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DUI Breath Test "Refusal" in Tampa, Florida

DUI Refusal in Tampa, FL

After an arrest for DUI in Tampa or Hillsborough County, FL, the arresting officer will usually ask you to submit to a breath test on the Intoxilyzer 8000. The Intoxilyzer 8000 is the only type of breathalyzer used in the State of Florida. In some cases, the officer might request a urine or blood test.

Click here to read more about our Recent Case Results in DUI Cases.

If the officer claims that you "refused" to take the breath, blood or urine test, then we have some good and bad news:

  • The Good News - The chances may be better that you can avoid a DUI conviction because it is often more difficult for the prosecutor to win the case when no chemical test result can be used at trial. For the prosecutor, one entire method of proving that you are DUI is unavailable. Instead, the prosecutor must prove beyond all reasonable doubt that your "normal faculties were impaired" due to alcohol intoxication or drug impairment.

  • The Bad News - Your driver's license can be suspended for a longer period administratively just because you "refused" even if you ultimately avoid a DUI conviction. You should always contest the administrative suspension during a formal review hearing. If you are unsuccessful in invalidating the suspension, however, then you will serve a 90-day hard suspension if this is your first DUI with a refusal to submit to chemical testing after an arrest. A second refusal comes with even more serious consequences as discussed below.


Important Factors in DUI Refusal Cases


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Can I win my DUI refusal case?

Many DUI refusal cases are resolved without a conviction, particularly in Tampa, Hillsborough County, FL. In DUI refusal cases it is important to act quickly to preserve all avenues of attacking the case. Contact an experienced DUI attorney that focuses on cases in Tampa, Hillsborough County.

Call an attorney at the Sammis Law Firm to schedule a free, confidential consultation to discuss the particular facts of your case. Important defenses exist in any case involving a refusal to submit to the breathalyzer test, Read more about studies, statistics and stories on fighting the DUI refusal case.

Find out today what you need to protect your privilege to drive and avoid a DUI conviction. Common defenses include:

  • No Cause for Stop or Arrest - If the officer did not have an adequate basis to stop your vehicle then all evidence could be suppressed by the Court. Likewise, if the officer did not have sufficient evidence that you were driving under the influence before making the arrest, then all evidence in the case could be suppressed including the fact that you refused to take the breath test.

  • Implied Consent Warnings - Your DUI attorney may be able to file a "Motion to Exclude the DUI Refusal" evidence if the arresting office did not properly advise you of the implied consent warnings or gave you false or misleading information about the consequences of refusing to take the breathalyzer.

  • No Refusal Occurred - When no refusal actually occurred, you can more to exclude any mention of the alleged refusal and in many cases fight to have the entire DUI charge dismissed. Your attorney may be able to file a "Motion to Exclude the Refusal" if:

    • The driver sat at the breathalyzer and blew into the machine, but the machine indicated that a sufficient sample of 1.1 liters of air was not provided through a "volume not met" flag (this could be a problem with the flow sensor on the instrument);

    • The driver never technically "refused" but the officer treated uncooperative behavior as a refusal;

    • The driver never refused because the failure to take the test was not "willful" if a medical condition prevented the driver from being able to submit to the breath test, or

    • If the driver indicated he wanted to speak with an attorney before taking the test and the officer used that confusion as an indication that the driver had "refused.

  • No Wheel Witness - Motion to Dismiss for Insufficient Evidence when the individual arrested was the driver of the vehicle (especially in car crash cases when the officer arrives at the scene after the driver is out of the vehicle and no other witness saw who was driving the vehicle).

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Ten Day Rule in a Refusal Case

After your DUI arrest, you only have ten (10) days to fight the administrative suspension of your driver's license. Your criminal defense lawyer should file a demand for a formal review hearing which allows your attorney to subpoena all of the witnesses in the case including the officer that performed the stop, the DUI officer, the breath test technician and any other witness involved in the case.

At the formal review hearing, your attorney can cross-examine all of those witnesses to show that the suspension should be reversed allowing to you obtain your driver's license back immediately. The testimony obtained from the hearing can also be used to fight the DUI refusal criminal case in court.


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Consequences of Refusing to Submit to Testing

After a DUI arrest in Tampa, Hillsborough County, FL, if you are asked to submit to the breath, blood or urine test and refuse, the following civil and criminal consequences can occur:

  • The DUI office can take your driver's license, and administratively suspend your driving privilege immediately after the arrest, which requires that you request a "formal review hearing" to fight the administrative suspension; and
  • The prosecutor in the criminal case can attempt to use the refusal to argue that it shows that you refused to submit to the test because you believed that you were guilty of DUI (sometimes called "consciousness of guilt").

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Consequences of the Administrative Suspension of your Driver's License

If you refused to take the breath test you are facing a longer administrative suspension of your driver's license.

  • For the first DUI refusal, your Florida driver’s license could be suspended for 12 months with a 90-day hard suspension.
  • For a second DUI refusal, your Florida driver's license could be suspended for 18 months with an 18-month hard suspension.
  • For a third or subsequent DUI arrest, if you refused the breath test, but none of your prior DUI cases involved a refusal, then you are facing a 12-month suspension with a 12-month hard suspension. If you refused the breath test and one of your prior DUI cases also involved a refusal, then you are facing an 18-month suspension with an 18-month hard suspension.

The "hard" suspension refers to the period of the suspension during which you are not eligible for a hardship or "business purpose only driver's license. During the hard suspension, you can not drive for any reason. If you are caught driving for any reason, you can be charged with the criminal offense of Driving While License Suspended With Knowledge, which is a serious criminal offense.

The best way to avoid the administrative hearing is to win the Formal Review Hearing. If you win the formal review hearing, then the administrative suspension of your driver's license will be "INVALIDATED." The Bureau of Administrative Reviews will then return to you the driver's license that the arresting officer seized.


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Consequences in the Criminal Case

If you are convicted of DUI, the criminal sanctions in a DUI refusal case are the same as the criminal sanctions in a DUI case in which the driver blew over the legal limit. The prosecutor will seek to admit testimony from the arresting officer about the fact that you refused to take the breath or urine test as evidence of your "consciousness of guilt."

Furthermore, if you have previously been found to have refused to submit to a breath or urine test in Florida, then you could be charged with a separate criminal offense, which is the first-degree misdemeanor that is separate and apart from the DUI charge.


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Two Types - Express Refusal and Implied Refusal

Under Florida law, what constitutes a refusal to take a chemical test of your breath, blood or urine? Many cases decided in Florida have found that a refusal can be either an express or an implied refusal. An express refusal includes telling the officer, "No, I will not take the test."

Implied DUI refusals are much more complicated. Implied DUI refusals can occur in any of the following circumstances:

  • If you fail to respond unequivocally to the officer's request that you take the chemical test, the officer may count your lack of response as a "DUI refusal";
  • If you tell the officer that you will only answer the question after exercising your right to speak with an attorney, the officer may count your lack of a response as a "DUI refusal";
  • If you agree to take the breath test, but then the Intoxilyzer 8000 fails to produce a proper reading the officer may consider the failure a refusal to submit to the breath test (although you should be aware that a problem with the breath test machine may be to blame particularly if the flow sensor on the Intoxilyzer 8000 is not working properly).

If your alleged "refusal" occurred under any of these circumstances involving an "implied refusal" it is particularly important to speak to an experienced DUI attorney in Tampa. Your criminal defense attorney may be able to file a motion to exclude any mention of the refusal depending on the particular facts of the case which often goes a long way towards avoiding a DUI conviction.


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Defenses: Lack of Compliance with the Implied Consent Statute

For the refusal to be admissible in the civil or criminal case, the DUI officer must show that he complied with Florida's Implied Consent Statute, Section 316.1932(1)(a)1.a.

The implied consent statute provides that any driver who drives a vehicle in the State of Florida is deemed to have given consent to comply with an "approved" chemical test of his breath, urine or blood after being subject to a lawful arrest for DUI. Click here to read an article about Florida's Implied Consent Warnings in a Tampa DUI Refusal Case.

In fact, your consent is written on your Florida Driver's license that "operation of a motor vehicle constitutes consent to any sobriety test required by law." For most people, the consent is on the front of your Florida driver's license. If your driver's license is an older version, then the consent is written on the back of the Florida's driver's license.

The officer that request the test must have reason to believe that the person either drove or was in actual physical control of a vehicle while under the influence of an alcoholic beverage or controlled substance.

For any DUI arrest in Tampa or Hillsborough County, the DUI officer is trained to ask you if you will take the breath test. If you indicate that you will refuse to take the breath test, then the officer will take you in a side room where a video camera is set up at central booking to record the officer reading you the following implied consent warning required under Florida law:

If you fail to submit to the chemical test of your breath, blood, or urine, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood.

Additionally, if you refuse to submit to the test I have requested of you, and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor (under Florida Statute 319.1939). Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.

Do you still refuse to submit to this test knowing that your driving privilege will be suspended for at least one year and that you will be charged criminally for a subsequent refusal?

If this warning is not given, or if you did not refuse to take the chemical test after being advised of these consequences, then any evidence of the alleged DUI refusal is invalid under Florida law because the alleged refusal is deemed not to have "knowingly" refused to submit.


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"I was so confused!" - The Confusion Doctrine

Everyone knows about the Miranda warnings - "You have the right to an attorney before questioning." But in DUI cases after being advised of this right, often the next question asked of the driver is whether he will submit to a chemical test of his breath, blood or urine.

When the driver announces that he wants to speak with an attorney, the officer typically tells him that the right to speak to an attorney does not apply to his decision to take the breath test.

Obviously, the interaction of the Miranda rights and the Implied Consent warnings seem to contradict each other. This problem is often referred to as the "confusion doctrine."

In many of these cases, your Tampa DUI lawyer can argue that the refusal should not be admissible because the reading of Miranda warnings created confusion as to the obligation to submit to the breath, blood or urine test. In certain cases, the Court's apply the doctrine to exclude (throw out) evidence about the refusal, but only when the driver made his confusion known to the law enforcement officer so that the officer had a chance to clarify the driver's rights.

Even if the Court refuses to exclude evidence of the refusal at trial, this confusion doctrine can be argued to the jury to explain the reason the driver refused to submit to the chemical test. Jurors are often sympathetic to the plight of the driver when confronted with these seemingly contradictory doctrines.

In those cases, the jury could return a verdict of "not guilty" because the jury has a reasonable explanation for the refusal that does not involve the driver's consciousness of guilt. Prosecutors may also be sympathetic to this problem which could contribute to their offer to reduce the charges before trial.

Read more from other DUI attorneys in Tampa discussing recent changes in the law and important defense for the refusal, breath test, blood test or urine test: Tampa DUI Attorney and Tampa DUI Defense Lawyer.


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Reasons Why an Innocent Person Might Refuse

At trial, the prosecutor will argue that the driver's refusal to submit to the chemical test of his blood, breath or urine. However, your Tampa DUI Attorney will argue that the refusal did not occur because of "consciousness of guilt" but because of any number of other reasons.

Some of the reasons a person may refuse to take the chemical test after a DUI arrest even when they believe they are innocent of drunk driving or DUI include:

  1. Believing they have a right to speak with an attorney before submitting to testing;
  2. Confusion when advised of right to attorney under Miranda but no right to attorney before testing;
  3. Concerns about the reliability or accuracy of the breath test machine;
  4. Belief that officer has no right to request a breath, blood or urine test;
  5. Concerns about medical issues that could affect testing; and
  6. Concerns about the cleanliness of the instrument.

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Refusal after a DUI Conviction While Driving a Commercial Motor Vehicle

If the driver of a commercial motor vehicle refuses to take the chemical test of his blood, breath, or urine, he will be disqualified from operating a commercial motor vehicle for twelve (12) months.

A second or subsequent refusal after a conviction for driving a commercial motor vehicle will result in a permanent (lifetime) ineligibility to drive a commercial motor vehicle.

During any period the driver is ineligible for driving a commercial motor vehicle, the driver will not be eligible for any hardship reinstatement.


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Finding a Tampa Attorney for a DUI Refusal Case

Finding the best attorney in Tampa for a DUI refusal case is important. We strive to protect our clients in these unique types of cases. Most DUI attorneys offer free consultations. Take advantage of that option.

Call us to schedule a free phone or office consultation to discuss your case so that you can make an informed decision about how to fight your case to avoid a DUI conviction. Call 813-250-0500 to talk with an attorney today to get advice about fighting to obtain the best result.


This article on refusing the DUI breath test was last updated on Friday, March 17, 2017.