Now that people are spending a lot more time at the beach and back yard barbeques, I inevitably hear this question, “Should I take the breath test if I get pulled over?”
Drink Responsibly−And Know Your Rights
As a criminal defense lawyer and a former prosecutor this is a tough question to answer, because both the “yes” answer and the “no” answer have very serious consequences. Let’s start with the “yes.” If you take the breath test and blow more than the .08 limit, you give the police one of the strongest pieces of scientific evidence in their case against you. When it comes to driving under the influence, Florida law is very clear: if you have a blood alcohol level at or above a .08, you are under the influence. Without this evidence it is difficult, (but not impossible) to prove the case against you. Keep that in mind if you say “yes.”
No Breath Test Means Hand Over Your License For a Year
On the other hand, if you tell the policeman “no,” you still open yourself up to some serious consequences. First, you lose your license for one year. Open up your wallet and pull out your license. The fact that you possess that license means that you have basically agreed to take the breath test. It’s called “implied consent,” and if you don’t take the test, the State of Florida will take your license. It’s the law.
Furthermore, although you deny the police a key bit of important evidence against you by not taking the breath test, you also give the prosecutors a strong argument for their case, if you decide to go to trial. Florida law says that if you don’t take the test, the State Attorney can tell the jury that you knew the breath test results would show the police, and later the jury, that you were under the influence. This can be a very effective argument with a jury, should you decide to take your case to trial (remember I said it was difficult but not impossible for the prosecutors to prove their case without the breath test?). It’s also important to point out that some jurisdictions will not offer you DUI diversion if you do not take the breath test.
In the end, my answer to the question of “Should I take the breath test” is a question or two of my own. First, “How important is your license to you,” and second, “Do you have enough money for a taxi?” That usually gives folks the answer they need.