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Many of those arrested for DUI in Florida refuse to take the breath test.  Unlike many states Florida does not allow the results of a Preliminary Breath Test (PBT) to be used in evidence against a driver charged with DUI.  In fact, Florida law requires that a chemical test may only be requested after a lawful arrest.  The most common test requested is a breath test.  In fact, it is the only test Florida law allows in most circumstances.

Breath Testing

An officer can request a breath test when they have reasonable cause (equivalent to probable cause according to the case law) to believe the arrestee was driving or was in actual physical control of the motor vehicle while under the influence of alcoholic beverages.

Urine Testing

An officer can request a urine test only when they have reasonable cause to believe such person was driving or was in actual physical control of a motor vehicle within this state while under the influence of chemical substances or controlled substances.

Blood Testing

An officer can require a blood test over the objection of the driver and may use reasonable force if necessary to complete the driver to submit to the blood test if the officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being

An officer can request a blood test if they have reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.

35% DUI Refusal rate in Florida

Driver’s asked to take a test often refuse to do so.  In Florida, almost 35% of those arrested for DUI Refuse to take the test requested, resulting in the arresting officer reading a standardized warning known as implied consent.

The implied consent warning notifies you that your license will be suspended for a certain period of time depending on if you have previously refused.  For a first-time refusal to take a breath test there is a 12-month suspension.  If you have previously refused testing the suspension is 18 months.

Immediate Consequences of DUI Refusal in Florida

If you refuse to take the test requested, the requesting officer will immediately suspend your driving privilege on behalf of the Florida Department of Highway Safety and Motor Vehicles. (FLHSMV or DMV).  This administrative suspension begins with the officer confiscating your driver license.  The officer will issue you a Uniform DUI Citation.  This ticket is your driver license for the first 10 days immediately after your arrest.  During this 10-day period you must decide whether to challenge the suspension or agree to it.  (For more information on this important decision click here to read our article on DUI License Suspensions)

Additional Consequences of DUI Refusal in Florida

“Consciousness of Guilt”

If you refuse to take the test requested, a prosecutor may one day stand before a jury and argue that the reason you refused to take the test was that you knew you were over the legal limit but did not want to let the jury know you were over the legal limit by taking the test.  “What other reason would a law-abiding citizen have to refuse to take the test, but to hide the results?” they will argue.  This argument is called “consciousness of guilt.”  The argument is simple.  You knew you were over the legal limit, so you did not take the test.

Additional Criminal Charges

In addition to the argument above, the officer or prosecutor may have an additional tool at their disposal if you refuse to take the requested test.  If you have previously refused to take a test, the second refusal can be charged as a crime.  That is right, Florida has a crime called refusal, which is a misdemeanor punishable by up to 12 months in jail and up to a $1,000 fine.

Defenses for DUI Refusal in Florida 

The Expert DUI defense attorneys at Katz & Phillips, P.A. have been defending DUI Refusal cases for over a combined 30 years and altogether the team has over 50 years of combined experience handling these types of cases.  Depending on the facts of your case, there is the potential to get the refusal suppressed.  This means that the prosecutor will not be able to tell a jury that you refused to take the test requested.  Our expert lawyers will review all avenues to get harmful evidence such as refusal suppressed to give you the best chance of beating the DUI Refusal charges.  Further, there are many arguments that can be used to nullify the consciousness of guilt argument at trial should the prosecutor be able to argue this to the jury.  Call us today to discuss how we can help you.  Keep reading below to learn more about our team of DUI Defense Experts and how we can help you.

An officer can claim that a person refused to submit to testing due to several factors including:

  • The driver said they would not take the test.
  • The driver refused to blow into the breath test machine.
  • The driver blew into the machine but did not provide enough breath for testing.
  • The driver said they would take the test but would not listen to the instructions.
  • The driver said they would take the test but only provided one sample.
  • The driver becomes argumentative or combative after arrest.
  • The driver refuses to answer whether they will take the test or not.

Officers have claimed refusal in many cases where the driver willingly participated in the breath testing procedure, but due to problems with the machines valid samples were flagged as invalid and not counted for testing purposes.  This is only one of the many problems with the Intoxilyzer 8000 in Florida.

Why Refusal Matters

When you are arrested for DUI, the officer will ask you to take a test.  Most commonly, this is the breath test.  We are frequently asked by those who learn that we focus on DUI defense whether or not they should take the breath test if asked.  This is a difficult question, which a lawyer cannot easily answer.  First, lawyers may not advise that you break the law.  Florida’s implied consent and refusal statutes require that you take the breath test when asked.  Although it is not illegal to refuse the breath test the first time you are requested, a second or subsequent refusal is actually a crime. See 316.1939 Fla. Stat. If you take the test, you may be providing the prosecutor the final piece of evidence they need to convict you.  If you refuse, the prosecutor will attempt to use that refusal against you.  They will attempt to argue that implied consent was read to you and that you were informed that your refusal would result in the suspension of your driving privilege and that you knowingly chose to throw away your driver’s license instead of taking the test.  Drivers are left with a difficult choice.  However, a refusal is usually easier to defend than a breath test result.

Exclusion of Refusal consequences.

Florida law states that “the refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer … is admissible into evidence in any criminal proceeding.” See 316.1932 Fla. Stat.  However, courts throughout Florida have allowed much more.  Prosecutors seeking a conviction in an accused’s DUI refusal case almost always seek to introduce evidence that when the person refused to take the test, they did so knowing that their license would be suspended and that they chose to throw their license away rather than take the test.  For years, the Expert DUI attorneys at Katz & Phillips, P.A. and attorneys throughout the state have argued that the legislature only said the refusal to take the test was admissible, not the administrative penalties for that refusal.  

Expressio Unius est Exclusion Alterius

Several Latin phrases still hold strong sway in the law.  One of those phrases is expressio unius est exclusion alterius.  For those of you not fluent in Latin, the phrase means the expression of one thing is the exclusion of the other.  As applied to DUI Refusal cases in Florida this expression which is a rule of statutory construction our judges rely on, this expression means that by expressly stating in the statute what information is admissible into evidence the legislature in the State of Florida has by its expression excluded the admissibility of any other information contained in the statute in a criminal trial.

Making this argument throughout courtrooms in Florida has resulted in hit or miss results.  In Orange County we recently had a prosecutor stipulate that we were correct and agree not to argue the administrative penalties at trial.  Recently a judge in Broward County also agreed with this argument in State of Florida v. James Edward Jackson, Jr., 31 Fla. L. Weekly Supp. 40a, (County Court 17th Cir. March 1, 2023) In Jackson, in relevant part the County Court Judge wrote,

IT IS ALSO ORDERED THAT any mention of the potential driver’s license suspension penalties for declining to submit to a breath test may not be argued by the prosecution. While FLORIDA STATUTE 316.1932(1)(a) provides that “[t]he refusal to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding”, see, e.g., State v. Taylor, 648 So.2d 701 (Fla. 1995) [20 Fla. L. Weekly S6b] (refusal is relevant to show consciousness of guilt and defendant is free to offer innocent explanation for not taking test) and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (admission of defendant’s refusal to submit to blood-alcohol test does not offend Fifth Amendment right against self-incrimination), neither the plain meaning of the statute nor any Florida case law interpreting it permits, in essence, the addition of a new provision to the statute providing for the admissibility of the civil penalties of a refusal as evidence of guilt.

Accordingly, any admission into evidence of the potential driver’s license penalties attendant to a breath test refusal would constitute an inappropriate and unlawful expansion of FLORIDA STATUTE 316.1932(1)(a). See Rockford v. Elliott, 721 N.E.2d 715, 718 (Ill. 2d DCA 1999). As in Rockford, had the Florida legislature intended “that evidence of the civil penalties a defendant faced be admissible in addition to his refusal to submit to a breath test, [it] could have so provided in the statute.” Rockford, 721 N.E.2d at 719. Indeed, to the contrary, the Florida legislature went so far as to expressly exclude any civil penalty under section 322.2615(14) at the defendant’s criminal trial when it wrote that “[t]he decision of the department . . . shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial.” In turn, nor does “[t]he disposition of any related criminal proceedings . . . affect a suspension imposed pursuant to this section.

State v. Jackson, Jr., 31 Fla. L. Weekly Supp. 40a, (County Court 17th Cir. March 1, 2023)

Goal in Defending a DUI Refusal in Florida

As we have said in numerous other articles on DUI and Criminal Cases, our firm has no preset goal in each case except to minimize the consequences you face in accordance with your wishes.  Unfortunately, many DUI attorneys put what they believe is best first and do not listen to their clients.  When you speak with the Expert DUI defense attorneys at Katz & Phillips, P.A. they will not only advise you of the information you need to know about your case, but they will listen to what your goals are.  If you cannot risk a period of no driving whatsoever, they will not force you to have an administrative review hearing, but instead will discuss your options including the possibility of waiving your hearing and ensuring that you can continue to drive everyday of your suspension.  The point is that your case is not just another DUI case and we will not treat it, or you like that.  We will custom tailor your defense to your needs and the facts of your case.  In every case, we work to make the charges go away completely, but when that is not possible, we work to ensure that the results you get are ones that fit your needs and life.  Call us today to discuss your particular case and needs.