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Second DUI Refusal

The crime of "Refusal to Submit to Testing" is a first-degree misdemeanor charged under Florida Statute § 316.1939. Because so many individuals refuse to take a breath or other chemical test after a DUI arrest, the Florida legislature decided to make the second or subsequent refusal a crime.

Defense Attorney for Second DUI Refusal in Florida

If you have been arrested for a second time for DUI, and this time you were charged with a separate offense of "refusal to submit to testing" under Florida Statute § 316.1939, then contact an experienced criminal defense attorney at the Galigani Law Firm.

We represent clients charged with DUI and the separate crime of a second refusal to submit throughout Gainesville in Alachua County, and the surrounding areas of Starke in Bradford County, Macclenny in Baker County, Lake Butler in Union County, Ocala in Marion County, Trenton in Gilchrist County, Lake City in Columbia County, Florida.

Resolution of Prior DUI Without a Conviction is Not Dispositive

So what counts as a second refusal? Because a refusal makes it difficult for the prosecutor to secure a DUI conviction, many refusal cases are dropped down to "reckless" driving. In order to make the prosecutor's job easier, it determined that an administrative suspension for DUI refusal would count as a prior even if the person ultimately escaped a DUI conviction in court.

On the other hand, if your attorney contested the administrative suspension at a formal or informal review hearing with the Bureau of Administrative Reviews and the hearing officer invalidated the suspension, then it would not count as a prior refusal. The statute 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.

Must Be a Lawful DUI Arrest with Probable Cause

The crime is most commonly charged after a DUI arrest when the individual refuses to submit to a chemical test of his or her blood, breath or urine under Florida's implied consent laws. As a preliminary matter, the elements of the offense require a lawful arrest for DUI:

  • 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.

Under Florida Statute § 316.1939(2)(b), the Defendant can be charged with refusing to submit to testing when the defendant appeared for treatment at a hospital, clinic, or another medical facility and the administration of a breath or urine test was impractical or impossible.

Elements of a Second Refusal to Submit

The elements of that offense include:

  • 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.
  • 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.

Inference in the Second or Subsequent Refusal to Submit to Chemical Testing

The standard jury instruction were adopted by the Florida Supreme Court in 2007 [965 So. 2d 811]. Standard Jury Instruction 28.13 for Refusal to Submit to Testing provides a jury instruction explaining a legal inference.

This inference provides that the jury is permitted to conclude that "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 statute 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.

Legal Definitions under Florida's Refusal to Submit to Testing Statute

Florida law defines the term “probable cause” to mean "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."

Florida law defines the term "motor vehicle” to mean 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.

Finding an Attorney in Gainesville, Alachua County for a Second DUI Refusal

The consequences of a second DUI arrest are devastating, even if you were not ultimately convicted of the first DUI. For a second refusal, you may also be facing a separate criminal offense of "refusal to submit to chemical testing" under Florida Statute § 316.1939. Call an experienced criminal defense attorney at the Galigani Law Firm.

We represent clients charged with DUI and the separate crime of a second refusal to submit throughout Gainesville in Alachua County, and the surrounding areas of Macclenny in Baker County, Trenton in Gilchrist County, Lake Butler in Union County, Starke in Bradford County, Ocala in Marion County, Lake City in Columbia County, Florida.