27th Jun 2017

One of the most common questions that a criminal defense attorney in Broward County is asked is whether or not someone should refuse to take a breathalyzer test.   Like so many questions involving the law, the answer is “it depends. ”  Breathalyzer results can be used against a criminal defendant, and he or she may not want to assist law enforcement in making the case against him or her.   However, there are potential serious consequences that can result when a breath test is refused.   A criminal defense attorney in Broward County may inform clients of the following:

License Suspension

For a first offense of refusing to take a breath test, a defendant’s license can be suspended for one year.   For a second or subsequent offense, it can be suspended for up to 18 months.   However, if the DUI arrest was unlawful, a person’s license cannot be suspended for refusing to take a breath test.   This means that if the individual was stopped without reasonable suspicion or arrested without probable cause, the refusal cannot be used against the defendant to take away his or her license since this is outside the implied consent law.

Jail Time

For a second or subsequent offense of refusing to take a breath test, jail time may result.   A second or subsequent refusal to take a breath test is considered a misdemeanor.   The maximum jail time is one year.   Additionally, the refusal is treated as a separate offense than the DUI charge.   Therefore, a person may face separate jail time for the refusal in addition to any jail time he or she receives from a DUI conviction.   Even if a person did not consent to the test, law enforcement may still be able to administer the test in certain situations, such as if the defendant was unconscious.

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