Florida DUI: Refusing The Breath Test

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Is refusing to take a breath test a constitutional right? It is, according to David Katz, a Florida attorney whose practice focuses in the areas of DUI and criminal defense. Due to the work that his firm has done on the issue, he says there is much more that he can do for his clients to keep breath tests out of evidence.

Challenging the implied consent statute

In a recent interview, Katz told us that if you refuse to take the breath test, the state is going to argue to any jury that the reason that you refused to take it is because you knew you were guilty and you didn’t want them (the jury) to know the results. He explained:

As of right now in Florida, they can actually make that argument, but we are the only law firm and I am the only attorney that I know who’s actually challenging the constitutionality of our implied consent statute, because it specifically says that a person’s refusal to take the breath test is admissible against them. However, there’s a great deal of case law out there that says you have a constitutional right to refuse a warrantless search, which is what a breath test is according to the Supreme Court of the United States and the Supreme Court of Florida. Or, if you’ve given your consent, you can revoke it at any time.

Our argument is that all a person is doing when they refuse is revoking their previously given consent – and that they have a constitutional right to do that. Therefore, to criminally punish them for invoking a constitutional right has to be unconstitutional.

Reasoning behind his argument

Katz told us that this is an argument that his firm has created. However, even though he says it makes perfect sense, he admits that some people look at him cross-eyed when he explains it to them. Here’s how he generally explains the reasoning behind his argument:

If a police officer came to your door without a warrant, knocked on the door to your house, and said, ‘Can I search your house?’ you could say yes if you wanted to or you could say no. Or you could say yes, let him in and after he searches downstairs and says he’s going to search the upstairs, you could say, ‘You know what? I’ve changed my mind. Get out.’ He has to leave; the case law clearly agrees with that.

In my mind, there’s no difference between that and a breath test, but the state’s argument is that you agreed to it when you got you’re driver’s license. I say that, like in my house search example, you can change your mind.

How the argument benefits his clients now

The fight over whether refusing a breath test is constitutional is in its infancy, according to Katz. He says that he has not yet had a judge on the county court level even rule on it so that either he or the state could appeal. He explained, “I’ll be honest with you; I don’t think there’s a county court judge in the state of Florida that’s going to declare the statute unconstitutional whether I’m right or not. That’s something that will have to happen on the appellate level. However, in the meantime, the state continues to offer me and my clients the lesser charge of reckless driving – something that is fine with us.”

About Katz

Katz was a misdemeanor prosecutor in Seminole County and was then assigned as the lead DUI attorney in the county where he was its Intoxilyzer specialist. He says that for about the last 13 years, the breath test has not been admissible on a regular basis because of challenges to it. When he was with the state, part of his job was to get the test to be admissible. Now, it’s his job to get it to be inadmissible. The transition has been easy because of what he learned while he was with the state. He says that he lost his faith in the Intoxilyzer and wasn’t going to do something he didn’t believe in. He says that breath test results are not coming in right now in Orange County because of his firm’s victory and that they are in the middle of similar hearings in Seminole and Lake Counties.

If you have questions about a DUI in Florida, contact an experienced FL DUI attorney to discuss your situation and evaluate your options. Consultations are free, without obligation and are strictly confidential.

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