DUI Refusal to Submit to Chemical Testing Tampa DUI Refusal Attorney

After a routine arrest for driving under the influence ("DUI") in Florida the arresting officer will usually ask the driver to submit to a chemical test of his breath by blowing into the breath machine (also called the "breathalyzer" or "Intoxilyzer 8000"). Under Florida law, if the arresting officer has probable cause to believe that the driver may be impaired by drugs, the arresting officer may also ask the driver to submit to a urine test. In many cases involving an accident and a driver that is seeking medical attention for his injuries, the officer may ask for a blood test.

The arresting officer usually has no way to force the driver to take a breath, blood or urine test. Many individuals simply decline the officer's request to submit to the chemical testing, which is called a "DUI refusal to submit" or "DUI refusal BAC" in Tampa, Hillsborough County, FL. If you have been charged with DUI after allegedly refusing to submit to a chemical test, contact an experienced Tampa DUI Attorney to discuss your case.

Ways in Which the Person under Arrest for DUI in Florida Can "Refuse" Chemical Testing

Refusing to submit to a breath test usually involves the arresting officer asking the person arrested to submit to a breath test, and the subject declines the invitation by saying, "No thank you, officer." However the arresting officer may allege that your actions constitute a refusal to submit to a breath test under the following circumstances:

1. If you indicate that you will take the breath test, but then fail to blow enough air into the machine to register a reading (the flow sensor on the machine could also malfunction showing you blew an insufficient sample when you really did provide more than 1.1 liters of air) ;
2. If you refuse to answer either "yes" or "no" after the arresting officer asks you to submit to a Florida DUI breath test;
3. If you agree to take the breath test and blow into the machine once, but then fail to blow into the machine a second time within a fifteen minute period;
4. If you become argumentative, compative, or abusive to the arresting officer.

DUI Refusals Governed by Standard Operating Procedures in Tampa, Hillsborough County, FL

Each law enforcement agency has its own policies and procedures for breath and urine testing. For example, the Hillsborough County DUI standard operating procedures requires that any person under arrest for DUI who is brought to central booking be processed the in the following manner:

1. The person arrested for DUI is screened for any serious pre-existing medical condition or injury that resulted as a result of a car accident or incident to arrest;
2. If the individual agrees to give breath testing, a twenty minute observation period begins in which the officer must continually watch the subject to make sure nothing unusual occurs that could effect the testing results, such a regurgitated;
3. If the individual indicates that he will not take the breath test, then a video recording will be made of the officer reading the implied consent warnings to the person under arrest;
4. If the individual arrested for DUI refused to submit to a breath test as a remote testing facility and the refusal paperwork is completed then the individual shall not be given an additional chance to submit to the breath test once he or she is transported to central booking.
5. If the breath test reading is below a 0.05% then the arresting officer is required to collect a urine sample from the person arrested and submit the sample to the lab for analysis.
6. If the person arrested for DUI refuses to provide a urine test, then the officer will count the subject as having refused to submit to testing.
7. If the individual agrees to provide a urine sample a law enforcement officer is required to witness the "collection of the specimen."

Law enforcement agencies in Pinellas County, Polk County, Pasco County, and Manatee County have similar standard operating procedures for processing individuals charged with DUI. The arresting officer's failure to follow these procedures may cast doubt on the officer's performance in certain Florida DUI cases resulting in the court suppressing or excluding the alleged refusal or chemical testing results. 

Florida's Implied Consent Warning

In order for the fact that the driver refused to submit to chemical testing to be admissible at trial, the officer must read the driver Florida's implied consent warnings.The implied consent laws in Florida require that any driver who accepts the privilege of driving a vehicle with the state is deemed to have given consent to submit to an approved chemical test of the driver's breath, urine or blood.

The implied consent warnings in Florida require the arresting officer to tell the person who is allegedly refusing to submit to chemical testing that failing to do so could result in an administrative suspension of their driver license for six (6) months for a first offense, and eighteen (18) months for a second or subsequent suspension.

Section 316.1932(1)(a)1.a, Florida Statutes (2007), provides in pertinent part that

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test.... The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reason to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages....

The benefit of refusing to take the chemical test in Florida is that the prosecutor has no direct evidence of intoxication. In many of these cases, an aggressive and experienced Tampa DUI lawyer can force the prosecutor to drop the charge from DUI to reckless driving, particularly in Hillsborough County, Pinellas County, Polk County, Pasco County and the surrounding areas.

Separate Prosecution for "Refusal to Submit" to DUI Testing

In order to discourage individuals from refusing to submit to a chemical test, the Florida legislature decided to create a seperate crime for a second refusal. The Florida legislature reasoned that a person could effectively avoid a DUI conviction by simply refusing to take a breath test each time he or she was arrested.

Florida Statute Section 316.1939 makes it a separate crime to "refusal to submit" to a chemical test of the driver's breath, blood or urine after having previously refused to submit. This charge for the second or subsequent "refusing to submit" to DUI testing is a first degree felony offense punishable by up to $1,000 fine and 12 months in the county jail. This punishment is in addition to any punishment for the DUI conviction. In order to prove the offense of refusal to submit to DUI testing after a prior refusal, the prosecutor must prove the following six elements:

1. An officer had probable cause to believe to an individual drove a vehicle (or was in actual physical control of a vehicle) while under the influence of an alcohol or a drug or medication to the extent that his normal faculties were impaired.
2. An officer requested that the individual submit to chemical testing after a DUI arrest (or after the individual was taken to a hospital after being involved in a car crash);
3. The law enforcement officer read the individual Florida's implied consent warning which says that refusal to submit to the chemical test of breath, blood or urine will cause a suspension of the privilege to drive a motor vehicle for a period of twelve months for a first offense, or in the case of a second or subsequent refusal, for a period of 18 months.
4. The law enforcement officer told the individual that it is a misdemeanor to refuse to submit to a lawful chemical test of his blood, breath or urine if his driving privilege had previously been suspended for a prior refusal to submit to a lawful chemical test of his blood, breath or urine.
5. The individual, after being told of the Florida implied consent warnings, and the fact that another refusal was a new criminal offense, still decided to refuse to submit to a chemical test when requested to do so by a law enforcement officer.
6. The individual's privilege to drive had, in fact, been previously suspended for a prior refusal to submit to a chemical test of his breath, blood or urine.

The jury is also told that they are allowed to conclude that the individual's driving privilege had been previously suspended for a prior refusal to submit to a lawful test of blood, breath or urine if the driving record from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) shows such a suspension. It appears that the statute ties the triggering event not to an allegation that the driver refused, but to a suspension by the DMV. The question remains whether the case could be prosecuted when the first or second administrative suspension is invalidated.

Thus, it appears to be an open question whether a person can be prosecuted for this criminal offense even if the individual contests the administrative suspension of his license and prevails. Although it appears that a person can be prosecuted for the "refusal to submit" even if the DUI case is not prosecuted or is dismissed by the court. In order words, the DUI prosecution is a completely different proceeding then the prosecution for refusing to submit, although the refusal to submit may be tied to whether the DMV upholds the suspension.

Prosecutions for a Second DUI Refusal

Relatively few cases exist dealing with a prosecution for a second or subsequent refusal to submit to testing after a DUI arrest in Florida. In State v. Busciglio, 976 So.2d 15 (Fla. 2d DCA 2008), the Second District Court of Appeals found that a driver that was facing a second refusal did not have a right to counsel under the Florida constitution at the time he was asked to submit to a breath test.

The Court reasoned that the question was not interrogation. Furthermore, the Court held that the answer was not a testimonial response triggering the right against self-incrimination under the Fifth Amendment of the United States Constitution.

Finding the Right Attorney for a DUI Refusal Case

If you have been arrested for DUI after allegedly refusing to submit to a breath, blood or urine test, contact a Tampa DUI attorney to discuss fighting the charges against you, including the administrative suspension and the criminal case in Hillsborough County, Pasco County, Polk County, Pinellas County, Hernando County, or Manatee County, Florida. Find out more about how DUI cases are prosecuted in Tampa, Clearwater, Bartow, New Port Richey, Dade City, and Bradenton. Call 813-250-0500 to discuss your case with an attorney experienced in fighting DUI refusal cases.

This article written by Jason D. Sammis. Last updated on January 20, 2012.