In Florida, the police have a right to expect a person to submit to a breath alcohol test, or breathalyzer test, when they make a valid arrest for DUI. The law of informed consent means that a person agrees that he/she will submit to a breathalyzer test after a valid DUI arrest. Of course, the police will not force a person to submit to a breathalyzer test, and a person can refuse to take the breathalyzer test, but theoretically, a person legitimately arrested for DUI is supposed to take the breathalyzer test.
On the other hand, a breathalyzer test after a valid DUI arrest may be thrown out of court if the police officer uses misinformation, incorrect statements of the law or false promises to get the person to submit to a breathalyzer test. In Florida, not everyone understands how the breathalyzer test is done in the context of a DUI investigation and arrest. The police do not use the breathalyzer test as a factor to determine whether they will arrest you for DUI. They only administer the breathalyzer test after they have arrested you and taken you to the jail. If the breathalyzer test is favorable to the defendant, they do not “unarrest” you at that point and let you go home. It is just one factor in the DUI prosecution to follow. If the breathalyzer test is high, they use that against you to prove you were drunk. If the breathalyzer test is low, they downplay it and try to use other evidence to prove you were drunk. Because the breathalyzer test is done after the DUI arrest and after the person is taken to jail, many people refuse to take the breathalyzer test, failing to see how it will help them if the police officer has already decided to arrest him/her.
In a recent DUI case near Jacksonville, Florida, the defendant was arrested for DUI and taken to the jail. At the jail, the police officer asked the defendant if he would submit to a breathalyzer test. The defendant asked the police officer if there was anything he could do to get out of jail. The police officer indicated that the defendant could leave the jail if his blood alcohol level got below 0.08, the legal limit. The defendant then took the breathalyzer test.
The defendant’s criminal defense attorney filed a motion to suppress the breathalyzer test results. He argued that the police never let people go even when they blow under a 0.08 on the breathalyzer test. As a result, the police officer lied to the defendant to get him to submit to the breathalyzer test. The police officer who testified at the hearing was unable to provide any examples of police officers letting a DUI suspect out of jail for blowing under a 0.08, nor was there a policy indicating that would happen. Because the police officer lied about letting him go if his blood alcohol level was below 0.08, the breathalyzer test results were thrown out of the DUI case.