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Second Refusal

Second DUI Refusal

If you refused to submit to a breath test and your driving record shows a prior administratively suspension for refusing a chemical test, then you can be charged with the crime of "Refusal to Submit to Testing" under Florida Statute § 316.1939.

The charge for the second DUI refusal is separate and distinct from the charge of DUI. In other words, you will be charged with two different criminal offenses. The second refusal under Florida Statute § 316.1939 is a first-degree misdemeanor punishable by a $1,000 fine and up to 12 months in jail.

When the Florida legislature created Florida Statute § 316.1939, it did so to discourage people from refusing the breath, blood or urine test after a DUI arrest.

Because a DUI refusal case is typically more difficult to prove then a DUI case with a chemical test, the Florida Legislature created Florida Statute § 316.1939 to help prevent people from avoiding a DUI conviction over and over again by simply refusing to submit to a chemical test of their blood, breath or urine.

Attorneys for a Second DUI Refusal in Tampa, FL

After an arrest for a DUI with an additional charge of refusing to submit to testing under Florida Statute § 316.1939, contact an experienced criminal defense attorney at the Sammis Law Firm.

With offices in Tampa and New Port Richey, FL, we represent clients on drunk driving charges throughout the greater Tampa Bay area.

In Hillsborough County, these cases are prosecuted at the courthouse in Tampa or Plant City, FL. Most of the arrests are made by the Tampa Police Department, the Hillsborough County Sheriff's Office or the Florida Highway Patrol.


A Second Refusal Doesn't Require a Prior DUI Conviction

You can be charged with the crime of "Refusal to Submit to Testing" under Florida Statute § 316.1939, even if you were NOT convicted of DUI after the first arrest.

The second refusal is tied to the administrative finding that you refused, not a criminal conviction for the prior DUI charge in court. In fact, in many of these cases, the prosecutor dropped the prior DUI case to reckless driving or had to drop the charges entirely.

For this reason, it is important to challenge the administrative suspension by demanding the formal review hearing. If your attorney was successful in getting the first refusal invalidated during a formal review hearing, then you can't be charged with a second refusal under Florida Statute § 316.1939 (regardless of how the prior DUI case was resolved in court).


Elements for a Second Refusal under § 316.1939

If you are charged with a second refusal under § 316.1939, the prosecutor with the State Attorney's Office must prove the following elements beyond all reasonable doubt:

  • A law enforcement officer had probable cause to believe the defendant drove or was in actual physical control of a motor vehicle in the State of Florida while either:
    • under the influence of an alcoholic beverage or a chemical substance listed in 877.111 Fla. Stat., or a controlled substance listed in Chapter 893) to the extent the defendant's normal faculties were impaired; or
    • his or her breath or blood alcohol level was over the legal limit of .08;
  • The law enforcement officer arrested (defendant) for Driving under the Influence;
  • The law enforcement officer requested a chemical test of the breath, blood or urine;
  • The defendant was informed that if he or she refused to submit to a chemical or physical test of his or her breath, blood or urine that 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;
  • The defendant was informed that it is a misdemeanor to refuse to submit to a lawful test of his breath, blood, or urine if his or her driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his or her breath, blood or urine;
  • The defendant, after being so informed, refused to submit to a chemical test of his or her breath, blood, or urine test when requested to do so by a law enforcement officer or a correctional officer; and
  • The Defendant's driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his or her breath, blood or urine.

Keep in mind that Florida Statute § 316.1939 specifically provides:

The disposition of any administrative proceeding that relates to the suspension of a person's driving privilege does not affect a criminal action under this section.

The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person's driving privilege.


Standard Jury Instructions for the Second Refusal to Submit to Testing

In 2007, the Florida Supreme Court adopted standard jury instructions at 28.13 for the Refusal to Submit to Testing as provided in 965 So. 2d 811. The standard jury instructions at 28.13 provide a legal inference. That inference provides:"the defendant's driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his or her breath, blood or urine if a record from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) shows such a suspension."

"the defendant's driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his or her breath, blood or urine if a record from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) shows such a suspension."

The inference is based off the language in the statute that provides:

The department's records showing that a person's license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.


Definitions under Florida's Second Refusal Statute in § 316.1939

Under Florida law, a "motor vehicle” is defined as:

"any self-propelled vehicle not operated upon rails or guide-way, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped."

The term “probable cause” is defined as:

"where the totality of circumstances, from the perspective of the law enforcement officer's knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed."


Locating a Lawyer for a Second DUI Refusal in Hillsborough County, FL

If you are concerned about the consequences of a second DUI refusal, then contact an attorney experienced fighting case charged under Florida Statute § 316.1939.

The DUI defense attorney in Tampa, FL, at Sammis Law Firm, P.A., fight drunk driving cases throughout Hillsborough County at the courthouse in Tampa and Plant City, FL.

Contact us at 813-250-0500 for a free consultation.


This article was last updated on Friday, August 17, 2018.