DUI Refusal in Tampa, FL

After a DUI arrest, the officer may ask you to take a chemical test. Although a request to submit to a breath test is the most common, the officer might request a urine or blood test.

Many individuals decline the officer’s request to take the chemical test. Statewide statistics show that drivers refuse just over 35% of the time. In many cases, the driver says, “No, thank you. I will not take the test.”

If you don’t agree to take the breath test, the officer will read you the “implied consent warning” explaining the consequences of refusal. If you do not agree to submit to the breath test after that warning, the officer will treat the DUI as a “refusal.”

The consequences of the refusal might include the following:

• an on-the-spot administrative suspension of your driver’s license (which can only be challenged if you demand a formal review hearing within ten days of the arrest);
• the prosecutor can argue to the jury that the refusal means you knew you were guilty (called the “consciousness of guilt” argument);
• the second or subsequent refusal can be charged as a separate crime punishable by up to 12 months in jail and a $1,000 fine).

The evidence of a refusal might be suppressed if there was no lawful basis for the stop or no probable cause existed for the DUI arrest.

Suppose you refused to submit to the chemical test because you thought you had a right to remain silent after reading the Miranda warning. In that case, the “confusion doctrine” might lead to the suppression of any mention of the refusal at your trial.

Evidence of the alleged refusal might also be suppressed if you refused to submit but then recanted that refusal by changing your mind and agreeing to take the chemical test within a reasonable time.

Attorneys for DUI Refusal Cases in Tampa, FL

Leslie Sammis is an experienced DUI defense attorney with over twenty years of experience fighting DUI cases. She graduated from the University of Florida with Honors in 1999. Since then, she has devoted her career to criminal defense, focusing on DUI defense.

She serves as Florida’s delegate for 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.

In Tampa, Hillsborough County, FL, prosecutors will call this type of case the “DUI Refusal to Submit” or “DUI Refusal BAC,” “BAC: Refused,” “Urine Refusal,” or “Blood Refusal.”

All of the attorneys at Sammis Law Firm have special training and experience fighting DUI cases involving a refusal to submit to a breath, blood, or urine test. We demand formal review hearings to contest the administrative suspension, file all viable motions to suppress evidence and take DUI refusal cases to trial.

If you were charged with DUI after allegedly refusing to submit to a chemical test, contact an experienced attorney at Sammis Law Firm to discuss your case.

Call (813) 250-0500 today.

Types of Chemical Tests after a DUI Arrest

After an arrest for driving under the influence (“DUI”) the arresting officer might ask the driver to submit to a chemical test of his breath. The only approved breathalyzer in Florida is called the “Intoxilyzer 8000.”

If the arresting officer has probable cause to believe that a chemical or controlled substance may impair the driver, they might ask the driver to submit a sample a breath sample. If the driver blows below the legal limit of .08, the officer might ask for a urine sample

In many cases involving an accident and a driver seeking medical attention for his injuries, the officer may ask for a blood test if the breath test is impractical. The law enforcement officer might also demand the person submit to a blood test if another person is seriously injured in the crash.

How Often Does a Person Refusal Testing During a DUI Investigation

The “Traffic Safety Facts Research Note” from NHTSA shows that the average nationwide refusal rate for breath alcohol concentration tests was 24 percent in 2011. Another study published in 2016 by the Foundation for Advancing Alcohol Responsibility found the rate of refusing to take a breath test during a DUI investigation to be just under 24 percent across the United States.

That percentage is much higher in Florida. According to statistics kept by the Florida Department of Highway Safety and Motor Vehicles, the rate of refusing to take a breath test after a DUI arrest in Florida is listed below:

What is a Refusal to Submit to Testing?

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

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

1. If the driver becomes argumentative, combative, or abusive to the arresting officer;
2. If the driver indicates that he will take the breath test but then willfully fails to blow enough air into the machine to register a valid sample was provided (1.1 liters of air in one continuous breath is considered a sufficient sample);
3. If the driver agrees to take the breath test and blows into the machine once but then fails to blow into the machine a second time within fifteen minutes; or
4. If the driver refuses to answer either “yes” or “no” after the arresting officer asks the driver to submit to a breath test.

Florida’s Implied Consent Warning

Before the refusal is admissible at trial, the arresting officer must advise the driver of Florida’s implied consent warnings.

The implied consent laws require that any driver who accepts the privilege of driving a vehicle within the state is deemed to have given consent to submit to an approved chemical test of the driver’s breath, urine, or blood.

The implied consent warnings in Florida require the arresting officer to tell the person that 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 often fights 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.

What Evidence Should Be Excluded in a DUI Refusal Case?

In a DUI refusal case, the defense will often file a motion in limine requesting that the Court prohibit the prosecution from presenting any mention of the potential driver’s license suspension penalties for declining to submit to a breath test may not be argued by the prosecution.

For instance, in State v. Jackson, 31 Fla. L. Weekly Supp. 40a (Fla. 17th Jud. Circuit 2023), the trial court concluded:

While FLORIDA STATUTE 316.1932(1)(a) provides that “[t]he refusal to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding”, see,e.g., State v. Taylor, 648 So.2d 701 (Fla. 1995) (refusal is relevant to show consciousness of guilt and defendant is free to offer innocent explanation for not taking test) and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (admission of defendant’s refusal to submit to blood-alcohol test does not offend Fifth Amendment right against self-incrimination), neither the plain meaning of the statute nor any Florida case law interpreting it permits, in essence, the addition of a new provision to the statute providing for the admissibility of the civil penalties of a refusal as evidence of guilt.

Accordingly, any admission into evidence of the potential driver’s license penalties attendant to a breath test refusal would constitute an inappropriate and unlawful expansion of FLORIDA STATUTE 316.1932(1)(a). See Rockford v. Elliott, 721 N.E.2d 715, 718 (Ill. 2d DCA 1999). As in Rockford, had the Florida legislature intended “that evidence of the civil penalties a defendant faced be admissible in addition to his refusal to submit to a breath test, [it] could have so provided in the statute.” Rockford, 721 N.E.2d at 719. Indeed, to the contrary, the Florida legislature went so far as to expressly exclude any civil penalty under section 322.2615(14) at the defendant’s criminal trial when it wrote that “[t]he decision of the department . . . shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial.” In turn, nor does “[t]he disposition of any related criminal proceedings . . . affect a suspension imposed pursuant to this section.

The Goal for Resolving a DUI Refusal Case

Do you want to learn more about how to beat a DUI refusal case? After a refusal to take the breathalyzer, the prosecutor has a difficult time proving the crime beyond all reasonable doubt. Did you know that refusing to submit to an alcohol test can result in an acquittal at trial?

Even before the trial, the goal is to get the charges dropped entirely or reduce it to a less serious offense, such as reckless driving. Not all plea bargains are identical, even if the DUI is reduced to reckless driving. For instance, whether a conviction will occur is a term that can be negotiated based on the facts of the case.

Although the prosecutor usually 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 remove the mug shot.

Consequences of a First DUI Refusal in a Diversion Program

Another way to beat a DUI refusal case is to enter a diversion program. For a first DUI case involving a refusal, contact us to learn 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, a continuous alcohol monitoring device (SCRAM), or the PharmCheck Drugs of Abuse Patch.

Entering diversion means your DUI will be reduced to reckless driving, which might be eligible to seal the record. Remember 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.

Consequences of a Second DUI Refusal

At Sammis Law Firm, our DUI defense attorneys are experienced in fighting a second DUI refusal, which can be charged as a separate crime under Florida Statute Section 316.1939. The authorities know that refusing to submit to testing can be an effective way to avoid a DUI conviction.

For instance, a person who refuses to take the breath test each time they are accused of DUI might be able to avoid a DUI conviction over and over. To avoid rewarding repeat offenders who refuse to submit to testing, the Florida Legislature gave harsh penalties for a second or subsequent refusal.

The second or subsequent refusal penalties are tied to the number of administrative suspensions on the driving record for refusing. In other words, if you contest the administrative suspension during a formal review hearing and win, then the invalidated suspension for refusing cannot be used against you for purposes of prosecution under Section 316.1939.

The second “refusal to submit” to DUI testing is a first-degree misdemeanor offense punishable by up to a $1,000 fine and up to 12 months in jail.

Standard Operating Procedures for Refusals by HCSO

Each law enforcement agency has individualized policies and procedures for breath and urine testing. For example, the Hillsborough County Sheriff’s Office (HCSO) has specific standard operating procedures for the Central 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 in the following manner:

1. The person arrested for DUI is screened for any serious pre-existing medical condition or injury that resulted as a result of a car accident or incident to the arrest;
2. If the individual agrees to submit to breath testing, a twenty-minute observation period begins in which the officer must continually watch the subject to make sure nothing unusual occurs that could affect the testing results, such as regurgitation or throwing up;
3. If the individual indicates that he will not take the breath test, then a video recording will be made of the officer reading the implied consent warnings to the person under arrest;
4. If the individual arrested for DUI refused to submit to a breath test at a remote testing facility, and the refusal paperwork is completed, then the individual shall not be given an additional chance to submit to the breath test once he or she is transported to central booking.
5. If the breath test reading is below a 0.05%, the arresting officer must collect a urine sample from the person arrested and submit the sample to the lab for analysis.
6. If the person arrested for DUI refuses to provide a urine test, the officer will count the subject as having refused to submit to testing.
7. If the individual agrees to provide a urine sample, a law enforcement officer must witness the “collection of the specimen.”

Law enforcement agencies in Pinellas County, Polk County, and Pasco County have similar standard operating procedures for processing individuals charged with DUI. The arresting officer’s failure to follow these procedures 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.

After a refusal to submit to a breath test, the arresting officer will complete a CBTU DUI Refusal Affidavit (Form HCSO 5224), which is retained by the Central Breath Testing (CBT) Unit at the Hillsborough County Sheriff’s Office Jail Division 1 at the Orient Road Jail.

The CBT refusal affidavit verifies that a properly operational breath test instrument and Breath Test Operator were available at CBT.

The Alleged Refusal at the Breath Test Machine

Usually, 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 begins. When the alleged refusal occurs during the breath test, it is often called the “machine refusal.”A machine refusal might occur if it is alleged that the defendant didn’t provide an “approved” breath test.

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).

So what happens when the driver submits one valid sample but then provides insufficient breath volume during the second sample attempt?

The courts have found that the driver’s refusal to submit at least 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.

Additional Resources

Administrative Suspension Rules after a Refusal – Visit the Florida Department of Highway Safety and Motor Vehicles website to learn more about the administrative “on-the-stop” suspension after you refuse to submit to a lawful test of your breath, blood, or urine. Learn more about how to demand a formal review hearing to contest the administrative refusal suspension. Find out ways to get a hardship license if the administrative suspension for refusing the breath, blood, or urine test is not invalidated. For the first DUI refusal, you must serve 90 days without a driver’s license or permit before eligibility for hardship reinstatement. You are not eligible for hardship reinstatement if you have two or more administrative refusal suspensions or two or more DUI convictions.

Finding a Lawyer for a DUI Refusal in Hillsborough County, FL

If you have been arrested for driving under the influence after allegedly refusing to submit to a breath, blood, or urine test, contact an attorney with experience fighting these cases to discuss your best defense.

We know innocent people might have excellent reasons for refusing the breath test. The officer sometimes calls it a “refusal” even when no refusal occurred or the driver could not comply for some other reason. The officer must 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 and the possible ways to get a DUI refusal case dismissed.

Call (813) 250-0500.

This article was last updated on Friday, October 25, 2024.