Should I Submit to a Breath Test?

By Jonathan Blecher on June 15, 2016

As a DUI defense attorney I am frequently asked, “Should I submit to a breath test?” If you ask different attorneys, you’ll
hear different opinions. Generally speaking, my response to people when they ask me this question is no, don’t do it.

When asked to take a breath tests, I believe that it is best to invoke your right against self-incrimination and not blow. Even if you do blow less than .08%, the state can still find you guilty of driving under the influence if it can prove that your ability to drive was impaired.

For example, if your BAC is .06%, you will not be arrested for DUI. The prosecuting attorney can still pursue a conviction under the theory that your normal faculties were impaired by alcohol, and therefore it was unsafe for you to drive.

Essentially, you are the only person who knows exactly how much alcohol you drank that day. If you are a normal sized man or women and you only had two 12 ounce beers, the chances of you blowing more than .08% are very slim.

What is your level of intoxication?

On the day of the arrest, this is a decision that you have to make. Depending on your level of intoxication, deciding not to blow can either help or hurt you. If you decide not to blow and you win your court case, you will not have a criminal conviction.

Generally, it’s much easier to win a DUI case without a blow than it is to win a case where the DUI defendant blew over .08%. Of course, having a BAC under .08% helps as well, but the question is, “Can you guarantee that you will blow less than .08%?”

If you are pulled over on suspicion of DUI and you’re asked to provide a breath sample, you are taking your chances whether you do or don’t. If you don’t and you lose the administrative hearing, you will lose your license for one year.

Still, I generally recommend that people do not take the test, especially when there is a strong likelihood that their BAC is above the .08% legal limit.

If you are looking for a Miami DUI defense lawyer, contact me at Jonathan Blecher, P.A. Since 1982, I have defended
over 3,000 DUI-related cases, I am a member of the National College for DUI Defense, and I was named to Florida Trend’s Legal Elite.