Ask any lawyer who practices criminal law in Broward County, Palm Beach County, or Miami-Dade County what one legal question he or she gets asked by friends the most and they will almost always say, “To blow or not to blow?” when you get pulled over for suspected DUI. Some lawyers will tell you that you should NEVER submit to a breath tests or roadside tests. At the Criminal Law Firm of Berman & Tsombanakis LLC, we do not feel that “never” is always the best advice. Very few things in the legal field, and life in general for that matter, can be answered so blanketedly with advice like “never” do something.
The best answer to this question is to use common sense. If you have not been drinking, or you truly on had 1, maybe 2 drinks (depending on your size and weight) then it probably would be in your interest to submit to both the breath and roadside tests. If you truly had very little to drink then you should blow under the Florida legal limit of .08. The officer can still arrest and charge you with DUI if you blow under .08, but that case is unlikely to result in a conviction, especially if you hire a competent criminal law attorney or law firm such as Berman & Tsombanakis LLC.
If, on the other hand, you have been drinking 3 or more drinks, unless it was over many hours (The bodily processes 1 alcoholic drink out of your system in 1 hour), then it probably is in your best interest to refuse both the breath and roadside tests. Click here for a good article on how long alcohol stays in the body. Although we will save a full discussion of Florida’s implied consent law for another blog post, there are consequences for refusing these tests. Your driver’s license will be suspended for this refusal for 6 months if it is your first refusal and 18 months for second and subsequent offenses. However, at the end of the day, this is preferable to talking the roadside and breath tests and failing them, giving the state more evidence to prosecute and conviction you of DUI. Click here for the DUI penalties. In South Florida, if you refuse everything, the State of Florida, through the Broward, Palm Beach, and Miami-Dade State Attorney’s office, may have very little, if any, evidence with which to prosecute you for DUI, often resulting in a Not Guilty verdict or the dropping of the DUI charge.
One issue to be aware of is to not decide to take or refuse the breath and roadside test on how you feel. If you have been drinking, alcohol can and will affect your judgment. You may feel fine and think you can easily pass these roadside and breath tests, but in actuality, may not be as fine as you think. You should base your decision solely on how much you had to drink, over how long a period you had those drinks, and your height and body weight.
One exception to all of this is that in our professional opinion an experiences, many police officers have already made up their mind that they are going to arrest you for DUI before you even perform the roadside tests. Additionally, many roadside tests are inherently flawed and may not accurately measure your impairment and can be easily attacked in the courtroom at trial. I’ll save a discussion about this issue for a future blog post.
The bottom line, many attorneys offer poor legal advice by saying that you should NEVER take roadside or breath tests when pulled over for DUI in South Florida. We at the Criminal Law Firm of Berman & Tsombanakis LLC believe that advice is somewhat flawed and urge our clients to try to use common sense in making that decision. If you haven’t been drinking at all or had very little to drink, then it may be in your best interest to take these tests. On the other hand, if you have had a few drinks, say 3 or more, and it wasn’t over a long period of time, we urge you to refuse both the breath and roadside tests as well as any other tests asked of you.