The Double-Edged Sword of Refusing to Take a Blood Alcohol Test for a DUI in Florida

Many people may not be aware that if they are arrested for driving under the influence (DUI) they have the right to refuse a blood alcohol test. However, Florida is an honored consent state. Under Florida Statute § 316.1932(1), any person operating a motor vehicle in Florida has given his or her implied consent to chemical testing of his or her blood, breath, or urine at the request of a law enforcement officer after a lawful stop for arrest for driving under the influence of alcohol or controlled substances.

When a person is pulled over for suspected drunk driving, they may be asked to take a breath alcohol test, or as it is commonly known, a breathalyzer. If the breath test registers less than 0.08, the officer may request a urine or blood chemical test to determine if there are drugs in the driver’s system. A chemical BAC test usually consists of a blood or urine test administered by a medical professional.

The basics of the refusal to submit to the BAC test in Florida

A person’s refusal to do something usually consists of saying “no.” However, in the state of Florida, there are other ways that can be considered constructive refusal. Constructive refusal can be interpreted as:

The driver cannot provide two sufficient breath samples within the legal time period after arrest.

If the driver does not specifically say yes or no to taking a chemical blood, breath, or urine test

If the driver becomes confrontational

If the driver provides breath samples that are not within .02 of each other and then refuses to take a third test or

If the driver takes a breath test once but fails to take a second or subsequent times when prompted

In Florida, an arresting officer must inform the driver of Implied Consent Warnings, which warn the driver of consequences as a result of refusing to submit to the test.

Penalties for Refusal in Florida

Although a person can refuse the test, they can also face heavy penalties as a result of refusing to take the BAC chemical test. These penalties may include suspension of your driver’s license and driving privileges for up to one year. According to Florida Statute § 316.1939, if the driver has previously refused to submit to chemical testing and their driver’s license has already been suspended, they can be charged with a first degree misdemeanor.

If a commercial vehicle driver is charged with refusing to submit to chemical testing while operating a commercial vehicle, their commercial driver’s license may be suspended for up to one year. During their suspension they are not allowed to apply for a hardship license, which would allow them to drive for work purposes.

What does this mean for a criminal case?

A criminal case for a felony DUI in Orlando relies heavily on BAC chemical test results to show that a driver was in fact under the influence of drugs or alcohol at the time of arrest. If there are no chemical tests as a result of the negative, there will be no test results. This will force the prosecution to use evidence of chemical test refusals and field sobriety tests as evidence to show that a driver was definitely intoxicated at the time of arrest, which can be difficult.

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