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 (unless you contest the penalty in court), and a second refusal in the future after a DUI or BUI arrest 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, Florida Fish and Wildlife Commission officers make most of these BUI arrests. 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 offices 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 a lawful breath, blood, or urine test.
Effective October 1, 2021, the Florida Legislature amended the implied consent warning to inform individuals that they are subject to increased penalties if they had previously been fined under section 327.35215(1) Florida Statutes for refusing a chemical test after being suspected of boating under the influence.
Florida BUI Implied Consent Warning
The Florida Fish and Wildlife Commission has developed a form for a BUI investigation, including the implied consent warning to be read in a BUI case. Before the most recent updates, the form provided:
Defendant’s Name: ________
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?
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.
Before the most recent updates, the form provided:
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,
Affidavit of Refusal Regarding Uniform Boating Citation No. _____
I, ________, a law enforcement officer, who has been duly sworn, certify and state the following:
- 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.
- 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.
- Defendant was advised of the penalties for failing to submit to the blood, breath, or urine test and the procedure for requesting a hearing.
- Defendant refused to submit to the blood, breath, or urine test(s).
This article was last updated on Friday, August 18, 2023.