Refusing a DUI Breath Test – The Pros and Cons

Whether or not to submit to a breath test after a DUI Arrest is a decision that must be made on a case by case analysis. It would be improper for a DUI attorney in Tampa or elsewhere to tell you whether to submit to the test without knowing your specific circumstances. However, a brief summary of the pros and cons of refusing a breath test during a DUI investigation may help you make the best decision for yourself.

Refusing the Breath Test: The Pros

The big advantage of refusing a breathalyzer result is that the State Attorney will not be able to use a breath result against you. State Attorneys give great weight to the breath test results. They are much more likely to agree to a better deal or a reduction of your charge if there is not an unlawful breathalyzer result in your case.

In many States, like Florida, if you give a breath test result that is higher than a.08 BAC it is considered presumptive evidence that you are guilty of the crime of DUI. That means a Jury could, if they wanted to, convict you of the crime of DUI if your blow is in excess of.08, regardless of any other evidence in the case! Such a results shift the burden of persuasion from the state to the Defense Attorney, who must now rebut that presumption of DUI with other evidence.

Another advantage deals with the enhancements that come with a high breath result. In Florida for example, if your BAC result is over a.15, then the State will seek enhanced jail time, conditions including an ignition interlock, and possibly extra jail. All States have some sort of enhancement penalties associated with a higher blow result. it is imperative to check with a DUI Attorney in your particular State to see what the enhancement can be against you. Refusing the breathalyzer eliminates the risk of a high blow and a correspondingly high punishment.

Refusing the Breath Test: The Cons

First, in Florida, your license will be suspended for 12 months for a first refusal, or 18 months if you have previously refused to take a lawful blood, breath, or urine test. All States have some sort of license suspension as a result of refusing to blow into the breath test during a DUI investigation. This administrative suspension comes from the DMV, or the Department of Highway Safety and Motor Vehicles, and has nothing to do with your criminal charge. If you have never refused to take a breathalyzer or other lawful test before, then you will be eligible for a hardship license after 90 days.

A final con of refusing to take a breath result: All states allow evidence of your refusal to take the test to be admitted into evidence as an indicator of “consciousness of guilt”, or of a “guilty mind”. This gives the prosecutor the ammunition to get in front of the Jury and say, “of course he was DUI, he knew he was guilty, so he chose not to blow”. Such evidence can be powerful in front of a Jury without a proper DUI defense by a qualified DUI Lawyer in your area.

What to do now?

When picking a Tampa DUI attorney the most important thing to look for is what kind of results they have gotten for past clients and testimonials. The firm I recommend is Denmon & Denmon Trial Lawyers. At their website they list their case results and have lots of glowing testimonials from past clients. You can also just call them at 1-800-790-5641 for a free, no obligation consultation and case review.

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