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Recanting the Refusal

What happens if you refusal to take the chemical test after a DUI arrest, but then change your mind and agree to take the breath, blood, or urine test? Your criminal defense attorney can file and litigate a motion to suppress any evidence of the refusal to submit to chemical testing. That might cause the prosecutor to drop the charges against you or at least reduce the case to a less serious charge such as reckless driving.

As a general rule, if the defendant refuses and then changes his mind, the subsequent consent to take the test cures the first refusal if:

  • the request to take the chemical test is made within a reasonable time after refusal;
  • the test administered would still be accurate;
  • the testing equipment or facilities are still readily available;
  • no substantial inconvenience or expense to the police; and
  • Defendant has been in custody and under continuous observation.

Larmer v. Dept of Highway Safety and Motor Vehicles, 522 So.2d 941 (Fla. 4thDCA 1988).

Attorney for the Recanted Refusal in Tampa, FL

If you refused to take the chemical test, but then changed your mind, call use to discuss your case. Under the right circumstances, your criminal defense attorney can file a motion to suppress the alleged refusal. This means the prosecutor doesn’t get to use the refusal against you at trial.

The attorneys at Sammis Law Firm are experienced fighting DUI refusal cases throughout the greater Tampa Bay area. Our main office is located in downtown Tampa in Hillsborough County. Our second office is located in New Port Richey in Pasco County, FL.

Contact us for a free consultation. Call 813-250-0500.


Public Policy Behind a More Flexible Rule for DUI Refusals

In Larmer, the court looked to decisions in other states while quoted the court in Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974) which found:

Since the accuracy of the chemical test under [the Implied Consent Law] does not depend upon its being administered immediately after an arrest or other event, and thus a delay for a reasonable period of time while an arrested person considers or reconsiders a decision whether or not to submit to a chemical test will not frustrate the object of the legislature in enacting [the Implied Consent Law]…..

Id. at 942.

In Larmer, the court also looked at the decision in State v. Moore, 62 Haw. 301, 614 P.2d 931, 935 (1980). In that case, Hawaii adopted a rule that an initial refusal to be tested could be withdrawn and rescinded. As a result, the court in Hawaii rejected any “rule of law which would rigidly and unreasonably bind an arrested person to his first words spoken, no matter how quickly and under what circumstances those words are withdrawn….the better rule to be one which takes into consideration the fairness to all parties of permitting an arrested person later to change his mind” and retract his initial refusal “unless a delay would materially affect the test results or prove substantially inconvenient to administer, a subsequent consent may cure a prior refusal to be tested.” Id.

As a matter of good public policy, a more flexible rule makes important evidence gathered after a breath test more frequently available and therefore supports the prophylactic purpose of the implied consent laws. Id. (citing Gaunt vs. Motor Vehicles Division, Department of Transportation, State of Arizona, 136 Ariz. 424, 666 P.2d 524 (Ct. App. 1983).

In DHSMV v. Satter, 643 So.2d 692, 695 (Fla. 5thDCA 1994), the court found that if the recantation was found to be conditional and equivocal, then it would not be deemed a “recantation” under Larmer.


A Lack of Substantial Inconvenience from the Recantation of the Refusal

In State v. Eng, 6 Fla. L. Weekly Supp. 649a (September 15, 1998) the trial court found that the undisputed testimony showed that the defendant initially refused to take the chemical test but then agreed to take it at the sally port door after the refusal. As a result, the defendant was in the continual custody of the officer and under his observation, and there was no substantial inconvenience that would have resulted by permitting the Defendant to take the breath test on the Intoxilyzer 8000.

In Dean vs. DHSMV (7th Judicial Circuit, January 10, 1995), although the defendant initially refused testing, he then recanted his refusal and told the officer that he would submit to the test. Nevertheless, the officer did not allow him to take the test. On appeal from administrative hearing at the DHSMV, the court found the hearing officer departed from the essential requirements of the law and that the hearing officer’s order was unsupported by competent or substantial evidence.

The Dean order upholding the administrative suspension was quashed by the court and the suspension was invalidated. In reaching this ruling, the court noted that although the hearing officer was correct that the petitioner had initially refused, “that general statement of the law does not resolve the case.”


This article was last updated on Friday, May 10, 2019.

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