Photo of Ian F. Mann
Photo of Ian F. Mann

The Name You Know.
The Name You Trust.

The Name You
The Name You

We have deep ties to the community, we have represented clients in Southwest Florida for more than 25 years.

What you should know about breath test refusal

When a Florida police officer pulls over a driver thinking the motorist is intoxicated, the officer may subject the driver to a Breathalyzer test. However, reasoning that a breath test amounts to self-incrimination, the driver may refuse the test. Taking this action, though, is not wise on several counts and may land the motorist who tries it in even worse trouble. Here are some facts you should know about refusing a breath test.

First, as Findlaw points out, refusing a breath test does not mean the police cannot find any other evidence that the motorist was intoxicated. The testimony of the officer in question can be admitted as evidence. The officer may note erratic driving and unsteady balance on the part of the driver, all consistent with an inebriated motorist. The prosecution may also call witnesses that were at the scene to testify against the motorist. Sometimes state or local laws penalize the act of not taking a breath test and use that as criminal evidence.

Secondly, driving is not an activity protected by the U.S. Constitution. Since driving is considered a privilege, states may impose standards for maintaining that privilege. Under implied consent laws, a driver is deemed to have consented to a breath test if police suspect them of driving under the influence. Florida is one such state that has implied consent laws, under Statute 316.1932, as shown on the Florida legislature website.

Finally, Florida law specifically grants penalties if a motorist does not submit to a test. Refusal to submit to a test will result in the motorist losing their driver’s license for one year. If the motorist has a previous instance of refusing a test, the suspension will last for 18 months. Also, Florida law does not apply merely to breath tests, but allows police to subject a motorist to a urine or blood test. Any refusal of a breath or chemical test can be used as criminal evidence in a Florida court.


FindLaw Network

We’re conveniently located in downtown Fort Myers, just one block from the federal and state courthouses.