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DUI Refusal in Tampa, FL

After a DUI arrest, the officer may 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 a 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. In many of those cases, the driver simply says, "No thank you. I will not take the test."

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After a refusal to take the breathalyzer, the prosecutor has a difficult time proving the crime beyond all reasonable doubt. The goal in many of these cases is getting the charges dropped completely or at least reduced to a less serious offense such as reckless driving.

Even if the DUI is reduced to reckless driving, not all plea bargains are the same. For instance, whether a conviction will occur are terms that can be negotiated based on the facts of the case. Although most of the time the prosecutor wants an adjudication of guilt on the reckless driving charges, getting a "withhold of adjudication" is the only way to maintain your eligibility to seal the criminal charges and get rid of the mug shot.

The prosecutors will call this type of case the "DUI Refusal to Submit" or "DUI Refusal BAC" or "BAC: Refused" in Tampa, Hillsborough County, FL. If you were 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.

Call 813-250-0500 today.


Our Experience Fighting Refusal DUI Cases

Leslie Sammis is an experienced DUI defense attorney with more than seventeen years of experience. She graduated from the University of Florida with Honors in 1999. Since then she has devoted her career to DUI defense. Her office is 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 advanced training on the Intoxilyzer 8000, the breathalyzer instrument used in Florida. She is experienced in fighting DUI refusal cases in Tampa, FL.

The attorneys at the firm are also experienced fighting a second DUI refusal which can be charged as a separate crime under Florida Statute Section 316.1939, a first degree 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 "refusal to submit" to DUI testing is a first degree misdemeanor offense punishable by up to $1,000 fine and up to 12 months in jail.


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 Cases

What constitutes a refusal to submit? As a preliminary matter, the pre-arrest refusal to submit to the breath test at the scene of the crash is inadmissible under DHSMV v. Whitley, 846 So. 2d 1163 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1090a]. In other words, a refusal can only occur after a valid arrest.

In most cases, the driver will just say "no" when asked if he will take the test after a DUI arrest. In other situations, the arresting officer might allege that certain non-verbal conduct constitutes a refusal including:

  1. If the driver becomes argumentative, combative, or abusive to the arresting officer;
  2. 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);
  3. If the driver agreed 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
  4. 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

Before the refusal is admissible at trial, the arresting officer must advise 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.


Standard Operating Procedures for Refusals by HCSO

Each law enforcement agency has individualized 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:

  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 the arrest;
  2. 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 affect the testing results, such as regurgitation or throwing up;
  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 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.
  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, 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.


Refusal after the Breath Test at the Intoxilyzer 8000 Begins

In most cases, the refusal occurs before a defendant is near the breath test machine. In other cases, after the breath test begins, the subject will refuse to submit after the test beings. Florida law provides that an approved breath alcohol test is "a minimum of two samples of breath collected within 15 minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level." Fla. Admin. Code R. 11D-8.002(12) (emphasis added).

"Refusal . . . to provide the required number of valid breath samples constitutes a refusal to submit to the breath test." Fla. Admin. Code R. 11D-8.002(12) (emphasis added). In many cases, the prosecutor will argue that the defendant's refusal to submit a minimum of two samples of breath constitutes a refusal under rule 11D-8.002(12).Miller v Dep't of Highway Safety and Motor Vehicles, 19 Fla. L. Weekly Supp. 609a (Fla. 20th Jud. Cir. Ct. April 13, 2012).

On the other hand, if the defendant is unable to provide the same, the a refusal has not occurred.


Fighting the DUI Refusal Case in Hillsborough County, FL

If you have been arrested for driving under the influence 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.

We know that innocent people might have excellent reasons for refusing to take the breath test. In some cases, the officer calls it a "refusal" even when no refusal occurred or when the driver was unable to comply for some other reason. The officer is required to give the driver a meaningful opportunity to take the requested test.

We focus on DUI defense and fighting cases involving an alleged refusal to take the test. Call 813-250-0500 to learn more about the best defense for your particular case. Call 813-250-0500 today.


This article was last updated on Friday, December 12, 2018.