A few years ago, everyone I knew used to asked me the same question about DUIs, should I blow? Back then, I would tell them “absolutely not.” Now, everyone I know tells me not to blow, especially when they learn that I am a defense attorney. Often, one of the first things people say to me is “don’t blow man” or “I shouldn’t blow, right?” Sometimes, they tell me this even before we have been formally introduced.
Obviously, to “blow” means to give a breath test sample. Under the Florida Statutes Chapter 316, you consent to having your “breath” tested if or when you’ve been arrested for DUI. The statutes then give the authority to the Florida Department of Law Enforcement (FDLE) to pick out a machine to use in a breath test procedure.
In Florida, the FDLE has approved a breath test machine called an Intoxilyzer 8000. When the Intoxilyzer first came out, the machine was a mysterious black box attached to a beaker of alcohol solution called a “wet bath,” and a small canister that looked like a scuba tank called “dry gas.” We knew that a defendant blew into the machine and that the machine produced a result after the breath test. Beyond that, no one except the manufacturer of the machine, CMI, knew much about it. CMI kept it that way for a very long time.
Today, things are different. The courts are begininning to find that you have a right to know how the machine works. And the more the legal community begins to learn about the inner workings of the breath test machine, the more questions come up about how this mysterious black box really works.
In fact, we the legal community have been so successful at challenging the veracity of this machine, law enforcement agents have begun to take a different tack. Today, blood tests are on the rise. So far, the Florida legislature has not authorized law enforcement agents to take your blood anytime they want, as is the case in Arizona. However, the courts have made forced blood draws all but legal.
In Florida, the courts have ruled that even though a police officer is not allowed to force you to give him your blood, you, a.k.a the drunk man or woman, can always voluntarily and freely give your blood to the law enforcement officer. The obvious flaw in this legal position is that if an officer states that you, the “drunk” man or woman, volunteered to have your blood drawn, all the court has to decide is whether that officer is a credible witness. If the court believes the officer, and it usually does, then the court can without hesitation decide that you voluntarily stuck out your arm and practically begged someone to stick a needle in you.
If you were an officer of the law, which way would you go? Would you ask someone to take a breath test, knowing that the defendant will challenge the inner working of the machine? Or would you just get the defendant’s blood and call it a day? If I were and officer, I would get the person’s blood.
Additionally, courts are now issuing more warrants than ever. These warrants allow law the enforcement officers to take your blood regardless of whether you consent. Even though the legislature has clearly stated that law enforcement officers are not entitled to a sample of your blood, the courts have decided that if a judge says its okay, then the officer can take your blood.
Knowing this, I’m not so sure I would be as cavalier today as I was way back when. In fact, if I were faced with the option of blowing into an unscientific and mysterious machine versus getting stuck with a needle, I’d chose the machine. From a defense point of view, you’ll have a much easier time showing that the machine was unreliable. Plus, the law states that if an officer has probable cause to believe your normal faculties were impaired by alcohol, he has to ask you to blow and you have to accept his request.
Obviously, the officer cannot force you to blow into the machine, that’s why there are penalties for refusing. But if you refuse the breath test these days, heck if you don’t insist on taking the breath test these days, you might just get stuck with a needle. The number of blood draws are on the rise and it doesn’t look like they are going to stop anytime soon.