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What Should I do if I'm stopped in my vehicle for a Florida DUI investigation?

Don't forget that it's not against the law to drink alcohol and later drive. (although you can't drink in the vehicle) The state must prove beyond a reasonable doubt that you were under the influence of alcohol to the extent your normal faculties were impaired before you can be convicted of a Florida DUI. (it is a separate crime to drive when your blood alcohol level is over the legal limit) When people consult with me on a Florida DUI case I am often asked whether the client should have given a breath sample with the breathalyzer machine. It is a question with no easy answer as several factors must be considered. For example, is this a first or second Florida DUI? And does this involve a first or second refusal to take the breathalyzer?

A first Florida DUI with a first refusal will allow (in most cases) a driver license work permit after a 30 day license suspension. A second refusal will not allow for a work permit and the suspension time is 18 months. Also, a second refusal is a crime, that is, a misdemeanor punishable by one year in jail.

Most people need to drive, so when the officer tells you your license will be suspended people often panic and provide a breath sample. If it is over .08(the legal limit), it is strong evidence for the State and can help the State to get a Florida DUI conviction. On the other hand, if you can get someone who works with you to drive to and from work that may help you to decide to refuse a breath sample. Your individual circumstances need to be thought about. Of course, if you have had only a small amount of alcohol, your breath sample may come in under the legal limit, and a sample in that case could help you.

It is important to remember that Florida DUI cases do not turn strictly on a breath sample result. There are roadside exercises which may show you to be sober even though the breath sample may be over the limit. DUI videos are a very powerful tool for juries to look at when they consider your innocence or guilt. (the police often videotape you after the traffic stop) Your behavior and demeanor are also important. Remember that you have no obligation to say anything to the police if for example they ask, have you been drinking this evening, how much etc.

As you can see, the question of providing a breath sample is difficult to answer with a simple Yes or No. Unfortunately the answer really is "it depends" for each individual case. One final consideration is that sometimes the attorney can have breath test results thrown out of court for possible errors committed by the officer or by the people who maintain the breath testing equipment.

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