DUI Refusal in Tampa
After an arrest for DUI in Tampa or Hillsborough County, FL, the arresting officer will ask you to submit to a breath test and/or a urine test. Depending on the circumstances, the arresting officer might ask you to submit to a blood test.
As a practical matter, you can’t be physically forced to take the test. Although you are legally allowed to refuse, if the officer reads you an implied consent warning and you continue to refuse, then that decision comes with consequences including;
- an “on-the-spot” administrative suspension imposed by the DHSMV (which can only be contested by demanding a formal review hearing;
- the refusal can be used against you at trial.
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 –
- If you didn’t take the breath, blood, or urine test, then the prosecutor doesn’t have direct evidence that you had a specific concentration of drugs or alcohol in your system.
- The prosecutor won’t be able to allege that you drove with an unlawful blood alcohol level (DUBAL) over .08. For the prosecutor, that means 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 might be suspended for a longer period administratively just because you “refused,” even if you ultimately avoid a DUI conviction.
- You have ten (10) days after the arrest to contest the administrative suspension by demanding 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.
Special options might be available if this is your first DUI arrest. For anyone arrested for a DUI refusal after March 1, 2018, a new diversion program called RIDR in Hillsborough County might help you avoid a DUI conviction.
RIDR allows you to avoid a conviction in a DUI refusal case if you are willing to complete Level II RIRD enhanced sanctions.
Attorney for a DUI Refusal in Tampa, Hillsborough County, FL
If you were accused of DUI after refusing to submit to a chemical test of your breath, blood or urine, then contact an experienced DUI defense attorney in Tampa, FL, at the Sammis Law Firm.
Our offices are conveniently located in downtown Tampa, FL, just a few blocks from the courthouse. Set up an office visit with one of the four attorneys in the office.
During the initial consultation, we can discuss the charges pending against you, the typical penalties imposed after a conviction, and the best ways to avoid those penalties by aggressively fighting the charges.
Call 813-250-0500 today.
Recent Statistics on DUI Refusals in Florida
According to an email from Jennifer Langston, Chief of Staff, DHSMV, FW: SB 296 – Breath Test Refusal Rate, (February 6, 2023), recent statistics on the rates of refusals in DUI cases in Florida shows:
|*2022 is preliminary
Important Factors in DUI Refusal Cases
- Can I win my DUI refusal case?
- Ten Day Rule in a Refusal Case
- Consequences of Refusing to Submit to Testing
- Consequences of the Administrative Suspension of Your Driver’s License
- Consequences in the Criminal Case
- Two Types – The Express Refusal or the Implied Refusal
- Defenses: Lack of Compliance with the Implied Consent Statute
- “I was so confused!” – The Confusion Doctrine in DUI Refusal Cases
- Reasons Why an Innocent Person Refuses
- Refusing after a DUI Conviction While Driving a Commercial Motor Vehicle
- Finding a Tampa Attorney for a DUI Refusal Case
Can I win my DUI refusal case?
Many DUI refusal cases are resolved without a conviction, particularly in Tampa, Hillsborough County, FL. In a refusal case, the most 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 officer 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 move 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).
- Recanting the Refusal – Can you revoke your refusal? In some cases, your attorney can argue that you revoked your refusal to submit to a breath test if there is a short interval between the initial refusal and the recantation of that refusal. See Larmer v. State, Dep’t. of Highway Safety and Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988). However, the recantation must be clear. See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994) (finding that suspension was valid where petitioner was uncooperative and never gave a yes or no answer when asked to take the breath test).
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.
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 officer 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”).
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 not return to you the driver’s license that the arresting officer seized, but you can pay $25 for a duplicate driver’s license after the suspension is invalidated.
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.
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 the 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.
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 driver’s license.
The officer that requests 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.
“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 might 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.
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:
- Believing they have a right to speak with an attorney before submitting to testing;
- Confusion when advised of the right to an attorney under Miranda but no right to an attorney before testing;
- Concerns about the reliability or accuracy of the breath test machine;
- A belief that the officer has no right to request a breath, blood or urine test;
- Concerns about medical issues that could affect testing; and
- Concerns about the cleanliness of the instrument.
When cross-examining the arresting officer, the criminal defense attorney can often make the point that an innocent person is the most likely type of person to refuse the test.
The request for a breath test always occurs AFTER the person has been arrested. The request usually occurs after the person has also been transported to jail. Even if the person blows under the legal limit, they are not going to be un-arrested or released from custody.
When the person is in the breath test room, they are already in jail. In Hillsborough County, the central breath testing unit is located at the Orient Road Jail. After the DUI arrest, nothing they say in the breath test room would help them get released from custody. No matter what, they were staying in custody – at least for that night.
Even if they blew under the legal limit, they were still going to be charged with DUI on their way out of jail. Most importantly, after the arrest, the person is given a DUI citation that acts as a temporary permit to drive on a hardship basis.
So even a person who exercises their option to refuse is allowed to continue to drive and then challenge the suspension at a DHSMV hearing.
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.
HCSO Standard Operating Procedures for DUI Refusal Cases
According to the Standard Operating Procedures of the Hillsborough County Sheriff’s Office found in DTN 917.06, many standards apply when the detainee is accused of refusing to submit to breath testing. For example, the HCSO standard operating procedures provide:
The following actions by a DUI detainee will constitute a refusal to submit to breath testing.
a. Verbally refuses any or all tests.
b. Refuses to say “yes” or “no” to the request to take the breath test.
c. Agrees to take a breath test but then does not blow any air into the testing instrument or fails to provide an adequate sample for analysis.
d. Fails to give two breath samples within 15 minutes for analysis.
e. Becomes combative.
The HCSO standard operating procedures also require that during the video recording, the arresting officer will inform the detainee that refuses to submit to breath testing will result in a suspension of driving privileges for a period of one year for the first refusal or 18 months if the license has previously been suspended for test refusal.
Should the DUI detainee still refuse to submit to breath testing:
a. The arresting/transporting officer will complete a refusal to submit to breath testing form, HSMV 72054, in duplicate.
b. The refusal to submit the form will be notarized by a detention deputy or law enforcement officer.
c. The Central Breath Testing Unit (CBTU) breath test technician will complete the refusal affidavit, form 5224, and present it to the arresting officer for signature.
Should a DUI detainee refuse to submit to breath testing, at a remote testing facility, HCSO takes the position that the officer should not provide any additional opportunity to comply at CBTU once the refusal to submit to test forms has been completed and notarized.
That position goes against Florida Law that requires the officer to allow a person to take a breath test if they recant their refusal within a reasonable time.
Recanting the Refusal – I Refuse, But Then I Changed My Mind
If the defendant refuses to take the breath test after a DUI arrest, but then changes his or her mind, does the subsequent consent to take the test cures the first refusal? The answer is yes, but only if the following conditions are shown:
- the request is made within a reasonable time after the refusal;
- the test administered at that time would still be accurate;
- testing equipment or facilities are still readily available;
- no substantial inconvenience or expense to the police; and
- the defendant has been in custody and under continuous observation.
Larmer v. Dept of Highway Safety and Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988). In DHSMV v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994), the court found that the recantation was conditional and equivocal so it didn’t qualify as a “recantation” under Larmer.
Finding a Tampa Lawyer for a DUI Refusal Case
Finding the best attorney in Tampa for your DUI refusal case is important. Most of the top DUI defense attorneys in Tampa, FL, offer a free consultation.
Take advantage of that option to sit down and meet with several attorneys. When you go to their office, meet their staff. Look at the diplomas on their wall.
If you would like to meet with an attorney at Sammis Law Firm, 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.
If you refuse to submit to a breath test, the fact that you refused might be admissible as evidence against you at trial. We strive to protect our clients in these unique types of cases. Our attorneys also fight charges for a second refusal to submit to DUI testing under Florida Statute § 316.1939.
Contact us to talk with an attorney today to get advice about the best ways to fight for the best result. Our main office is in downtown Tampa in Hillsborough County, FL.
Our attorneys also fight impaired driving charges in New Port Richey in Pasco County, FL. Our second office is located at 7509 Little Road across from the courthouse at the West Pasco Judicial Center.
Submit this form to request a free and confidential consultation with one of our attorneys.