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Miami Criminal Defense Attorney / Blog / DUI Defense / Can You Refuse a Breathalyzer Test Under Florida’s “Implied Consent” Law?

Can You Refuse a Breathalyzer Test Under Florida’s “Implied Consent” Law?


When a Florida law enforcement officer arrests someone on suspicion of drunk driving (DUI), they will usually request the suspect submit to a chemical test of their breath–i.e., a Breathalyzer–to determine their blood-alcohol content (BAC). Under Florida law, a driver with a BAC of 0.08 or higher is considered “per se” under the influence of alcohol even if they do not appear to be intoxicated or impaired. The police can also use blood or urine tests to establish a BAC when a breath test is impractical, such as when the suspect is hospitalized following an accident.

Your Driver’s License Can Be Suspended Even Without a DUI Conviction

You may be familiar with Florida’s “implied consent” law when it comes to chemical testing in DUI cases. Basically, state law declares that once a person “accepts the privilege” of driving a vehicle on Florida’s roads, they are “deemed to have given his or her consent to submit to an approved chemical test” following a lawful arrest for driving under the influence of alcohol or drugs. Refusal to submit to an officer’s request for testing carries immediate consequences. The suspect’s driver’s license is suspended for 1 year in the case of a first refusal, or 18 months if they were fined or had their license suspended for a prior refusal. A second or subsequent refusal is also considered a misdemeanor offense in Florida, which means a suspect could face up to 1 year in jail if convicted. This suspension applies even if you are never convicted of DUI in a criminal trial.

Aside from the immediate consequences of refusing an implied consent test, it can also affect your ability to defend yourself against the actual DUI charge. At trial, the State Attorney can tell the jury that you refused to submit to a Breathalyzer. This does not, in and of itself, prove that you were intoxicated. But it can be spun as “you had something to hide” and thus serve as proof of consciousness of guilt.

Challenging an Implied Consent Suspension

Before demanding a chemical test under the implied consent law, the arresting officer must give you clear notice of the consequences of a refusal. Absent such warning, your refusal to submit to a test cannot be used to suspend your driver’s license or serve as evidence against you at trial. You can still be charged and tried for the DUI itself.

You can also challenge an implied consent suspension on the basis the underlying arrest was unlawful. A police officer must have “probable cause” to believe that a suspect was driving or in physical control of a vehicle while under the influence of alcohol or drugs. Absent such probable cause, the arrest is unlawful, as is any demand the suspect submit to chemical testing.

An experienced Miami dui defense attorney can review your case and advise you on this and other possible defenses. Contact Asilia Law Firm, P.A., today to schedule a consultation.



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