To blow or not to blow, that is the question

By Sophie Zollmann 6 months agoNo Comments

As a Drug and Alcohol attorney who helps individuals and families navigate the legal system to take advantage of the Marchman Act (Florida’s involuntary commitment statute for drug and alcohol disorders), I also represent people that have been arrested for drug or alcohol related offenses.

One of the offenses that I most frequently get retained on is DUI.  As such, the question I get asked more often than any is whether or not the client should or should not have taken the breath test.  Based on my twenty-two (22) years of experience handling these cases, this is my personal opinion, other attorneys may have a different opinion.  This only applies to Florida DUI cases, the laws may be different in other states.

Before I share my thoughts with you, let me say that you should never drink and drive, period.  There is no excuse for having a drink, even one drink, and getting behind the wheel of a motor vehicle.  With the advent of Uber and Lyft, a safe ride home is just a click away.  There is no excuse for endangering your life or the lives of others when you’ve had a drink and plan to get behind the wheel.  Ditto if you’re under the influence of drugs or medication that affect your ability to drive a motor vehicle (most prescription meds warn about the dangers of mixing meds and alcohol).  As someone who’s had a family member killed by a drunk driver, I say this in the strongest terms possible.  Nevertheless, I take my oath of attorney very seriously and we always do the best job possible for our clients.

If you are stopped by the police, you have an absolute right to remain silent and not answer any questions about how much you’ve had to drink or where you’ve come from.  This applies even though the officer will likely not tell you that you have the right to remain silent (the US Supreme Court has ruled that a person stopped for an “ordinary” traffic stop is not in custody for purposes of Miranda).  So, be polite, tell the officer(s) you intend to remain silent on the advice of counsel and produce your documents when asked to do so.

If the officer smells booze on your breath, I can pretty much guarantee that you’re taking a ride downtown to the local county jail (you can beat the rap, but you can’t beat the ride).  As such, it is likely that you will be asked to perform roadside sobriety tasks/exercises as part of the officer’s evidence gathering process.  You have an absolute right to refuse to do the tasks, although you will not be told that is the case.  Do not perform the roadside tasks, ever.  You’re almost certainly being arrested anyway.

Subsequent to your “lawful” arrest, you will be asked to submit to a breath test.  The sanction for either blowing over the legal limit or refusing to take the breath test is outlined below.  Keep in mind that this is purely an administrative sanction and is separate and apart from the criminal sanctions you face for a DUI arrest and conviction. If you look at your driving license, you will notice that below your signature you’ve already agreed to take the test.  It’s a condition precedent to being given a license.  It’s called Implied Consent.

If this is your first DUI and you’ve had more than one drink before being stopped, don’t take the test.  If this is your second or subsequent DUI arrest, regardless of how much you’ve had to drink, don’t take the test.  If you refuse to take the test you should be given the following warning:

“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.”

What you are not told is that if you do take the test and are over the legal limit (0.08), your license will be suspended for six (6) months.  If this is your first DUI you have a right to a hardship license once you’ve enrolled in DUI school.  If this is your second or subsequent DUI, you will need to challenge the administrative suspension of your driver license within ten (10) days of your arrest or you will be facing thirty (30) days of hard time, which means no driving at all for any reason, if you blew over the legal limit.  If you refused to take the test, you will be facing (90) days of hard time.  After the hard time period is over, you can apply for a hardship license if you’ve enrolled in DUI school.

That being said, it’s no coincidence that people arrested for these types of offenses are either in recovery or in need of treatment.  If this is not your first time being arrested for DUI, please get help.  Statistics suggest that if you’ve had one DUI you’re very likely to get a second DUI within five years of the first.

My team can help you get the help you need, and we never charge for a consultation. My team can handle any criminal offense, so please feel free to contact me with any potential referrals or questions you may have.

Categories:
  alcohol, drugs, DUI
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