State Has the Burden of Proving DUI Defendant Freely and Voluntarily Submitted to Breath Test in Florida

In Florida, when a person obtains a driver’s license and is afforded the privilege to drive, he/she impliedly consents to a lawful breathalyzer test. This does not mean that the police can lawfully ask a person to take a breath test at any time. It also does not give the police the right to force anyone to submit to a breath test. What it means is that if the police have probable cause to believe that a person is driving under the influence of alcohol to the extent that his/her normal faculties are impaired (i.e. DUI), the law says that the police officer can request a breath test and a person can be punished under the law for refusing the breath test. This punishment typically takes the form of a suspended license, but can be a misdemeanor crime in Florida for a second refusal.

However, assuming the police officer has probable cause to believe you are impaired, he/she still must ensure that your agreement to submit to the breath test is free and voluntary. The police officer cannot give you false information to trick or otherwise encourage you to submit to the breath test.

For instance, many people have a right to a hardship license after having their license suspended pursuant to a DUI case. In a recent case, the police officer gave the defendant false information about his right to a hardship license. For instance, if, in order to get the defendant to submit to the breath test, the police officer told the defendant that he is entitled to a hardship license if he agrees to the breath test but would not be entitled to the hardship license if he refuses the breath test, that would be inaccurate. In that case, the defendant’s criminal defense lawyer would make a motion with the court to throw out the results of the breath test because the defendant’s agreement to submit to the breath test was not freely and voluntarily obtained, which should invalidate the test results.

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