Defenses to Refusals to Blow in a DUI Case

Defenses to refusals to blow in DUI cases. Alavi, Bird & Pozzuto | Criminal Defense & DUI Lawyers

If you did not submit to a breathalyzer test, there are defenses to refusals in DUI cases.

Luckily, there are ways to get the case dismissed. If the arresting officer did not follow the letter of the law to the T, if you were confused, or if you have some ailment that prevents you from performing the breathalyzer test to the best of your ability, there is hope for you yet.

Many times, we can attack your DUI case with several defenses to refusals to provide a breath test sample. As experienced DUI Defense Lawyers, we have quite a few technical and creative defenses that have been successful in helping people in a situation just like yours.

We’ve listed a few below:

Lack of Compliance with the Implied Consent Statute:

If the officer does not substantially comply with the implied consent laws, then we may be able to get the refusal tossed out of court.

The officer requesting a test must have reason to believe you are either driving or in actual physical control of your car while under the influence of an alcoholic beverage or controlled substance. So if the officer can’t prove legally that he had probable cause to arrest you at the time he asked for the breath test result and you refused, then your act of refusal could be tossed out of court during the review hearing.

“I Was Confused”: The Confusion Doctrine

If your Miranda rights were given to you close in time to the implied consent warning, we may be able to advance the defense that you were confused.

In the recitation of your Miranda rights, officers will tell you that you have the right to an attorney. If a split second later, these officers recite your implied consent warning, which states that you don’t have the right to an attorney, before giving a breath test result, this can be confusing. Technically, you have a right to an attorney before you incriminate yourself verbally, but not before you incriminate yourself with a breathalyzer.

The confusion doctrine states that if you confused the Miranda warning with the implied consent warning and did not understand your rights and the consequences of your refusing to provide a breath test,  then the refusal, in certain circumstances, may be tossed out of court. The Confusion Doctrine is one of the defenses to refusals that may help.

The Rude Defendant

Consider the case of Johnson v. Commissioner of Public Safety:

Johnson had blown into the breath test machine a few times, but never long enough to produce an adequate breath sample. The cop thought Johnson should continue to try; Johnson thought he had done enough. Upset, Johnson stuck his tongue out at the officer, who then became angry and wrote up Johnson as a refusal. This resulted in the suspension of Johnson’s license.  

In this case, the court determined that Johnson hadn’t actually refused. If the officer had not gotten upset that Johnson stuck his tongue out at him, presumably Johnson would have had the opportunity to blow into the machine another time.

“Weak Lungs” Defense

Often, cops are not concerned with why a person’s breath is unable to register a result with the breathalyzer. Even if defendants blow, but their lungs did not allow for a high volume of breath, cops will still chalk it up to a refusal.

The weak lungs defense can be used when somebody tried to register a result with the breath test but was unable to comply. Note, however, that we have to be creative in presenting this defense. Without question, you can expect an officer to come in and say that the incomplete test was really because the driver was being intentionally uncooperative.

The “Foreign Language” Defense

Florida statute requires that the implied consent be read clearly and unequivocally. We have been able to set aside suspensions in refusal suppressed cases where we could show our client was unable to understand the implied consent rules due to a language barrier.

“I Changed My Mind. I Will Take The Test”

An interesting situation arises when a driver initially refuses but then very shortly changes his or her mind and is willing to consent to the test.

In some cases, the arresting officer is willing to comply. In other cases, the arresting officer, now put-off, may tell the driver that it’s “too late.” In the case of the latter, we are able to provide a defense for why this isn’t actually a refusal, and manage to get the case thrown out of court.

Head Trauma And Accident Defense

Head trauma that renders a driver unable to intelligently make a decision as to whether or not to blow into a breath test machine right after an accident is grounds for an Attorney to file motions to throw the refusal out of court.

Officer Talks Too Much

If the officer can’t shut his mouth, gives you incorrect information about the penalties, or misstates the law, all these can be used as part of your defense.

During some of these late-night DUIs we hear officers say all sorts of crazy things that can be confusing to a driver. For example, we’ve had officers tell our clients the length of time for a driver’s license suspension. This incorrect information is a defense to the refusal.

Failure To Provide An Alternative Test

If you demand the opportunity to take a blood test after you refused a DUI breathalyzer in Florida, the officer must comply.

You will have to pay for it, but if you want to go and get a blood test taken immediately after refusing a breath test, the officer must allow it. If you have demanded this alternative test and the officer doesn’t allow it, we can use this as part of your defense to get the case thrown out of court.

Get Experienced Advice from an Ocala & Gainesville area DUI Attorney

If your situation does not fall under any of these defenses, still come talk to us. We may be able to find a way to defend your refusal or get your case thrown out. Contact Alavi, Bird & Pozzuto immediately for experienced help with your DUI. With decades of experience in DUI cases, proven trial skills, and a reputation for fighting for our clients, we’ll work to find defenses to refusals and viable ways to attack your DUI no matter what the facts are.