People often ask whether they should submit to the breath test or refuse.  The decision is complex and depends o­n too many variable factors to give a “one-size fits all” answer.  Some of the factors are whether you have ever refused before (a second refusal can lead to being charged with an independent crime), the period of time that elapsed since you last consumed alcohol, and subjective decision-making factors that vary from o­ne individual to another.  Refusing can lead to longer terms of suspension of your driving privileges.  So you might be worse off refusing, unless you can win your refusal case both administratively before the DHSMV and in criminal court.

Nonetheless, prosecutors generally find it much more difficult to win a refusal case than a breath case.  That is because in a breath case, the state can convict you with seemingly objective, scientific evidence.  In a refusal case, the state is required to prove beyond a reasonable doubt that you operated a vehicle while impaired by alcohol, based largely o­n the subjective observations of law enforcement personnel.  There is lot more room for an acquittal by a jury based o­n the existence of reasonable doubt when the evidence against you is non-quantifiable and subjective.

Not all refusal cases are alike.  The strength of a refusal case may depend o­n your appearance in law enforcement videos taken at or around the time of your arrest.  A picture speaks a thousand words.  If you look sober in the video, a jury is not likely to convict.  The analysis of a refusal case also depends o­n whether there is an alternative explanation for your poor performance in roadside sobriety exercises or the way you may have appeared to the police.  For example, a person in a state of sleep deprivation may exhibit the same symptoms as a person impaired by alcohol.  While it is dangerous to drive while sleep impaired, it is not a crime.

There are many reasons why a person might refuse to submit to a breath test.  Perhaps they do not trust the breath machine.  Perhaps they were told by a friend or relative who is a police officer or a lawyer not to submit to the breath test.  The prosecutor will argue that you refused the breath test because you knew you would fail. However, our method of winning a refusal case at trial involves persuading a jury of the following:

• You had legitimate reasons for refusing the breath test.
• Even if you admitted consuming alcohol, it is not illegal to drink and then drive; it is o­nly illegal to drive while your normal faculties are impaired.
• Even if you failed the field sobriety exercises, these exercises are not designed to test “normal faculties,” they are not uniformly administered, they are designed for failure and they have many other flaws as designed and as administered.
• You should not be punished merely for exercising your right as a citizen of the United States and the State of Florida to refuse to cooperate with the desire of the police to collect evidence they will use against you.
• The police officers who will testify against you have a vested interest in convicting you.  Their testimony is often conflicting, contradictory, biased, result oriented, and unpersuasive.
• Some of the physical observations relied o­n by the police to portray you as impaired by alcohol do not, in fact, prove impairment.  The police almost always testify to the odor of alcohol o­n your breath, slurred speech, flushed face and bloodshot eyes.  These clichéd characteristics do not in themselves or even collectively prove impairment and can usually be explained as arising from causes other than alcohol impairment.
• You are presumed innocent, until proven guilty beyond a reasonable doubt.

Refusal cases may sometimes be won before they even go to trial.  In addition to the required compliance by law enforcement with the procedures for legally stopping you and conducting the DUI investigation and arrest, in refusal cases the state is required to show that the police correctly advised you of your right to refuse the breath test and of the consequences of refusing.  If the police fail to properly advise you of the “implied consent law,” your refusal may be excluded from evidence in court and the case against you may be dismissed.

Bring us your refusal case!  We will thoroughly evaluate your case to determine the best strategies for winning it.