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How to Fight DUI Refusal Charges in Florida

 
12/23/2020
Weinstein Legal
Read Time: 6 Minutes

How to Fight DUI Refusal Charges in Florida

Receiving a DUI is a scary, stressful, and potentially life-wrecking experience. Receiving a first-time DUI is also confusing, especially regarding your rights as a driver and resident of Florida. Most Florida DUI laws, including the implied consent law (Florida Statutes § 316.1932), are not on your side as a driver. For example, while the right of refusal to take a breathalyzer test in Florida exists, doing so results in automatic mandatory penalties.

There are important DUI refusal questions many Florida drivers ask. Can you be charged with a DUI for refusing a breathalyzer? What is a DUI refusal charge? Are there ways to get a DUI refusal case dismissed? Knowing the answers to these questions helps you make the best possible decisions if faced with a DUI experience. Read ahead for important information about how to beat a DUI refusal in the state of Florida.

What is a DUI Refusal Charge?

When faced with a DUI charge, the right of refusing a breathalyzer (aka infrared light) test is yours on which to enact, albeit with subsequent penalties and charges. The DUI refusal charge for first-time DUI offenders in Florida is a mandatory license suspension. The length of the mandatory suspension is potentially as high as one year long. For drivers with prior license suspensions due to a refusal to blow, a new refusal results in a mandatory license suspension of up to eighteen months. Second and third refusals also result in increased fines and possible jail time. You're not always going to have a defense attorney with you at the time of arrest, so it is important to know the proper protocols.

One legal protocol for a suspected DUI is the arresting officer must have reasonable, probable cause to stop your vehicle. An officer establishes probable cause using his or her skill, experience, training, and understanding of applicable laws giving him or her cause to suspect a crime is in progress. There must also be probable cause to show you are the operator and/or in control of the stopped vehicle. Florida law describes a motor vehicle as being any self-propelled vehicle, off rails and off guideways, with the exceptions of mopeds, personal assistive mobility devices, scooters (with motors), and bicycles.

The Implied Consent Law

The implied consent law in Florida states driving in the state is a privilege. It also states said privilege is subject to specific rules, regulations, and responsibilities. Any person accepting motor vehicle operational privileges in Florida gives his or her consent to state-approved physical or chemical testing when suspected of driving under the influence of alcohol and illegal substances, controlled or otherwise. Such testing includes taking a breathalyzer test when facing a DUI accusation. A DUI refusal charge occurs when a driver violates the implied consent law by refusing to agree to take a breathalyzer test as instructed by an enforcing officer.

It is important to note distinct inclusions and omissions in the state of Florida implied consent law regarding types of DUI testing and your legal rights and responsibilities. The implied consent law is applicable only to breath and blood tests approved by the state of Florida. It is distinctly not applicable to a variety of field sobriety tests. Florida does not approve these alternate field sobriety tests due to their collective history of unreliability. This unreliability makes it unwise to agree to take any DUI field test not mandated by the implied consent law. Additionally, there are no penalties for refusal to engage in these alternate tests. Field sobriety tests not mandated by Florida implied consent law include:

• One leg stand.

• Walk and turn.

• Horizontal gaze nystagmus.

Can You Be Charged with a DUI for Refusing a Breathalyzer?

Getting a DUI charge in Florida requires proof of impairment. Proof of impairment is not possible to obtain without conducting a state-approved test. This does not apply to accidents where drivers are unconscious or otherwise unresponsive. Therefore, unless in an accident and/or otherwise unable to respond to an officer’s request, it is not possible to charge one with a DUI for refusing to take a breathalyzer test in Florida.

Both prosecution and state laws see a refusal to blow as a subconscious admission of guilt. The mandatory license suspensions imposed as punishment for such a refusal serve their collective stance. The choice to refuse and suffer the mandatory suspension and other penalties, if applicable, results in criminal charges if not dismissed. However, these charges do not constitute a DUI, and knowing how to beat a DUI refusal charge is essential to protecting your rights as a driver in Florida.

How to Get a DUI Refusal Case Dismissed

While getting a DUI refusal case dismissed is possible, it takes a variety of specific individual or combined circumstances to make it happen. It is encouraging to know dismissal is possible, however, and provides ample motivation to pay attention to your rights and circumstances when arrested for a DUI. When refusing to take a breathalyzer or blood test in Florida, first and foremost, be polite to the police officer making the request. Instigating an officer of the law doing their job in the field to bring additional charges against you only serves to weaken your legal position.

Pay attention to the words and processes used by the arresting officer or officers when informing you about the reason(s) for stopping you. Also, pay attention to distinct statements used about your Miranda Rights, if and when applicable. Finally, pay attention to the words the officer uses when informing you about the implied consent law, the utilization of a breathalyzer test, the option for a blood test in its place, your right to refuse either, and penalties imposed upon you if you refuse.

The state of Florida requires its law enforcement officers to use specific words, phrases, and legal language from the state statute when requesting a breathalyzer or blood test. Incorrect, incomplete, or intentionally misleading statements can potentially result in the dropping of refusal charges. Miranda Rights are only necessary when an officer intends to interrogate a driver. Miranda Rights are also confusing when read close to your explained consent-based right to refusal. Miranda Rights state there is no obligation to speak without the presence of a DUI defense lawyer in South Florida. Remaining silent after an officer requests that you take a breathalyzer is the same as a refusal. Miranda Rights and DUI test refusal rights read too close together are potential causes of confusion and potential grounds for dismissing your charges.

Other causes of confusion are also potential dismissal grounds for refusal charges. A driver not speaking English as his or her first language might require an interpreter to understand the officer’s instructions and commands properly. If one is not present, the dismissal of charges is possible. Another source of potential confusion leading to dropping your refusal charges is an officer speaking too much, too rapidly, or with inaccuracies in the communicated information. Incorrectly informing a driver of their rights and due process is potential grounds to dismiss refusal charges.

Irritating an officer of the law is always a bad idea during the arrest process. Irritated officers are liable to take any actions you make as cause to cite you for refusal. This is not legal, however, and could also be grounds for dismissal.

Finally, it is your right to request a blood test in place of a DUI breathalyzer in Florida. Some officers do not have adequate breathalyzer training. Some breathalyzers are old and faulty. It makes sense to request a blood test if you believe you are innocent and/or below legal limits. One of the soundest ways to beat a DUI refusal charge is for an arresting officer to refuse to comply with your request for a legally alternative method of testing.

If you are in the Fort Lauderdale & West Palm Beach Florida area and are facing charges for drunk driving, speak to an experienced DUI defense attorney right away.

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