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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.
For a first DUI case involving a refusal, call us to find out more about completing Level 2 of the DUI Diversion Program in Hillsborough County called RIDR. The sanctions require the installation of an ignition interlock alcohol monitoring device, continuous alcohol monitoring device (SCRAM), or the PharmCheck Drugs of Abuse Patch.
Entering diversion means your DUI will be reduced to reckless driving so that might be eligible to seal the record. Keep in mind that even if you qualify for RIDR, you still need to contest the administrative suspension of your driver's license or a notation of the suspension will remain on your driving record for the next 75 years.
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.
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.
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.
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.
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:
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 not taking the test 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.
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:
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 might 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.
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 physically unable to provide the samples, then a refusal has not occurred.
When the alleged refusal occurs during the breath test, it is often called the "machine refusal." 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).
“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).
So what happens when the driver submits one valid sample but then provides an insufficient volumn of breath during the second sample attempt? The courts have found that the driver'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).
The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee's refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel prior to taking the test. See Kurecka v. State, 67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010). Under the confusion doctrine, “a licensee's refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Id. at 1056 (internal citations omitted).
In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states. Id. at 1057-60. That Court concluded that Florida's implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test. Id. at 1060-61.
“Accordingly, excluding evidence based on a suspect's misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida's implied consent law.” Id. at 1060.
The Fifth District Court of Appeal declined to apply the “confusion doctrine” on facts somewhat similar to the instant case.
In Dep't of Highway Safety & Motor Vehicles v. Marshall, 848 So. 2d 482, 485-86 (Fla. 5th DCA 2003), the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall's self-serving testimony regarding her confusion about her right to counsel. Id. Further, none of the DHSMV documents supported Ms. Marshall's claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney prior to the breath test. Id.
The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep't of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003). The Court found that Mr. Bosch's reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer in order to invoke the doctrine. Id. See also Moore v. Dep't of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).
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 also have a second office for DUI cases in New Port Richey, FL, in Pasco County. Our New Port Richey office is located directly across from the West Pasco Judicial Center.
Our attorneys 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.
This article was last updated by Leslie Sammis on Tuesday, October 16, 2018.
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Meet Our Attorneys
Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
Leslie M. SammisFocused on DUI Defense for more than 15 years. Former Assistant Public Defender...Read more
Matthew A. MenendezAs a former assistant public defender, Matthew is experienced in trial advocacy and motion...Read more
Amanda BrunsonWith over 25 jury trials and 40 bench trials, Amanda is experienced in...Read more
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Tara ColeWith more than fourteen years experience as a paralegal / legal assistant, Tara Cole is...Read more