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When is a DUI Refusal in Florida Not a DUI Refusal?

Melinda Morris
By: Melinda Morris
Nov. 24 2015

CourtColumns - 7474334 - MSeveral consequences are triggered when an officer alleges that you “refused” to take a chemical test of your breath, blood or urine. First, the arresting officer will issue you a citation for driving under the influence (DUI) that operates as your “notice of a suspension.”

In a DUI refusal case, the administrative suspension (through the Florida Department of Motor Vehicles) will last for 12 months for a first refusal, or 18 months for a second refusal.

Second, you will face the criminal charges for DUI in court. In the criminal case, the prosecutor will argue at trial that your refusal indicated your “consciousness of guilt.” In other words, the prosecutor will argue that you refused the breath, blood or urine test because you knew that submitting to the test would show you were impaired by alcohol or drugs or a combination of both.

Recanting a DUI Refusal in Florida

But what happens if you refuse, and then you decide that you will take the chemical test of your breath, blood or urine? Under Florida law, you can recant your initial refusal under certain conditions. So you can essentially “cure” the refusal if you change your mind.

If the arresting officer then refuses to let you take the chemical test, then your administrative suspension can be invalidated and removed from your driving record during a formal review hearing.

Additionally, in the criminal case, your attorney can file a motion to exclude any mention of the alleged refusal. If any evidence of the refusal is suppressed, then the prosecutor doesn’t get to argue that you were “conscious” of your own guilt. This pre-trial ruling might result in your entire DUI case being dismissed prior to trial.

Cases on the Recanted Refusal after a DUI Arrest

In State v. Eng, 6 Fla. L. Weekly Supp. 649a (September 15, 1998) the trial court found that the undisputed testimony showed that the defendant initially refused to take the chemical test but then agreed to take it at the sally port door after the recorded refusal.

The Eng court noted that the testimony was undisputed that the Defendant in that case agreed to take the breath test, he was in the continual custody of the officer and under his observation, and there was no substantial inconvenience that would have resulted by permitting the Defendant to take the breath test on the Intoxilyzer 8000.

In Dean vs. DHSMV (7th Judicial Circuit, January 10, 1995), the petitioner sought certiorari review of a Final Order upholding the suspension for failing to submit to an approved chemical test following his DUI arrest.

In that case, although the defendant initially refused testing, he then recanted his refusal and told the officer that he would submit to the test.

After the defendant recanted the refusal, the officer did not allow him to take the test. In that case, the court found the hearing officer departed from the essential requirements of the law and that the hearing officer’s order was unsupported by competent or substantial evidence.

The Dean order upholding the administrative suspension was quashed by the court and the suspension was invalidated.

The Dean court noted that although the hearing officer was correct that the petitioner had initially refused, “that general statement of the law does not resolve the case.

Florida Courts have recognized that under certain circumstances, an individual who is arrested for driving under the influence, after refusing to take the blood test, can rescind that decision and avoid the penalty for refusal.” Id. (citing Larmer vs. DHSMV, 522 So.2d 941 (Fla. 4th DCA 1988) and DHSMV v. Satter, 19 Fla.L.Weekly D2187 (Fla 5th DCA 1994).

The Court in Larmer vs. DHSMV also cited the same reasoning used in other states and quoted the court in Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974) which found:

Since the accuracy of the chemical test under [the Implied Consent Law] does not depend upon its being administered immediately after an arrest or other event, and thus a delay for a reasonable period of time while an arrested person considers or reconsiders a decision whether or not to submit to a chemical test will not frustrate the object of the legislature in enacting [the Implied Consent Law]…..

Id. at 942.

The Court in Larmer vs. DHSMV also cited the same reasoning used in other states and quoted the court in State v. Moore, 62 Haw. 301, 614 P.2d 931, 935 (1980).

The Moore Court in Hawaii adopted a rule that an initial refusal to be tested could be withdrawn and rescinded. Therefore, in the State of Hawaii the court rejected any “rule of law which would rigidly and unreasonably bind an arrested person to his first words spoken, no matter how quickly and under what circumstances those words are withdrawn….the better rule to be one which takes into consideration the fairness to all parties of permitting an arrested person later to change his mind” and retract his initial refusal “unless a delay would materially affect the test results or prove substantially inconvenient to administer, a subsequent consent may cure a prior refusal to be tested.” Id.

As a matter of good public policy, a more flexible rule makes important evidence gathered after a breath test more frequently available and therefore supports the prophylactic purpose of the implied consent laws. Id. (citing Gaunt vs. Motor Vehicles Division, Department of Transportation, State of Arizona, 136 Ariz. 424, 666 P.2d 524 (Ct. App. 1983).

Fighting the Alleged DUI Refusal Case in Florida

Contact an attorney at the Morris Law Firm to discuss your charges for driving under the influence of alcohol or drugs.

Our attorneys represent clients in DUI refusal cases in St. Petersburg and throughout Pinellas County, Florida. We fight cases in the North County Traffic Court in Clearwater and the South County Traffic Court in St. Petersburg, FL. We also fight the refusal cases at the main courthouse in Clearwater, FL, and all of the surrounding counties in the Tampa Bay area.

If the officer offered you the breath test and you initially refused and then recanted that refusal, then call us to discuss the case. Find out why that fact might help you avoid the administrative suspension of your driver’s license if you request a formal review hearing within 10 days of the arrest. The recanted refusal in a drunk driving case in Florida might also lead to evidence of the alleged refusal being suppressed before trial.

Call us to discuss your case and possible defenses that can be used in a refusal case after an arrest for driving under the influence of drugs or alcohol, and to find out when a refusal is really no refusal at all.

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