Should I Take the Breathalyzer Test If I Am Suspected of Drinking and Driving?

This is one of the most important questions in any Florida DUI stop because refusing a breath test can create serious legal consequences.

Unlike roadside field sobriety exercises, a lawful breath test after a DUI arrest falls under Florida’s implied consent law. In Florida, by driving on the roads, you are generally deemed to have consented to an approved breath, urine, or blood test when the legal requirements are met. A breath test must be connected to a lawful arrest and requested by an officer who has reasonable cause to believe you were driving or in actual physical control of a vehicle while under the influence.

Is a Breathalyzer Test Voluntary in Florida?

Not in the same way field sobriety exercises are voluntary.

You can physically refuse to blow into the machine, but Florida law imposes penalties for refusing a lawful breath test. A first refusal can result in a one-year driver’s license suspension, and a second or subsequent refusal can result in an 18-month suspension. Florida law also allows the refusal to be used as evidence in a criminal proceeding.

Florida law also provides that refusing a lawful breath test can be charged as a misdemeanor, with enhanced consequences if the person has a prior refusal-related suspension or fine.

What Happens If I Refuse the Breath Test?

If you refuse a lawful breath, blood, or urine test, the officer can take your driver’s license and issue a notice of suspension. Florida law provides for a 10-day temporary permit if you are otherwise eligible to drive. You may request a formal or informal review of the suspension, but that request must generally be made within 10 days after the notice of suspension.

That 10-day deadline is critical. If you wait too long, you may lose important rights related to your driver’s license.

What Happens If I Take the Breath Test and Blow Over the Limit?

Taking the breath test can also create evidence against you. If your breath-alcohol level is 0.08 or higher, Florida law allows an administrative license suspension. A first unlawful breath-alcohol suspension is generally six months, while a later suspension under the same section can be longer.

That does not mean the case is over. Breath test results can be challenged.  DUI defense attorneys may investigate whether the stop was legal, whether the arrest was lawful, whether the machine was properly maintained, whether the operator was properly certified, whether testing procedures were followed, and whether medical or environmental factors affected the result.

So Should I Blow or Refuse?

There is no one-size-fits-all answer, but you need to understand the risk: refusing can trigger license suspension, may be used against you in court, and may create a separate criminal issue.

If you are already under arrest and law enforcement is requesting a lawful breath test under Florida’s implied consent law, refusal can make your case more complicated. At the same time, submitting to a breath test may give the prosecution numerical evidence to use against you.

The most important thing is this: do not talk your way into a worse case. Do not explain how much you drank. Do not guess when your last drink was. Do not admit impairment. Do not argue with the officer. Do not volunteer information.

You can say:

“I am invoking my right to remain silent. I want to speak with my attorney.”

What Is the Difference Between Field Sobriety Exercises and the Breath Test?

This distinction matters.

Field sobriety exercises are roadside performance tests. These are generally voluntary, and many people decline them because they can create subjective evidence of impairment.

A post-arrest breath test is different. It is governed by Florida’s implied consent law. Refusing a lawful breath test can result in license consequences, evidentiary consequences, and possible criminal penalties.

Why Call Fort Myers DUI Defense Attorney Michael M. Raheb?

Fort Myers criminal defense attorney Michael M. Raheb has successfully handled hundreds of cases in state and federal courts throughout Southern Florida. He believes in aggressively attacking every aspect of the government’s case, including the traffic stop, probable cause, arrest procedures, breath test request, implied consent warning, machine reliability, officer training, and constitutional issues.

Mr. Raheb has handled jury trials ranging from DUI and BUI to murder and aggravated sex battery. He has served as an Assistant Public Defender, filed dozens of writs of habeas corpus, and has been an integral part of appellate litigation, including Young v. Shoap.

He also served as lead defense counsel in one of Florida’s most publicized sexual battery cases, State v. Hiatt, where his client faced an offer of life in prison without parole. Mr. Raheb successfully defended the case, and his client was acquitted in less than three hours.

Contact Michael Raheb Immediately After a DUI Arrest

If you were arrested for DUI in Fort Myers, Cape Coral, Lee County, Collier County, Broward County, or anywhere in Southern Florida, you need legal help immediately. DUI cases move quickly, and the driver’s license deadline may be only 10 days from the notice of suspension.

Do not discuss your case with police. Do not assume the breath test result is unbeatable. Do not wait until your license rights are gone.

Contact Michael M. Raheb today to arrange a free consultation and begin protecting your rights.