Don't Give a Breath Test in Florida, even if You've only had One Drink: DUI Attorney Advice 

People share drinks in a Fort Lauderdale bar for a birthday situation, one person has only one drink but gets a DUI on the way homePicture this:

You’re at a bar with some friends, celebrating a birthday. You're there for a few hours and you only drank a little bit at the beginning of the night... no big deal, right? You can totally drive yourself home, right?


You get into your car thinking there’s absolutely no way you are impacted by alcohol, no chance you're buzzed or “under the influence” of alcohol.


On your way home you see flashing lights behind you - you're getting pulled over. 

You quickly pull off to the side of the road and the first thing the officer asks you when he comes up to your window is, “have you had anything to drink tonight?”

You're so confused - not only did you have barely anything to drink, you were also making sure that you were driving very carefully, going the speed limit, staying in the lines, all that good stuff. You panic. You tell the officer that you didn't drink anything. He immediately asks you to take a breath test

You think it’s against the law to say “no” to a breath test,  so you say “yes” and go along with it. BIG MISTAKE. 


We recommend NEVER consenting to a breath test if it is the first time you’re pulled over for a DUI. It is your right to refuse breath tests in the state of Florida and most experienced lawyers will tell you to never, under any circumstances, consent to one if it’s your first DUI. It is important to note, however, that there are consequences to refusing a breath test, so it’s important to be aware of that. In our experience, however, the consequences of refusing a breath test are typically lesser than the consequences of consenting to one - even if you’re sober. We know, it’s weird.  


Why Wouldn't I Take a Breath Test in Florida? 


There are a handful of reasons.

  • First and foremost: You should never give the police any potentially incriminating information or evidence against you. 
  • If you find yourself in a situation where you might be suspected for a DUI they're going to try to get you to admit that you have been drinking indirectly. 
  • If that fails, they will ask you to either take a breathalyzer test or a series of field sobriety exercises, or both. 
  • It is key that during the entire investigation you don’t say, do, or consent to anything that could possibly incriminate you. 
  • It is common for police officers to try to arrest you regardless of whether they find probable cause and fill in the blanks for when they want to arrest you
  • Be polite and If you don’t know what to say the first thing you need to tell the police officer is that you want a lawyer. 

In addition to evidentiary reasons, it's important to note breath test machines - breathalyzers - are actually highly inaccurate. One of these breathalyzer devices that is commonly used is the Alco-sensor III. Like other breathalyzers used by law enforcement, the Alco-sensor III is approved by the U.S Department of Transportation for BAC testing with underage drivers.


It is only accurate up to +/- .005 your BAC (blood alcohol content) which can be a huge distinction when testing for an exact BAC. For example, if you were to test anywhere between .075 and .079 the device could come up with a false positive, when in reality you were below the legal limit. ALSO - even if you blow below the legal limit, the officer can still arrest you. Because either way, you’ve provided evidence there is alcohol in your system, and the police officer can then subjectively decide that your normal faculties were impaired by alcohol and still arrest you for DUI.

An additional important note related to DUI investigations in Florida: As South Florida DUI attorneys - we advise that people NEVER do the field sobriety exercises in Florida


In Florida, there is currently no negative consequence for refusing to do the field sobriety exercises. Even if you are POSITIVE you are sober and haven’t been drinking - it’s still best to say “no.” The exercises are difficult to do even when sober, and you don’t want to give officers any evidence for their case against you. We see sober people fail the field sobriety tests in south Florida far more than we see them complete the exercises successfully. 


Examples of Sobriety Test Exercises and HOW Police Look to FAIL You

The walk-and-turn test requires  you to take nine steps in a straight line, while touching your heel to your toe at the end of each step. 

  1. The police officer will look for eight different things that might make them think you’re impaired: 
  2. Keeping balance while listening to instructions, 
  3. beginning before instructions are finished, 
  4. stopping while walking to maintain balance, 
  5. not touching your heel to you toe, 
  6. stepping off of the line, 
  7. taking an incorrect number of steps, or 
  8. making an improper turn.

When it comes to the horizontal gaze nystagmus test, the officer is looking for certain indicators based on how your eyes move after a set of instructions. 

  • They will place and object in front of you and ask you to track it while it moves. 
  • If your eyes jerk too much while tracking the object or you are unable to follow the object, they believe it can show signs of impairment.

Finally, in the one-leg stand test, the officer will instruct you to stand with one foot six inches off the ground and count by one starting at one thousand (example: one thousand-one, one thousand-two). 

  • They will time you for thirty seconds to see if you are able to complete the test without swaying, using your arms to balance, hopping, or putting your foot down.

What are the Consequences of Saying NO to a Breath Test or a Field Sobriety Tests?

DUI penalties and Florida DUI Jail convictions are explained by a Fort Lauderdale DUI attorney in this inforgraphic.In the state of Florida there are no consequences for saying no to field sobriety tests, but there are a couple of minimal consequences that Florida puts in place in order to persuade you to take a breath tests. 

  • The fact of this refusal may be used against someone to: result in suspension of his or her driver's license by the court at the time of arraignment for the DUI charges.

At the end of the day these punishments may seem severe, but they pale in comparison to the consequences of actually getting convicted of a DUI


So... If I refuse the DUI tests... What happens next?

Even if you refuse to take a breath test and you pass the field sobriety tests, the officer could still go ahead with the arrest. This is where a DUI lawyer comes in. 


At the point of the arrest and after being read your Miranda rights the ONLY thing you should say is “I want to speak to my lawyer”. This will most likely cause the officer to get defensive. 


Don’t worry, after getting in contact with an experienced DUI defense attorney, they will handle everything from that point forward. They will be able to handle all of the paperwork that goes into the case, as well as the court appearances that could come out of getting arrested for a DUI. Most importantly, they can work to defend you and assert your rights which could result in your DUI charges getting reduced, dismissed, or perhaps getting into a DUI diversion program.


Free DUI Criminal Defense Consultation In Fort Lauderdale 

If you get charged with a DUI, contact an experienced DUI attorney. Don’t get tricked into believing all criminal defense attorneys know DUI law. 

It is very intricate and different from criminal law. Rossen Law Firm knows how to protect your rights against your Florida DUI charges. 


We offer potential clients FREE DUI consultation so they can see for themselves how knowledgeable we are and how determined we are to defeat their DUI charge.


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