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DUI Refusal What You Don't Say or Do Gets Held Against You Too

If a person accused of DUI refuses to submit to field sobriety exercises or to submit a breath sample a common concern is whether the refusal can be used against the DUI Defendant in Court. As to the driver's license, being deemed to have refused will cause an automatic suspension unless a review hearing is requested and won at the Department of Highway Safety & Motor Vehicles (DHSMV).

The Implied Consent law states that "[t]he refusal to submit to a . . . breath test upon the request of a law enforcement officer . . . is admissible into evidence in any criminal proceeding". Notwithstanding that, whether the State can use the evidence of refusing to submit to a breath sample in a DUI trial, is not absolute. Whether the State can use the refusal or whether the law enforcement officer's accusation of refusal is proper can be challenged by seeking to exclude evidence in the criminal case and at a review hearing at the DHSMV.

In DUI defense, every word spoken or read to the accused matters.  Omitting words or phrases can have devastating effects on the State's case, which means it is a good thing for the DUI Defendant. In a recent case, a person accused of Leaving the Scene of an Accident with a Death, DUI Property Damage and DUI Manslaughter and failure to render aid had DUI convictions reversed because the Highway Patrol Trooper completely failed to read the implied consent warning. The entire trial is a do-over, but the State will not be able to use the evidence of refusal in the new trial.

The Implied Consent law, states that any person who accepts the privilege of driving within Florida, by so operating a vehicle, is deemed to have given consent to submit to an approved test, if the person is lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages. Then the law provides for what is known as the Implied Consent Warning. The law requires that the accused be told that failure to submit to any lawful breath test will result in a driver's license suspension and the accused must be told that if the person's license has been previously suspended as a result of a refusal to submit to lawful breath, urine, or blood test, then a refusal is a misdemeanor criminal offense. If these warnings are properly given, then absent other reasons to suppress the evidence, such as an unlawful stop, a Court should allow the refusal to be used against the accused at the DUI trial.

Having a refusal on the record can cause significant restrictions to a driver license in the future. DUI defense is highly technical and there a many pitfalls. To hire a lawyer to help defend a DUI, please click, call or fill out the form.

Gainesville 352-371-9141

Ocala 352-694-4529

Howitt 5D17-2695. February 8, 2019

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