In order to discourage individuals from refusing to submit to a chemical test during a DUI investigation, the Florida legislature created a separate crime for a second refusal. The Florida legislature reasoned that without the legislation, people might be encouraged to refuse a breath test after an arrest in order to avoid a DUI conviction.

As it stands now, Florida Statute Section 316.1939 makes it a separate or independent crime to “refuse to submit” to a chemical test of the driver’s breath, blood or urine after having previously refused to submit. The crime is a first degree misdemeanor offense punishable by up to $1,000 fine and 12 months in the county jail.

Additionally, a second refusal results in an 18 month administrative suspension with no possibility of receiving a hardship reinstatement if the suspension is not invalidated during a formal review hearing (although the driver will still qualify for a temporary hardship permit while awaiting the formal review hearing).

Click here to read more about Florida Statute Section 316.1939 and Criminal Penalties for a Second DUI Refusal

Now the Florida legislature wants to make even a first refusal to submit to the breath, blood or urine test a separate crime. 

On December 28, 2015, Florida State Senator David Simmons filed 2016 Senate Bill 1244 which imposed criminal penalties for a first refusal to submit to a breath, blood or urine test in a DUI case. The penalties are a fine between $500 to $1000, up to six months on probation, and four points on the driver’s license.

The criminal penalties are not classified as either a second degree or first degree misdemeanor but appear to be a hybrid between the two. Also, by using the phrase “by probation for six months” and not mentioning any jail time, it appears that the court cannot impose jail time for a first refusal under the proposed amendment to the statute.

What’s “By Probation for Six Months” Mean?

I searched all the statutes in Florida for that phrase in Westlaw and only this proposed bill showed up for the term “by probation for six months.” Anyone know what impact that phrase will have? Are you still entitled to a jury trial for the offense? Can jail time be imposed if you violate probation?

This legislation is unnecessary because Florida law already imposes serious consequences to a refusal on an administrative basis. And don’t forget that a person can still be convicted of DUI after refusing because other evidence might support the allegation such as the driving pattern, statements of the defendant, performance on field sobriety exercises, and observations of the arresting officer.

Additionally, Florida law allows the prosecutor to argue that the refusal is evidence of “consciousness of guilt.” In other words, the prosecutor gets to argue at trial that the defendant refused to submit to testing even knowing that it would cause a driver’s license suspension because he knew that the test would show he was guilty.

Why Change the Implied Consent Warning?

Secondly, I’m confused about why the person is not being warned that the refusal is a crime. The old warning told the person that a second refusal “is a misdemeanor.” Now the person will just be warned that a first refusal is “subject to penalties.”

If this amendment makes it a crime to refuse the first time why didn’t the bill just make it a second degree misdemeanor? Why create an entirely new category of punishment?

Why not warn the person that a refusal is a crime instead of using the phrase “subject to penalties” which could be misunderstood as administrative penalties and not criminal penalties? Changing the warning is likely to encourage more people to refuse testing and then suffer this increased penalty – especially a person who has never been in trouble before. If the people that drafted the legislation really wanted to discourage refusals, changing the warning is likely to backfire. More innocent people are going to refuse without realizing how serious the penalties are for even a first refusal.

Ignition Interlock Device for 12 Months

For either the first or subsequent refusal, the proposed amendment to the statute requires the court to impose a requirement that the driver install an Ignition Interlock Device, at their expense, for 12 months.

No Withhold of Adjudication

The statute also prohibits the court from suspending, deferring, or withholding adjudication of guilt or the imposition of a sentence or penalty.

So the legislature wants to take away these important sentencing options from the judge for what reason?

Read the statutory language below:

       Florida Senate - 2016                                    SB 1244
       


       By Senator Simmons

       10-00909-16                                           20161244__
    1                        A bill to be entitled
    2         An act relating to driving under the influence;
    3         amending s. 316.1939, F.S.; providing penalties for a
    4         first-time refusal of a chemical or physical test of a
    5         person’s breath, blood, or urine; providing that a
    6         subsequent refusal by a person who has previously had
    7         a license suspension for a prior refusal is a
    8         misdemeanor of the first degree; requiring the court
    9         to impose certain mandatory ignition interlock devices
   10         on the vehicles of convicted persons for a specified
   11         time under certain circumstances; prohibiting a court
   12         from suspending, deferring, or withholding
   13         adjudication of guilt or the imposition of a sentence
   14         or penalty for specified offenses; providing an
   15         effective date.
   16
   17  Be It Enacted by the Legislature of the State of Florida:
   18
   19         Section 1. Section 316.1939, Florida Statutes, is amended
   20  to read:
   21         316.1939 Refusal to submit to testing; penalties.—
   22         (1) Any person who has refused to submit to a chemical or
   23  physical test of his or her breath, blood, or urine, as
   24  described in s. 316.1932, and whose driving privilege was
   25  previously suspended for a prior refusal to submit to a lawful
   26  test of his or her breath, urine, or blood, and:
   27         (a) Who the arresting law enforcement officer had probable
   28  cause to believe was driving or in actual physical control of a
   29  motor vehicle in this state while under the influence of
   30  alcoholic beverages, chemical substances, or controlled
   31  substances;
   32         (b) Who was placed under lawful arrest for a violation of
   33  s. 316.193 unless such test was requested pursuant to s.
   34  316.1932(1)(c);
   35         (c) Who was informed that, if he or she refused to submit
   36  to such test, his or her privilege to operate a motor vehicle
   37  would be suspended for a period of 1 year or, in the case of a
   38  second or subsequent refusal, for a period of 18 months;
   39         (d) Who was informed that a refusal to submit to a lawful
   40  test of his or her breath, urine, or blood, if his or her
   41  driving privilege has been previously suspended for a prior
   42  refusal to submit to a lawful test of his or her breath, urine,
   43  or blood, is subject to penalties a misdemeanor; and
   44         (e) Who, after having been so informed, refused to submit
   45  to any such test when requested to do so by a law enforcement
   46  officer or correctional officer shall be punished:
   47         1. By a fine of at least $500 but not more than $1,000;
   48         2. By probation for 6 months; and
   49         3. By having 4 points assessed against his or her driver
   50  license.
   51         (2)(a) A person who has refused to submit to a chemical or
   52  physical test of his or her breath, blood, or urine, as
   53  described in s. 316.1932, and whose driving privilege was
   54  previously suspended for a prior refusal to submit to a lawful
   55  test of his or her breath, urine, or blood, commits a
   56  misdemeanor of the first degree and is subject to punishment as
   57  provided in s. 775.082 or s. 775.083.
   58         (b) The court shall impose mandatory placement, for a
   59  period of at least 1 year at the convicted person’s sole
   60  expense, of an ignition interlock device approved by the
   61  department in accordance with s. 316.1938 upon all vehicles that
   62  are individually or jointly leased or owned and routinely
   63  operated by the convicted person, when the convicted person
   64  qualifies for a permanent or restricted license.
   65         (c) A court may not suspend, defer, or withhold
   66  adjudication of guilt or the imposition of a sentence or penalty
   67  for an offense under paragraph (a).
   68         (3)(2) The disposition of any administrative proceeding
   69  that relates to the suspension of a person’s driving privilege
   70  does not affect an offense a criminal action under this section.
   71         (4)(3) The disposition of an offense a criminal action
   72  under this section does not affect any administrative proceeding
   73  that relates to the suspension of a person’s driving privilege.
   74  The department’s records showing that a person’s license has
   75  been previously suspended for a prior refusal to submit to a
   76  lawful test of his or her breath, urine, or blood shall be
   77  admissible and shall create a rebuttable presumption of such
   78  suspension.
   79         Section 2. This act shall take effect October 1, 2016.

Additional Resources

Read SB 1244: Driving Under the Influence First Refusal – Visit the website of the Florida Senate to find the language for Senate Bill 1244: Driving under the Influence. The general bill was effective 10/1/16. The lat action was taken on 1/21/2016 Senate – On Committee agenda— Judiciary, 1/26/16: 1:00 p.m., 110 Senate Office Building. The related bill is Florida 2016 House Bill: Driving Under the Influence. The last action on Florida H 0555 was on 1/12/2016 H Introduced – HJ 48, Location: In committee / council (HWSS).

This article on Senate Bill 1244 to increase the penalties for a first DUI refusal to submit was last updated on Friday, January 23, 2016.