Breath Test Defense

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Thomas By Thomas C. Grajek

Refusing to submit to the breath test on the Intoxilyzer 8000 breath test machine can be a criminal offense separate from the crime of driving under the influence (DUI).

Florida Criminal Statute 316.1939 makes it a first degree misdemeanor punishable by up to a year in the county jail if a person arrested for DUI refuses to take the breath test (or any chemical or physical test of the driver’s breath, blood, or urine), in certain circumstances.

In order for the 2nd breath test refusal to be a crime in addition to the DUI, the driver’s license must have been previously suspended for refusing to submit to the breath test (or blood or urine test). The officer must have probable cause to believe a new DUI was committed, place the driver under arrest, inform the driver of Implied Consent (refusing a breath test would result in the suspension of the driver’s license for a period of 1 year for a first refusal and a period of 18 months for a 2nd refusal), that refusing the breath test (or other physical test) a 2nd time would be a misdemeanor, and the driver arrested for DUI refuses the breath test.

Therefore, you could be charged with 2 crimes, the DUI and refusing to submit to a breath test.

This is one reason why it is so important to request a Formal Review within 10 days of your arrest for driving under the influence in order to fight the suspension for refusing a breath test. New defenses to the crime may be discovered and if the suspension is overturned, you will not be facing a crime and jail time for refusing the breath test in the future if ever arrested for DUI again.

YOU HAVE A RIGHT TO TO HAVE A HEARING ON WHETHER THIS SUSPENSION IS UPHELD OR INVALIDATED.

YOU MUST APPLY FOR THE FORMAL REVIEW HEARING WITHIN 10 DAYS OF YOUR ARREST.

As your attorney, I will fight the administrative suspension of your driver’s license. This hearing is called a Formal Review. I will assist you in obtaining a hardship license so you can continue to drive to work if you are eligible. It is important that you have an experienced criminal defense lawyer represent you at the Formal Review. The Formal Review can be a valuable discovery tool to help prepare your case for court and for trial.

Each DUI case is different and unique based upon the individual facts of your case. Call now to set up your free consultation so I can answer these and other questions you may have regarding your DUI.

PROTECT YOUR RIGHTS…CALL AND SET YOUR FREE CONSULTATION WITH AN EXPERIENCED LAKELAND/TAMPA CRIMINAL DEFENE ATTORNEY IMMEDIATELY


Lakeland, FL (863) 838-5549
Tampa, FL (813) 789-6404

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