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Q:     If you are alleged to be innocent until proven guilty, how is it legally possible to charge a refusal for breathalyzer?  Has any lawyer argued that implied consent laws are illegal. For example,… Scroll down to read more!

Q:     If you are alleged to be innocent until proven guilty, how is it legally possible to charge a refusal for breathalyzer?  Has any lawyer argued that implied consent laws are illegal. For example, if you let an officer in your house, at any time you can tell the officers that you changed your mind and to get out.


A:     

Michael Adam Haber

Michael HaberLearn more. ” href=”http://www.avvo.com/legal-answers/if-you-are-alleged-to-be-innocent-until-proven-gui-1409631.html#!” rel=”nofollow” style=”-webkit-transition: all 0.3s ease; color: #006699; text-decoration: none; transition: all 0.3s ease;”>PRO

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9 lawyers agreed with this answer

Daniel Nelson Deasy
Daniel Nelson Deasy
Criminal Defense Attorney – Centennial, CO
Nick Jay Dorsten
Nick Jay Dorsten
DUI / DWI Attorney – Clearwater, FL
Ethan Patrick Meaney
Ethan Patrick Meaney
DUI / DWI Attorney – Minneapolis, MN
Derek Anthony Patrin
Derek Anthony Patrin
DUI / DWI Attorney – Minneapolis, MN
Gus Michael Centrone
Gus Michael Centrone
Criminal Defense Attorney – Tampa, FL
Timothy M. Smith
Timothy M. Smith
Criminal Defense Attorney – Charlotte, NC
Grant Ian Schwarz
Grant Ian Schwarz
Criminal Defense Attorney – Hollywood, FL
Thomas Klemens Almquist
Thomas Klemens Almquist
Criminal Defense Attorney – Gainesville, FL
Ted Harvatin
Ted Harvatin
DUI / DWI Attorney – Springfield, IL

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Lawyers agree
Answered Respectfully, you are confusing separate and distinct legal theories (i.e. mixing apples and oranges).

1) There have been more challenges to Implied Consent than you can imagine. The bottom line with it (apart from its repeated survival of constitutional or other challenge) is that you do not have a “right” to drive. Driving is a “privilege”, and it can be (and is) conditioned by the State. When you accept your FL-DL (or any DL or government issued “license” for that matter) the State agrees to permit you to drive on its roadways and in its borders and you agree to abide by all traffic laws and to submit to “any sobriety test required by law”. In most circumstances the State cannot “force” or compel you to submit to breath, blood or urine testing, but, so long as you are first afforded “due process” (i.e. the right to a hearing / administrative review) then the State can penalize you by rescinding your driving privilege for your failure to abide by your contractual obligation.

2) Searches of your home are an entirely different matter. You enjoy a constitutional right to privacy in your home, the sanctity of which cannot be violated by law enforcement without a validly issued warrant or an established exception to the 4th Amendment “warrant requirement” (such as consent). The law of consent is pretty simple: If you are competent to give consent (i.e. you are of sound mind, you have standing and you know and appreciate the circumstances) and if your consent is given freely and voluntarily, then it is valid UNTIL and UNLESS it is withdrawn – at which time the search must stop (unless there is at that time an independent basis to continue sans a warrant – i.e. you consent, the cops enter and in plain view they see a severed human head or a mountain of cocaine, in which case your subsequent retraction of consent will be ineffective and the cops will proceed under the “plain view” exception to the warrant requirement, or, if while inside your house they hear painful screams emanating from your basement and you then ask them to leave, your subsequent retraction of consent will likely be ineffective and the cops will proceed under the “exigent circumstances” exception to the warrant requirement, etc).

In this regard consent to search is akin to your 5th Amendment Privilege Against Compulsory Self-Incrimination. When you are in custody and the cops want to question (interrogate) you they must first advise you of your “right” to say nothing and to have a lawyer present. At that juncture you enjoy the right to choose to lawyer-up, STFU, or to talk to the cops. If you choose to talk you can, at any time, change your mind and invoke your right to counsel, at which point the cops cannot ask you any more questions. However, if you reopen dialogue with them then all bets are off and the process starts again (i.e. you will be re-Mirandized and are once again free to lawyer-up, STFU, or to talk to the cops).

Implied consent sucks but it is the law. If you don’t drink and drive then the odds are that you will never have to concern yourself with it; if you do, well, as the saying goes: “You buys your tickets, you takes your chances”.

I hope that you had as much fun reading this as I did typing it.

Good luck.

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.) 



When it comes to the subject of drinking and driving, the best advice that you are ever going to hear is:  “Don’t do it!  Get a DD (Designated Driver), not a DUI”.

Be smart: Don’t drink and drive, but, if you do, just say “NO{thing}”, don’t blow (in FL your 2nd subsequent refusal is a crime) and call me stat at 305-381-8686, 305-798-2220, **ARRESTED, **305DUI, **MIAMIDUI, **MIAMILAW or **HABERLAW.


Michael A. Haber, P.A.: Providing creative, effective and zealous criminal defense litigation services primarily in SoFlo since 1991.

At Michael A. Haber, P.A. “Its all about reasonable doubt”! 

Michael A. Haber, Esq. is prepared to speak with you about your case!

1-888-SHARK-8-1, 305-381-8686, 305-798-2220, **ARRESTED, **305DUI, **MIAMIDUI, **MIAMILAW or **HABERLAW.
“Like” Michael A. Haber, Esq. @ www.facebook.com/haberpa / follow Michael A. Haber, Esq. @ http://habercriminallaw.blogspot.com



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Michael A. Haber

At Michael A. Haber, P.A. "it's all about reasonable doubt"! Whether in State or Federal Courts, Michael A. Haber, P.A. strives to ensure that his client's rights are respected and that his clients receive top-tier legal representation and counsel. For more than a quarter of a century I have striven to make Michael A. Haber, P.A. a business that custom tailors its services to meet the needs of the client. This incorporates such things as (but is not limited to) doing my best to meet clients at their convenience (as opposed to mine), in locations and at times which are mutually convenient (sometimes at their homes, places of business, independent ground - having free wifi and excellent coffee any Dunkin Donuts always works for me - and occasionally even at odd hours), structuring fees to reasonably accommodate the parties, making myself personally available to the client as close to 24/7 as is possible and, perhaps most importantly, giving careful and comprehensive consideration to both micro and macro issues in a given case so as to be able to agree upon and effort toward a viable litigation objective. This is why I refer to Michael A. Haber, P.A. proudly providing "boutique criminal defense litigation" (being "a small company that offers highly specialized services"), and this is a large part of Michael A. Haber, P.A.'s mission statement Accordingly, Michael A. Haber, P.A. has provided personalized and boutique legal services to both individuals and entities, primarily in the South Florida area, since 1991. With no history of professional discipline whatsoever, Michael A. Haber, Esq. zealously advocates his client's interests and custom tailors his services to meet each client's particular situation, needs and desires. Toward that end Michael A. Haber, Esq. makes himself directly available to his clients whether in person, over the phone (305-381-8686 or Toll Free 1-888-SHARK-8-1), by cell, verbally or text (305-798-2220), by e-mail ([email protected]) on Facebook ( http://www.facebook.com/haberpa ), on Twittter, (@Sharkjy910) on AOL/IM (Sharky910), and also why I consistently add information to the public on both the Michael A. Haber, P.A. Criminal Michael A Haber PA Criminal DUI Defense Litigation Miami Blog (http://www.habercriminallaw.blogspot.com/) and with my "Webisode" series on YouTube (http://www.youtube.com/c/MichaelHaberLaw), whcih currently features 222 briegf VideoFAQ's on a variety of Criminal Defense, DUI and BUI related topics. When you hire Michael A. Haber, P.A. you get Michael A. Haber, Esq.! And remember, at HaberPA, it's all about reasonable doubt!

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