Breathalyzers get a lot of attention in DUI cases, and rightfully so. They can determine whether or not you will be charged with a DUI in Florida. A DUI conviction can be extremely expensive, and it can haunt you for the rest of your life—from tarnishing your driving record to keeping you from gaining certain types of employment. Knowing the facts about breathalyzer tests in Florida is a must if you want to preserve your legal rights.
Myth #1: You Can Refuse a Breathalyzer Test Without Any Consequences
While you can technically refuse a breathalyzer test in Florida, it does come with some adverse effects. Florida has an “implied consent” law. This means that when you first applied for a driver's license you consented to take a breathalyzer test if ever lawfully arrested for DUI. It gives those on Florida roads very few options when an officer requests you submit to a breath test. (But remember, providing a breath sample will inform law enforcement of your breath alcohol level, and if it is over the limit, more likely lead to a conviction for DUI).
Refusing a Breathalyzer in Florida
An officer cannot force you to take a breathalyzer, but consequences do follow a refusal. For a first refusal, your license will be suspended for a year. If you've refused previously, your license can be suspended for 18 months and you can be charged with “Refusing a Lawful Breath Test.”
(But remember, any suspension for refusing a breath test can be challenged by your lawyer).
Myth #2: You Only Have to Take (and Pass) a Breathalyzer Once
Breath tests are not perfect. It is very possible that the machine malfunctions or you otherwise have trouble completing the test. If you cannot provide two breath samples that can be tested, then the officer may determine that you have actually refused the test. In fact, if your two tests are not within .02 of one another and you decline to do a third test, that can be considered a refusal as well. Even arguing with the officer about the breathalyzer could have the same effect as a refusal.
Myth #3: Breathalyzers Cannot Be Challenged in Court
There are all kinds of reasons that a breathalyzer may get a false positive result. If any reason exists to call into question the validity of a breathalyzer test, it can be challenged in court.
In fact, even using some mouthwashes, breath sprays, and cough syrups will trigger a higher reading than what is appropriate if your blood were actually tested. Other items that may result in a higher reading include:
Using an asthma inhaler
Having some dental appliances that retain alcohol
Throwing up shortly before the test
Alcohol that remains in the mouth can also trigger a higher rating. Generally, alcohol will stay on the tongue or in other mouth tissues for about 15 to 20 minutes after you take a drink.
Certain medical conditions can affect the results of a breathalyzer test as well. These may include:
Gastroesophageal reflux disease
Low carb, high fat, high protein diets
Your DUI attorney will be able to examine the facts of your situation and ask the right questions to determine if your breathalyzer test results should be challenged as part of your DUI offense. Malcolm Anthony, Criminal Defense Lawyer, can help. Call today for more information or to schedule a consultation: (904) 285-4529.