Florida DUI Rules for the Administrative Suspension – It’s Complicated…

After an arrest in Florida for DUI you only have 10 days to protect your driver’s license by doing one of the following:

  1. hire an attorney to request a “formal review hearing” and send you a 42 day driving permit so you can keep driving while your attorney fights to invalidate the suspension;
  2. go to the DHSMV to stipulate to the administrative suspension during a “waiver review hearing” in exchange for immediate reinstatement of hardship privileges to avoid a 30 or 90 day hard suspension (only available if you have no prior DUI arrest); or
  3. do nothing.

For most people facing a first DUI who can afford to hire an DUI defense attorney willing to fight the suspension, Option 1 is the best option. Option 1 involves fighting to invalidate (undo) the suspension in a formal review hearing.

Option 2 means that your driving record will show for the next 75 years that you received an administrative suspension for DUI even if your charges are ultimately reduced and you avoid a DUI conviction in court.

Option 3 is the worst option.


Click here to read more about our recent case results in DUI cases in Tampa, FL, and the surrounding areas, including our recent case results in administrative hearings to invalidate a suspension.


 


Option 1: Demand a Formal Review Hearing

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As a criminal defense attorney, I see a lot of benefits to demanding the formal review hearing. Option 1 is the only option that gives the driver the ability to fight to invalidate the suspension. It is important to fight the administrative suspension because unless you get it invalidated, it will remain on your driving record for 75 years.

This notation on your driving record is an administrative finding that you were DUI. It remains on your driving record even if you win a “not guilty” verdict in a DUI refusal case or enter a plea to a lesser charge such as reckless driving. [The only exception to that rule is that if you get a “not guilty” verdict in a breath test case then the administrative suspension will be removed from your driving record.]

If the person hires an attorney during the first 10 days after the arrest, then the attorney can demand the formal review hearing. The attorney can also demand a 42 day driving permit on your behalf so that you can keep driving while the attorney fights to invalidate the suspension.

You are entitled automatically to receive the 42 day permit after you request the formal review hearing (as long as your driving privileges are otherwise valid).

If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension SHALL be invalidated. That means that any mention of DUI for the administrative suspension disappears off the driver’s record.

You can then get a duplicate driver’s license and avoid paying any reinstatement fee. Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.

Even if the driver loses the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30 day hard suspension (or 90 days in a refusal case). On the 31st day, the person can still obtain a hardship license with proof of enrollment in DUI school.


Option 2: Request a Waiver Review Hearing for Immediate Reinstatement

Request Waiver Review Hearing for Immediate Reinstatement

For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form (sometimes called the “waiver review”.)

The driver must personally appear within 10 calendar days. The driver must also enroll in and pay for DUI school during those 10 days. The registration fee for Level I DUI School in Hillsborough County is $263.00.

The person must also pay a $25 fee for the hearing and then pay the reinstatement fee.

The benefit to this process is avoiding the 30 day hard suspension for a DUI with a BAC over .08 (or 90 day suspension for a refusal). But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated ever (unless he obtains a “not guilty” verdict at trial in a breath test case).


Option 3: Do Nothing 

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Most people don’t understand the rules. As a result, they do nothing during the first 10 days after the DUI to protect their privileges to drive.

Read the citation carefully. The notice of suspension is contained on the citation and operates as the 10 day driving permit. After the 10 day permit expires, the 30 day hard suspension begins (90 days in a refusal case). During those 30 days the person cannot drive for any reason.

On the 31st day after the arrest for DUI involving a breath test reading over .08, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school. The hardship license last for the rest of the six month suspension.

The notation that you receive an administrative suspension for DUI will stay on your driving record for the next 75 years even if you avoid a DUI conviction in court.


The Rules are Complicated

How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I needed to create these graphs to explain it. The graph used in this article applies to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit.

Hopefully these charts will help me explain these complicated rules – at least until the next legislative session when our lawmakers come up with something even more complicated.

Article last updated on Friday, May 20, 2016.

Is Florida Statute Section 316.1933 Unconstitutional?

Florida Statute Section 316.1933 is silent as to whether a warrant is required for a forced blood draw. The statute does however, say that the blood test must be “reasonable.” This reasonableness requirement expressed in Florida Statute Section 316.1933 could be read as a recognition that the forced taking of blood on a pre-arrest basis must still comply with one of the exceptions to the Fourth Amendment when a warrant is not secured.

To the extent that the courts in Florida do not read a warrant requirement into the statute, then the statute is unconstitutional on its face.

It is important to note that Section 316.1933 is not part of Florida’s implied consent law. In fact, that statute does not even mention the word consent. This fact seems to be ignored due to older case law interpreting the pre 2002 amended version of Fla. Stat. 316.1933 which was expressly part of the implied consent law.

Today, Fla. Stats. 316.1932(1)(a)1a, 316.1932(1)(a)1b, 316.1932(1)(c), and 316.1932(1)(e) clearly set forth what is covered by Florida’s implied consent law. While previous versions of Fla. Stat. 316.1933 were part of implied consent and in fact contained the word “consent,” the new version does not.

Prior to July 1, 2002 Fla. Stat. 316.1933(1) required that a person “shall submit, upon the request of a law enforcement officer, to a test of the person’s blood . . .” if the officer had probable cause to believe that the defendant had driven a vehicle while under the influence of alcohol or drugs and caused the death or serious bodily injury of a human being. However, Laws of Florida Chapter 2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs and now no longer directs that a person shall submit to a blood test.

After July 1, 2002, the statute purported to authorize a law enforcement officer to require a person to submit to a test by reasonable force if necessary. In amending the statute, the legislature appears to have misinterpreted Schmerber v. California, 384 U.S. 757 (1966), as equating the dissipation of alcohol with exigent circumstances even through Missouri v. McNeely shows that interpretation is absolutely wrong.

Now that the McNeely decision has exposed that flaw, it is clear that Section 316.1933 is unconstitutional to the extent it is does not require a case by case determination of exigency under the traditional standard. The statute is unconstitutional by failing to require the existence of an exigency before allowing officer to order a forced blood draw.

Thus, to the extent that Florida Statute Section 316.1933 can be read to authorize a forced blood draw without exigent circumstances, then it is unconstitutional on its face. The statute is unconstitutional to the extent it purports to either be an exception to or trump the Fourth Amendment’s warrant requirement because it violates his right to be free from unreasonable search and seizures. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).

The attorneys at the Sammis Law Firm represent clients on felony DUI charges for serious bodily injury or death in the City of Tampa and throughout Hillsborough County and the surrounding areas throughout the greater Tampa Bay area of Florida.

 

Exigent Circumstances for a Forced Blood Draw in Florida DUI Cases

 Warrants for blood draws in misdemeanor DUI cases are not allowed under Florida Law. In a felony case for death or serious bodily injury, Florida Statute 316.1933 purports to allow a forced and warrantless blood draw, although the constitutionality of that statute is in question after the Supreme Court’s ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013).

The issue in many of these cases is whether the prosecution can meet the heavy burden of showing exigent circumstances existed to justify not seeking a warrant and instead forcing the driver to submit to a pre-arrest, non-consensual extraction of blood.

With regard to exigency, the case of Missouri v. McNeely, 133 S.Ct. 1552 (2013), makes it clear that Schmerber v. California, 86 S.Ct. 1826 (1966) did not authorize a warrantless searches of a person’s blood simply because a blood alcohol level declines over time.

Instead, under Schmerber, the judge must look at each case on an individual basis to determine if an exigency actually required the taking of the blood. The Court reiterated that the question of the reasonableness of a warrantless search should be answered on a case-by-case basis considering the totality of the circumstances. McNeely, 133 S. Ct. at 1563.

The Court acknowledged that blood alcohol concentration (BAC) evidence is problematic because “an individual’s alcohol level gradually declines soon after he stops drinking,” and thus, “a significant delay in testing will negatively affect the probative value of the results.” Id. at 1561.

But the Court dismissed this concern, finding that this exigency did not warrant departure from the careful case-by-case assessment of exigency that the Fourth Amendment requires. See id. The Court’s reasoning appears to have been based on two key facts.

First, diminishing BAC is different from other destruction-of-evidence scenarios. With some types of destructible evidence, law enforcement is truly confronted with a “now or never” situation, such as when an arrestee can immediately and permanently destroy the evidence completely. Id. at 1561. By contrast, BAC evidence “naturally dissipates over time in a gradual and relatively predictable manner.” Id.

As such, experts can often work backwards from the BAC at the time the blood sample is taken to determine the BAC at the time of the alleged offense. Id. at 1563. Second, the Court noted that advances made in the forty-seven years since Schmerber allowed for more expeditious processing of warrants. Id. at 1561-62.

For instance, the Federal Rules of Criminal Procedure permit magistrates to issue warrants over the telephone. Id.

The State of Florida has also seen advances made in the last forty-seven years that allow for more expeditious processing of warrants. Obtaining a warrant in a DUI felony case is often underutilized in counties throughout the Tampa Bay area including Hillsborough County, Pinellas County, Polk County, Pasco County, Manatee County and Sarasota County.

Nevertheless it is important to remember that Florida law expressly allows for electronic search warrants. Added effective July 1, 2013, § 933.07(4), Fla. Stat., provides that a search warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. Furthermore, it provides that the term “electronic signature” has the same meaning as provided in § 933.40, Fla. Stat.

In addition, the Florida Legislature’s enactment of the “Electronic Signature Act of 1996,” which specifically provides that “[u]nless otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature,” § 668.004, Fla. Stat. (2003), indicates an increasing acceptance of this alternative signature form. See also In re Amendments to the Rules of Judicial Administration-Rule 2.090, 681 So.2d 698, 700 (Fla.1996) (the Florida Supreme Court stated its intention to “cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system”). See also 14A Fla. Jur 2d Criminal Law—Procedure § 717.

The technology allowed by § 933.07(4), Fla. Stat., expedites the warrant procurement process so as to virtually eliminate circumstances that can truly be considered exigent. As explained in a recent law review article:

Technology is rapidly approaching the point where electronic communication between the law enforcement officers in the field and the magistrate issuing the warrant is continuously available, thereby narrowing the situations in which the exigent circumstances exception should be applied. In this modern age of high-powered laptops equipped with cellular access to the Internet, police (like the general public) have ready access to communication methods such as email, instant messaging, and even face-to-face video conferencing wherever they go.

Swearing by New Technology; Strengthening the Fourth Amendment by Utilizing Modern Warrant Technology While Satisfying the Oath or Affirmation Clause, Brigham Young University Law Review, 2014 B.Y.U. L. Rev. 927 (2014). (citations omitted).

Without a finding of exigency, the blood test in a DUI with death or serious bodily injury should be suppressed as a violation of the Fourth Amendment. The next article will explore a related issue of whether Florida Statute Section 316.1933 is unconstitutional on its face by allowing the illegal forced taking of blood prior to any arrest without exigent circumstances.

 The attorneys at the Sammis Law Firm are experienced in fighting DUI case throughout the City of Tampa, and Hillsborough County, including cases that involve a request for a urine test or breath test.

Is a Warrant Required for a Forced Blood Test in a DUI Fatality or Serious Bodily Injury Case in Florida?

For DUI cases involving death or serious bodily injury with a forced blood draw, a warrant is required. Without a warrant, the criminal defense attorney can file a motion to suppress the blood and blood test results. The only exception to the warrant requirement that might apply involves a showing of exigent circumstances.

For cases involving a forced blood draw, the criminal defense attorney in Florida will often file a motion to suppress the blood evidence in the case if the blood sample was taken during a forced and warrant-less blood draw, before any arrest, without either consent or exigent circumstances.

The basis for the motion to suppress is that the forced blood draw violated the Fourth Amendment of the U.S. Constitution, Article I, Section 12 of the Florida Constitution, and the decision of the Supreme Court of the United States in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

a. The Procedural Aspects of the Warrant Requirement in Florida

The warrant requirement of the Fourth Amendment has procedural and substantive aspects. Absent prior judicial authorization for searches and seizures, law enforcement officers must be able to justify their conduct after the fact, in order to render its fruits admissible at trial, over objection.

When an officer who orders the extraction of blood does not act pursuant to judicial warrant, the prosecution has the burden to show at the suppression hearing that the challenged evidence had been obtained lawfully.

All an accused need do is make an “initial showing,” State v. Lyons, 293 So.2d 391, 393 (Fla.App.2nd 1974) of standing to challenge the legality of a search, and the “ultimate burden of proof as to the validity of a warrant-less search is on the State.” Mann v. State, 292 So.2d 432, 433 (Fla.App.2nd 1974).

When the prosecution seeks to introduce evidence extracted from the body of the accused, in order to prove its case, the accused necessarily has standing to raise the question of the legality of the extraction. Schmerber v. California, supra; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); State v. Mitchell, 245 So.2d 618 (Fla.1971); Wilson v. State, 225 So.2d 321 (Fla.1969).

b. The Substantive Aspects of the Warrant Requirement in Florida

Aside from the procedural consequences of a search without warrant, there is a substantive warrant requirement which stands as an absolute bar to the use of evidence taken in certain warrantless searches.

Warrantless searches are presumptively unreasonable unless they fall within a recognized exception to the warrant requirement. See e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).

The warrant requirement ensures that “inferences to support the search ‘[are] drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” Schmerber v. California, 384 U.S. 757, 770 (1966) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).

Warrants are generally necessary for searches of the human body and the extraction of blood using a needle from the subject’s vein. Id. at 770.

The exceptions to the requirement, that searches of persons and dwellings be judicially authorized beforehand, fall under four general headings:

  1. stop and frisk searches;
  2. consensual searches;
  3. searches incident to a lawful arrest; and
  4. searches where probable cause to search is coupled with exigent circumstances.

Exceptions to the warrant requirement are not strengthened because this search involves an intrusion into an individual’s body, instead of merely into his home.

Warrantless searches are disfavored and, with limited exceptions “per se unreasonable.” Mincey v. Arizona, 437 U.S. 385, 390 (1978). See also Groh v. Ramirez, 540 U.S. 551, 559 (2004).

“[T]he police bear a heavy burden… when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U.S. 740, 749-750 (1984); Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006).

Exceptions to the warrant requirement are “few in number and carefully delineated.” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 318 (1972). See also Kyllo v. United States, 533 U.S. 27, 31 (2001).

In many cases involving a forced blood draw without a warrant, the state has the burden to prove that an exception to the warrant requirement applies. In most of these cases, the only possible exception is exigent circumstances. In the next article we will explore why exigent circumstances should be rare in felony DUI cases including those involving death or serious bodily injury.

The attorneys at the Sammis Law Firm in Tampa, FL, are experienced in fighting DUI case throughout Hillsborough County including cases that involve a warrantless, non-consensual, pre-arrest blood test. Call to speak to an attorney about the facts of your case.

Forced Blood Test after Missouri v. McNeely, 133 S. Ct. 1552 (2013) in Florida

blood test

Prior to Missouri v. McNeely, 133 S. Ct. 1552 (2013), law enforcement officers in Florida would ask for a voluntary blood draw of a driver suspected of DUI if the case involved a crash with serious bodily injury or death.

 

If the suspect refused, the officers would use Florida Statute 316.1933 as a basis to conduct a forced blood draw either at the scene in an ambulance or at the hospital. In most cases, the officers would not obtain a warrant prior to the forced blood draw and the taking would occur prior to any arrest.

Such takings were usually considered to be constitutional under the theory that the case involved an exception to the warrant requirement because the dissipation of alcohol is an exigent circumstance.

That assumption changed with the Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Now, criminal defense attorneys throughout Florida are filing motions to suppress in forced blood cases without a warrant.

The motions allege that the blood test evidence must be suppressed or excluded at trial when the sample was taken during a forced and warrant-less blood draw, before any arrest, without either consent or exigent circumstances.

The motions allege that the taking of blood without a warrant is in violation of the Fourth Amendment of the U.S. Constitution, Article I, Section 12 of the Florida Constitution, and the decision of the Supreme Court of the United States in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

DUI defense attorneys in these cases are also filing motions alleging that Florida Statute Section 316.1933 is unconstitutional, on its face and as applied, since it purports to permit a warrant-less forced blood draw before an arrest and without any exigent circumstances or consent.

In the alternative, it is often alleged that Florida Statute Section 316.1933 doesn’t apply because the officer that ordered the forced blood draw didn’t have probable that the person was actually driving, was involved in the crash, or was impaired by alcohol or any chemical or controlled substance.

In many of these cases, the DUI defense attorney will also argue that the blood test violated the provision in Florida 316.1933 that requires that the blood test “shall be performed in a reasonable manner.”

Cases involving a forced blood draw without a warrant are also problematic because once the sample is taken, no exigency exists. At that point, officers could obtain a warrant before taking the sample from the scene and performing testing on the sample to determine its alcohol or drug content.

Furthermore, without consent, the person tested has not waived patient record confidentiality with respect to the results of any blood test for purposes of determining its alcoholic content.

In a series of blog posts, we will explore each of these issues in more detail.

The attorneys at Sammis Law Firm in Tampa, FL, are experienced in fighting felony DUI blood test cases throughout Hillsborough County and the surrounding areas in Tampa Bay.

Can an Officer Ask for Breath or Urine Test Prior to the Arrest?

photoWhat happens if the officer asks for a breath or urine test prior to the arrest? If the suspect is 21 years of age or older, then requesting a breath or urine test before the arrest is a clear violation of Florida’s implied consent law.

The request itself, the refusal to submit, or the test results should be suppressed at trial because of the violation.

Also, if the officer submits paperwork to the DMV to trigger an administrative suspension for either refusing the breath or urine test or having a BAC over .08 before the arrest, then driver should demand a formal review hearing to invalidate the administrative suspension within 10 days of the arrest.

Provisions of Florida Statute Section 316.1932

Florida Statute Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances:

  • the arresting officer has reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances;
  • the person appears for treatment at a medical facility; and
  • the administration of a breath or urine test is impractical or impossible.

On the other hand, Florida Statute Section 316.1932(1)(a)1.a. allows for the request of a breath test but only if:

Any person who accepts the privilege…of operating a motor vehicle within this state is… deemed to have given his or her consent to submit to an approved …test of his or her breath…if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

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 reasonable cause 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 person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.

The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

Thus, the plain language of the statute provides that a request for a breath or urine test can only be made after an arrest and not before.

Suppressing Breath or Urine Evidence Requested Before Arrest

In State v. Serrago, 875 So. 2d 815, 819 (Fla. 2d DCA 2004), the defendant was charged in Pinellas County with numerous offenses arising out of a fatal traffic accident. One issue in the case was whether the trial court erred by not suppressing urine test results taken prior to an arrest.

The appellate court determined that a pre-arrest urine test is not authorized by section 316.1932(1)(c) and therefore the urine test results were not admissible at trial since it was taken in violation of Florida’s implied consent law.

The Serrago Court noted:

“Our reading of section 316.1932(1)(c) leads us to conclude that it cannot reasonably be read to allow a urine test because it simply does not provide for same. Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances.

Section 316.1932(1)(a) allows for breath and urine testing but does so only pursuant to a lawful arrest. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances: (1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances; (2) where the person appears for treatment at a medical facility; and (3) where the administration of a breath or urine test is impractical or impossible.

The only reason that section 316.1932(1)(c) mentions breath or urine tests is to limit blood draws to those situations in which a breath or urine test, impliedly authorized pursuant to section 316.1932(1)(a), was impossible or impractical. It does not specifically authorize any breath or urine tests, nor is its language susceptible of an interpretation that impliedly authorizes breath or urine tests.

Rather, section 316.1932 clearly distinguishes between breath and urine tests, which are authorized by section 316.1932(1)(a), from blood tests, which are authorized by section 316.1932(1)(c). We conclude, therefore, that the trial court erred in concluding that section 316.1932(1)(c) impliedly authorized the urine test performed here.

This analysis is supported by case law, which has historically treated blood tests differently than breath and urine tests.

In State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982), the Fifth District, in considering a breath test that was taken from an individual who was not under arrest, found that the legislative intent to treat blood tests differently from breath and urine tests was revealed in the legislature’s failure to change the law as it relates to breath and urine when it changed the law regarding blood tests. Id. at 758.

In State v. Hilton, 498 So.2d 698, 700 n. 4 (Fla. 5th DCA 1986), the court observed: “We note that, unlike breath or urine tests, a blood test administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest.”

In addition, Department of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003), quoted with approval from State v. Barrett, 508 So.2d 361, 362 (Fla. 5th DCA), review denied, 511 So.2d 299 (Fla.1987), as follows: “ ‘[T]he legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.’ ”

The court also reasoned that since Barrett, the legislature had not substantially amended the statute, indicating its intent that pre-arrest breath tests should remain inadmissible.

The Serrago court then concluded that the urine test was inadmissible because:

Given our interpretation of section 316.1932, which clearly places breath and urine tests in a category that is separate from blood tests, we conclude that the trial court erred when it found the urine test to be admissible because section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest. Since the defendant was not under arrest at the time that the urine test was taken, the urine test here was not admissible.

Suppression or exclusion of the evidence is required because in order for the refusal to be admissible in the civil or criminal case, the DUI officer must show that he complied with Florida’s Implied Consent Statute, Section 316.1932(1)(a)1.a.

The remedy for failing to comply with the Implied Consent Warning is exclusion or suppress of any evidence of the alleged refusal to submit. Id. Therefore, for any case in which the suspect is asked for, submits to, or refuses a breath test prior to an arrest, that evidence should be suppressed at trial.

The attorneys at the Sammis Law Firm, P.A., in Tampa, FL, are experienced in fighting DUI cases throughout Hillsborough County, and the surrounding areas of Tampa Bay, including cases that involve a pre-arrest request for a urine test or breath test. 

Tampa DUI Checkpoint on Friday the 13th

Tampa Police Department Picture of Checkpoint

The Tampa Police Department conducted a DUI checkpoint on Friday, May 13, 2016.

The press release, issued by Janelle McGregor, TPD Spokesperson, went out the same day. The press release disclosed that the Tampa Police Department DUI unit would conduct a DUI checkpoint on Friday, May 13 to Saturday, May 14.

The officers with TPD were stationed near East Waters Avenue and I-275 from 10 p.m. – 1 a.m.  According to the press release, the TPD checkpoint is part of a $191,000 Florida Department of Transportation grant to ensure motorists are safe.

You can read the press release here: Tampa Police Department Conducting DUI Checkpoint

In addition to the last minute press release, TPD also issued a breaking tweet:

NEWS ALERT: Tampa Police Officers Conducting DUI Checkpoint: The Tampa Police Department DUI unit w…

Checkpoints are not allowed in many states. In Florida, they are highly ineffective at catching drunk drivers. Because officers often make mistakes in drafting the operation plan and following it in the field, many of the people arrested are later exonerated in court.

In many of these cases, the person arrested later has their case dismissed entirely after their criminal defense attorney files a motion to contest the legality of the stop and suppress any evidence gathered thereafter.

Read more about the problems with DUI Checkpoints in Florida.

If you witnessed the checkpoint, leave a message below. We will update the post with information about how many citations and arrests were made as soon as the information is released.

DUI Victim Impact Panel in Tampa

Once each month on a Monday night, nearly 200 people report to a room at the Falkenburg Road Jail at the Hillsborough County Sheriff’s Office to complete a victim impact panel. The panel is hosted by Mother’s Against Drunk Driving (MADD).

The victim impact panel can be required as a condition of DUI probation. In fact, many of the judges in Hillsborough County will require attendance at the Victim Impact Panel as a condition of probation, especially if the DUI conviction involves injury or property damage. In some cases, the judge might even require the DUI VIP if the case is reduced to reckless driving.

The Victim Impact Panel in Tampa is hosted by Mothers Against Drunk Driving. The purpose of the panel is to educate those recently arrested for DUI about how the offense impacts others. At the panel, the victims of DUI tell their gut-wrenching stories of loss and tragedy.

The Victim Impact Penel is a court ordered program.  If you are interested in attending a Victim Impact Panel and have not been court ordered you may be admitted, space permitting, but you will not receive proof of attendance.

The MADD DUI Victim Impact Panel prohibits drinking or drug use prior to attending. All attendees may be subject to alcohol testing. A positive alcohol test may cause a violation of probation. Anyone suspected of being under the influence will be denied admission to the program.  Law enforcement will be present.

Victim Impact Panel for Hillsborough County – Visit the Mother’s Against Drunk Driving (MADD) website to learn more about the DUI Victim Impact panels conducted at the Hillsborough County Sheriff’s Office – Falkenburg Road Jail Assembly Room. The panel is held in the building at the north end of the jail.

Panel Day: Monday
Registration Time: 6:00pm
Panel Start Time: 6:30pm
Panel End Time: 8:30pm

Address:

MADD’s DUI VIP
520 North Falkenburg Road
Tampa, FL 33619

The upcoming dates and times for the panel are:

  • Monday, January 25, 2016
  • Monday, February 15, 2016
  • Monday, March 21, 2016
  • Monday, April 18, 2016
  • Monday, May 16, 2016
  • Monday, June 20, 2016
  • Monday, July 18, 2016
  • Monday, August 15, 2016
  • Monday, September 19, 2016
  • Monday, October 17, 2016
  • Monday, November 21, 2016
  • Monday, December 19, 2016

To participate in the panel and receive credit for attending you must bring:

  1. photo identification;
  2. a court order or paperwork for probation MUST be presented;
  3. A registration fee of $40.00 paid via a Money Order or Bank Cashier’s Check ONLY Payable to MADD ( no cash is accepted).

Individuals on probation for DUI in Hillsborough County must register with your probation officer. For individuals on probation for DUI outside of Hillsborough County or with the DOC please call MADD office to register (813.273.6233 ext. 7296).

No children are allowed.  No food, beverages, cell phones, or other electronic devices permitted. Cell phone use or texting will be cause for dismissal from this program.

For more information please download printable information on the 2015 DUI Victim Impact Panels in Hillsborough County.

Additional questions can be directed to westcentral.fl@madd.org or call MADD at 813.273.6233 ext. 7296 for more information.

Missouri vs. McNeely’s Impact in Florida – F.S. Section 316.1933 is Unconstitutional

In a recent trial court level decision, State vs. Liles, 21 Fla. L. Weekly Supp. 883a (FLWSUPP 2019LILE), a Circuit Court Judge in Florida found that Section 316.1933 is unconstitutional because of the holding in Missour v. McNeely, 133 S.Ct. 1552 (2013).

Since Section 316.1933 was enacted, law enforcement officers have used it to force warrantless blood draws without consent or exigent circumstances even before an arrest if the officer had probable cause that the driver was DUI and caused an accident with death or serious bodily injury of anyone (including the defendant).

The court also excluded the blood test in that case finding that the officer’s misplaced reliance on Section 316.1933 cannot form the basis for a good faith exception to the exclusionary rule.

The Court also found that a warrantless blood draw without consent or exigent circumstances violates state and federal constitutional protections.


IN THE CIRCUIT COURT FOR THE 9TH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FL

STATE OF FLORIDA,

Plaintiff,                                                                                   Case No. 48-2011-CF-13421-A-O.                                                                                                              April 29, 2014. Mike Murphy, Judge

v.

– – – – LILES,

Defendant.

ORDER ON DEFENDANT’S MOTION TO EXCLUDE RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM THE DEFENDANT

THIS CAUSE having come on to be heard on the DEFENDANT’S MOTION TO EXCLUDE RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM THE DEFENDANT and the Court being fully advised on the premises, it is hereby

ORDERED AND ADJUDGED as follows:

Absent a warrant, blood can only be obtained by the Government from a person, including the Defendant, if there is an exception to the search warrant requirement. In the instant case the only possible exceptions would be exigency, consent and Fla. Stat. 316.1933.

With regard to exigency, the case of Missour v. McNeely, 133 S.Ct. 1552 (2013), makes it clear that Schmerber v. California, 86 S.Ct. 1826 (1966) did not authorize a warrantless searches of a person’s blood simply because a blood alcohol level declines over time. Instead, under Schmerber, each case is looked at on an individual basis to determine if an exigency requires the taking of the blood. In the instant case, the evidence failed to establish an exigency existed to take the Defendant’s blood without his consent.

With regard to consent, the record is clear the Defendant did not expressly consent. However, implied consent may be a recognized exception to the warrant requirement to obtain a defendant’s blood. See McNeely at 1566. Fla. Stat. 316.1932(1)(c), a part of implied consent, provides for when a driver has impliedly consented to a blood draw. However, the facts as testified to at the hearing failed to establish that this subsection applied and the State indicated that the State was not proceeding under this subsection.

Instead, the State indicated that the State was relying on Fla. Stat. 316.1933 to justify the warrantless search of the Defendant’s blood. However, Fla. Stat. 316.1933 is not part of the implied consent law. 2 Fla. Stats. 316.1932(1)(a)1a, 316.1932(1)(a)1b, 316.1932(1)(c), and 316.1932(1)(e) clearly set forth what is covered by Florida’s implied consent law.

While previous versions of Fla. Stat. 316.1933 were part of implied consent and in fact contained the word “consent,” the statute covering the time frame when the instant blood was withdrawn does not. Prior to July 1, 2002 Fla. Stat. 316.1933(1) required that a person “shall submit, upon the request of a law enforcement officer, to a test of the person’s blood . . .” if the officer had probable cause to believe that the defendant had driven a vehicle while under the influence of alcohol or drugs and caused the death or serious bodily injury of a human being.

However, Laws of Florida Chapter 2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs and now no longer directs that a person shall submit to a blood test. The amended statute now directs the law enforcement officer to require a person to submit to a test by reasonable force if necessary. In amending the statute, the legislature appears to have misinterpreted Schmerber v. California, 384 U.S. 757 (1966). This finding is based upon the staff analysis for CSCSHB 1057 under the section titled “Constitutional Issues” which states:

The United States Supreme Court has held that requiring someone to submit to breath or blood testing in DUI cases does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures or the Fifth Amendment right against self-incrimination. See Schmerber v. California, 384 U.S. 757 (1966).

Intellectual honesty requires this Court to find that this modification of the law was the legislature’s adoption of the Schmerber exigency standard and removal of Fla. Stat. 316.1933 out of the implied consent law. Unfortunately for the State, as discussed above, the evidence at the hearing failed to establish that an exigency existed to authorize the blood withdraw. Without an established exigency,Schmerber did not authorize a warrantless blood withdrawal. See McNeely.

If the legislature’s amendment was not an attempt to adopt the Schmerber standard by amending Fla. Stat. 316.1933, the statute would be unconstitutional by failing to require the existence of an exigency before directing the officer to obtain blood. See McNeely.

The next issue is whether or not, under the circumstances, the officer was allowed to rely upon a statute that has not be declared invalid. In Montgomery v. State, 69 So.3d 1023 (Fla. 5th DCA2011), the Fifth DCA laid out the general good faith exception to the exclusionary rule. However, with all general rules there are recognized exceptions.

In Illinois v. Krull, 480 U.S. 340, 349-350, 355, 107 S. Ct. 1160, 1167, 94 L. Ed. 2d 364 (1987) the United States Supreme Court addressed whether the good faith exception could be applied to a clearly unconstitutional statute:

Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. . . . A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. . . . As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.

Pursuant to Munoz v. State, 629 So.2d 90, 98 (Fla. 1993) “the legislature cannot enact a statute that overrules a judicially established legal principle enforcing or protecting a federal or Florida constitutional right.”

In the instant case, the Florida Legislature’s 2002 amendment of Fla. Stat. 316.1933 directed law enforcement to conduct a warrantless nonconsensual non-exigent search of a non-arrested person’s blood. Such a statute, as written, clearly violates the Federal and State constitution as much as statute that directs a police officer to take a warrantless nonconsensual non exigent DNA or blood sample of any non-arrested person the officer has probable cause to believe committed a sexual battery.

Under Krull and Munoz, even assuming the facts of the instant case met Fla. Stat. 316.1933, unless the statute adopted the Schmerber standard, the statute is clearly unconstitutional without an exigency requirement and where the statute is no longer part of implied consent. By failing to include an exigency requirement in the statute the legislature wholly abandoned its responsibility to enact constitutional laws and under Krull the State cannot rely upon a good faith reliance on a statute in the instant case which purports to trump the Fourth Amendment to the United States Constitution.

In conclusion, the warrantless, nonconsensual, nonexigent blood draw of the Defendant violates the State and Federal Constitutions and therefore the Defendant’s Motion to Exclude is Granted.

__________________

1 Cf. Frost v. Railroad Commission, 271 US 583 (1926), cited with approval in Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586, 2596 (2013) (for invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege.”)

2 This fact seems to be ignored due to older case law interpreting the pre 2002 amended version of Fla. Stat. 316.1933.

3 Even if this Court were to find that the legislature was not attempting to adopt Schmerber, the amended Fla. Stat. 316.1933 clearly is no longer included in implied consent.

4 The Defense argues that the State failed to lay the predicate to allow the blood to be withdrawn under Fla. Stat. 316.1933; however, that determination is not is not necessary at this time. However, if this Opinion is reversed on appeal, this Court will be prepared to issue a separate Order on that issue.

Fuzzy Math Fuels Myth that Florida’s DUI Refusal Rate at 82%

I was talking to a DUI enforcement officer with the Hillsborough County Sheriff’s Office a few days ago while we were waiting for a hearing. We started talking about this proposed legislation to increase the penalties for a first DUI refusal found in Florida’s 2016 Senate Bill 1244.

The officer told me that he was in favor of the legislation because the number of DUI refusals had skyrocketed across the State of Florida. When all of these articles about SB 1244 started coming out, I was reading the same thing – more people refuse DUI testing in Florida than other state and something had to be done about it.

The analysis for SB 1244 includes data from a study released by the U.S. Department of Transportation National Highway Traffic Safety Administration regarding breath test refusal rates. See Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

Florida BAC Refusal Rates by Percentage - Flawed

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005. And this figure was cited in the Florida Senate Bill Analysis and Fiscal Impact Statement that was prepared by “the professional staff of the Committee on Judiciary.”

The study showed that Florida had the highest rate of refusal of any state in the country. In fact, the country as a whole ranged from 19 to 25 percent.

It looks like that data is just plain wrong. The report explains how it arrived at this breath test refusal rate of 82 percent in Florida.  The authors of the study reported that Florida has only 26,777 BAC test requests and 21,966 BAC refusals which does equal 82.0%.

However, Florida had way more than 26,777 BAC test requests in 2011 because nearly every DUI arrest results in a request for a BAC test. The DHSMV reported that 55,722 DUI tickets were issued in Florida in 2011 – 9,328 were issued by the FHP, 23,649 were issued by police departments in Florida, and 21,868 were issued by Florida Sheriffs departments.

Assuming that 55,722 DUI tickets were issued and all of them involved a BAC test request, then the percentage of refusals is closer to 39%. That number is almost the same as the percentage of refusals in 2005 which was 40%. So the authors totally got those numbers wrong. Florida’s S.B. 1244 is, at least in part, a reaction to the flaw in that study.

Florida’s refusal rate is about the same as what it was in 2005.

Other studies show that there were 33,625 DUI convictions in Florida in 2011. Although the conviction does not necessarily occur in the same year as the offense, it would be nearly impossible to have more convictions for DUI then BAC test requests.

That also means that if Florida officers are issuing 55,722 DUI tickets but only requesting a BAC test in 26,777 of those cases, then a request for BAC testing is only being made 48% of the time. If that were true, instead of creating a new criminal offenses, officers should just be trained to request a BAC test in every DUI case.

Anyone else think the numbers in that study is wrong? If so, isn’t be Florida legislature making a big mistake by going off those numbers before considering this piece of legislation?

Find the link to the Bill Analysis – HERE. I also cut and paste it below [with a few minor modifications to the formatting to make it easier to read online.]

————————————————————–

Florida Senate Bill Analysis

The Florida Senate Bill Analysis and Fiscal Impact Statement for SB 1244 was prepared by the professional staff of the Committee on Judiciary. The analysis provides:

Summary:

SB 1244 increases the penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, while operating a motor vehicle, while operating a motor vehicle. The penalties include a fine, probation, and points assessed against an individual’s license. The increased penalties for first refusal closer resemble the penalties for a first-time DUI conviction under Florida law.

The bill also increases penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, and whose driving privileges were suspended for a prior refusal to submit to testing. In addition to the potential fines and jail time under current law, the person must have an ignition interlock device placed on his or her vehicle for a period of at least 1 year.

Furthermore, a court may not withhold adjudication of guilt, or the imposition of a sentence or penalty, on a person who has had a prior license suspension for refusing testing.

Present Situation: Florida’s Informed Consent Refusal

Any person who accepts the privilege of operating a motor vehicle within this state is deemed to have given his or her consent to submit to an approved test of the alcohol content of his or her blood, breath, or urine. Section 316.1932(1)(a)1.a., F.S.

The test must be incidental to a lawful arrest, and administered at the request of a law enforcement officer who has a reasonable belief such person was driving a motor vehicle while under the influence of alcoholic beverages.

The Department of Motor Vehicles will administratively suspend a person’s driving privileges for 1 year after the first refusal of alcohol testing. Section 322.2615(1)(b)1.a., F.S.

Note added by the author of this blog article:

The driver can and should contest the administrative suspension during a formal review hearing by demanding the hearing within 10 days of the arrest. This is especially true since the legislature keeps increasing the penalties for a second or subsequent refusal during an administrative hearing.

The second refusal to consent to a test will result in an administrative suspension as well as criminal charges. A second refusal occurs when  a person’s driving privileges were suspended for a prior refusal, and he or she refuses to submit to an alcohol test for a second time. A person’s motor vehicle license is suspended by the Department of Motor Vehicles for 18 months if found liable for a second refusal. Section 316.1939(1)(c), F.S.

A person who refuses to submit to a alcohol test for a second time faces criminal liability for a first degree misdemeanor, punishable by up to  year in jail and $1,000 fine. Sections 316.1939(1)(e), 322.2615, F.S.

Florida’s DUI Laws

Florida’s current DUI laws provide for both administrative and criminal sanctions. A first conviction results in a fine of not less than $500 or more than $1,000. Section 316.193(2)(a)-(b), F.S.

If the individual’s blood or breath-alcohol level is 0.15 or higher, or if he or she has a minor in the vehicle, the fine is not less than $1,000 or more than $2,000. Section 316.193(4), F.S. There is a community service requirement of 50 hours. Section 316.193 (6)(a), F.S.

A first-time conviction can also lead to imprisonment for a period of no more than 6 months and up to 1 year of probation. Sections 316.193 (2)(a), 316.193 (5)(6), F.S.

Breath Test Refusal Rates

In 2014, the U.S. Department of Transportation National Highway Traffic Safety Administration released a study regarding breath test refusal rates. Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005.

The National Highway Traffic Safety Administration also found the average refusal rate for the country as a whole ranged from 19 to 25 percent. State authorities reported to the authors of the study that refusal rates will remain high if the sanctions for failing a breath-alcohol concentration test are more severe than those for refusing to submit to the test. States recommended the license suspension periods for first and repeat refusals be at least as severe as those penalties for driving under the influence.

Ignition Interlock Device

The Florida Legislature’s Office of Program Policy Analysis & Government Accountability conducted a study researching ignition interlock devices and DUI recidivism rates. Office of Program Policy Analysis & Government Accountability, Ignition Interlock Devices and DUI Recidivism Rates, (December 2014).

An ignition interlock device prevents the start of a vehicle with a breath sample above .025, collects data, and records and stores visual evidence of device use. Ignition Interlock Program at http://www.flhsmv.gov.

Research shows that ignition interlock devices, while installed, were more effective at reducing re-arrest rates for alcohol-impaired driving when compared to other sanctions, such as license suspensions. Office of Program Policy Analysis & Government Accountability, supra note 11 at 1.

The study found the six month recidivism rate for first-time DUI offenders that were not required to install an ignition interlock device was 1.74 percent. When compared, the recidivism rate for first-time offenders required to use the ignition interlock device was less with a rate of 0.34 percent.

However, the study also found that only 49 percent of Florida DUI offenders installed an ignition interlock device, as required, after completing their period of license revocation.

Effect of Proposed Changes:

SB 1244 amends section 316.1939, F.S., to require stricter penalties for all first time and subsequent alcohol test refusals. The heightened penalties reduce the incentive for a person to refuse submission to a testing for the first time in order to receive an advantage of a lesser penalty. Under the proposed law, a person who refuses to submit to testing for the first time faces the following additional penalties:

  • A fine of at least $500 but not more than $1,000;
  • Probation for 6 months; and
  • 4 points assessed against his or her driver license.

The bill also increased penalties on a person whose driving privilege was suspended for a prior refusal and he or she subsequently refuses to comply with requirements for testing. A person who fails to comply with testing after having driving privileges previously suspended for a prior refusal commits a misdemeanor of the first degree, punishable by up to 1 year in jail or a fine of up to $1,000. Additionally, the court is required to implement an ignition interlock devise upon all vehicles that are owned and routinely operated by an individual convicted of a second refusal.

The ignition interlock device remains on the vehicle for at least 1 year at the convicted individual’s sole expense.

Furthermore, the court may not suspend, defer, or withhold adjudication of guilt or the imposition of a sentence or penalty for an individual who has failed to comply with informed consent for a second time.

———————————-

This blog article was published on Saturday, January 23, 2016.

New Bill With Criminal Penalties for a First Refusal: 2016 SB 1244 Amending FS 316.1939

In order to discourage individuals from refusing to submit to a chemical test during a DUI investigation, the Florida legislature created a separate crime for a second refusal. The Florida legislature reasoned that without the legislation, people might be encouraged to refuse a breath test after an arrest in order to avoid a DUI conviction.

As it stands now, Florida Statute Section 316.1939 makes it a separate or independent crime to “refuse to submit” to a chemical test of the driver’s breath, blood or urine after having previously refused to submit. The crime is a first degree misdemeanor offense punishable by up to $1,000 fine and 12 months in the county jail.

Additionally, a second refusal results in an 18 month administrative suspension with no possibility of receiving a hardship reinstatement if the suspension is not invalidated during a formal review hearing (although the driver will still qualify for a temporary hardship permit while awaiting the formal review hearing).

Click here to read more about Florida Statute Section 316.1939 and Criminal Penalties for a Second DUI Refusal

Now the Florida legislature wants to make even a first refusal to submit to the breath, blood or urine test a separate crime. 

On December 28, 2015, Florida State Senator David Simmons filed 2016 Senate Bill 1244 which imposed criminal penalties for a first refusal to submit to a breath, blood or urine test in a DUI case. The penalties are a fine between $500 to $1000, up to six months on probation, and four points on the driver’s license.

The criminal penalties are not classified as either a second degree or first degree misdemeanor but appear to be a hybrid between the two. Also, by using the phrase “by probation for six months” and not mentioning any jail time, it appears that the court cannot impose jail time for a first refusal under the proposed amendment to the statute.

What’s “By Probation for Six Months” Mean?

I searched all the statutes in Florida for that phrase in Westlaw and only this proposed bill showed up for the term “by probation for six months.” Anyone know what impact that phrase will have? Are you still entitled to a jury trial for the offense? Can jail time be imposed if you violate probation?

This legislation is unnecessary because Florida law already imposes serious consequences to a refusal on an administrative basis. And don’t forget that a person can still be convicted of DUI after refusing because other evidence might support the allegation such as the driving pattern, statements of the defendant, performance on field sobriety exercises, and observations of the arresting officer.

Additionally, Florida law allows the prosecutor to argue that the refusal is evidence of “consciousness of guilt.” In other words, the prosecutor gets to argue at trial that the defendant refused to submit to testing even knowing that it would cause a driver’s license suspension because he knew that the test would show he was guilty.

Why Change the Implied Consent Warning?

Secondly, I’m confused about why the person is not being warned that the refusal is a crime. The old warning told the person that a second refusal “is a misdemeanor.” Now the person will just be warned that a first refusal is “subject to penalties.”

If this amendment makes it a crime to refuse the first time why didn’t the bill just make it a second degree misdemeanor? Why create an entirely new category of punishment?

Why not warn the person that a refusal is a crime instead of using the phrase “subject to penalties” which could be misunderstood as administrative penalties and not criminal penalties? Changing the warning is likely to encourage more people to refuse testing and then suffer this increased penalty – especially a person who has never been in trouble before. If the people that drafted the legislation really wanted to discourage refusals, changing the warning is likely to backfire. More innocent people are going to refuse without realizing how serious the penalties are for even a first refusal.

Ignition Interlock Device for 12 Months

For either the first or subsequent refusal, the proposed amendment to the statute requires the court to impose a requirement that the driver install an Ignition Interlock Device, at their expense, for 12 months.

No Withhold of Adjudication

The statute also prohibits the court from suspending, deferring, or withholding adjudication of guilt or the imposition of a sentence or penalty.

So the legislature wants to take away these important sentencing options from the judge for what reason?

Read the statutory language below:

Continue reading

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