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Tampa Criminal Attorney > Blog > DUI > Breaking Down a Refusal to Submit Case in Florida

Breaking Down a Refusal to Submit Case in Florida


Since 1990, police and prosecutors have received new weapons in the ongoing fight against DUI. Refusal-to-submit laws, which were implicitly legalized by the Supreme Court in 2016’s Birchfield vs. South Dakota, are one of the latest weapons. States that have passed these laws, such as Florida, hope they’ll increase the number of defendants who provide chemical samples. Test cases are much easier to prove in court than non-test cases.

Section 316.1939 targets subsequent DUI offenders. If the defendant refuses a second breath test, s/he could face up to one year in jail. Regardless of the outcome of the DUI. Since this law has only been on the books a short time, courts are still working out the kinks in this law. As a result, a Tampa DUI lawyer can often successfully resolve these charges, especially if a procedural or substantive defense is available.

Elements and Defenses

Some of the elements of this offense are rather straightforward, and some are extremely subjective. These elements, which the state must prove beyond any reasonable doubt, are:

  • Probable Cause: Officers must have probable cause to believe that the defendant was driving while intoxicated. Poor performance on the field sobriety tests usually establishes probable cause. The case is weaker if the officer relies on a technicality (e.g. FRank held up the wrong leg during the one-leg stand test). The case is weaker still if prosecutors must rely on circumstantial evidence of consumption, like bloodshot eyes.
  • DUI Arrest: Most Tampa Bay-area law enforcement agencies have mandatory DUI arrest policies. If officers believe defendants are intoxicated, whether that belief is correct or not, they must make arrests.
  • Proper Warning: Officers must warn defendants that a refusal could mean license suspension, and a subsequent refusal is a misdemeanor. One or the other won’t do. Furthermore, officers must issue this warning in a language the defendant understands.
  • Subject Refusal: This element is vague. Obviously, saying “no” constitutes refusal. Some defendants don’t say yes or no. Instead, they say something like “I want to talk to a Tampa criminal defense lawyer.” The officer could interpret that statement as a refusal, although legally, it’s probably not a refusal. Arguing with the officer is another common situation. Once again, the officer could wrongly interpret argumentativeness as refusal, even though the defendant didn’t say “no.”

Usually, to prove this offense, prosecutors must introduce a certified copy of the prior conviction. If the prior conviction was local, producing this record usually isn’t a problem. If the prior conviction was not local, obtaining the paperwork is usually a problem.

Constitutional Issues

As mentioned, the Supreme Court rules that, theoretically, these laws are legal. However, some constitutional and other procedural problems remain.

The Fifth Amendment states that defendants cannot be tried twice for the same offense (the double jeopardy clause). Prosecutors argue that refusal-to-submit is different from DUI. To some extent. They’re correct. However, these two offenses have some common elements. A Florida court has yet to conclusively rule on this question.

If the defendant is found guilty of both offenses, the judge must run the sentences concurrently, not consecutively. To do otherwise would be publishing the defendant twice for the same criminal episode. This requirement sometimes affects pretrial negotiations.

 Work With a Tough-Minded Hillsborough County Attorney

A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. After-hours and jail visits are available.



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