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Ask the DUI Attorney » Jail for Breath Test Refusal

Jail for Breath Test Refusal

If someone is pulled over for a DUI and refuses the breath test, can you still be taken to jail?

- T.D., Florida


The state of Florida operates under what is known as the "implied consent" law outlined under the Florida Statutes §316.1932. This statute states that anyone who receives a Florida driver's license, by definition, gives their consent to submit to any approved chemical or physical test if they are lawfully arrested for driving under the influence. For example, the chemical or physical breath test.

Therefore, if someone is lawfully arrested and the police officer has reason to believe that they are driving under the influence, they cannot refuse to submit to a breath test. If they do refuse, they will be facing a driver's license suspension for up to a year for the first time they refuse. The second time they refuse, they will be facing a suspension period of up to 18 months.

One thing to keep in mind that the lawful breath test is different than the roadside breath test, which is often referred to as preliminary alcohol screening (PAS) test. This is a different test entirely. For drivers who over the age of 21, if they are pulled over and asked to submit to a roadside breath test, they are legally allowed to refuse without facing the possibility of license suspension. Once they are arrested, however, under the implied consent law, they must submit or otherwise face criminal penalties.

Regardless, if you are pulled over and refuse the breath test, you will not be facing jail time for the refusal alone. In no circumstances will a refusal to take the breath test be penalized by jail or prison time. It, however, does not protect you from being taken to jail for allegedly drunk driving.

If the officer has reason to believe that you were drunk driving and you refused the breath test, they could still very well take you to jail and you could be facing criminal charges for driving under the influence. A refusal for a breath test after arrest will not stop your charges – it will only cause extra penalties. A refusal before arrest will protect you from incriminating evidence, but will not put a halt to criminal charges.

This answer does not constitute legal advice, which can only be rendered after a full consideration of the facts of your case which is not possible in this format; nor establish an attorney-client relationship, which can only be done after you and an attorney meet and agree on the terms of that relationship. This answer is intended solely to provide general information about the justice system. Further, it does not provide the basis for making decisions about a course of action. Before making any decisions about a course of action readers are strongly encouraged to contact a lawyer and secure an attorney-client relationship. Readers must also understand that this format does not provide for confidential communication. Moreover, links to information on this site are for your convenience only and are not an endorsement or recommendation of those sites, and no responsibility is taken for any information at these linked sites, nor makes any representation or warranty with respect to these sites or the information contained therein.
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