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Should You Take a Breathalyzer Test When Arrested for DUI?

One of the most common questions attorneys are asked from defendants accused of Driving Under the Influence of either alcohol or drugs is should I consent to taking a breathalyzer test. According to Curtis Fallgatter, lead criminal defense attorney for Fallgatter Catlin & Varon, P.A. if you have been arrested, in custody, transported to jail, booked and being processed, police will then ask you to consent to a breathalyzer test to confirm your blood alcohol level. The legal limit in Florida is a .08 blood alcohol level. Two beers consumed in an hour by the average man will put you over the legal limit and the science will confirm you were driving impaired at the time of your arrest. Most of us think consuming only 2 beers in an hour has little or no effect on us and that are faculties are not impaired, but legally we are. You want to very careful about taking that test, and if you have had a few beers then generally say no, you do not want to take a breath test unless you are positive you are going to pass it. In most people’s minds, they are thinking I just took a field sobriety test, I did everything they asked me to do and I believe I passed it but got arrested anyway. So, the proper answer while you are in custody and they ask you to take another test is to politely say no. I took a test, I believe I passed it and got arrested anyway. I don’t think your tests are fair, so no I’m not going to take any more tests.

They are then going to show you a form called an Implied Consent Form and when you get a license under Florida law, it implies that you consent to a breathalyzer test, but that is only true if you have been lawfully arrested. If you don’t think you have been lawfully arrested you have perfectly valid grounds not to take a breathalyzer test, and of course, what is the point of taking the test if it is going to show you are over the legal limit.

The other thing to remember is the law requires that you not be under the influence when you get behind the wheel and are operating a vehicle or a boat. When you get arrested out on the street it might be 2 or 3 hours later before they get you back to the police station and you are asked to take a breathalyzer test. But what does that mean? You could be at a bar for example and you have one last nightcap and you are 10 minutes from home. If you get behind the wheel feeling fine you are probably sober and not over the legal limit. An hour or two later that alcohol has had a chance to get into your system and now you are at the jail and you blow on the machine and now all of a sudden you are over the legal limit. So, the relevant time to determine your blood alcohol level is when you are behind the wheel, prior to your arrest. Again, there is another reason why that test, taken 2 or 3 hours after your arrest is not a fair evaluation of your blood alcohol level at the time of your arrest. That is the general approach to consenting to Breathalyzer tests. Curtis encourages you to be very careful about consenting to taking a breath test. They hardly ever help unless you are sure you haven’t been drinking. If you have been arrested for this or any other crime, we would like to hear your side of the story. Give us a call at 904-353-5800 for a free, no-obligation consultation.