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Whether or not to take the breathalyzer test in the event a driver is pulled over is a question many people have wondered. The law says that submission to the test is required. In fact, pull out your driver’s license. In tiny, barely readable text across the bottom edge, the following words are printed: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”
Broward County DUI Attorney William Moore says that many people have never even noticed the implied consent language.
This means that merely by driving on a roadway in Florida, you have — by implication — given your consent to a breath, or if the law enforcement agency deems it necessary, urine or blood test. However, you should only be subjected to such testing in the first instance if the law enforcement officer has already determined that you appear to be impaired.
For instance, if a driver was pulled over for a violation such as bad tints on his windows (too dark) and the officer decides he might be impaired, there could be problems, depending on which signs of impairment are evidence. If the driver submits to a breath test and gets a reading of .000, the law enforcement officer would likely request a urine test. However, even if the urine shows prescription or illegal drugs that could be intoxicants, the fact is that the state must also show that the driver exhibited signs of impairment. This could be established by evidence such as the officer’s testimony that the person seemed confused and had watery, bloodshot eyes. Increasingly, however, DUI investigations are video-taped. Roadside field sobriety exercises are frequently recorded, as are the events at the breath test center. Jurors may view the videos and conclude that the driver appears to have his or her normal faculties.
There are penalties, including administrative suspension of your driver’s license, for refusing to submit to a breath test. If you have refused one or more previous times, you will likely be charged with criminal refusal of a sobriety test, which may carry penalties as severe as DUI itself. The refusal can also be used by the state at trial as evidence of guilt; however, the lack of results in the event the driver refuses to submit is also a lack of evidence, and the state must usually rely on the driver’s appearance in the video and the arresting officer’s testimony.