Call us 24/7 (727) 388-4736

Which Came First – the Arrest or the Refusal?

Melinda Morris
By: Melinda Morris
Jan. 01 2016

Arrest or Refusal

The attorneys at the Morris Law Firm represent clients charged with DUI. Many of these cases involve an alleged “refusal” to submit to a breath or urine test after an arrest in Clearwater, St. Petersburg, or the surrounding areas of Pinellas County, FL.

One of the most common mistakes that a law enforcement officer makes in a DUI refusal case is asking for the breath or urine test BEFORE telling the suspect that they are under arrest for DUI.

We’ve seen this mistake made by officers with the Pinellas County Sheriff’s Office and other local law enforcement agencies. Officers with less training and experience in conducting DUI investigations are the most likely to make this mistake.

It is well settled in Florida DUI law that the request for a breath or urine test is invalid unless it is made AFTER the arrest.

The implied consent law, § 316.1932(1), Florida Statutes, requires a driver to submit to breath-alcohol testing to determine “…the alcoholic content of his or her blood or breath if the person is legally arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages….”

The breath test requested “…must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” § 316.1932(1)(a)1.a. Fla. Stat. (emphasis added).

The implied consent law also requires that the driver be told of the consequences for refusing to take a lawful breath-alcohol test, which includes a suspension of his or her driver’s license.

A law enforcement officer is authorized, on behalf of DHSMV (Department of Highway Safety and Motor Vehicles), to suspend the driver’s license of any person who refuses to submit to a “lawful” breath test. § 322.2615(1)(b)l.a., Florida Statutes (2006).

In Florida Department of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1076 (Fla. 2011) [36 Fla. L. Weekly S243a], the Florida Supreme Court held “ . . . that the DHSMV cannot suspend a driver’s license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest.”

Demanding Relief from an Invalid DUI Refusal

But what happens when the officer makes the request for a breath test before the arrest and then alleges that the person “refused” to submit? In those cases the refusal would be invalid.

The criminal defense attorney would need to raise this issue during the formal review hearing and request that the hearing officer invalidate the administrative suspension because no “refusal” actually occurred after the arrest.

Demanding a formal review hearing and fighting invalidate the administrative suspension is important. For a first DUI with a refusal, the administrative suspension is for 12 months with a potential 90 day period of no driving (called the “hard suspension”). For a second or subsequent refusal, the suspension is for 18 months with an 18 month hard suspension.

If the administrative suspension is invalidated, then any mention of the alleged refusal comes off their driving record as if it never happened.

The criminal defense attorney would also need to file a motion to suppress or exclude any evidence of the alleged “refusal” at trial so that the prosecutor cannot argue that it indicates “consciousness of guilt.”

If the alleged refusal is suppress or excluded by the judge, then the prosecutor would not be able to tell the jury that the officer requested the test or that the suspect refused. The suppression of the refusal might even lead to the dismissal of the entire case before trial, especially when the other evidence in the case of impairment due to drugs or alcohol is weak.

The Pre-Arrest Breath Test or Refusal is Inadmissible

Courts in both the Fifth DCA and the Second DCA have held that pre-arrest breath test or a refusal to take the breath is inadmissible into evidence. For instance, in State v. Barrett, 508 So. 2d 361 (Fla. 5th DCA 1987), the court found that “. . . the legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.”

In State of Florida, Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1090a], the court found that “…the arrest must precede the breath test.”

Although the request for the breath test must occur after an arrest, it does not necessarily have to occur after an arrest for DUI. For instance, in the Whitley case, although though the Fifth DCA found that the breath test must follow an arrest, it did not require a DUI arrest because in that case, an arrest for fleeing and eluding was sufficient. Id.

In State v. Serrago, 875 So. 2d 815, 819 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1571a], the court found that a breath and urine tests are treated in a different manner than blood tests; “…section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest….”

In Department of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304, 307 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D765a], the court found that “…the conclusion is inescapable that a suspension may not be predicated on a refusal to take a test that is the product of a unlawful arrest.”

What Constitutes an “Arrest” to Trigger the Requirement to Submit to a Chemical Test?

In Kearse v. State, 662 So. 2d 677, 682-3 (Fla. 1995) [20 Fla. L. Weekly S300b], the Florida Supreme Court held that an arrest is legally made when:

  1. there is a purpose or intention to effect an arrest;
  2. an actual or constructive seizure or detention is made by a person having present power to control the person arrested; and
  3. such purpose or intention is communicated by the arresting officer to, and understood by, the person whose arrest is sought.”

Therefore, in every DUI refusal case it is important for the criminal defense attorney to determine whether the request for a breath test was made before or after the arrest.

If the refusal occurred before the arrest, then the criminal defense attorney should file a motion to suppress any mention of the request for the breath test or the alleged refusal.

The attorney should also demand a formal review hearing for the Bureau of Administrative Review within 10 days of the arrest to contest that issue and move to invalidate the one year or 18 month administrative suspension.

If you were arrested for a DUI case involving an allegation that you refused to submit to a breath test or urine test then contact an experienced criminal defense attorney at the Morris Law Firm in St. Petersburg, Florida.

The DUI defense attorneys at the Morris Law Firm represent clients charged with drunk driving in St. Petersburg, Clearwater, and the surrounding areas of Pinellas County, FL.

We also represent clients in the surrounding counties in DUI refusal cases including Pasco County, Hillsborough County and Manatee County. Call today for a free consultation to discuss your DUI refusal case in Pinellas County with an experienced attorney. Find out more about important defenses and ways to protect both your driving record and your criminal record.

Leave a Reply

Your email address will not be published. Required fields are marked *