Prior To Taking The Breath Test Am I Entitled To Speak To An Attorney?
Unfortunately, Florida law does not allow you to request or consult with an attorney before you decide whether or not to take a breath test. The law makes a distinction between something you’re entitled to (a right) and something you elect to do (an option), and taking a breath test is an option. As long ago as 1986, in the case of State v. Hoch, 500 So.2d 597 (Fla. 3d DCA 1986), the Third District Court of Appeals ruled that a citizen’s Sixth Amendment right to an attorney doesn’t apply to breath tests, because your life, liberty and freedom don’t hang in the balance. Nor do Fifth Amendment rights apply, because breath tests are not verbal admissions on your part – they’re concrete evidence. The law states that ou don’t need an attorney present before law enforcement can collect evidence. As recently as 1995, the Fifth District Court agreed with these premises in the case of State v. Burns, 611 So.2d 842, 848 (Fla. 5th DDCA 1995). That court said that both breathalyzer tests and field sobriety tests are merely the prosecution’s way of collecting evidence against you, so you don’t have the right to an attorney before deciding to take the tests or to decline the option.