Refusal to Submit

In many Driving Under the Influence (“DUI”) cases, the main evidence used by the State to prove the offense is a chemical test that indicates the driver’s breath or blood alcohol content was over the legal limit of .08.

The good news is that when the driver refuses to take the breath, blood or urine test, the prosecutor is without that important evidence. In fact, the prosecutor cannot even allege one alternative way of proving DUI called DUBAL (driving with an unlawful blood (or breath) alcohol level). Instead, the prosecutor must prove that the driver’s normal faculties were impaired by alcohol intoxication or drug impairment (or a combination of both).

The bad news is that the prosecutor will argue that the refusal shows that “you thought you were guilt.” In other words, the prosecutor will argue that “If you didn’t think you were guilty then you would have submitted to the chemical testing of your blood, breath or urine.”

Reasons an Innocent Person Might Refuse

Your criminal defense attorney can argue numerous other reasons for the refusal. The jury often understands that a refusal may have nothing to do with whether you thought you were guilty or not.

People who are not impaired often have the most questions about why they should submit to a test that they don’t understand. Often innocent people believe they have been wrongfully arrested in the first place.

The Mysterious Intoxilyzer 8000

The breath test has been excluded in several counties because the prosecutors for the State of Florida are refusing to turn over the “source code” of the machine, called the Intoxilyzer 8000.  Various courts throughout Florida have excluded breath test evidence on this basis in certain cases.

Many people “refuse” to take the breath test because they know that the machines are not accurate. If you knew that courts were throwing out the results across the State of Florida would you risk your good name and a possible criminal record on taking a test that you believed might lead to an inaccurate reading?

The bad news is that Florida DUI laws attempt to compensate for this lost evidence by making harsher penalties for individuals that decline to take a chemical test, including an increased administrative suspension of your driver’s license by the Florida Department of Highway Safety and Motor Vehicles (DHSMV).

If you have been charged with DUI and refused to take a chemical test, it is important to fight that administrative suspension. You only have 10 DAYS to file a demand for a formal review hearing.

For a second DUI arrest or conviction, there is no downside to fighting the administrative suspension. If your driver’s license was valid when you were arrested then your attorney can help you obtain a 42 day driving permit while your attorney fights the suspension. If you win the hearing then you will get your driver’s license and full driving privileges back while you fight the DUI case.

You will automatically win the hearing if the arresting officer fails to appear at the administrative hearing. Additionally, in many cases you will also win the hearing if the breath test operator fails to appear. Many other technical issues are raised at the hearing. Mistakes by law enforcement officers can and will result in those administrative suspensions being invalidated when the proper objections are raised at the hearing.

Fighting a DUI Refusal in Tampa, FL

Contact the Sammis Law Firm to discuss your DUI Refusal Case at 813-250-0500 or visit our main website to learn more information about hiring a Tampa DUI Lawyer to fight your alleged “refusal” case.

In many of these refusal cases an aggressive defense can cause the prosecutor to offer a plea to a reduced charge of reckless driving which has much lower penalties, including no suspension of your driver’s license.

Additionally, a reduced charge of reckless driving, especially if adjudication is withheld may lead to substantially lower automobile insurance rates saving the driver thousands of dollars over the next three years.  If you were arrested for driving under the influence (“DUI”) after refusing to submit to a breath test, contact an experienced DUI attorney to discuss your case.

Find out more about DUI refusal cases in Hillsborough County, Polk County, Pinellas County, Manatee County, Sarasota County, and Pasco County at our main web site. Click here for more information: Tampa DUI Attorney website.

Article last updated on Friday, January 22, 2016 by Leslie Sammis


Refusal to Submit to DUI Testing

316.1939 Refusal to submit to testing; penalties.–

(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:

(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;

(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);

(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;

(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if 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, is a misdemeanor; and

(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.

(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege does not affect a criminal action under this section.

(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.


Conclusion

If you have been charged with DUI after allegedly refusing to take a chemical test of your breath, blood, or urine, contact an experienced DUI defense attorney at 813-250-0500.

During the free confidential consultation you can discuss your case and how to best fight the charges against you to avoid a DUI conviction.

4 Comments

  1. Jim Bowen
    Posted May 14, 2012 at 03:53 | Permalink | Reply

    The info is good since I have been adjudicated with $ in lieu of community service hours. But, it doesn’t explain who and how to make payment. I would prefer to make payment online. Explanation??
    Jim

  2. Grace
    Posted October 15, 2012 at 15:34 | Permalink | Reply

    My husband was arrested for DUI. The officer pulled him over for failure of a traffic control device(White Line) and stated in his report that my husband’s vehicle was past the white line and the bumper of the vehicle was over it. Then in his report he aslo stated that where/how the van was impeded the flow of traffice both turning and crossing the intersection. We went to the intersection and took pictures of how the officer explained in his report. The vehicle was not in the cross-walk nor was it impeding the flow of traffic. The case was dismissed and the charges dropped by the State Attorney, however the DMV still enforced the suspension of his license and even though he has been over 1 year without his license, the DMV will not re-instate his license unless he signs up for DUI School and pays inflated Administrative fees totaling at least $500. We have requested additional Administrative Hearings, have taken the court papers showing the charges dropped, etc. They are just trying to generate revenue through the unlawful stop that the over-zealous cop initiated. How can we get his license back if all of the charges were dropped? It seems unfair to make him have to pay for something that was ruled unlawful at the court level.

    • Posted August 25, 2013 at 16:35 | Permalink | Reply

      In many ways winning the administrative hearing is as important and winning the criminal cases.

      An attorney can fight the administrative suspension by serving a subpoena on the arresting officer and calling other witnesses to attack the legality of the stop or whether the arresting officer has probable cause to make the DUI arrest.

      If you win the administrative hearing then any mention of it is removed from the driving record.

      But if you lose the hearing or fail to contest the suspension, then you must jump through the hoops that you mention including attending DUI school and paying all of the fees before you can get your driver’s license reinstated.

      If the case involves a breath test over a .08 and you obtain a not guilty verdict at trial, then you can go back to the DMV to have the administrative suspension lifted. But getting the charges dropped by the prosecutor or dismissed by the court in a refusal case will not cause the administrative suspension to be lifted.

  3. Posted July 14, 2015 at 01:28 | Permalink | Reply

    arrested for a dui blew 0.00 but refused a urine test the whole case has been “no information filed. 9 1/2 yrs ago my license was suspended for 1 yr for a refusal. will they(dmv) keep my license ?for 18 months?

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