There are two types of tests that are used by law enforcement to determine if you are driving while under the influence of alcohol or other drug. These tests come at different stages of the investigation, and consequently, there are different consequences if you refuse to do them. The two types of tests are Pre-Arrest Field Sobriety Tests, and Post-Arrest Chemical Tests.
Pre-Arrest Field Sobriety Tests, include various physical exercises you might have seen on news programs or reality shows. Examples include, the walk and turn test, balancing on one leg test, finger to nose test, HGN eye tests. Many of these tests require you to perform acts of balance that would be more difficult to accomplish if you are intoxicated, but for many people they are just as difficult to perform when they are stone cold sober.
But it’s important to note that you are not just being evaluated based on how well you physically perform these exercises. The hidden test within these tests is how well you follow instructions. Before each test is given, the officer will give you a very detailed and thorough set of instructions on how to do the test. I have watched hundreds of DUI videos where the suspect does not do to badly on the physical parts of the test, but they fail to do things they were specifically instructed to do like holding their arms at their sides, wait to start until the officer tells them to start, stop counting at a certain number, pivot on their right foot, etc.
The reason this part of the test exists is because when we drive, our brain is constantly responding to a series of instructions in order to safely operate our vehicles. If you are too impaired to stop or start when an officer tells you to do so, this suggests you are too impaired to stop for a red light, stop sign, or obey a speed limit sign.
There is no law in Florida that requires you to perform any of the pre-arrest physical tests described above. Therefore, you are within your rights to refuse to perform all of those physical tests and there will be no suspension of your license or criminal charges resulting from your refusal to do the pre-arrest field sobriety tests. All you risk losing is the chance to look (depending on how well you perform them) either very sober or very drunk on a video during your trial for DUI at later date.
If you were stopped and chose to do the pre-arrest tests and the officer concluded you were impaired based on your performance, don’t worry, it doesn’t have to end there. There are a number of reasons why these tests can and are performed poorly by drivers that have absolutely nothing to do with being impaired. We will investigate whether or not any of these apply to you during the preparation of your defense.
Post-Arrest Chemical Tests are tests that are administered to quantify just how impaired you are. There are three types used in Florida: breath, blood, and urine samples. If you have been placed under arrest for DUI, then Florida Law requires you to submit to a chemical test. Florida has an “implied consent” law, Florida Statutes Section 316.1932. If you have a Florida License, or are driving at all on the roadways of our fair state, this law states you have agreed to submit to chemical testing once you have been lawfully arrested for DUI.
In most cases, the request is usually made on camera at the jail and the conversation is recorded. However, in order for this section to apply, you must have been arrested for a DUI before your obligation kicks in. If an officer asks you to submit to chemical testing prior to you being arrested, your refusal to do so cannot be held against you and carries no penalties.
If you are arrested for DUI, unless your case involves a death, serious bodily injury or you are unconscious (in which case they can “take” a sample regardless of your feelings on the matter), the arresting officer will read you a summary of Florida’s Implied Consent Law and they will then ask you to submit to chemical testing.
You can legally refuse to submit to any or all of these tests in Florida if you have never refused such tests before. BUT, understand there will be consequences for your refusal to comply with the officer’s request that you submit to the test. What happens then?
If it is the first time you have ever refused to do any chemical tests after being informed of Florida’s Implied Consent Law, you will most likely end up with a suspension of your driving privileges for one year, regardless of whether or not you end up being convicted of a DUI offense.
If you previously refused to submit a chemical test in a different DUI investigation, and your license was suspended for that refusal, and you then in this new DUI investigation refuse to submit to chemical testing, the suspension goes up to 18 months. It also means that if the officer follows proper procedures, you can be charged with a separate, additional misdemeanor criminal offense for this additional refusal, and you could face up to either a year in jail or a year of probation.
You should also know, just because there are three tests, you do not get to pick which test is used. If alcohol is suspected of being the agent of your impairment, then a breath test will usually be the first test you’ll be asked to perform. Breathalyzer machines and Intoxalyzer machines measure the alcohol content of your blood through different processes. The alcohol we drink stays in our blood stream until it is eliminated and as our blood interacts with our lung tissues during the transfer of oxygen into the blood, residual, measureable, and therefore quantifiable amounts of alcohol are left behind, and are in turn exhaled out when we breath. The goal of the breath test is to determine your Blood Alcohol Concentration Level (BAC Level).
If your BAC Level is 0.05 or below, you are presumed to not be impaired. If it is between 0.05 and 0.08, there is no presumption. If it is over .08, you are presumed to be impaired. In either case, the State in your prosecution or your attorney in your defense can try to convince a jury that the presumption should not apply, but the jury is the final arbiter of your guilt if your case goes to trial. Breath machines and the process used to administer these tests are subject to strict maintenance rules and procedural guidelines. An experienced DUI attorney will know where to look and what questions to ask you to determine if there were errors made that could affect your test results or their admissibility against you.
The second type of chemical test is a blood test. This is most often used in the case of an accident involving an injury, or when the suspected driver is unconscious. A blood test, if taken and preserved under sterile conditions, is perhaps the best test for truthfully determining what’s in a suspect’s blood. It can be tested for not just alcohol, but most illegal drugs (cocaine, marijuana, heroin, ecstasy, etc.) and most prescription medications, any of which, if used, can affect your ability to drive safely. This test is more invasive than either of the other two tests, and is therefore usually not the first option for most DUI cases. If you blow well below 0.08 or even blow an 0.00, you may be suspected of being impaired by a drug, and a blood test may be the next request an officer makes.
The third chemical test is a urine test. You will almost never be asked to do this test unless you have a very low blow and/or you are suspected of being impaired by illegal drugs or prescription medication.
In either the case of a blood or urine test, the results, unlike the breath test, are not immediate. If they are obtained by law enforcement, the samples must be sent to a Florida Department of Law Enforcement lab for testing. These results can take weeks or even months to come back. Again, there are rules of evidence and procedures that have to be followed for these test to yield accurate results and to admit these results in court against you. We will analyze the facts of your to see if the breath, blood or urine test results can be invalidated or excluded from use against you in court.
Chemical tests, in the end, only show if a particular drug is in your system at the time the sample is taken. It does not necessarily prove you were impaired at the time you drove. Alcohol metabolizes out of your system in a matter of hours, so its presence in your system close to the time you are driving is a strong indication of possible impairment. But other drugs stay in your system longer. Ecstacy (MDMA), for example, can stay in your system in traceable amounts for several days. Marijuana can stay in your system for a month after use. In these cases, absent other evidence, the test results cannot confirm you were under the influence of that drug the same day you were driving, let alone when you were driving.