Law Offices of Jerry Berry

To Blow or Not to Blow


One of the most frequently asked questions of criminal defense attorneys is: If I am arrested for driving under the influence, should I take the breathalyzer?  What used to be a simple question is now very complex.  The simple answer usually is “No, don’t blow.” The truth has become more nuanced as the laws have changed in recent years, so what follows is our best general advice based on the current state of legislation.


When I first started practicing criminal law, the answer to this question was always “no.” At that time, based on the right not to incriminate yourself, a refusal to take the breathalyzer test was not admissible at trial. In addition, there were no penalties for refusing. Clearly, there was no compelling reason to comply with a breathalyzer test.  However, all of this has since changed.


The Supreme Court has ruled that blood and breathalyzer tests are not testimonial in nature and are not protected by the Fifth Amendment Privilege. The courts have also ruled that a jury can be informed that the defendant refused the breath test. For some jurors, and some juries, the simple fact that the person refused the test is sufficient grounds to convict for DUI. When deciding whether or not to blow, this factor has to be weighed against the possibility that the breath results may be high. By itself, a high blow is often sufficient evidence to obtain a conviction. Thus, the average arrestee quickly realizes they are between a rock and a hard place.


The legislature has also added further nuance to the complexity of the answer. Under Florida law, a person who is arrested for a first offense DUI and blows over the legal limit (.08) automatically loses their driver’s license for six months. During that six month period, the person, after enrolling in DUI School, may obtain a business permit which allows them to drive for work, educational, religious, and medical activities.


If, however, the same person refused the breath test, then the suspension is imposed for one full year. The person may still get a business permit after enrolling in DUI School. A suspension can be challenged by a driver. However, if an individual does pursue a challenge and they lose, then the individual will be sentences to thirty or ninety days of “hard time” during which the individual cannot drive for any purpose. The length of the sentence will be determined based on whether the suspension was imposed for testing over .08 or refusing to be tested.


For a second refusal the person’s license is suspended for eighteen months with no permit.  Additionally, a second (or subsequent) refusal can be charged as a first-degree misdemeanor.   These license suspensions are administrative and apply even if the DUI charge is dismissed by the State of Florida.


Thus, the person arrested needs to understand that while a refusal may make it more difficult for the state to prove that the driver was guilty of driving under the influence, it does come at a price. A refusal will probably lead to a longer license suspension and a longer period without a business permit, and the driver may still be convicted of DUI. Thus, the accused impaired driver is left with a tough decision. 


My advice: if you are not sure, don’t blow.


The best advice I can give, however, is not to put yourself in the position where you have to make that choice. It is much less expensive, inconvenient, dangerous, and embarrassing to have a friend or family member drive or to take a taxi. Before you make the choice to become intoxicated, have a plan in place that will enable you to make it to your destination safely. If you find that you are struggling with managing your alcohol intake, reach out to your physician for assistance. You don’t have to manage your struggle alone.


Some sobering information:


If you are convicted of a DUI that caused serious bodily injury, the sentencing guidelines call for a minimum sentence of 4.5 years in prison. Tack on another 2.5 years (minimum) for each person seriously injured.


If you are convicted of DUI that caused death, the sentencing guidelines require a minimum sentence of 10 years in prison. Add another 7.5 years (minimum) for each death and 2.5 (minimum) years for each person who is seriously injured.


The conclusion is obvious: don’t drink and drive!