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Refusal to Submit to DUI Testing

Refusal of blood-alcohol test

When a law enforcement officer stops a vehicle and suspects the driver is under the influence of alcohol or controlled substances, the officer can request that the driver take a chemical test. Often the chemical test for suspected DUI is a breath test, but it can also include a blood or urine sample. What some drivers may not be aware of is that Florida is an implied consent state. That means that while drivers have the right to refuse to take a DUI test, there can be both criminal and civil penalties for doing so. This is known as the refusal to submit to a chemical test after a DUI arrest.

Any person suspected of drunk driving should hire legal representation. Convictions for DUI in Florida have a long list of penalties that can range in severity. By refusing to take a DUI test you can face additional penalties, including an automatic license suspension for at least one year. A defense attorney experienced in DUI and DUI test refusal cases can help explain your rights and how to proceed forward with the legal procedures.

Tallahassee Refusal to Submit to DUI Testing Attorney

The team of dedicated Florida Panhandle criminal defense attorneys at Pumphrey Law can help if you have refused a chemical test after a DUI arrest. You may feel like you do not have any options, but the attorneys at Pumphrey Law will work to ensure your rights are protected during this difficult time.

Our office is located in Tallahassee, but our firm represents clients throughout Leon County and the surrounding areas of North Florida’s Big Bend region, including Crawfordville in Wakulla County, Quincy in Gadsden County, Monticello in Jefferson County and Bristol in Liberty County. Contact our office today at (850) 681-7777 to schedule a free case evaluation.

Information About DUI Chemical Tests in Florida

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Types of DUI Testing for Suspected Drunk Driving

When a person is suspected of DUI, a police officer has the right under Florida Statute Section 316.1932 to request that person submit to an approved chemical or physical test, so long as the test is incidental to a lawful arrest and is administered by a law enforcement officer with reasonable cause to believe the person was under the influence of alcohol.

The three types of DUI testing include breath, urine, and blood tests.

  1. Breath tests The state approved method for evidentiary breath testing is infrared light absorption, otherwise known as The Intoxilyzer 8000. A DUI suspect whose breathalyzer result is .08 or higher can be arrested for DUI.
  2. Urine tests If a DUI suspect has a breath sample result under .08, the police officers may request a urine sample. A urine sample must be incidental to a lawful arrest and administered at a detention facility.
  3. Blood tests A DUI suspect may be requested to submit a blood test in any of the following scenarios:
    1. If the breath or urine test is impractical or impossible;
    2. If there is probable cause that the suspect caused serious bodily harm or death to another person; or
    3. If the DUI suspect voluntarily consents to blood testing.

The Florida Department of Law Enforcement (FDLE)’s Alcohol Testing Program aims to enhance public safety by ensuring accurate and scientifically reliable blood and breath alcohol tests, along with facilitating Florida’s implied consent law. The testing program is responsible for:

  • The regulation of the operation;
  • Inspection and registration of breath test instruments;
  • The regulation of the individuals who operate and inspect breath test; and
  • The regulation of blood analysts who conduct blood alcohol testing.

It’s important for Florida drivers to be aware of the types of DUI evaluations a police officer may request, along with the consequences that can come with refusing to submit to DUI testing.

Implied Consent Warning in Florida for Refusal Cases

Florida is an implied consent state, which means any time a driver gets behind the wheel in the Sunshine State, it is implied that he or she gives consent to a test if stopped for a DUI.

Florida’s Implied Consent Law is codified under Florida Statute Section 316.1932 to explain that any person who accepts the privilege of driving within the state is deemed to have given their consent to submit an approved chemical or physical test for suspected DUI.

When an officer makes an arrest for suspected DUI, he or she will ask the suspect to submit to a chemical test of breath, blood, or urine. In most misdemeanor DUI cases, an officer who suspects alcohol impairment may ask the suspect to submit to a breath test on the Intoxilyzer 8000.

If the DUI suspect submits to a breath test and it reads less than 0.08 (the legal limit), the officer may be permitted to request a urine test in certain conditions. DUI cases involving a vehicle crash or where the suspect is taken to the hospital and makes a breath test impossible, the arresting officer may be able to request a blood test.

Important: Under any of these circumstances, the arresting officer is required to read the suspect his “Implied Consent” warnings. If the suspect refuses to submit to any form of DUI testing, then the officer can arrest the suspect for “DUI Refusal BAC.”

If the officer alleges that the subject refused to submit to the chemical test of his breath, urine or blood, the officer must also be able to prove this refusal occurred after they have read the DUI suspect Florida’s Implied Consent Warnings, under Florida Statute Section 316.1932(1)(a).

Florida’s implied consent warnings advise the DUI suspect of the potential consequences to their driving privileges if they refuse testing. The implied consent warnings, by their very nature, are considered to be coercive. Contact a defense attorney with Pumphrey Law if you are being accused of a DUI offense in Leon County.

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What Happens After a Chemical Test Refusal?

The benefit of refusing to submit to a chemical test is that the prosecutor cannot use the most persuasive piece of evidence against the driver, which would be a breath test reading over the legal limit of 0.08 or a blood or urine test that shows the presence of any controlled substances.

Instead, the prosecutor with the State Attorney’s Office would have to rely totally on the officer’s subjective observations of the driver’s performance on field sobriety exercises. In refusal cases it is particularly important to question the officer about every observation made, no matter how trivial. A defense lawyer can challenge the methods used in the field sobriety exercises or whether any underlying medical issues may have caused the DUI suspect to not successfully pass.

Oftentimes the evidence is contradicted by videotape evidence showing the driver’s actual performance. When no video was taken, the subjective observations are not always enough for the prosecutor to prove the case to a jury beyond all reasonable doubt.

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What Counts as a “Refusal to Submit” in a DUI Case?

In most cases, the officer simply asks the suspect to take the breath, blood or urine test and the suspect says, “No.” However, Florida law may permit the case to be prosecuted as a refusal under other circumstances as well.

For example, the officer may allege that a refusal occurred if the suspect agrees to take the breath test but then is unable to provide two sufficient sample of breath during the time permitted, often called a “machine refusal.” If the suspect blows into the machine once but then refuses to provide a second sample, an officer can also allege that it was a refusal. The officer may also allege a refusal occurred if the subject provided two samples that are not in 0.02 agreement, but then refused to provide a third sample.

The arresting officer also may allege a refusal if the suspect does not answer either “yes” or “no” after the officer asks them to submit to a chemical test. However, the officer must usually ask the question until he or she gets a clear answer. If a driver becomes abusive or argumentative, it could be argued as a refusal.

A DUI suspect who is incapable of refusing by reason of unconsciousness or any mental or physical condition will be deemed to not have withdrawn their consent to testing. A blood test can be administered in these cases, whether such unconscious person is told that their failure to submit to testing will result in losing their driving privileges.

You should be aware of the important defense that exists for when an insufficient sample constitutes a “refusal,” which can arise due to certain Intoxilyzer 8000 machines having issues with the flow sensor or other equipment that makes providing a sufficient sample difficult. Faulty results can be a flag that the sample is not accurate or reliable. An attorney can request to review and analyze results from the other suspects who took the test on the same machine, either before or after, for clues about issues with the device.

Each law enforcement agency throughout Leon County and the rest of Florida has its own procedures and policies for administering the breath test or determining when a blood or urine test might be appropriate. It is important to consult a criminal defense lawyer in Tallahassee who has experience dealing with local law enforcement agencies and understands the procedures.

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Proving A DUI Test Refusal

The Florida Criminal Jury Instructions provide that the State must prove all the following elements to convict a defendant of a DUI test refusal:

  • The officer had probable cause to believe the defendant drove or was in actual physical control of a motor vehicle while under the influence of drugs or alcohol that caused a BAL of .08 or higher, or their normal faculties to be impaired;
  • The officer lawfully arrested the defendant for driving under the influence (DUI);
  • The officer requested the defendant to take a breath, blood or urine test and advised the subject of the implied consent law, informing them that refusing to do so would result in their driving privileges being suspended;
  • The officer informed the defendant that it is a first-degree misdemeanor to refuse a chemical test a second or subsequent time, or if they’ve had their driving privileges suspended in the past;
  • After being so informed of all the potential consequences, the defendant still refused to submit to a chemical or physical test of their breath, blood, or urine when requested by the law enforcement officer; and/or
  • (If applicable) The refusal counted as a second or subsequent refusal because the defendant had previously had their driver’s license suspended administratively for refusing to submit.

The prosecutor can use a defendant’s driving record from the Florida Department of Highway Safety and Motor Vehicles (FLHSMV) to prove a prior refusal. However, if the officer did not follow the proper procedure for lawful DUI testing, a skilled criminal defense lawyer in Tallahassee could work to have your charges reduced or dropped.

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Penalties for Refusing a Chemical Test

Florida law gives residents and out-of-state drivers the right to refuse a chemical test. However, there are consequences for doing so. Any person who refuses DUI testing will automatically have his or her driver’s license suspended by FLHSMV. The suspension period is based on whether it is the defendant’s first, second, or subsequent DUI test refusal:

  • First DUI test refusal = Driver’s license suspension for one year; and
  • Second or subsequent DUI test refusal = Driver’s license suspension for 18 months.

In addition to losing driving privileges, refusing DUI testing for a second or subsequent time is considered a crime. Under Florida Statute Section 316.1939, a prosecutor can charge the driver suspected of DUI with a first-degree misdemeanor for a second or subsequent refusal. If convicted, the defendant can face the following penalties:

  • Up to a $1,000 fine; and
  • Up to one year in jail.

Keep in mind that your refusal to submit to any DUI testing is considered admissible as evidence for the DUI proceedings. To review the laws and penalties surrounding each level of DUI, refer to our informative page here.

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Consequences of DUI Refusal for Commercial Drivers

If the driver of a commercial vehicle is convicted of refusing DUI chemical testing after a commercial motor vehicle (CMV) DUI, they can be disqualified from driving a commercial motor vehicle for a period of one year. During that time, no hardship license is available. After the full year of suspension, the individual must pay a fee to reinstate their commercial driver’s license.

If the commercial driver was transporting hazardous materials when convicted, then a three-year disqualification period will be imposed. If the driver has refused to DUI testing for a second or subsequent time, then their CMV license will be disqualified permanently.

Contact the lawyers at Pumphrey Law Firm if you are a CMV driver being accused of a DUI offense in Florida.

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Finding A Refusal to Submit to Lawyer in Tallahassee

Criminal cases for suspected drunk driving require extensive knowledge and expertise from a defense attorney. Florida is known to impose tough sanctions for those who are convicted of DUI offenses. By refusing a DUI test, you are accepting the automatic penalties required of Florida’s Implied Consent laws. If this is the current situation you are facing, consider hiring legal counsel. A defense lawyer can establish any defenses that may exist in the DUI refusal case, which can make it difficult for the State Attorney’s Office in the Second Judicial Circuit to successfully secure a conviction.

After the arresting officer alleges you have refused to submit to a DUI chemical test, seek the services of a knowledgeable Tallahassee DUI attorney. The experienced lawyers at Pumphrey Law Firm can fight for you and the best outcome for the DUI case. Our team represents those in Leon County and the surrounding areas of North Florida. Your rights are important, and the team of attorneys at Pumphrey Law will ensure to protect them. Call our office today at (850) 681-7777 for a free legal consultation.


Page Updated March 19, 2024

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