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Should I blow in a DUI?

Posted by Rob Melchiorre | Sep 13, 2019 | 0 Comments

Should I blow in a DUI?

This is the favorite question and topic that everyone always asks me as a DUI defense lawyer.  The short, simple and general answer is no(with the lawyer caveat that each and every case is unique and the answer may change).  People then always ask me follow up questions such as why, what if you only one drink, a sip, etc..  To understand the reasoning as to why you should not blow you have to understand a little more about DUIs.

The way the DUI law is written in Florida is a bit counter-intuitive.  What I mean by this is that the police cannot legally ask you to blow unless you are under arrest for a DUI.  Stated another way, the police will not ask you to blow before they decide to arrest you for a DUI.  This logically seems odd because the police will not know your alcohol level at the time they arrest you for a DUI.  It would make more sense if the police could ask you to blow to determine your alcohol level and then make a decision to arrest you for DUI after they know the alcohol level.  However, this is not the way the law is written in Florida.  

For a DUI, there are two ways for the prosecution to prove a DUI case.  One, is to prove you were driving while under the influence of drugs or alcohol to the extent your normal faculties are impaired.  The second, is to prove that while driving you had an alcohol level of above .08.  When the police arrest a you for a DUI, they are making the arrest based upon the first way to prove a DUI.  When the arrest is made the police had no idea what your actual alcohol level is until after you blow.  This is why the police ask you to perform the field sobriety tests do help them decide whether you are under the influence to the extent your normal faculties are impaired.  However, the field sobriety tests are not test and do not have have standardized pass or fail criteria.  The officer makes observations of them and makes a decision whether to arrest you for DUI.  The officer makes the arrest decision based solely on his opinion that you are under the influence to the extent your normal faculties are impaired.  An opinion is a personal view.  It is not fact.  If their opinion was an uncontroverted fact, then the officer would not ask you to blow after he makes the arrest for DUI.  When the officer asks you to blow, he is trying to confirm his DUI opinion with a fact.  It is fact if you blow over the .08 legal limit(there are ways to challenge the breath alcohol level, but it does not change the alcohol level). 

As a DUI defense lawyer I can skillfully cross examine a police officer on his opinion and carefully pick apart his opinion while simultaneously highlighting all the things you did correctly that are not signs of impairment.  For example, if you were pulled over for speeding, speeding is not a sign of impairment.  When the police officer activated his lights, you properly and prudently pulled over in a safe manner.  When the officer asked you for you driver's license, registration and insurance you were provided the proper documentation.  The list of things you did correctly for the police officer is can be highlighted and made to be seemingly endless. 

It is important to keep this law in mind because when the police arrest you for DUI, you will be in jail for the next eight hours regardless of the alcohol level you blow.  You will not be unarrested or released from jail regardless of whether you blow under the legal limit.  Yes, that is right, if you blow under the legal limit or if you blow .000/.000(meaning no alcohol) you will not be exonerated and freed.  I have represented multiple clients who have blown .000/.000 and they were prosecuted for DUI.  Unfortunately, in these situations the police officer then switches from an alcohol DUI theory to a drug DUI theory.  They will make the argument that there is no alcohol reading because you were not under the influence of alcohol, but were under the influence of drugs.  

On the chance that you blow and you had been drinking alcohol, there are enhance penalties if you blow above the enhanced alcohol level.  The legal limit is .08, but the enhance limit is .15.  If you blow above a .15 you will be subject to more severe penalties than if you would have simply refused to blow.  Again, you are penalized for attempting to cooperate by providing a breath sample.  In short, you are penalized for providing more evidence against yourself. 

People ask me if it is true that that their license will be suspended if they don't blow.  Yes, your driver's license may be suspended, but that too is not definitive.  I can challenge your driver's license suspension in a proceeding called a formal review hearing with the DMV.  If I prevail at that proceeding, then your driver's license returns to normal.  If I don't prevail, I can generally help you to obtain a hardship license.  A hardship license will allow you to drive for specific purposes such as for work purposes.  Again, the negative consequences of refusing to blow are not as they initially appear.  

In sum, generally speaking the best advice is to politely decline to blow.  Hopefully, you never find your self in this situation, but now you know a bit more about DUIs.

About the Author

Rob Melchiorre

Mr. Melchiorre is an aggressive, diligent, and passionate attorney. He has an impressive track record and commitment to legal excellence leading to honors such as inclusion on the Super Lawyers® Rising Stars list. Prior to founding Keller, Melchiorre & Walsh, PLLC, Mr. Melchiorre was a partner i...

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