“Don’t Just Stand There, Do Nothing”: Why Blowing Into a Breathalyzer Might Be Self-Incrimination

By: John Guidry

Self-help is everywhere. But which approach works best?

• The Thinkers: Change your thoughts, change your life. (I tried visualizing winning the lottery. It didn’t work).
• The Doers: Change your actions, change your life.

Is it our actions that change us, or our thoughts? Probably both. But as a criminal defense attorney, I will say this: Sometimes, the best way to help yourself is to “NOT” do something. Most of my clients could have saved themselves if they had just refrained from doing something—specifically, helping the police build a case against them.

Did the police force you to perform an “act” to prove your guilt?

You have rights against self-incrimination. Call John today at (407) 423-1117.

The Privilege Against Self-Incrimination (It’s More Than Just Talk)

We Americans have a privilege against incriminating ourselves (5th Amendment). You know the drill: “You have the right to remain silent.” But does this right protect you from being forced to perform acts?

• The Question: If an officer suspects drunk driving, he asks you to blow into a machine. Isn’t this request asking a citizen to incriminate himself?
• The Case: Recently, the Georgia Supreme Court asked this exact question in Olevik v. State.

Georgia’s “Action” Protection: Georgia’s Constitution is far more protective than the federal one. It protects citizens not just from forced testimony, but from forced acts.

• 1879 Ruling: You cannot be forced to put your foot in a footprint to see if it matches.
• 1993 Ruling: You cannot be forced to provide a handwriting sample (unlike Florida).

The Breathalyzer: Natural Breathing vs. Compelled Act

In Olevik, the Court ruled that citizens cannot be forced to blow into a breathalyzer. Why? Because blowing is an “unnatural act.”

The Logic:

• Passive Evidence (Legal): The government can force you to stand still while they take a photo of your tattoos or remove your bloody shoes. Standing there isn’t an “act.”
• Active Evidence (Illegal): A breath test requires “Deep Lung Air.” You have to blow hard and sustained for several seconds.“Sustained strong blowing into a machine… requires a suspect to breathe unnaturally for the purpose of generating evidence against himself.”

The Result: Because it requires your active cooperation to generate the evidence, the Georgia Court ruled that the State cannot compel you to do it.

John’s 2026 Update: The “Passive Sensor” Loophole

Note: The Olevik ruling was a win for privacy, but technology has found a way around it.

1. The “Passive Alcohol Sensor” (PAS) The Olevik court dropped a hint: “If the State sought to capture… naturally exhaled breath, this might well be a different case.”

• The 2026 Tech: Police flashlights and window mounts now contain Passive Sensors. They sniff the ambient air in your car while you talk.
• The Loophole: Since you are breathing “naturally,” this is not a compelled act. It is legally the same as the officer smelling your breath, but with digital precision.

2. Instant Electronic Warrants In 2026, the “Refusal” game is dangerous.

• The Old Way: You refuse the breath test, lose your license for a year, but avoid the DUI evidence.
• The New Way: If you refuse, the officer taps a button on their tablet. A Judge digitally signs a warrant in 5 minutes. They then strap you down and take your blood.
• The Reality: You can’t refuse a warrant. The “Action” defense doesn’t apply because they draw the blood for you.

3. Florida is Still Behind While Georgia protects against “Compelled Acts” (like handwriting or deep breathing), Florida still generally follows the federal standard.

• Florida Law: Here, you can be compelled to give handwriting, voice samples, and breath. We are still fighting to get Florida courts to adopt the Olevik logic, but for now, refusing a breath test in Orlando still carries immediate license suspension penalties.

The Best Action is Inaction

Whether it’s your thoughts or your actions that define you, in a legal case, it is your silence that saves you. Do not help them build the machine that convicts you.

Call me at (407) 423-1117. Let’s analyze the stop.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.