DUI Refusal in Tampa, FL
After a DUI arrest the arresting officer will ask you to take a chemical test. Although the breath test on Florida's Intoxilyzer 8000 is the most common request, the officer might ask you to submit to a urine test or blood test. Many individuals simply decline the officer's request to take the chemical test. In fact, statewide statistics show that nearly 40% of the time the driver refuses chemical testing. In many of those cases, the driver simply says, "No thank you officer. I will not take the test."
In many DUI refusal cases the prosecutor has a difficult time proving the offense beyond all reasonable doubt. The goal in many of these cases is getting the charge reduced to a less serious offense like reckless driving. Even if it is reduced, not all reckless driving plea bargains are the same. For instance, the terms of probation and whether a conviction will occur are items that can often be negotiated based on the facts of the case.
The prosecutors will call this type of case the "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 attorney at the Sammis Law Firm to discuss your case.
Our Experience Fighting Refusal DUI Cases
Leslie Sammis is an experienced DUI defense attorney with more than fourteen years experience. She graduated from the University of Florida with Honors in 1999. Since then she has devoted her career to DUI defense. Her offices are located in downtown Tampa, FL.
Leslie Sammis is a member of the National College for DUI Defense (NCDD), the largest and most trusted organization for the top DUI attorneys across the United States. She has received advance training on the Intoxilyzer 8000, the breathalyzer instrument used in Florida. She is experienced in fighting DUI refusal cases in Tampa, FL.
Types of Chemical Tests after a DUI Arrest
After an arrest for driving under the influence ("DUI") the arresting officer might ask the driver to submit to a chemical test of his breath. In Florida, the only approved breathalyzer is called the "Intoxilyzer 8000."
if the arresting officer has probable cause to believe that the driver may be impaired by a chemical or controlled substance, then the arresting officer might ask the driver to submit to a urine test instead of a breath test. In some cases, if the individual blows below the legal limit, the officer might ask the person 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 if the breath test is not practical. The law enforcement officer might also demand the person submit to a blood test if another person is seriously injured in the crash.
Types of DUI Refusals
What constitutes a refusal to submit? In most cases, the driver will just say "no" when asked if he will take the test. In other cases, the arresting officer might allege that certain non-verbal conduct constitutes a refusal including:
- If the driver becomes argumentative, combative, or abusive to the arresting officer;
- If the driver indicates that he will take the breath test, but then willfully fails to blow enough air into the machine to register a valid sample was provided (1.1 liters of air in one continuous breath is considered a sufficient sample);
- If the driver agree to take the breath test and blows into the machine once, but then fails to blow into the machine a second time within a fifteen minute period; or
- If you the driver refuses to answers either "yes" or "no" after the arresting officer asks the driver to submit to a breath test.
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 evidence must show that the officer advised the driver of Florida's implied consent warnings. The implied consent laws require that any driver who accepts the privilege of driving a vehicle within 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 that failing to submit to testing could result in an administrative suspension 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:
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....
In many refusal cases, the prosecutor is left without any evidence of the driver's blood or breath alcohol concentration. The DUI defense attorney is often fighting to force the prosecutor to drop the charge from DUI to reckless driving. Statistics reported by the DHSMV show that DUI cases involving a refusal are reduced to reckless driving more often than DUI cases involving a breath test reading.
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 separate 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 "refuse 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 misdemeanor offense punishable by up to $1,000 fine and 12 months in the county jail.
Elements of a Second DUI Refusal
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:
- 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.
- 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);
- 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.
- 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.
- 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.
- 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.
Under the statute, the triggering event is the prior suspension by the Florida DHSMV. Therefore, even if the person was not successfully prosecuted for DUI, the person could still be prosecuted for the second refusal.
Prosecutions for a Second DUI Refusal in Florida
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.
Administrative Suspensions for a Refusal
Within 10 days after the arrest you must take action to protect your driver's license. If you do nothing, your driver's license will be suspended for one year after a first refusal or eighteen months after a second or subsequent refusal. Within the first 10 days you can demand a formal review hearing to contest the administrative suspension.
While your attorney fights the formal review hearing we can help you obtain a 42 day permit. If you win then the administrative suspension is completely lifted from your driving record. If you are not able to invalidate the suspension, then your 90 day hard suspension will begin. On the 91st day you can seek a hardship license as long as you have enrolled in DUI school.
The law changed on July 1, 2013. Now, if you have no prior DUI arrest then you can seek immediate reinstatement to avoid the 90 day hard suspension. The downside of seeking immediate reinstatement is that you must forever waive your right to the formal review hearing to contest the administrative suspension.
It is also more likely that you might win the administrative suspension because after July 1, 2013, if the arresting officer or breath test operator fails to appear for the hearing then the administrative suspension is automatically invalidated and erased from your driving record.
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 Sheriff's Office (HCSO) has certain standard operating procedures for the Cental Breath Testing Unit at the Orient Road Jail. Those standard operating procedures require that any person under arrest for DUI who is brought to central booking be processed the in the following manner:
- 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;
- If the individual agrees to submit to 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;
- 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;
- If the individual arrested for DUI refused to submit to a breath test at 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.
- 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.
- 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.
- 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, and Pasco County have similar standard operating procedures for processing individuals charged with DUI. The arresting officer's failure to follow these procedures may result in the court suppressing or excluding the alleged refusal or chemical testing results. In other cases, the standard operating procedures may violate Florida law and lead to the suppression of the breath test result or testimony about the alleged refusal.
Finding the Right Attorney for a DUI Refusal Case in Hillsborough County, FL
If you have been arrested for DUI after allegedly refusing to submit to a breath, blood or urine test, then contact an attorney with experience fighting these types of cases to discuss your best defense.
Article updated on November 7, 2013 by Leslie Sammis.