Refusing Breath Test

Field Sobriety Test

If you’re stopped by law enforcement and are being investigated for DUI, you’re not entitled to an attorney for the purposes of with him about a field sobriety exercise. The reason being is field sobriety exercises or FSEs are not considered conversation. They’re not questions. It’s not that type of conduct that would be protected under Miranda warning might protect you under. They’re not asking you to do anything that will be verbal in nature such that it would trigger the right to an attorney so no, you can’t get an attorney to consult with your about field sobriety exercises. For that reason, often times, we suggest you consider refusing to submit yourself to field sobriety exercises rather than potentially incriminate yourself with your performance.

I’ve practiced criminal law in Florida for 18 years. In that time period I’ve come into contact with hundreds if not thousands of DUI officers and I can tell you this. I can count on one hand the number of officers that have objectively asked a driver to perform field sobriety exercises. What I mean by that is this, by the time an officer asks you to perform field sobriety exercises, or FSEs, you’re going to jail for DUI. If you’re asked to do it, consider this, these exercises are not easy to perform. You’re likely not to do well. Be polite, be respectful, but consider refusing. Because they’re going to be used against you, and it’s very unlikely that you’re going to be viewed as having performed them well.

License Suspension

A police officer can take your license and give you a notice of your driver’s license being suspended after a DUI arrest if you have submitted to a breath test and blown above the legal limit or you refused the breath test. In either case, the officer is going to cite you with a DUI citation which on it includes a notice of suspension. What that notice of suspension does is it obviously notifies you that your license has been suspended but it also acts as a temporary ten day driving permit. You can drive for ten days with your DUI citation as a driving permit. During that same ten day window, you need to go down to the DMV or better yet have your lawyer go down to the DMV for you and either elect to have a formal review hearing to challenge the suspension of your driving privilege or waive that hearing and secure a business purpose license. The notice of suspension is critical because it’s also a ten day permit that allows you to drive.

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Injury in DUI Case

In a DUI case, if there’s been an injury you can be charged not only with DUI but with DUI involving an injury depending on the severity of the injury; it can also become a felony. Typically, if we see DUIs with injuries, we also see DUIs involving property damage so there’s also the possibility that you could be charged with DUI causing property damage. There are multiple counts that are in play and depending on the severity of the injuries, you might be charged with a felony in that type of case.

Breath Test Mishap

In breath test cases, law enforcement has some discretion as to whether or not to call it a refusal, even where an attempt was made to provide a breath sample. The critical component’s going to be what does that breath test video demonstrate in terms of the effort that’s made, in terms of the instruction that’s given, and in terms of the opportunities afforded you to actually provide a compliance sample.

In a situation where someone is making an earnest effort to blow into the breath test machine, and for some reason it’s not appropriately registering that, you’ll have a very good chance of challenging the suspension in front of a judge. However, if it looks like there’s some gamesmanship going on or you’re trying to do something deliberately to thwart the machine’s ability to capture your breath test, then obviously, all bets are off there and it very well could be sustained as a refusal. It really depends on the circumstances of your case.