D. Scott Rieth Criminal Defense Attorney
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Can an officer demand you take a breath test?

One of the most commonly asked questions by both newer drivers and those who have recently been involved in a DUI incident is whether or not the police can really demand that you take a breath test in the field. The answer to that is more complex than you might imagine at first, and it depends on where you happen to be located. In Florida, the answer is yes, but the way that the law is written produces some effects that are a little different from other states where breath tests can be compelled.

Understanding Florida's law

Under Florida law, a DUI occurs when one is operating a vehicle with a blood alcohol level of 0.08 or higher. The implied consent law that exists alongside the DUI statute gives officers the discretion to use one of several methods to test sobriety before making an arrest, including:

  • Breath
  • Urine
  • Blood
  • Field sobriety testing

Technically, it is up to the officer's discretion which of these methods are used, and refusal to take either a blood, breath, or urine test will trigger the penalties under the implied consent law. That means a one-year suspension of a driver's license for a first offense, 18 months for a second offense.

If an officer requests a test

You are obligated to comply with the test unless you wish to have your license suspended automatically, and in addition to that, your refusal to be tested can be used as evidence against you if you are subsequently charged with DUI anyway. Failing the test rarely escalates the situation, and even a failed test is no guarantee of conviction.

Since the officer's discretion allows him or her to choose the method of the test, you might not be given a breath test. It is possible that an officer will go directly for blood or urine testing because of mitigating factors. Those are also required, or drivers face the same penalty they do for refusing a breath test.

What to do if you are arrested

If you comply with the test and receive unfavorable results, the best thing you can do is talk to an attorney. There are many reasons why blood, urine, and breath tests may go wrong, and a skilled defense attorney with experience handling DUI cases will understand what they are. As with most cases involving police contact, volunteering further information without consulting your attorney first may damage your case, so it is best to get advice about your situation as soon as possible if you have been compelled to take a breath test and it led to an arrest.

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D. Scott Rieth
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Bradenton, FL 34202

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