To Blow or Not to Blow? That is the Question.

As a DUI practitioner, I get asked all the time whether it’s a good idea to provide a breath sample when a person gets arrested. Personally, I don’t have universal advice I give people and I’m not going to do that here, but I will provide you with some basic information. This is not comprehensive and I also want to advise everyone to consult with an attorney if you’ve been charged with a DUI.

First, here is some information about what everyone else does. According to statistics compiled by the Florida Department of Law Enforcement from 2016-2018, about 30,000 people a year in Florida are asked to provide a breath sample. Over 97% of those people are asked to so because they’ve been arrested for DUI, but there are other reasons why you make be asked to do so. The most common alternative is Boating under the Influence, that is also against the law. There are also statutes for commercial vehicle operators and minors under twenty-one that can empower law enforcement to ask for a breath sample that don’t rise to the level of DUI.

Of the 30,000 or so who are asked, around 80% provide a sample. Of that 80%, only around 20% have a breath alcohol level lower than 0.08 grams of alcohol per 210 liters of breath. That means 80% of people who blow are above 0.08. Most people know that as the legal limit, but it is actually the level for the presumption of impairment. I will discuss that further below.  The statistics also show that about 50% of samples are actually above .15. The importance of that will also be discussed further.

When you are arrested for DUI you face a two-theater war. The first is against the Department of Highway Safety and Motor Vehicles (“DHSMV”) and the second against the Office of State Attorney, who will decide whether to prosecute for DUI. Both wars begin the moment you are asked to provide a breath and the first battle is whether you should or not. The same choice has different consequences and that’s why there is no correct answer to the question.

Let’s start with DHSMV (that’s what it’s called by the way, Florida doesn’t have a DMV). The DHSMV only cares whether your breath level is above or below 0.08. If below, nothing happens. If above, no matter how far above, your license will be suspended for six months the first time and one year for all subsequent times. This is the same no matter how high your breath alcohol level is, even though 50% of people are above 0.15. Now, if you refuse, your license will be suspended one year the first time and eighteen months for all subsequent times. If you are eligible for a hardship license and blow, you can usually get one right away. But if you are eligible and refuse there is a waiting period. I hope you can see the DHSMV clearly gives an incentive for blowing and a punishment for not.

Now let’s turn to the second theater of war; in court against the State Attorney. If you blow, you are providing the prosecution with additional evidence of your guilt. If you refuse, you are not giving them additional evidence. This is important because here the specific breath alcohol level matters. If you are convicted of DUI with a breath alcohol level above 0.15, you will face additional minimum mandatory penalties. Those additional penalties include higher fines and a requirement to have an ignition interlock device placed on your vehicle- even for the first time offense. I would say that there is an incentive not to blow here, especially considering how frequently a breath level above 0.15 occurs.

Currently, however, you only get one free pass to hide evidence from the prosecution. Despite what the Constitution says, Florida has what is known as a criminal refusal statute. Florida Statute § 316.1939 says that second or subsequent refusals to blow subject a person to additional prosecution for a misdemeanor. While other states have found this unconstitutional, it’s the current law in Florida. That means if its during your second or subsequent DUI arrest the choice is either to provide evidence of guilt in the first crime you are accused of committing or commit a second crime. Talk about a catch-22.

Also, keep in mind that a breath alcohol level below 0.08 doesn’t necessarily mean you can’t be prosecuted for DUI. As I mentioned earlier, that is only the point for presumption of impairment. To get to the point where you are presumed to be not-impaired, your breath alcohol level must be at 0.05 or less. This can occur in instances of hybrid impairment, like drugs and alcohol. Evidence of drugs comes from urine samples so I’ll briefly discuss those rules.

The DHSMV does not care what’s in your urine, only whether you give a sample. Giving a sample, no matter what’s in it, will not lead to a suspension of your license by the DHSMV. Refusal will. However, giving a urine sample, like giving a breath sample, is providing additional potential evidence of guilt to the State Attorney. The refusal law for second or subsequent refusals are generally the same.

As I hope you can see, the law is very complicated with contradictory incentives for making this decision. The best decision you can make is DON’T DRIVE IMPAIRED. In this whole scenario, that is the only good choice you can make in the moment. There is no good option between deciding whether to blow or not. However, if you find that you did not make that choice and have been accused of DUI, the next best decision is to hire an attorney.

*Disclaimer: This blog post is not legal advice. We highly recommend speaking with an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*