Refusal to Submit to Testing in a BUI

What happens if you are lawfully arrested for BUI in Florida but refuse to submit to a lawfully requested sample of your breath, blood, or urine? The good news is that the refusal itself does not impact your driving record.

The bad news is that you will be assessed a $500 civil penalty, you are not allowed to operate a vessel until the fine is paid, and a second refusal in the future can be charged as a first degree misdemeanor.

To contest the civil penalty, your attorney must file a demand in court for a formal hearing within 30 days of the arrest. The judge presiding over the criminal case also presides over the administrative hearing involving the civil penalty.

In the Tampa Bay area, many of these BUI arrests are made by officers with the Florida Fish and Wildlife Commission. Still, any local agency with a waterway in their jurisdiction might make an arrest for boating under the influence.

Attorney for BUI Refusal Cases in Tampa, FL

Contact attorney Leslie Sammis about your BUI case in Florida. Ms. Sammis has handled many DUI and BUI cases throughout the greater Tampa Bay area.

BUI cases tend to involve the same arresting officers since only a few handle most BUI investigations.

Visit the main office of Sammis Law Firm in downtown Tampa in Hillsborough County. We have additional offices in New Port Richey in Pasco County and Clearwater in Pinellas County, FL.

Our attorneys fight BUI cases in all surrounding counties, including Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, Hillsborough County, and Polk County, FL.

Call 813-250-0500 to discuss your case.

What Happens after a BUI Arrest in Florida?

After the arrest, the arresting officer will cause certain documents to be filed in the circuit court, which triggers a case number and arraignment date being assigned.

Those documents include the criminal report affidavit, the affidavit of refusal to submit to testing, and the Uniform BUI Citation.

In State v. Pujals, 23 Fla. L. Weekly Supp. 457b (FLWSUPP 2305PUJA), the court found:

“[w]hile the defense correctly argues that the failure of the Florida Fish and Wildlife  Conservation Commission (FFWCC) officer to properly submit a “sworn statement on a form provided by the department”, as outlined in F.S. § 327.35215(2), was fatal to the State’s ability to collect a $500.00 civil fine under that section of Florida Statutes, the officer’s mistake does not affect the admissibility of the Defendant’s refusal to submit to a breath test at a trial for violation of F.S. §327.35 (Boating Under the Influence).

In 2023, Section 327.35215, F.S., was amended to require that the Fish and Wildlife Conservation Commission (FWC) provide the certified statement forms that a law enforcement officer must fill out upon arresting a person for refusing to submit to lawful breath, blood, or urine test.

Florida BUI Implied Consent Warning

The Florida Fish and Wildlife Commission has developed its form for a BUI investigation, including the implied consent warning to be read in a BUI case. The form provides the following:

Defendant’s Name: ________
Case No.:_______

I am [____officer’s name___] of the [Florida Fish and Wildlife Commission]. You are under arrest for operating a vessel while under the influence of alcoholic beverages or controlled substances.

• ___ I am now requesting that you submit to a lawful test of your BREATH for the purpose of determining its alcohol content.
• ___ I am now requesting that you submit to a lawful test of your URINE for the purpose of detecting the presence of chemical or controlled substances.
• ___ I am now requesting that you submit to a lawful test of your BLOOD for the purpose of determining its alcohol content and the presence of chemical or controlled substances.

If you fail to submit to the test I have requested of you, it will result in a civil penalty of $500.

Additionally, if you refuse to submit to the test I have requested of you and you have previously been fined for refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor.

Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.

Will you submit to the test?

Date: ____________________
Time: ____________________
Defendant’s Signature: _________
Officer’s Name (Printed): _______
Officer’s Signature: ___________

FWCDLE 108D (10/18)

FWC Refusal to Submit to Testing Affidavit

In BUI cases involving a refusal to submit to a breath test, the arresting officer will use the FWCDLE 108F form. The form is then filed in the criminal BUI case pending before the judge. The form provides the following:

In the County Court of the 13th Judicial Circuit

in and for Hillsborough County, FL

State of Florida
Florida Fish and Wildlife Conservation Commission
Division of Law Enforcement

Refusal to Submit to Breath, Urine, or Blood Testing

State of Florida,

Plaintiff,

vs.

__________,
Defendant.

Affidavit of Refusal Regarding Uniform Boating Citation No. _____

I, ________, a law enforcement officer, who having been duly sworn, certify and state the following:

1. That on [day of week], [date (month and year)], at [time] probable cause existed to arrest the above named Defendant for a violation of section 327.35, Florida Statutes, as set forth in the attached narrative which is incorporated by reference as if set forth fully herein.
2. That on that date and time:
   • ___The Defendant was under lawful arrest for an offense committed while the Defendant was operating a vessel while under the influence of alcoholic beverages, chemical substances, or controlled substances, and the Defendant was requested to submit to a breath test, urine test, or both a breath and a urine test; or
   • ___The Defendant has appeared for treatment at a hospital, clinic, or other medical facility, the administration of a breath or urine test was impractical or impossible, and the Defendant was required to submit to a blood test.
3.  The Defendant was advised of both the penalties for failure to submit to the blood, breath, or urine test and the procedure for requesting a hearing.
4. The Defendant refused to submit to the blood, breath, or urine test(s).

This article was last updated on Thursday, May 18, 2023.