Refusal to Submit
If you were arrested for refusing to submit to a breath, blood, or urine test in Hillsborough County, FL, contact an experienced criminal defense attorney at Sammis Law Firm.
With offices in downtown Tampa, the five attorneys at Sammis Law Firm focus on DUI defense.
In many Driving Under the Influence (“DUI”) cases in Florida, the primary evidence used by the prosecutor to prove the offense is a chemical test that indicates the driver’s breath or blood alcohol content was over the legal limit of .08.
So what happens if you refuse to a chemical test?
What’s the Good News?
The good news is that when the driver refuses to take the breath, blood, or urine test, the prosecutor lacks that important evidence.
In fact, the prosecutor cannot even allege one alternative way of proving DUI called DUBAL. The term DUBAL stands for “Driving with an Unlawful Blood / Breath Alcohol Level” (sometimes called “per se” DUI).
Instead, the prosecutor must prove your “normal faculties” were impaired. If you refused the breath, blood, or urine test, you will be charged with DUI under the theory that alcoholic beverages (or chemical or controlled substance) impaired your normal faculties.
For a first offense, a DUI refusal means you are eligible for the Level II RIDR program in Hillsborough County. If you successfully complete the program, your DUI charge will be reduced to reckless driving, and the court will withhold adjudication. The withhold of adjudication means you are not “convicted,” no points are assessed on your driving record, and your insurance premiums are unlikely to increase.
Most importantly, withholding adjudication on a reckless driving charge means that if you have no prior criminal conviction, you would be eligible to petition the court to seal the criminal history record.
What’s the Bad News?
The bad news with a refusal is that the prosecutor can argue to the jury that you refused because you thought you were guilty. This argument is called the “consciousness of guilt” argument.
In other words, the prosecutor will argue, “You refused to submit to the breath test because you thought you were over the legal limit and guilty of DUI.”
The Reasons an Innocent Person Might Refuse
Your criminal defense attorney can explain all the other reasons you refused. The jury often understands that the refusal occurred for another reason, not because you thought you were guilty.
People who are not impaired often have the most questions about why they should submit to a test they don’t understand. In fact, an innocent person who believes they have been wrongfully arrested in the first place might be the most likely type of person to refuse the test.
Also, the arresting officer might have encouraged you to refuse. If the arresting officer thought you would blow under the legal limit, the officer might have subtly suggested that you not take the test. In fact, some officers have “refusal rates” that are much higher than others.
The Mysterious Intoxilyzer 8000 in Florida
The breath tests have been excluded in several counties in Florida because the prosecutors cannot turn over the “source code” of the machine, called the Intoxilyzer 8000.
Many people “refuse” to take the breath test because they know the machines are inaccurate. If you knew that courts were throwing out the results across the State of Florida would you risk your good name and a possible criminal record by taking a test that you believed might lead to an inaccurate reading?
Harsher Administrative Penalties for a Refusal
In refusal cases, Florida DUI laws attempt to compensate for this lost evidence by making harsher penalties for individuals that decline to take a chemical test, including an increased administrative suspension of your driver’s license by the Florida Department of Highway Safety and Motor Vehicles (DHSMV).
If you have been charged with DUI and refused to take a chemical test, it is essential to fight that administrative suspension. You only have 10 DAYS to file a demand for a formal review hearing.
There is no downside to fighting the administrative suspension for a second DUI arrest or conviction. If your driver’s license was valid when you were arrested, your attorney can help you obtain a 42-day driving permit while your attorney fights the suspension. If you win the hearing, you will get your driver’s license and full driving privileges back while you fight the DUI case.
You will automatically win the hearing if the arresting officer or breath test operator fails to appear at the administrative hearing.
Many other technical issues are raised at the hearing. Mistakes by law enforcement officers can and will result in those administrative suspensions being invalidated when the proper objections are raised at the hearing.
Fighting a DUI Refusal in Tampa, FL
Contact the Sammis Law Firm to discuss your DUI Refusal Case. Call 813-250-0500 or visit our main website to learn more about hiring a Tampa DUI Lawyer to fight your alleged “refusal” case.
For a first DUI in Hillsborough County, you might be eligible for a DUI diversion program like RIDR. Even if you are not eligible for RIDR, you can still fight to get the DUI reduced to reckless driving.
In many of these refusal cases, presenting an aggressive defense might cause the prosecutor to offer a plea to a reduced charge of reckless driving. When the DUI is reduced to reckless driving, the charge is subject to much lower penalties, including no court-ordered suspension of your driver’s license.
Additionally, a reduced charge of reckless driving, especially if adjudication is withheld, may lead to substantially lower automobile insurance rates saving the driver thousands of dollars over the next three years.
If you were arrested for driving under the influence (“DUI”) after refusing to submit to a breath test, contact an experienced DUI attorney to discuss your case.
Find out more about DUI refusal cases in Hillsborough County, Polk County, Pinellas County, Manatee County, Sarasota County, and Pasco County at our main website.
Refusal to Submit to DUI Testing – 316.1939
316.1939 Refusal to submit to testing; penalties.–
(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.
(2) 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.
(3) 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. 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.
Florida’s DUI Refusal Statute – Visit the official website of the Florida legislature to read Florida Statute Section 316.1932 regarding implied consent for tests for alcohol, chemical substances, or controlled substances and the consequences of refusing to submit to testing. Find links to other statutes under Title XXIII for motor vehicles under Chapter 316 for the state’s uniform traffic control statutes, including Florida Statute Section 316.1939. That provision explains the penalties for a second refusal to submit when the driving record shows a prior administrative suspension for refusing chemical testing.
Finding a DUI Refusal Lawyer in Hillsborough County, FL
If you have been charged with DUI after allegedly refusing to take a chemical test of your breath, blood, or urine, contact an experienced DUI defense attorney at the Sammis Law Firm.
Our main office is conveniently located near the courthouse in downtown Tampa, FL. We have additional offices in New Port Richey, across from the West Pasco Judicial Center and in Clearwater near the Criminal Justice Center (CJC) courthouse.
During the confidential consultation, we can discuss your case and the best way to fight the charges against you to avoid a DUI conviction.
We can help you file a demand for a formal review hearing to fight the administrative suspension of your driver’s license. We can also help you fight criminal charges in court.
Call 813-250-0500 to speak with Leslie Sammis or Jason Sammis, the partners in the firm.
This article was last updated on Friday, March 16, 2023.