Should I Take a Breath Test? The Midnight Call

By Jonathan Blecher on February 24, 2020


When I tell people I’m a DUI specialist, the first question I’m asked is whether you take the test?

Often this question comes up at 12:30 in the morning. The answer to this question turns on a variety of factors. I’m always available by cell phone to answer this question for someone about to make that crucial decision. So, after I’ve cleared the sleep from my eyes, I go into power mode and ask the client a bunch of questions without the police knowing the answers.

I’ll try to ask the client as many Yes/No questions to figure out the situation and the upside and downside of taking the breath test. First, if an accident was involved, I may defer to a “no” answer, since a breath test result may make it much easier for the State to prove their case. The accident may involve serious injuries or death which raises the stakes quite a bit.

I’ll try to ascertain if the client has any prior convictions, in Florida or any other state, and when. In Florida, a second or subsequent refusal carries an additional misdemeanor charge and a possible 18-month no permit suspension administratively. If this is a 4th DUI arrest, the State could charge the case as a felony which carries a possible state prison sentence and a lifetime revocation of the license.

Naturally, a motorist who makes this decision on his or her own must live or die by the decision. But an attorney must take great care to try to figure out how much the client has had to drink (or smoke, ingest, inhale) and what his or her state of intoxication is. Keep in mind that the police will be looking over the client’s shoulders without much privacy.

The first instruction I give the client is to be 100% honest with me. I tell them to answer “yes” or “no” only. Sometimes
it takes a few explanations, but it’s necessary. Don’t help the police. Then I’ll ask the client questions about alcohol/drug
use: “Was it more than one?” “Was it two?” “Did you take any drugs?”

I’ll then move to what the client does for a living. Under Florida’s DHSMV rules, a refusal suspension will carry at least a one-year suspension, and possible 90-days with no temp permit.

I remind the client to be respectful with the officer and then try to speak with him or her. I may find out some useful information such as how the client did on the roadside tests or other details about the case.

Any attorney who does these cases on a regular basis should be able make rough calculation of BAC their head.

Schedule a Free Consultation with Jonathan Blecher, P.A.

Arrested for your second DUI? Don’t hesitate to contact Miami DUI Attorney Jonathan Blecher. He has more than three decades of experience defending the criminally charged and has been extensively recognized for his skills. With over 3,000 DUI cases successfully defended, you can rest assured that he is well-equipped to handle your case as well.
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