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Do I have to take a Breath Test???

On Behalf of | Jan 8, 2015 | DUI

One of the most common questions a criminal defense attorney gets asked is if stopped for a DUI do I have to take a breath test??? The short answer is NO, you are not required to submit to any breath tests for a normal DUI. The exception to this rule is if you are in an accident that causes serious bodily injury or death and a breath test is impractical the cop can take blood.

However, for the most part you are not required to take a breath, blood or urine test if asked by law enforcement.

The law states that a cop does not have to tell you that you have this right to refuse, however they cannot tell you anything that would suggest you have no choice and you have to take a breath test.

Now if you do refuse a breath test regardless of the outcome of the criminal case you will lose your license for 1 year for a first refusal and 18 months if you have a previous refusal and the prosecutor can use it against you in court if you take your case to trial. They will argue you did not take the breath test because you knew you were guilty.

If you do refuse a breath test you only have 10 days from the date of arrest to request a hearing with the DMV to challenge the suspension at a hearing or if you choose not to challenge the suspension you can get a hardship license (granted this is your first DUI and you have never taken a breath test before). This is called the waiver option; you would need to register for the DUI level 1 school through the Florida Safety Council and show proof to the DMV formal review office within 10 days of arrest and you can get a hardship license for the entire term of the suspension. This was you can get to work, school, church, etc….

So if you have the question, do I have to take a breath test, remember you are not required to give the state any evidence to help them convict you at a later point.



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