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Refusal to Submit to DUI Testing Defense Lawyer in Florida

Florida Statute § 316.1939 Refusing to submit to testing; penalties.

Florida’s Laws on Refusing to Submit to DUI Testing

Title XXIII, Chapter 316, Florida Statute § 316.1939 Refusal to submit to testing; penalties indicates that a person will be charged with a first-degree misdemeanor when he or she refuses to submit to a drug or alcohol test — by way of breath test, urine sample, or blood sample — in connection with a lawful arrest for driving under the influence and when that person has previously had his or her license suspended for refusing to submit to a drug or alcohol test. 

Many factors must be present in order for a person to be charged with a misdemeanor in this situation. Most importantly, the person must have a prior refusal on record that resulted in the suspension of his or her driving privileges in the state of Florida. 

Summary of Florida’s Testing Refusal Laws

When the Statute Applies – Section 316.1939 applies under a specific set of circumstances, including all of the following:

  1. A Florida law enforcement officer has probable cause to believe that a person was driving under the influence of drugs or alcohol or was in actual physical control of a motor vehicle while under the influence of drugs or alcohol;
  2. The person has been lawfully placed under arrest for driving under the influence;
  3. The officer requests a drug or alcohol test from the person;
  4. The person refuses to submit to the test;
  5. The person has previously refused a drug or alcohol test and had his or her license suspended for the same;
  6. The person is informed by the officer that refusal will result in a suspension of his or her license for 18 months (in the case of a subsequent refusal); 
  7. The person is informed by the officer that refusal combined with a prior license suspension for refusal constitutes a misdemeanor; and 
  8. Despite being informed of such by the officer, the person still refuses to submit to the test.

Information from Officer – It is important that the person who is suspected to have been driving under the influence be given certain information by the law enforcement officer. In the situation of a person who has a prior driver’s license suspension for refusing a drug or alcohol test, the officer must inform that person that a subsequent refusal will result in suspension of his or her driving privileges for 18 months. The officer must also inform the person that subsequent refusals can result in misdemeanor charges. 

Suspension of Driver’s License – Suspension of a person’s driving privileges will be for the duration of 18 months if he or she refuses a drug or alcohol test under the circumstances described above. A person can initiate an administrative proceeding to try to keep his or her license or otherwise have an administrative law judge review the circumstances of the suspension. 

Implied Consent 

Florida’s laws on refusing to submit to drug and alcohol tests stem from the concept of implied consent, which is described in § 316.1932. Under Florida law, every person who drives on state roadways (including local streets and roads, in addition to all highways and interstates) has given his or her consent to be tested for alcohol and controlled substances in the event a law enforcement officer lawfully places him or her under arrest for driving under the influence. This concept holds true for in-state and out-of-state residents. 

Penalties for Refusal to Submit to Testing

A refusal to submit to testing under Florida law will result in certain penalties. 

  • First Refusal – When a person is lawfully arrested for driving under the influence in violation of § 316.193 and refuses to submit to a breath, blood, or urine test pursuant to § 316.1932, his or her license will be suspended for one year. 
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  • Subsequent Refusal – When a person who has previously had a suspended license for refused testing refuses a subsequent request from a law enforcement officer during the course of a lawful arrest for driving under the influence, that person’s license will be suspended for 18 months. The person will also be charged with a first-degree misdemeanor.

Under § 775.082(4)(a), a first-degree misdemeanor in Florida can result in a jail term of up to one year. A first-degree misdemeanor is also punishable in Florida by a fine of up to $1,000, under § 775.083(1)(d)

Demanding a Formal Review Hearing in Florida

Within 10 days of a DUI arrest involving a subsequent refusal to submit to drug or alcohol testing, a person can demand a formal review hearing. During this hearing, the person will contest the 18-month suspension of his or her license. A Florida DUI lawyer can help demand, schedule, and carry out this hearing. In the meantime, the lawyer can also request a permit that will allow the person to keep driving to work, school, and/or church for 42 days out of the 18 months. 

No Eligibility for Hardship License 

Under Florida law, people who have lost their driver’s licenses following DUI arrests can potentially apply for a hardship license that will allow them to continue driving for work, schooling, or religious practice. However, a person whose license has been suspended due to a subsequent drug or alcohol test refusal is not eligible to apply for a hardship license. The person is only eligible for a 42-day permit and must contest the suspension if he or she wants to continue driving. 

Disposition of Administrative Proceedings/Criminal Charges in Florida

Subsections (2) and (3) of § 316.1939 say that dispositions of administrative proceedings and criminal charges do not affect each other. The outcome of a proceeding regarding a person’s driver’s license suspension will have no bearing on his or her criminal charges under § 316.1939. 

Likewise, the outcome of a person’s misdemeanor charges under the statute does not change his or her standing in a proceeding regarding the suspension of his or her license. However, the records from the department that indicate the person has previously had a license suspension for DUI testing refusal will create a presumption in favor of suspension that the person can rebut. 

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