects Refusing Breathalyzers Frustrating to Prosecutors
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.