Should I take the breath test or refuse?

ImagePeople sometimes ask: “If I get arrested for DUI, should I take the breath test or refuse?”

The answer used to be, “It depends.”

Recent changes in Florida law now compel many DUI defense attorneys to answer the question this way, “For a first DUI, most people would be better off refusing to take the breath test unless they know they will blow under the legal limit of .08.”

Florida’s Intoxilyzer 8000 Machines are Really Old

Florida’s Intoxilyzer 8000 machines were put into service in 2006. As the machines get older, the chances of an accurate and reliable reading decreases.

These machines cost approximately $6,000 when they were originally purchased. Now that the machines are more than 12 years old, repairs are needed more frequently and the repairs become more expensive.

The agencies that maintain the machines are good at finding ways to avoid sending the machine off for repairs.

Over the years, we’ve seen agency inspector delete error / exception messages from the comments section of the “Form 40” by hitting the backspace button enough times to delete the message.

In fact, in Pasco County, a former agency inspector admitted he was trained to hit the backspace button when certain types of errors occurred including on the alcohol-free or mouth alcohol test.

Budget Cuts Mean the Machines Are Less Likely to Work Properly

Recent budget cuts mean that the FDLE has slashed the number of Departmental Inspectors. FDLE previously required its Departmental Inspectors to travel at least once a year to the Central Breath Testing Unit (CBTU) of the Hillsborough County Sheriff’s Office (HCSO) for an inspection.

The Departmental Inspector was responsible for inspecting the location where the instruments were set up to make sure they were working properly and that all of the rules were being followed.

Because of the budget cuts, the breathalyzer machines in Tampa are now boxed up and sent by UPS or another common carrier to Tallahassee for the annual inspections.

Inspecting the instruments at the location where the test was conducted used to be critical and that requirement was eliminated just because of budget cuts.

.20 BAC Means You are NOT Eligible for the RIDR Program

The State Attorneys Office (SAO) in Hillsborough County recently created a new diversion program called Reducing Impaired Driving Recidivism (RIDR).

This program allows a first-time offender to completely AVOID a conviction and even makes them eligible to seal their record after completing the program.

You are automatically ineligible for the program, however, if you submit to a breath test blow a .20% or above.

How many people blow a .20% or above BAC? Recent DUI statistics released by the Tampa Police Department show that in 2016, 10.3% of the people who submit to a breath test blow a .20 or above.

For that 10.3 % of people would be far better off refusing to submit because after that breath test they are AUTOMATICALLY not eligible for the new RIDR diversion program.

For that 10.3% of people who take the breath test, they won’t qualify for the RIDR DUI diversion program, they might face a DUI conviction and enhanced penalties for blowing over .15. The DUI conviction means they can never seal or expunge the criminal history o the arrest and prosecution.

.15 BAC Means Enhanced DUI Penalties

Florida law provides for several enhanced penalties if you blow over a .15. That’s right – the penalties are worse if blow over a .15 compared with just refusing the test.

In fact, the fine is $500 to $1,500 higher for a high blow DUI compared with a DUI refusal. Also, if you blow over the .15 the court will order you to install the ignition interlock device installed in your vehicle for at least 6 months. No such requirement exists if you simply refuse to take the breath test.

If you look at the DUI statistics published by the FDLE for all of 2012, the average breath alcohol concentration was exactly .150 for more than 38,000 individuals that submitted to the breath tests.

In 2011 the average breath alcohol concentration was .148. And if you look at everyone who blew in all of 2012, 56% of those individuals blew over a .15.

# of Breath Samples <0.08 g/210L

9219 16%

# of Breath Samples >/= 0.08 g/210L

47785 84%

# of Breath Samples >/=0.15 g/210L

31697 56%

If 56% of the individuals blew over a .15, then it appears likely the majority of those individuals with a first DUI would have avoided the enhanced penalties by just refusing the chemical testing.

The Main Deterrent to Refusing Was Eliminated in Florida

For anyone arrested for a first DUI after July 1, 2013, Florida created a way to avoid the main deterrent to refusing to take the breathalyzer test – the dreaded 90-day hard suspension.

Now, a person accused of refusing the breath test after a first DUI arrest can avoid the 90-day hard suspension by requesting immediately reinstatement of their hardship privileges. This is a good option for people who cannot afford a private attorney fight the administrative suspension.

[[At the Sammis Law Firm in Tampa, FL, we still tell our clients that they should let us demand the “formal review hearing” within 10 days of the arrest even if they are eligible for immediate reinstatement. Click here to find out why the formal review hearing should never be waived if you can afford a good DUI attorney to help you fight to invalidate the suspension]]

But for anyone who doesn’t contest the suspension, it doesn’t matter whether you take the breath test or refuse – for a first offense, you can go to the Bureau of Administrative Review (BAR) Office to obtain a hardship license if:

  1. you personally appear at the BAR Office within 10 days of the arrest to request immediate reinstatement;
  2. you stipulate to the administrative finding that you were DUI (which then remains on your driving record for 75 years);
  3. show proof that you enrolled in DUI school;
  4. have no prior DUI administrative suspensions or convictions; and
  5. have a driver’s license that is otherwise valid with no other holds that make you ineligible for the hardship.

Should You Take the DUI Breath Test or Refuse?

So remind me again… For a first DUI, why would anyone want to submit to a breath test?

Given the unreliable nature of the breath test machine used in Florida, the Intoxilyzer 8000, and the enhanced penalties that can occur with a high BAC, many people decide to refuse to submit to the breath test.

Although a refusal comes with a longer administrative suspension, recent changes in DUI law make refusal a better alternative for many.

Call 813-250-0500 for more information.

Leslie Sammis is a DUI defense attorney in Tampa, FL. Read more about DUI cases for a refusal. This article was last updated on Friday, November 1, 2019.

One Comment

  1. Posted July 7, 2019 at 07:29 | Permalink | Reply

    Excellent, as always.

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