By: Miami DUI Lawyer Albert Quirantes
DUIs in Florida are very serious business in the courts. The state is very conservative on crime and punishment. This is not a “driving” offense as much as it is a criminal one, so what you do and how you behave should be completely different if stopped for a potential DUI than if you were stopped for speeding. The police officer who stops you will demand that you take sobriety tests—something that is not done in other circumstances. Many want to know what to do in those situations; do you take the test or refuse?
Of course the state wrote in punishments for asserting your rights. This is Florida, after all. Florida State Law maintains that there is implied consent by virtue of holding a state issued license that you will comply with “lawful” requests for an “approved” sobriety test, but the courts have deemed that your license cannot be suspended if it is an “unapproved or unlawful test”. By now you are pretty confused as to what is lawful and unlawful, I’m sure.
Trust me it was meant to be confusing and offer the state all the wiggle room possible. They are trying to show some fleeting homage to your 4th Amendment rights while also giving them incredible power to punish you for asserting those rights. An approved test is a breath, blood or urine test. Roadside sobriety test or field sobriety tests are not “approved tests”, in fact they are so unreliable that the courts do not even let you refer to them as tests at trial. They are referred to as sobriety exercises.
Even if the test is an “approved test”, in order for it to be “lawful” the equipment must have been maintained to the letter of the law, the operator must follow the rules in taking the sample and maintain his education and credentials up to date. Now to address the refusal, refusal of an approved test will get your license suspended if it is determined you were impaired. However, if they can’t prove it, the game changes entirely.
On to breath tests. They are notoriously bad at determining sobriety and the state equipment has been privately tested before with rather frightening results. You could be sober enough to drive but appear highly intoxicated according to the breathalyzer machine.
This alone is reason to consider not consenting. If you were slightly intoxicated you’ve just given the state their entire case. The act of refusing a breath test at the station will generate a one year license suspension if it’s your first refusal and an 18 month suspension and a first degree misdemeanor if you have refused before. There is no penalty for not consenting to the roadside breath test, the eye test known as HGN or the roadside tests other than it can be mentioned at your trial that you refused them. There’s really no reason in my mind to agree to perform them either.
However, most people automatically consent to whatever the police officer is asking them to do. It’s natural. It’s also harmful to you case, no matter what the officer says. Your attorney can probably fix the situation for you, smooth over the refusal with the jury.
It’s what we do. If you lose your license due to the refusal of a breath test, we can get you a temporary license to go to and from work while we challenged the refusal at a formal review hearing. If that’s lost, and it’s your first refusal, after a waiting period, we can help you get a hardship license for business purposes and to maintain your livelihood during the suspension period. What we find a lot harder to do is smoothing over the results of a test that you willingly took and yielded a bad result. Although it’s still possible to challenge, it is a lot harder and more expensive to do.
If you have questions about what you should do or even how to fix what has already been done, give us a call today. We can help.
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If you have any questions about this or any other DUI or criminal defense accusation, call Miami DUI Defense Lawyer Albert Quirantes at: 305-644-1800 or visit our homepage wwwDUIfirm.com for a direct link to the office or a text message or a map and directions to our office.