Do I Have to Take a Roadside Breath Test in Florida?

By Jonathan Blecher on July 2, 2019

There is a lot of confusion surrounding breath tests and reasonably so. While people hear all about the dangerous drinking and driving, there’s little education offered to drivers about the consequences of taking or not taking a breath test. Not only that, but few drivers know when breath tests are legally-required, and the consequences of refusing.

Usually, drivers wing it when they’re stopped on suspicion of DUI, and they haven’t a clue as to what would happen if they said “yes” or “no” to a breath test. So, do you blow or not? That is the question people ask all the time.

Two Kinds of Breath Tests

Generally, there are two kinds of breath tests utilized in DUI cases: 1) the roadside breathalyzer test that is done before a DUI arrest, and 2) the more sophisticated breath test that is performed after the DUI arrest.

Under Florida’s implied consent law, which can be found in Section 316.1932 of the Florida Statutes, it explains how anyone who accepts the privilege to drive is deemed to have given his or her consent to an “approved chemical test.”

Under the law, an approved chemical test involves blood, breath, and urine tests for the purposes of determining the alcohol content in the blood or breath, “if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.”

If you refuse to submit to a chemical test after a DUI arrest in the form of a blood, breath, or urine test, under Florida’s implied consent law, your driver license will be suspended for one year. You will also be charged with a misdemeanor.

Saying ‘No’ Before the Arrest

The key words to remember about Sec. 316.1935 are, “if the person is lawfully arrested.” So, if a driver politely declines to take the pre-arrest, roadside breath test, there is no penalty, but if they are arrested for DUI and they refuse to submit to a chemical test (blood, breath, or urine) down at the station andafter the arrest, they will be charged with a misdemeanor and their driver license will be suspended for one year (upon a first offense).

“Should I refuse the chemical test back at the station?” If this is your first offense, it’s generally not helpful to refuse a chemical test after the DUI arrest. With a first DUI in Miami, you may be eligible for the Back on Track Program, which could have a better outcome than if you refused to take a chemical test and faced the corresponding penalties.

Facing DUI charges in Miami? Contact my firm for a hard-hitting defense.