Refusal to Submit to a Chemical Testing After a DUI Arrest

When the arresting officer makes a DUI arrest, the officer will ask the suspect to submit to a chemical test of his breath, blood or urine. In the vast majority of misdemeanor cases, the officer suspects alcohol impairment and will therefore ask the suspect to submit to a breath test on the Intoxilyzer 8000. If the breath test reading is under 0.08, under certain conditions, the officer may be permitted to request a urine test if drug impairment is suspected. In DUI cases involving a vehicle crash or when the suspect is taken to the hospital making a breath test impossible, the arresting officer may be able to request a blood test.

Under any of these circumstances, if the suspect refuses, the arresting officer is required to read the suspect his "Implied Consent" warnings. If the suspect continues to refuse the chemical testing of his breath, blood or urine, then the officer will arrest the suspect for "DUI Refusal BAC." Important defenses exist in any DUI refusal case, which are often the most difficult for the State Attorney's Office in the Second Judicial Circuit to successfully prosecute.

Tallahassee Refusal to Submit to DUI Testing Attorney

If you have been arrested for DUI and allegedly refused to submit to a breath, blood or urine test, then contact an attorney experienced in fighting the DUI refusal case in Tallahassee and Leon County, and the surrounding areas of North Florida's Big Bend region including Crawfordville in Wakulla County, Quincy in Gadsden County, Monticello in Jefferson County or Bristol in Liberty County.

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The Implied Consent Warning in Florida for Refusal Cases

If the officer alleges that the subject refused to submit to the chemical test of his breath, urine or blood, the officer must also be able to prove this refusal occurred after the officer read the subject Florida's Implied Consent Warnings. The implied consent warnings in Florida advice the subject of the consequences to his Florida driving privileges if he refuses, and gives the subject a chance to change his mind. The implied consent warnings, by their very nature, are considered to be coercive.

Florida Statute Section 316.1932(1)(a)1.a, provides in 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.

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The Good News After a Refusal in North Florida

Although the administrative consequences to the subject's Florida driving privileges are slightly more severe, the benefit remains that the prosecutor cannot use the most persuasive piece of evidence against the driver, which is a breath test reading over the legal limit of 0.08 or a blood or urine test reading showing the presence of drugs. Instead, the prosecutor with the State Attorney's Office must rely totally on the officer's subjective observations of the driver's performance on field sobriety tests.

In refusal cases it is particularly important to question the officer about every observation made, no matter how trivial. In many cases, this evidence is contradicted by video tape evidence showing the driver's actual performance. When no video was taken, those subjective observations are not always enough for the prosecutor to prove the case to a jury beyond all reasonable doubt.

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When is it a Crime to Refuse the Chemical Test?

It is a crime to refuse to submit to testing a second time

Under Section 316.1939 of the Florida Statutes the prosecutor can charge the driver with a separate crime for the "refusal to submit" to a breath, blood or urine test if the driver has previously refused to submit to a chemical test after a prior DUI arrest. The second refusal can be charged as a first degree misdemeanor punishable by a $1,000 fine and up to 12 months in county jail.

The elements of the charge for a second or subsequent refusal include:

1. An arresting officer had probable cause to believe the subject was either in actual physical control of a motor vehicle or actually drove the motor vehicle while under the influence (DUI) of drugs or alcohol that caused the subject's normal faculties to be impaired.
2. The arresting officer asked the subject to take a breath, blood or urine test and the subject refused.
3. Prior to the refusal, the arresting officer advised the subject of the implied consent warnings, which provide a refusal to submit to the breath, blood or urine test would result in a suspension of the Florida driving privilege for a period of twelve (12) months for a first offense, or eighteen (18) months for a second or subsequent refusal.
4. The arresting officer told the subject that Florida law makes it a crime to refuse to take a chemical test a second or subsequent time and the crime was punishable as a first degree misdemeanor.
5. The subject refused to submit to testing of his blood, breath or urine after being advised of the consequences of refusal.
6. The refusal actually counted as a second or subsequent refusal because the subject had previously had his driver's license suspended administratively for refusing to submit to chemical testing after a previous DUI arrest.

The prosecutor will often use the subject's driving record from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to prove the prior refusal.

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What Counts as a "Refusal to Submit" in a DUI Case?

In most cases, the officer simply asks the suspect to take the breath, blood or urine test and the suspect says, "No." However, Florida law may permit the case to be prosecuted as a refusal under other circumstances as well, including:

• The officer may be able to allege that a refusal occurred if the suspect agrees to take the breath test but then is unable to provide two (2) sufficient sample of breath during the time permitted (often called the "machine refusal"). Be aware important defense exist when an insufficient sample constitutes the "refusal", including the fact that certain Intoxilyzer 8000 machines may have problems with the flow sensor or other equipment that makes providing a sufficient sample difficult. Your attorney can also look at all the other suspects who took the test on that machine either before or after. When you are looking at hundreds of samples you can also see difficulties with certain machines.
• The arresting officer may allege a refusal if you refuse to answer either "yes" or "no" after the officer asks you to submit to a chemical test, however, the officer must usually ask the question until he gets a clear answer.
• The officer may allege that a refusal occurred if the suspect blows into the machine once but refuses to provide a second sample. In a few cases, the officer may allege a refusal occurred if the subject provides two samples that are not in .02 agreement (a flag that the sample is not accurate or reliable) but then the suspect refuses to provide a third sample.
• The officer may be able to allege a refusal occurred if the suspect otherwise becomes abusive or argumentative.

Each law enforcement agency throughout Leon County and the rest of North Florida has its own procedures and policies for administering the breath test or determining when a blood or urine test might be appropriate.

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Consequences of DUI Refusal for Commercial Drivers

If the driver of a commercial vehicle is convicted of a refusal to take the chemical test after driving a commercial vehicle under the influence, then the driver is disqualified from driving a commercial motor vehicle for a period of one (1) year. During that time, no hardship license is available. After the full year, the driver must pay a reinstatement fee for the disqualification in order to reinstate the commercial driver's license. If the commercial driver was transporting hazardous materials when convicted, the three (3) year disqualification period will be imposed.

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The Law Offices of Don Pumphrey, Jr. - Refusal to Submit to Lawyer in Tallahassee

After the arresting officer alleges you refused to submit to a chemical test of your breath, urine, or blood, seek the services of an experienced and knowledgeable Tallahassee lawyer for DUI to fight your case in Leon County, or throughout Florida's Second Judicial Circuit for Wakulla County for Crawfordville, Gadsden County for Quincy, Jefferson County for Monticello, Liberty County for Bristol, Florida.