DUI: To Blow or Not to Blow… That is the question

Driving 101.

Driving is not a “right” (it is unlike your Constitutional rights, for example to free speech, against unreasonable searches and seizures, etc.) it is a privilege. The privilege to drive is extended to you by the State of Florida with contractual obligations. The State agrees to permit you to drive and in exchange you agree to a) abide by all traffic laws and b) to submit to sobriety testing if lawfully requested to do so. Your failure to abide by your contractual obligations can result in the State suspending, revoking or even cancelling your driving privilege. However, and although driving is not a “right”, the State must is obligated to afford you “due process” prior to suspending, revoking or cancelling your driving privilege.

DUI 101.

In Florida DUI is defined as driving, or being in actual physical control, of a motor vehicle and either having a BAC of .08 or higher or doing so while your normal faculties are impaired. While there are a myriad of issues (for example, what is a motor vehicle, what constitutes actual physical control, etc.) this Legal Guide’s focus is on breath and refusal.

If you blow then a BAC will be generated by the breathalyzer. If your BAC is over .08 then you will both create a legal presumption of impairment and suffer an automatic suspension of your FL/DL; if your BAC is under .08 then your license will not be suspended, but you can still be arrested and prosecuted under the “impairment” theory.

The “impairment” theory requires the State to put forth sufficient evidence to prove beyond a reasonable doubt that you were driving (or in APC) and that your normal faculties were impaired due to alcohol or controlled substances, but they must do so without the benefit of a BAC printout.

Breath 101.

As previously stated, if you blow then a BAC printout will be generated by the breathalyzer. If your BAC is over .08 then you will both create a legal presumption of impairment and suffer an automatic suspension of your FL/DL; if your BAC is under .08 then your license will not be suspended, but you can still be arrested and prosecuted under the “impairment” theory.

If it is your 1st DUI and you blow over then you are going to receive a 6 month DL suspension, if its your 2nd then its a 12 month suspension (and if it occurs within 5 years of your 1st then its a 5 year revocation), if its your 3rd then its a 5 year suspension (and if it occurs within 10 years of your 2nd then its a 10 year revocation) and if its your 4th or more then you will need more personal attention than this Legal Guide can offer.

Cops and prosecutors love breath cards because if they are over .08 then their cases are usually easier (as juries tend to like to trust the machine).

Refusal 101.

You cannot be compelled (forced) to blow into a breathalyzer. If you are asked to do so then it is a choice that you will have to make in the moment and without an opportunity to call a lawyer or consult a Legal Guide. You will be read the “Implied Consent” law, which explains the consequences of a refusal. Because you may not comprehend it at that time, if you drink and drive then it is best to know the law in advance.

First, your refusal also creates a presumption. Unlike breath over .08 the presumption is “consciousness of guilt” – meaning that the prosecutor can argue to the jury that the reason that you did not blow is because you knew that if you did blow then you would have blown over the legal limit.

Your 1st refusal earns you a 12 month suspension, your 2nd an 18 month suspension plus a separate and distinct criminal charge for “second subsequent refusal” (see Florida Statute 316.1939 – which is punishable separately).

Breath 102 (Breath “Under”): Possible Consequences.

As mentioned, if you blow under .08 then you will not suffer a FL-DL suspension. This is so as, technically, you have complied with your contractual obligation to submit to sobriety testing after lawfully having been requested to do so; however, and while your driving privilege will not be suspended for either blowing over .08 or refusing to blow, your “low blow” has potential negative consequences of its own.

First, and as previously mentioned, you can still be arrested and prosecuted for DUI under the “impairment” theory. Second, nothing precludes law enforcement from then requesting the you provide a urine sample which, if you refuse, will land you in the same spot as if you had refused breath. If you provide urine and anything is detected in it by the lab then dollars to donuts the State will argue that you were “impaired” due to the substances detected in your urine.

What will my BAC be?

Not withstanding what the State’s experts will taut as scientifically sound, there is no concrete answer to what your BAC will be based upon your breath or upon your height, weight, age and alcohol consumption. The facts are that every person is an individual with a unique metabolism, that each moment of each day the human condition changes due to an uncountable number of factors (for example, amount of sleep, what you have eaten, when you have eaten, etc), and that the breath testing devices (again contrary to the opinion of the State’s experts) are standardized and do not account for differences between people (i.e. the machine is not recalibrated for men vs. women or skinny vs obese or old vs young or for any other factor – the same equation is used for everyone).

Still, if you want a general idea (something to consider but not rely upon) then take a look at the charts at the following website: http://www.breathalyzeralcoholtester.com/alcohol-chart-estimation

So? What do I do?

It is not illegal to drink and drive in FL; it is illegal to drive (or to be in APC) with a BAC of .08+ or with impaired normal faculties. The best way to avoid a breath test is to not have alcohol on your breath. If you do not drink and drive then there is almost no chance that you will be suspected of DUI (this does not eliminate the possibility of accusations about controlled substances but those are the exceptions to the rule).

If you are asked to provide a breath sample then it is decision time. If you have been drinking then you should consider refusing, but if you have refused before then you have to consider the additional charge for your second subsequent refusal.

My personal opinion is that if you have been drinking then it is probably a better choice to refuse; but every DUI is unique and the only true common denominator is that you might beat the rap but you won’t beat the ride.

Be smart: Don’t drink and drive.