Hamlet gets pulled o’er for DUI

To blow or not to blow: that is the question:

The most asked question of a criminal defense attorney at a cocktail party is whether a
person suspected of DUI should blow in the Intoxilyzer or refuse to take the test. Given
the harsh nature of the penalties for DUI, it may feel like the life or death decision
considered by Hamlet. Like Hamlet contemplating his fate in Act III, DUI questions are
complex queries with many factors to consider, and the driver’s fate is uncertain with
either decision.

Here is what is known for certain about being stopped for suspicion of DUI. In order to
prove DUI, the State must show the driver was either under the influence of alcohol to
the extent that their normal faculties were impaired or the driver had a breath-alcohol
level of .08 or more. If Hamlet blows in the Intoxilyzer and the result is over .08, he is
presumed to be impaired and subject to being convicted of driving with an unlawful
breath alcohol level.1 Additionally, under recent amendments to the DUI Statute, if
Hamlet blows over .20, he will be required to have an ignition interlock device placed on
his car.

If Hamlet refuses to blow, the State cannot argue the statutory presumption of impairment
for a blow over .08. The prosecutor is left with presenting the officer’s observations and
other evidence (i.e. videotape) to attempt to prove that Hamlet’s normal faculties were
impaired. However, the State will be allowed to argue that Hamlet’s refusal is evidence
of his impairment and Hamlet may also be charged with an additional misdemeanor for
refusing to blow.2

The DMV: perchance to dream: ay, there’s the rub

So, here comes the officer in Hamlet’s blurry rearview mirror. Hamlet, knowing he is
over .08, thinks, “I will take up arms against my sea of troubles,” and he refuses to blow
in the Intoxilyzer. The rub comes at the Department of Motor Vehicles. A person
arrested for DUI is subject to a suspension of their drivers license by the DMV. A person
blowing in the Intoxilyzer, gets a suspension of 6 months; a driver who refuses to take the
test gets a 12 month suspension. Additionally, a person blowing in the Intoxilyzer, gets a
“hard time” suspension of 30 days; by refusing, the “hard time” suspension is increased
to 90 days.3 It is called “hard time” because the driver has no right to a work permit or
any other license to drive. Many people are shocked, to say the least, to find out they
cannot drive for 3 months.

1
If a driver blows under .05, his normal faculties are presumed to be not impaired.
2
Fla. Stat 316.1939. Keep this in mind if ever asked this question, as you cannot counsel
or assist a client in criminal or fraudulent activity. Rules of Professional Conduct 4-1.2
3
If the arrest is for a second offense and the first DUI was also a refusal, the hard time
suspension is for 18 months. Fla. Stat. 322.2615
Hamlet does have the right to a DMV administrative hearing to attempt to overturn the
suspension. Hamlet would consider a DMV hearing akin to the “The heartache and the
thousand natural shocks that flesh is heir to.” The scope of review is narrow, relief is
rarely granted and appeal is of limited value as the suspension goes into effect
immediately. The vast majority of DMV suspensions are sustained by the DMV.

To blow, or not to blow? Does Hamlet blow in the Intoxilyzer thereby giving evidence to
the prosecutor but limiting his hard time suspension to 30 days; or, does he refuse, taking
away part of the criminal case but risking a 90 day hard time suspension? Which is
“nobler in the mind to suffer” is left to individual decision.

There is no good answer to the question posed. The best advice to anyone asking the
question is they should not to put themselves in this position. It is impossible at the scene
for a driver to know which legal technicalities may afford them relief at the DMV or in
criminal court. A person charged with DUI can get help from good counsel. A good DUI
lawyer can help people who blow and those who refuse. DMV suspensions can be
postponed and can be overturned. Likewise, some criminal cases are dismissed or
reduced on well-founded defense motions, whereby avoiding a Shakespearean tragedy.

My apologies to the Bard.

Bruce H. Denson is a sole practioner focusing on criminal defense and DUI cases. Mr.
Denson was a prosecutor in Pinellas County and has tried over 50 criminal cases
including DUI and DUI Manslaughter cases. For additional information about DUI
defense see his website at www.thedensonfirm.com, or give him a call (727) 896-7000.