As a DUI attorney this is one of the most common questions I hear. The answer is it depends. Many people seem frustrated with this but I will explain. It depends on 4 things 1) location 2) amount you had to drink 3) what you are trying to avoid 4) your prior history.
- The location of your arrest can make a difference in your decision. This has to do with a couple different issues. Some counties are more lenient on low breath tests. Some counties in Central Florida tend to reward cooperation to some extent. This is done by allowing diversions in a county on first DUIs with a BAC below .159% among other conditions. Offering a reduction to reckless driving in another county for breath tests below .12% or .13% is common practice. This policy is not in writing and the prosecutor has discretion but local attorneys are aware of it. A diffrent county claims to not allow equitable reductions. Cases are still reduced but the claim is that this is based on the strength of the case. This same county has had issues with breath test admissibility and currently has breath test machines registering readings with nearly a 10% variation between machines on control tests. The company that designs the machines (CMI) claims that the machines are accurate within 3% or .003 whichever is greater. If the machine is inadmissible your refusal could be used against you but the breath test result could not. It is impossible to know which Judge will handle your case prior to arrest so the admissibility of the test cannot always be determined prior to making the decision.
- The amount you had to drink is important to your decision. I always here "I had two drinks and didn't know if I would pass so I refused". Blood represents about 7% of the body mass or about 4.5 kg (volume ~ 4.4 liters) in a 64 kg (141 lb) person. Cameron, John R.; James G. Skofronick & Roderick M. Grant.Physics of the Body. Second Edition. Madison, WI: Medical Physics Publishing, 1999: 182. This equals about 149 ounces in a 141lb human. This means that a 141lb human could consume 1.192 ounces of alcohol in an hour. This is basically 2 12 oz. beers assuming 100% absorption and no metabolism by the liver. It gets more complicated when you calculate metabolism, digestion and after multiple hours of drinking the math becomes much more important. Your liver can metabolize approximately 1 drink per hour. The simple math would be 2 drinks in an hour 3 drinks in 2 hours 4 drinks in 3 hours and so on. If you have only consumed 2 drinks the entire night you might want to consider taking the breath test unless you are smaller than 140 lbs., the drinks contained more alcohol than a 12 oz. beer or you have impaired liver function.
- What you are trying to avoid should play a substantial role in your decision. This sounds like a stupid question but the answer should have a big impact on your decision. If you are trying to avoid losing your driver’s license the breath test might be a better option for you. The odds are stacked against the accused in a DUI. You will face two separate suspensions. After a criminal DUI suspension you are eligible for a hardship immediately on a first DUI. The problem is that the criminal suspension is only half the battle. You will also face an administrative suspension. The administrative suspension can be successfully challenged but they are designed to be difficult. The suspension automatically occurs if a hearing is not requested within 10 days. It is also based on a substantial competent evidence standard. The United States Supreme Court defines “substantial competent evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552. This is relevant because the first time refusal hard suspension is 90 days (an administrative suspension of 12 months with eligibility for a permit after 90 days). A first time BAC over .08% hard suspension is 30 days (an administrative suspension of 6 months with eligibility for a permit after 30 days). The stop challenges are the same either way. With a refusal implied consent can be challenged but the accused does not have standing to challenge the machine. If you blow then you would have standing to challenge the machine. The success rate tends to be lower in the administrative review cases than in the criminal case on average. Technical errors in the documents can be very successful grounds for overturning the administrative suspension. If you are more worried about a DUI conviction than the license suspension the state will have less evidence if you refuse. Although if you are under the limit and refuse the state will have a case against you based on consciousness of guilt. This argument is not as strong as a high breath test result but does carry some weight.
- Your prior history makes a big difference in your case. If you have a prior refusal the second refusal is a first degree misdemeanor punishable by up to 364 days in jail or 12 months of probation and a $1000 fine. The second refusal also carries an 18 month hard administrative suspension without the possibility of a hardship permit. A second DUI within 5 years has a minimum 10 day jail sentence. A third DUI with a prior in the last 10 years can be charged as a felony and results in a 10 year to lifetime license suspension. A fourth DUI carries an automatic lifetime license revocation. A new law makes it possible to get the license reinstated after 10 years with significant restrictions. On a second DUI outside of 5 years with a prior refusal it might be in your best interest to take a breath test because you would be exposed to a 30 day hard suspension compared to 18 month hard suspension without eligibility for a permit if you refused. The refusal would also expose you to an additional 364 days in jail. The maximum suspension would be 1 year. If you are looking at a fourth DUI and feel that you will be over the limit the 18 month administrative suspension is the least of your worries because the criminal is required to give you a lifetime suspension if convicted. If the case is negotiated and the state stipulates that it is a first DUI you will still face a permanent revocation when The Department of Highway Safety and Motor Vehicles receives the conviction. The decision to blow or refuse can be complex and requires many factors to be considered. What is in your best interest depends on your individual circumstances.