Implied Consent for Breath Tests Under Florida Law

If you are pulled over and asked to submit to a breathalyzer, do you have to do so? The short answer an experienced DUI criminal defense lawyer would give you is yes. Refusing is not likely to prevent an arrest. Florida has an implied consent law, which provides that anyone who drives on Florida roads – even with an out-of-state driver’s license – has automatically agreed to submit evidence to the police if necessary to determine sobriety. Usually that means a breath test, but the police can also check your blood or urine, especially if they believe you are under the influence of drugs. Numerous motorists throughout Miami-Dade, Broward, and Palm Beach Counties face this issue each year. In 2005, the federal Department of Transportation reported that Florida had the highest breath test refusal rate in the country at 37%.


Refusing to submit to a breath test will have consequences. If you are prosecuted for DUI, the state can use your refusal against you. The first time you refuse is not a criminal offense, but the Florida Department of Highway Safety and Motor Vehicles will suspend your driver’s license for one year. Appeals must be filed within 10 days of refusal. After 90 days, you may be eligible for a hardship license to drive to your place of work. You will have to complete a class on substance abuse and driving. If you refuse a breath test on two or more separate occasions, the DMV will suspend your license for 18 months and you will not be eligible for a hardship license during that period. As with the first offense, you can appeal the DMV decision within 10 days of your driver’s license suspension. It is important to contact a criminal defense attorney quickly after your arrest to assist with your appeal. Additionally, if you refuse a breath test two or more times, the refusal is a criminal offense itself, separate from a DUI.


Even if you refuse a breathalyzer, the prosecutor may still be able to prove your intoxication based on other factors. Declining to take the breath test is not a get-out-of-jail free card. For example, police officers and other witnesses might testify about behavior, slurred speech, the smell of alcohol, and field sobriety tests. If you submit to blood and urine tests, those can also show intoxication, including detection of a variety of substances other than alcohol. A DUI conviction can result in a prison sentence, even if it is your first time. See the Florida Department of Highway Safety and Motor Vehicles DUI page for details. If you submit to a breath test and blow over the legal limit of 0.08 your license will only be suspended for 180 days to one year following your first offense, but you will also be subjected to criminal penalties if you are convicted of DUI.

Because of the complicated nature of DUI law, it is important that you seek the advice of an experienced criminal defense attorney before you make these decisions. DUI convictions can result in hefty fines and jail time, especially if your blood alcohol level was very high or there was a child in the car.

This article is intended to provide information, not legal advice. If you have been charged with DUI in Florida, contact William Moore, P.A., which has experienced south Florida DUI lawyers with offices in Miami-Dade, Broward, and Palm Beach Counties.


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