As a criminal defense firm in Jacksonville and Orlando, we often get asked the question, “Should I take the breath test if I’m stopped for DUI?” While this is a very specific question, we always give a wider answer. When someone is pulled over, it is usually for a traffic violation (i.e. speeding, running a red light or stop sign, weaving). Once the officer approaches the driver’s side of the vehicle, they often claim that they developed reasonable suspicion to believe the person was impaired. For example, they will use the buzz words, “bloodshot, water eyes,” “slurred speech,” and “flushed face.” Based on these observations, the officer will ask the person to step out of the vehicle. The officer will again make observations about whether the person can maintain their balance, whether they fumble with their license and registration, and whether their answers are incoherent. It is important to understand that officers are often looking for signs of impairment, while they ignore what I like to call “signs of non-impairment.” The signs of impairment will make it into the police report. The signs of non-impairment often will not.
If the officer believes there is reasonable suspicion that the person is impaired, he or she will ask the person to perform what we call “field sobriety tests,” while the officer will call them “field sobriety exercises.” Field sobriety tests can include the finger to nose test, walk and turn test, rhomberg alphabet test, one leg stand test, and rhomberg balance test. We have noticed that when there is a video, the officer’s explanation of what happened often does not match what is in the video. Whether a person appears impaired is an opinion. And reasonable people can disagree. Regardless, the officer has an interest in making sure that the eventual arrest is justified. Therefore, the police report will often embellish what actually happened. For example, the report may read, “the suspect was swaying from side to side,” which makes a visual image in the mind of a person swaying dramatically. However, often we will watch DUI videos where there is no clear sway and it appears to us, and often to jurors, that the person’s sway is natural and not indicative of impairment.
But back to the original question. The field sobriety tests are not required by law. A person cannot lose their license or be prosecuted simply for declining to perform the field sobriety tests. However, if a person is arrested for DUI, the State can use their refusal against them in court. In other words, the prosecutor can stand in front of a jury and argue, “[l]adies and gentlemen, why would the defendant refuse to perform field sobriety exercises unless he knew that he was impaired?” The DHSMV can also use the refusal to perform field sobriety tests as evidence to support the license suspension.
Now we finally get to the question, “[s]hould I take the breath test if I’m stopped for DUI?” In Florida, driving is a privilege and not a right. Florida has an implied consent law, meaning that it is implied that a person consents to a lawfully administered sobriety test. This doesn’t mean that people do not refuse the breath test. But it does mean that there are consequences when you do refuse. Check your driver’s license. It states, “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” This does not include field sobriety tests, but does include lawfully requested breath tests, urine tests, and bloods tests. So, if a person refuses a lawfully requested breath test, his or her driver’s license will be suspended for one year. (Although there is an appeals process). If it is a second refusal, it is a misdemeanor for refusing the test, in and of itself. Additionally, the State can argue that the only reason to refuse a breath test is because the driver knew that he or she was impaired. It should be noted that if a person submits to a breath test and blows over a .08, the State can prove the DUI by establishing that the person blew over a .08, without regard to signs of impairment.