Do Florida Alcohol Testing Requirements Violate Your Constitutional Right against Self-Incrimination?
On the surface, agreeing to take a blood alcohol content (BAC) test as part of a driving under the influence (DUI) traffic stop might seem to flout the Fifth Amendment of the U.S. Constitution, which protects individuals from incriminating themselves. However, these rights do not affect blood or breath alcohol testing requirements imposed in every state in the country because of an implied agreement to this testing that you make when you apply for a license to drive.
The Florida implied consent law takes a hard line on refusal of BAC tests. While police cannot force you to take these tests, the Florida statutes explain the harsh consequences you immediately face, including the following:
Suspension of driving privileges for one year for a first refusal or up to 18 months if prior refusal suspensions exist on your record
Misdemeanor charges levied in addition to any other applicable charges
The admissibility of your refusal as evidence against you in criminal proceedings
Although the BAC testing requirement may amount to self-incrimination, because you have agreed to it in exchange for your driving privileges, it is not unconstitutional. If you have been stopped and tested and found with a BAC level high enough to qualify for a DUI — or if you have been stopped and refused a BAC test ― you may still possibly mount an effective defense.
When you retain experienced legal representation as early as possible in the criminal process, your Florida DUI attorney has many opportunities to refute the evidence against you. Whether your lawyer cites a traffic stop without probable cause, testing equipment malfunctions, officer inexperience or another of several other defenses, the prosecution may agree to reduce the charges to reckless driving — or drop the charges completely.