By: Peter Drill
on 01:47
To Blow or Not To Blow – Should I Take The Breath Test | Orlandoduiteam#topnav ul li a,.sidebar h4,.tk-news-gothic-std{font-family:"news-gothic-std",sans-serif;}p{margin-left:0 !important;}a{color:#0D8BB7 !important;} Orlando DUI Team Published by Orlando, Florida DUI Lawyers :: Katz & Phillips, P.A.(321) 332-6864 HOMEBLOGCONTACT US
David S. Katz Founding partner
Katz & Phillips, P.A
James D. Phillips Founding partner
Katz & Phillips, P.A
Annmarie Jenkinson Associate Attorney
Matthew R. Gunter Associate Attorney
David A. Faulkner Associate Attorney Catherine Gleason Attorney
TopicsBreath Test (4)Drunk Driving (7)DUI (7)DWI (6)Uncategorized (3) Recent Entries 23 ,23 2013To Blow or Not To Blow - Should I Take The Breath Test As a DUI practitioner, the most frequent question I am asked is, "should I take ...
23 ,23 2013Traveling To Meet a Department Inspector - Violation of Breath Testing Rules Florida used to have eight Department Inspectors traveling throughout their assi ...
23 ,23 2013Its Only a Hole - The Whole Hole Problem Explained Florida decided to use the Intoxilyzer 8000 as the only acceptable breath test m ...
23 ,23 2013FHP Trooper Jailed for 5 days for Missing DUI Trial The Orlando DUI Team has learned that a Florida Highway Patrol trooper has been ...
23 ,23 2013You have the right to remain silent !! Do you have the ability? Everyday I sit down in my conference room with someone who has been arrested for ...
23 ,23 2013Temporary Driving Permits - What are they good for? Arrested for DUI in Florida? Did you have a valid driver's license at the time o ...
Contact Us DO YOU HAVE A CASE?Contact our attorneys NOW Name: Email: Phone: Comments: Enter text from the Image Above: Submit To Blow or Not To Blow – Should I Take The Breath Test As a DUI practitioner, the most frequent question I am asked is, “should I take the breath test?” The answer is not a simple “yes” or “no.” First, it is important to know that under the ethics rules of the Florida Bar, an attorney cannot give advice to someone to break the law. By law, you are required to take the breath test if you have been lawfully arrested for DUI. Therefore, my answer is required to be, “yes, you should take the test.” However, even without the requirement that I answer yes, this would likely be my answer anyway.
If you refuse to take the breath test, the prosecutor will argue that the reason you did not take it is because you knew you were guilty and you did not want a jury to know “that number.” This is called consciousness of guilt. It is a strong argument for the prosecution. Of course, if you do not take the breath test, a skilled DUI Defense Attorney can counter that argument, but it is a persuasive argument for the other side.
If you do take the breath test, a skilled DUI Defense Attorney should be able to make numerous challenges to the admissibility of the test. In Florida currently, we are challenging the admissibility of the breath test based on machine errors, human errors, source code issues and non-compliance with the administrative rules that govern the procedures for breath testing.
In Orange, Osceola, Seminole, and Lake Counties, we have successfully been able to keep breath test results out of our cases for many years. The battle over admissibility of results is still being fought in other counties throughout the state. The two most recent challenges are based on the Florida Department of Law Enforcement’s failure to follow the administrative rule. These will be discussed in the next two blogs.
If you are ever faced with the decision to take the test or refuse, remember that in Florida a first refusal is not a crime, however, your refusal to take the test can and will likely be used against you in court. If you refuse to take the test and you have previously refused to take it, you are committing a separate crime which is punishable by up to 1 year in jail, even if you beat the DUI charge.
Blow or refuse, the choice is yours, however, with the right lawyer fighting for you, you may be better off taking the test. The results can only hurt you if a jury hears about them .
Contact Us: 407-505-6811 121 South Orange Avenue Suite 1420 Orlando, FL 32801 Home Disclaimer Contact Us Blog Posts Copyright © Orlando DUI Team