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DUI Refusal in Pasco County

In about 40% of DUI cases in Florida, the driver refuses to submit to a breath test, blood test, or urine test.

If you were arrested for DUI, then the arresting officer requested that you submit to a test of your breath, blood, or urine. If you are accused of refusing to submit to testing, then we have good news and bad news.

The good news is that the prosecutor has no evidence showing your breath or blood alcohol concentration. Although the prosecutor can argue that your refusal shows your “conscience of your guilt,” other reasons exist for a refusal.

The bad news is that the administrative suspension is longer. If you refused, the administrative suspension is twelve (12) months for a first refusal or eighteen (18) months for a second or subsequent refusal. The hard suspension is longer as well – 90 days for a first refusal or the full 18 months for a second or subsequent refusal.

In addition to the increased administrative suspension for a second refusal, if you were previously accused of refusing to submit to a breath test, then a second refusal can be charged as a separate crime.

In fact, a second refusal can be charged as a first degree misdemeanor punishable by up to 12 months in jail and a $1,000 fine, under Florida Statute Section 316.1939, even if you are found not guilty of DUI at trial.

Attorneys for a DUI Refusal in Pasco County, FL

If you were arrested for DUI with a refusal to submit to a breath, blood, or urine test, in Pasco County, FL, then your case will be prosecuted at the courthouse in Dade City or New Port Richey, FL.

The Pasco DUI refusal defense attorneys at Sammis Law Firm have an office in New Port Richey across from the courthouse at the West Pasco Judicial Center.

Find out why we recommend that you demand a “formal review hearing” within 10 days of your arrest to contest the twelve (12) or eighteen (18) month administrative suspension of your driver’s license.

For a second DUI case in Pasco County, FL, the formal review hearing is conducted at the Bureau of Administrative Review office in Tampa, FL.

We can begin your defense today. Call 727-807-6392 today.


Elements of a Second DUI Refusal in Pasco County, FL

In order to establish a prima facie case for Refusal to Submit to Testing under Florida Statute Section 316.1939, the prosecutor must prove the following elements beyond all reasonable doubt at trial:

(1) A law enforcement officer had probable cause to believe the defendant drove or was in actual physical control of a motor vehicle in this state while under the influence of an alcoholic beverage to the extent that the defendant’s normal faculties were impaired.

(2) The law enforcement officer lawfully arrested the defendant for Driving Under the Influence (DUI).

(3) The defendant was informed that if she refused to submit to a chemical test of her breath, his or her privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.

(4) The defendant was informed that it is a misdemeanor to refuse to submit to a lawful test of her breath, if her driving privilege had been previously suspended for a prior refusal to submit to a lawful test of her breath.

(5) The defendant, after being so informed, refused to submit to a chemical test of his or her breath when requested to do so by a law enforcement officer.

(6) The defendant’s driving privilege had been previously suspended for a prior refusal to submit to a lawful test of her breath.

The elements of a second refusal can be found in Florida’s standard criminal jury instructions in chapter 28.13.


What Constitutes a DUI Refusal to a Breath Test?

A request for a breath test is the most common chemical test requested. The most common type of refusal involves the defendant saying: “No thank you, I refuse to submit.”

But the prosecutor might be able to present a DUI refusal case to the jury if any of the following occurred:

  • the defendant agreed to submit to the breath test but then was unable to provide two breath samples of sufficient quantity within the allowed time period;
  • the defendant provided two breath samples, which are not within .02 of one another, but then refused to submit to a third breath test; or
  • the defendant became abusive or argumentative toward the arresting police officer when asked to submit to a breath test.

Uncovering Police Misconduct for DUI Cases in Pasco County, FL

Find out more about how Jason Sammis uncovered evidence of police misconduct at a DUI checkpoint in Pasco County, FL, which led to the dismissal of a charge of driving while license suspended (DUI).


Implied Consent Warnings in DUI Cases in Pasco County, FL

Any person who accepts the privilege of driving in Florida is deemed to have given his consent to submit to an approved breath test. For this reason, the refusal to do so is admissible in any criminal proceeding, so long as the arrest was lawful. § 316.1932 (1)(a)1.a., Fla. Stat.

A person must be told that the failure to submit to any lawful test will result in the suspension of the person’s privilege to operate a motor vehicle for 12 months for the first refusal, or 18 months if the person had previously been suspended for a refusal, and it is a misdemeanor crime for a subsequent refusal.

This cautioning is known as the implied consent warning. Generally, officers read the warning from a standardized form and it is not uncommon for law enforcement agencies to have the form available in English and Spanish.

Many of the most common constitutional safeguards are not afforded to a person faced with the decision whether to submit to a lawful breath test.

  1. First, the United States Supreme Court ruled it is not necessary for officers to secure a search warrant to obtain a breath test from a DUI arrestee, because the intrusion is of minimum inconvenience and can only reveal limited information, i.e. the amount of alcohol in a subject’s breath. Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
  2. Second, a person arrested for DUI does not have the right to consult with an attorney before deciding whether to submit to the breath test. Kurecka v. State, 67 So. 3d 1052, 1056 (Fla. 4th DCA 2010).
  3. Third, admitting the refusal into evidence does not violate the accused’s rights to due process and against self-incrimination. State v. Pagach, 442 So. 2d 331, 332 (Fla. 2d DCA 1983). In fact, the courts have found Florida’s implied consent statute to bee constitutional even though it allows the admissibility of the refusal to submit to a chemical test without having to advise the defendant that the refusal can be used against him.

Refusal Evidence Admissible Only if the Arrest is Lawful

Although Florida law allows evidence of the refusal at trial to show consciousness of guilt, the arrest must be lawful. Furthermore, the officers must inform defendants of the requirement to submit without giving misleading or confusing advice. The officer may only require defendants to submit to lawfully approved tests. See Florida Dept. Hwy. Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011).

In other words, a person does not violate the implied consent law when they refuse to take a test that is not incidental to a lawful arrest. In Grzelka v. State, 881 So. 2d 633 (Fla. 5th DCA 2004), the court found that failing to advise defendants of at least one adverse consequence of refusing to submit to an authorized test could result in suppression.

In State v. Jahada, 18 Fla. L. Weekly Supp. 647a (Fla. 4th Cir. Ct. June 14, 2011), the court found that suppression of refusal evidence was warranted where the officer specifically told the defendant he had a right to remain silent and as a direct result, the defendant exercised his right to remain silent and the officer did nothing to clear up the confusion.


Additional Resources

DUI School in Pasco County – Find information on the DUI school in Pasco County, FL, located at 7619 Little Road, Suite 350 in New Port Richey, FL. When you appear for the first meeting, bring your DUI citation, criminal report affidavit or police report, any court order, and one form of identification. Level I DUI school is $272.00 and Level II DUI school is $412.00.  You can enroll in DUI school for Pasco County in person or online. If you enroll online at www.aboutpride.org then you will be charged a fee of $7.00.


This article was last updated on Friday, July 17, 2020.

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