Always a good question. There really is no easy answer, as it is not an easy situation. If an officer stopped you because he has reasonable belief that you are impaired…. in all likelihood the officer is going to arrest you. That is a given. Remember impairment can be caused by alcohol, which can be measured in your blood, lack of sleep, psychotropic drugs, pain pills and many many other medications, both prescriptive and available over-the-counter. Okay you’ve been arrested… But arrest doesn’t necessarily mean a conviction: to do that the government needs evidence. Evidence can come from a breath exemplar, the video of your performance on the roadside sobriety examination, the video from the police car camera, and the observations of the officer. Videos and officer testimony always exist. Breath exemplars and videos of roadside sobriety tests don’t always exist. Refusing to provide a breath exemplar, refusing to perform a roadside sobriety examination, can all lead to additional criminal charges. Some states, like Florida, make it a misdemeanor to refuse a breath exemplar on your second DUI. Florida law considers those two items as non-testimonial: that means it goes to the jury. You have no constitutional right to keep non-testimonial evidence out. Think of non-testimonial evidence as photographs, things found at a crime scene, fingerprints, your voice, your weight, things that exist without a conscious intent to communicate… Those things that should be voluntary and freely given to be considered reliable. In court rooms the issue of reliability is paramount: confessions made after a beating are generally not reliable and certainly not voluntary. All this takes you back to the question: do I blow? Do I perform the roadside sobriety tests? If you refuse, they don’t exist, they don’t go into evidence and they’re not used to convict you. Your refusal however exposes you to additional criminal problems. The choice is always yours. Lawyers can never advise you or counsel you if you are considering a law violation. It is a violation of law to refuse to provide non-testimonial evidence collected at a DUI crime scene investigation. If you need more information call your South Florida criminal defense lawyer, most of us are up days and nights waiting for the phone to ring. You can ring me up at 1-800-761-3446.

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