When a driver is stopped by the police and the police officer initiates a DUI (driving under the influence of alcohol or drugs) investigation, the police officer will almost always ask the driver to submit to a breathalyzer test. The breathalyzer machine is designed to measure the amount of alcohol in one’s system. The legal limit in Florida is 0.08. What many people do not realize is that the police only offer the breath alcohol test or the blood alcohol test at the jail after the driver has been arrested for DUI. Therefore, it is fairly obvious that the police are not seeking the breath or blood alcohol test as part of an objective determination into whether the driver is impaired; the purpose of the breath or blood alcohol test is for the police to try to obtain additional evidence to support the DUI prosecution. In other words, no one is getting “un-arrested” after a favorable breathalyzer reading. The police officer has already concluded that the driver is guilty of DUI as a result of the arrest he/she has already effected.
While a person gives his/her implied consent to submit to a breathalyzer test when he/she agrees to accept driving privileges in Florida, some people refuse the test when the time comes. Some people do not trust a system that offers the test only in the jail after the arrest for a DUI and do not trust a police officer who did not trust a driver who claimed to not be impaired. Can the state require a person to give a breath or blood sample without a warrant if the driver refuses and punish a person for that refusal? Yes and no.
A recent United States Supreme Court case looked at two situations where drivers refused a breath test and a blood test and the state (not Florida) charged them with separate crimes for the refusal. If a person has a right to refuse a breath test and/or a blood test under the Fourth Amendment, then the state cannot prosecute someone for the refusal.
The Supreme Court held that the state does have a right to require a breath alcohol test without a warrant but not a blood alcohol test. Essentially, the Court noted the difference between blowing into a machine and being subjected to a needle and blood draw. The former is fairly unintrusive while the latter is quite invasive. Because the state has an interest in making sure people are not driving while impaired from alcohol, given the potential danger to the community, the Court will allow the state to intrude on a person without the need for a search warrant to further that interest. However, the intrusion is limited, and it ends before the state has a right to take blood from someone to test alcohol content without a warrant.
In effect, the police are not likely going to force someone to blow into the breathalyzer if a person refuses as part of a DUI investigation. But, this does allow the state to impose consequences for a breath alcohol test refusal, including charging a person with a separate crime. The state cannot bring similar charges for refusing a blood alcohol test.