Should I take the breath test or refuse?

People sometimes ask: “If I get arrested for DUI, should I take the breath test or refuse?” The answer is: “It depends.” With recent changes in DUI law, a person should keep these things in mind.

Florida’s Intoxilyzer 8000 Machines are Really Old

Florida’s Intoxilyzer 8000 machines were put into service in 2006. As the machines age, the chances of an inaccurate and unreliable reading increase.

These machines cost approximately $6,000 when they were originally purchased. Now that the machines are more than 12 years old, repairs are needed more frequently, and the repairs become more expensive. The agencies that maintain the machines are good at finding ways to avoid sending the machines off for repairs.

Over the years, agency inspectors have deleted error/exception messages from the comments section of “Form 40” by repeatedly hitting the backspace button to delete the message.

At least one former agency inspector admitted he was trained to hit the backspace button when certain errors occurred, including on the alcohol-free or mouth alcohol test.

Budget Cuts Mean the Machines Are Less Likely to Work Properly

Recent budget cuts mean that the FDLE has slashed the number of Departmental Inspectors. FDLE previously required its Departmental Inspectors to travel at least once a year to the Central Breath Testing Unit (CBTU) of the Hillsborough County Sheriff’s Office (HCSO) for an inspection.

The Departmental Inspector was responsible for inspecting the machine and how it was set up at the agency. Because of the budget cuts, the breathalyzer machines are not boxed up and sent by UPS or another common carrier to Tallahassee for the annual inspections.

Inspecting the instruments where the breath tests are conducted on people arrested for DUI used to be critical, and that requirement was eliminated just because of budget cuts.

.20 BAC Means You are NOT Eligible for the RIDR Program

The State Attorneys Office (SAO) in Hillsborough County recently created a new diversion program called Reducing Impaired Driving Recidivism (RIDR). This program allows first-time offenders to AVOID a conviction completely because the DUI is reduced to reckless with a “withhold of adjudication.” The “withhold of adjudication” means the person can seal the criminal record once the case is over, assuming they are otherwise eligible.

You are automatically ineligible for the program; however, if you submit to a breath test and blow a .20% or above.

How many people blow a .20% or above BAC? Recent DUI statistics released by the Tampa Police Department show that in 2016, 10.3% of the people who submitted to a breath test blew a .20 or above. That 10.3% of drivers would be far better off refusing to submit because, after that breath test, they are AUTOMATICALLY not eligible for the new RIDR diversion program.

For the diversion program in Pinellas County, a blow of .15 or above means the person is not eligible for its diversion program called DROP.

.15 BAC Means Enhanced DUI Penalties

Florida law provides for several enhanced penalties if you blow over a .15. That’s right – the penalties are worse if you blow over a .15 compared with just refusing the test.

The fine is $500 to $1,500 higher for a high-blow DUI compared with a DUI refusal. Also, if you blow over the .15, the court will order you to install the ignition interlock device in your vehicle for at least six (6) months. No such requirement exists if you refuse to take the breath test.

If you look at the DUI statistics published by the FDLE for all of 2012, the average breath alcohol concentration was exactly .150 for more than 38,000 individuals who submitted to the breath tests.

In 2011, the average breath alcohol concentration was .148. And if you look at everyone who blew in all of 2012, 56% of those individuals blew over a .15.

# of Breath Samples <0.08 g/210L

9219 16%

# of Breath Samples >/= 0.08 g/210L

47785 84%

# of Breath Samples >/=0.15 g/210L

31697 56%

Since 56% of the individuals blew over a .15, most individuals with a first DUI would have avoided the enhanced penalties by refusing the chemical testing.

The Main Deterrent to Refusing Was Eliminated in Florida

For anyone arrested for a first DUI after July 1, 2013, Florida created a way to avoid the main deterrent to refusing to take the breathalyzer test – the dreaded 90-day hard suspension.

A person accused of refusing the breath test after a first DUI arrest can avoid the 90-day hard suspension by requesting the immediate reinstatement of their hardship privileges. This is a good option for people who cannot afford a private attorney to fight the administrative suspension.

[[At the Sammis Law Firm in Tampa, FL, we still tell our clients that they should let us demand the “formal review hearing” within ten (10) days of the arrest, even if they are eligible for immediate reinstatement.]]

But for anyone who doesn’t contest the suspension, it doesn’t matter whether you take the breath test or refuse – for a first offense, you can go to the Bureau of Administrative Review (BAR) Office to obtain a hardship license if:

  1. you submit a request for eligibility review at the BAR Office within ten (10) days of the arrest to request immediate reinstatement of hardship driving privileges during the suspension period;
  2. you stipulate to the administrative finding that you were DUI (which then remains on your driving record for 75 years);
  3. you show proof that you enrolled in DUI school;
  4. you have no prior DUI administrative suspensions or convictions; and
  5. have a driver’s license that is otherwise valid with no other holds that make you ineligible for the hardship.

Should You Take the DUI Breath Test or Refuse?

So remind me again… Why would anyone want to submit to a breath test for a first DUI? Given the unreliable nature of the breath test machine used in Florida, the Intoxilyzer 8000, and the enhanced penalties that can occur with a high BAC, many people refuse to submit to the breath test.

Although a refusal comes with a longer administrative suspension, recent changes in DUI law make refusal a better alternative for many.

Call 813-250-0500 for more information.


Leslie Sammis is a DUI defense attorney in Tampa, FL. Read more about DUI cases for a refusal. This article was last updated on Friday, December 22, 2023. 

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