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“To blow or not to blow?” is a question that DUI attorneys are asked very often. This is not surprising since there is ample discussion on the internet and in the courts about the inherent weaknesses of the approved intoxillyzer instruments and subsequent test results. “Failing” the test comes with the implication that you will be condemned by test results that have been proven to be faulty at times unless you refuse. However, this does not answer the fundamental question: do you blow or do you refuse?

The only person who can truly answer that question is you at the moment that you are being asked to submit to a breath test. To make that decision, however, you need to know about Florida’s DUI laws and how they deal with a refusal, the potential consequences of a refusal, and alternatives. To know your rights and to be sufficiently informed is your best bet, which is what this blog is here for.

Florida subscribes to the view that by obtaining a driver’s license in the state, you are basically availing yourself of the privilege to operate a vehicle in the state. Therefore, when you are issued a driver’s license, you implicitly agreed to submit to the state’s law enforcement DUI testing procedures. This is termed the “Implied Consent Law.” Of course, this implicit agreement is only binding if you are lawfully arrested for DUI based on an officer’s determination that there was sufficient probable probable cause to do so.

This “implied consent” covers any “approved test” for impairment including tests of blood, urine, breath (it does not include roadside field sobriety tests). Refusal to participate in any of these tests, including refusing to blow, results in automatic and mandatory suspension of your license of up to one year. If your license has previously been suspended for refusing the test from a prior arrest and you refuse a second time, it will result in a license suspension of 18 months and a potential for being charged with the crime of “criminal refusal.”

The good news is that if the underlying arrest was unlawful or there is some other defect or procedural error in the testing process and you hire good counsel to challenge the arrest and procedure, the test can be ruled invalid and inadmissible.

A skilled DUI attorney can exploit these weaknesses in the subsequent proceedings and possibly bring up enough doubt to upend the state’s case. Attorney Malcolm Anthony is ready to help you fight your Florida DUI charge today.



Jacksonville, FL Criminal Defense Attorney​​​​​​If you’ve been charged with a crime, you need the determination and experience of criminal defense attorney Malcolm Anthony on your side. As a Jacksonville area criminal defense attorney, I am a seasoned lawyer with a high success rate in criminal…

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