I hope this letter finds you well. I have been asked on numerous occasions, usually at parties where alcohol is being served, what one should do if they are pulled over by a police officer and accused of driving after having consumed alcoholic beverages. As much of the information that presently is in the public domain is incorrect, incomplete or misleading, I felt it necessary to pass along my observations after having extensively written about this area of the law and having defended people accused of such offenses for roughly thirty years. While I know this will probably lessen my conversational value at cocktail parties, I believe that it is important to have this information if you do drink alcohol or know people that do.
First the legal disclaimer: if you drink, you should not drive! While it is not illegal to drink and then later drive if you are not impaired (or have been driving with an unlawful blood or breath alcohol level), in reality, if a police officer stops you or, worse yet, encounters you after a traffic accident, and smells an odor of alcohol upon your breath, you will usually soon find yourself in handcuffs and on your way to jail.
It is important for you to understand your rights when accused of driving under the influence by a police officer. For instance, if the officer asks or directs you to perform field sobriety exercises, you should ALWAYS politely advise the officer of any medical or physical limitations that might affect your ability to balance while walking in a heel-to-toe manner or when standing with one foot in the air. That means that if you have ever had any back issues, knee problems, surgeries, vertigo or inner ear problems, said injuries/illnesses should be brought to the officer's attention. NEVER advise the officer of any medications you are taking, as that may be evidence of impairment. NEVER say to the officer that you "couldn't perform these exercises even if you were sober." NEVER attempt to "do your best" on these exercises; unfortunately, officers tend to grade such exercises using a strict scoresheet that does not take into consideration a person's limitations or disabilities.
The biggest misconception people have is that you should always refuse an officer's request to submit to a breath or urine test. First of all, unless you are under twenty-one (21) years of age or you have been involved in an accident involving a fatality or serious bodily injury, any such testing, or any request for such testing, can only be made POST-ARREST. That's right; the breath/blood/urine tests only come into play once you have been arrested and are going to jail! The police are not permitted to ask you to submit to a pre-arrest breath test!Additionally, even if you blow under the legal limit of .08% at your post-arrest breath test, there is no provision in the law for you to be un-arrested, and you will still be required to sit in jail for a minimum of eight hours pursuant to Florida law! While you may (and probably should) request that the officer conduct a pre-arrest breath test on the scene of the stop (especially if your physical limitations will affect your ability to perform their physical exercises), very few officer have the portable breath testing device necessary to do so. Only some Florida Highway Patrol troopers and a few police agency's DUI task force officers have this portable, handheld device in their possession.
While it is true that you have the option to decline to submit to the post-arrest breath or urine testing (unless you have been involved in that accident involving a fatality or serious bodily injury), there are several things that should be considered before you decline to submit to such tests.
Breath testing determines the amount you have consumed, not whether you are impaired by the amount that you have consumed. That means that if you have consumed very little (meaning only a single regular sized drink or two), while you may feel impaired, it is also likely that a breath test will be beneficial to you as it will likely register under the legal limit of .08%. I have had several cases over the years where my clients had consumed no alcohol at all but refused to submit to the breath test after arrest. When I asked them why they refused to submit to the breath test, which surely would have exonerated them, the response has always been the same; "I was told never to take a breath test." Obviously, this advice was just plain wrong!
There are many factors to consider in whether to submit to a breath test. These include:
Your approximate blood alcohol content may be calculated by using the chart below:
Certainly, the above chart is a very rough estimate of one's blood alcohol level. If you think you are close to the limit of .08%, or even above .05%, you probably should not take the breath test. Why not? Because without a blood or breath test, the prosecution will have a much more difficult time proving that you were in fact impaired. While they may have general observations by the police officer(s), many of these observations (i.e., bloodshot eyes, slurred speech, odor of alcohol, poor balance) do not necessarily show that you are DUI. A breath or blood test is usually the key piece of evidence in any DUI prosecution. Without it, they may not be able to prove their case against you. Additionally, as a test result above .15% subjects the individual to certain "enhanced" penalties (such as the requirement that an ignition interlock device be placed on any car that you drive), refusing the test also lessens the chance that such enhanced will be imposed if convicted.
But there are consequences to refusing to submit to a breath, blood or urine test upon request, post-arrest, by a law enforcement officer. If you refuse to submit to a breath test, your driver's license will be suspended for a period of twelve (12) months for a first refusal, and eighteen (18) months for a second or subsequent refusal to submit to such tests. This is subject to a hearing held before a hearing officer with the Florida Department of Highway Safety and Motor Vehicles if a timely request for one is made.
A second refusal (meaning that you previously refused to submit to a test in another case) is itself a criminal offense. And the prosecution is permitted to argue that your refusal to submit to the test was because you knew that you would fail the test.
Finally, it is important to note that if you are arrested for DUI, you have the right to an independent blood test to contest the validity of any of the prosecution's tests.When asked to submit to their tests, you should make it very clear, and document this on their breath test request form, that you want your own independent blood test. While the police are only required to provide you with a telephone book and a telephone so that you can call someone, they are not required to take you to a hospital for your independent test. However there is a simple thing that you can do: call 911 and ask that fire rescue come to draw your blood for independent testing. Make sure that they understand that the blood drawn should then be sent to the University of Florida's Toxicology laboratory in a scientifically reliable manner. I can then take it from there to ensure that the testing is done.
Hopefully I have provided you with some helpful information here. Certainly, if you have any questions or comments about what I have written, please do not hesitate to call or email me.
Miami DUI Attorney
Author of Drunk Driving & Related Vehicular Offenses (5th Ed. - Lexis Law Publishing Company)