Florida DUI: Should You Take A Breathalyzer Test?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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The question of whether to take a breathalyzer test when you’ve been pulled over for a DUI (driving while under the influence) can be difficult. Most of know the consequences of taking the test, but few understand what can happen if you don’t. So, should you take a breathalyzer test in Florida? Here’s what our expert had to say…

Florida Attorney David Katz

David Katz is a Florida attorney whose practice focuses in the areas of DUI and criminal defense. He used to be a misdemeanor prosecutor in Seminole County and was then assigned as the lead DUI attorney where he was their Intoxilyzer, the machine that performs Florida’s breath tests, specialist. He’s basically seen it all when it comes to breath tests and says that the first thing people always ask him is whether or not they should take the breath test. He told us:

My answer is a wholehearted absolutely. In Orange and Osceola counties, which are two of the counties that I practice in, the state has a program called pretrial diversion and they are the only two counties in Florida that offer it for DUI.

If you are arrested for DUI and it’s your first offense, meaning that you have no prior DUIs, no prior drug charges and you have never been allowed into a diversionary program for any other type of criminal case, then if you take the breath test and you blow under a .16 (twice the legal limit) and you meet all other criteria for entry into that program, the state will drop the charges once you complete it. However, if you refuse to take the breath test, then you are ineligible for that program.

A first refusal to take the breath test in Florida is not a separate crime. It is admissible as evidence of guilt of the DUI, but if you refuse and you have a prior refusal, anywhere in the country, you are committing a separate misdemeanor of refusal which is separately punishable.

Florida’s Pre-trial diversion program: defined

According to Katz, the county diversionary program, or pretrial diversion, is tailored to the particular case. However, he gave us the basics of what might be involved. “The person is going to have to do community service, attend DUI school and take a program called the Victims’ Awareness Program – which is sponsored by MADD (Mothers Against Drunk Drivers). They’re also going to have to jump through some other hoops such as paying fines and the costs of the program. However, at the end of it, those charges get dropped.”

He says that once the charges get dropped, the person can then expunge their record should they choose to, which would remove the arrest from their record. However, he was careful to add that it is a separate process people have to go through and does not happen automatically.

If you have questions about a DUI in Florida, contact an experienced Florida DUI attorney to discuss your situation and evaluate your options. Consultations are free, without obligation and are strictly confidential.

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