I was pulled over for excessive speeding on the Florida interstate while traveling out of town. I was exhausted and didn't realize how fast I was going. Hours earlier I had consumed no more than 3 beers and was well under the limit.
The officer said that he smelled alcohol and I told him I had consumed a small amount of alcohol hours earlier and I agreed to do the Field Sobriety tests. I passed all of the field sobriety tests and the officer told me that “I didn't seem impaired”. He gave me a notice to appear in court for speeding but right before he left me he asked if I would volunteer to take a breathalyzer test. I asked him if it was required that I do so and he said “no”. I told him I would rather not and he said "okay". He then told me to drive home or call someone to pick me up if I was too tired and not comfortable driving.
My question is: Could my license be suspended for not taking the breathalyzer? I just read that refusing to take a breathalyzer automatically results in a 1 year license suspension but I’m unsure if that applies to my situation since I wasn't arrested or charged with a DUI—I was only given a notice to appear for excessive speeding.
2 Answers from Attorneys
More than likely your license would have been taken and you would have been issued a formal refusal warning if the intent was to charge you with refusal.
No. In Florida the officers can only ask for a breath test after you have been arrested. Many times the officers ask this when they are concerned they have decided not to make and arrest but are still a little concerned (many heavy drinkers can perform this exercises well even over the limit). Had you blown over the officer would have called a cab for you or asked you to have someone else drive you home but you would not have been arrested.
Your refusal in this situation is not a "legal" refusal in that there are very specific requirements for the officer to ask for a breath test so your license can not be lawfully suspended.
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