DUI: What if I Don’t Take a Breath Test?

By Jonathan Blecher on March 7, 2019

When someone is pulled over on suspicion of driving under the influence (DUI), usually the officer will ask the driver to take field sobriety exercises (FSEs), then when the driver fails the tests, the officer will ask the driver to take a roadside breath test.

It’s critical that all Florida drivers know that they are not legally required to take the FSEs, and there is no penalty for refusing. So, I do not recommend that people submit to the FSEs as the evidence captured on the dashcam or the officer’s bodycam will only be used against them in court.

If the officer says, “If you pass the FSEs, you’ll be on your way.” Don’t believe them. Usually, by this time, the officer has decided to arrest you no matter how well you do – that’s the typical scenario. From a DUI defense attorney’s standpoint, there are ZERO benefits in taking the FSEs.

Pre-Arrest vs. Post-Arrest Breath Test

There are two types of breath tests a driver will encounter during a DUI stop. The first one is the pre-arrest roadside breath test that is performed in the field. Usually, the driver will fail the field sobriety tests and, in an effort to collect more evidence, the officer will ask the driver to breathe into a small hand-held breathalyzer machine.

When asked to take the roadside breath test, say, “No thank you.” The only time you may want to consider taking a breath test is when you have no alcohol in your system. After politely refusing the FSEs and the roadside breath test, if offered, there’s a very slight chance the officer will let you drive away. However, that’s unlikely.

Note: If you’re asked if you’ve been drinking or how much you’ve been drinking, it’s advised not to answer these questions – this way you aren’t giving the State more evidence against you. Just remember to be polite when you say you won’t answer the officer’s questions, and that you want to talk to your attorney.

The DUI Arrest

After refusing the FSEs and the roadside breath test, what will most likely happen is you’ll be arrested for DUI and taken down to the station. Once you arrive at the police station, the officer is going to ask you to take a second breath test, only this breathalyzer machine is located at the station. At this point, you can say “yes” or “no” to the second breath test, but remember, the officer cannot force you to take it.

If you say “no” to the second breath test, you can be charged under Section 316.1932 of the Florida Statutes for refusing a breath test. In which case, your driver’s license will be suspended automatically for one year for a first refusal. You can promptly request a review hearing to challenge the suspension of your license and your DUI attorney can fight any DUI charges at trial – the DUI case may be too weak for the state to win because there is no evidence.

I hope this article clears up some questions. If you’re facing in Miami, contact my firm today for a free consultation.