In Florida DUI Case, State Cannot Use Blood Test Refusal Against Defendant if Breathalyzer Was an Option

In Florida, where the police officer has probable cause that a person is drunk driving or driving under the influence of alcohol (i.e. DUI), the police officer has a right to ask the driver to submit to a test to measure the alcohol content of a person’s blood. In Florida, driving with a blood alcohol content of 0.08 or more is illegal. Most often, the police officer will ask the DUI suspect to take a breath test, or breathalyzer, to determine the person’s alcohol level. If the suspect refuses the breath test/breathalyzer, the DMV may increase the driver’s license suspension and the state will attempt to use the driver’s refusal to submit to the breathalyzer as evidence against the suspect at the DUI trial, i.e. the state will argue the DUI suspect refused the breath test because he/she knew it show a high reading.

In some cases, the police officer investigating the DUI will seek to get a blood test to determine the driver’s blood alcohol level as opposed to a breath test. The state can seek a blood test of the DUI suspect where it is not practical to administer the breathalyzer. For instance, if the DUI suspect is involved in an accident and is injured to the extent that he has to go to the hospital, a breath test may not be possible. In that case, the state is authorized to get a blood test from the DUI suspect. If the DUI suspect is in a position to refuse and does so, the state can use the DUI blood test refusal against the suspect at his DUI trial.

However, if a breathalyzer test is a viable option for the police officer and DUI suspect, the police officer is not permitted to seek a blood test. The DUI suspect can request a blood test, but the police officer is not allowed to substitute the blood test for the breath test at the police officer’s own discretion. If the police officer requests the blood test when the breathalyzer is a viable option and the DUI suspect refuses, the state will not be permitted to use the DUI suspect’s refusal of the blood test at the DUI trial, and the state would have to try and prove its DUI case without mention of any blood or breath test to measure the DUI suspect’s blood alcohol content.

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