In Florida, there is a law called implied consent. This means that when you agree to accept driving privileges and a driver’s license in Florida, you agree to submit to a breathalyzer test if the police have probable cause to believe you have driven while impaired from alcohol. This does not mean you have to submit to a breathalyzer test. There are many cases where a police officer arrests a person for DUI in Florida without the requisite probable cause, and a DUI suspect might decide not to cooperate with the police officer any further. Of course, it is then up to the criminal defense lawyer to file a motion to suppress after the fact and the judge to rule on whether probable cause existed to support the DUI arrest and request for a breathalyzer.
Other times, a DUI suspect may not agree to submit to a breathalyzer test because he/she does not believe he/she is being treated fairly or he/she just does not want to give the state evidence to prove the DUI case in court. In any case, as a practical matter, the implied consent law says that if the police officer has probable cause to believe a person is guilty of DUI, the police officer can request a breathalyzer test. If the suspect refuses, the suspect is then subject to certain penalties. A refusal may result in a longer driver’s license suspension. A second refusal when there has been a previous refusal during a prior DUI case could result in a new misdemeanor charge. For the instant case, if a person refuses the breathalyzer, the state will try to use that refusal against the defendant in the DUI case if it goes to trial. The state will argue to the jury that the defendant refused the breathalyzer test because the defendant was drunk and knew he/she would fail it. Of course, there are many reasons why a defendant would refuse a breathalyzer test, and the criminal defense attorney can make those counterarguments at a DUI trial. Ultimately, it would be up to a jury to decide, if the DUI case goes to trial.
Procedurally, in Jacksonville, Florida, the police normally do not offer the breathalyzer test until after the suspect has been arrested for DUI and taken to the jail. That is one reason why people decide not to submit to a breathalyzer test. The person is already arrested for DUI at that point, and no one gets “unarrested” after a good breathalyzer reading. But, after the suspect is taken to the jail and brought to the breathalyzer room in the jail, if he/she refuses to submit to the breathalyzer, the state will try to use that refusal against the suspect in court.
A DUI suspect can change his/her mind after an initial refusal. In a case south of Jacksonville, Florida, the police officer actually had a breathalyzer machine at the scene of the DUI. The suspect refused to submit to the breathalyzer machine at that point. After he was arrested and taken to jail, the suspect told the police officer he would then submit to the breathalyzer test. However, the police officer would not let him and marked him down as refusing the breathalyzer on the arrest report. The state then tried to use the refusal against the defendant in court.
The criminal defense lawyer objected and argued that the defendant retracted his refusal so the state could not argue the refusal in court. The court agreed. The key factors seem to be how long after the first refusal and at what stage in the process the retraction occurs. As long as not too much time has passed and the suspect is still in the presence of police officers who can administer the breathalyzer test, the DUI suspect can retract the refusal and agree to take the breathalyzer test. If the police will not let the suspect take the breathalyzer at that point, it would not be considered a refusal that could be used against the suspect in court.
Of course, alcohol dissipates in a person’s system over time, so a DUI suspect cannot try to retract his/her refusal hours later. In Jacksonville, Florida, where the police generally do not offer breathalyzer tests at the scene, this creates a shorter window to retract a refusal. But, a suspect can probably retract a refusal as long as he/she is still in the booking process or shortly thereafter and not much time has passed since the refusal.