Refusal to Submit to a Breath or Urine Test
Refusal to provide a breath, blood or urine sample has both administrative (DMV) consequences and criminal law consequences. Everybody in the state of Florida that has a driver's license can be required by law to submit to a breath, blood or urine sample. At the bottom of every Florida driver's license it reads, “operation of a motor vehicle constitutes consent to any sobriety test required by law.”
As a firm, Keller, Melchiorre & Walsh have three former prosecutors that have handled over thousands of DUI and Refusal to Submit to Testing cases. One of our attorneys was a supervisor in charge of all Refusal to Submit cases. We know how the process works and we know how to successfully defend against these charges. There are a lot of defenses and technical issues with these types of cases that only experienced DUI lawyers are equipped and prepared to handle.
If I refuse to blow or give a breath sample, is my driver's license automatically revoked?
Yes, but you can legally challenge this driver's license suspension. If you are placed under arrest for a DUI, a police officer will ask you for a breath sample. If you refuse to blow, the police officer is required to read implied consent. Implied consent states that if you refuse to provide a breath, blood or urine sample, your driver's license will be suspended for twelve (12) months for a first refusal and eighteen (18) months for a second refusal and is punishable by a first-degree misdemeanor. However, a DUI defense lawyer can always challenge this driver's license suspension by requesting formal review hearing with the DMV. If your lawyer is successful, the twelve (12) or eighteen (18) month driver's suspension will be overturned and your driver's license will not be effected.
What if I could not blow hard enough? What if I could not provide a breath sample and the police said I refused?
When providing a breath sample, a person has to blow into a tube connected to the intoxilyzer (breath machine). The intoxilyzer requires a certain amount of breath sample to be blown into it in order to analyze the breath sample. If the requisite breath size is not blown, the intoxilyer cannot provide a breath alcohol level, and the police will record it as the person refused to provide breath sample. Some people do not have the lung capacity to be able to provide a sufficient size breath sample. Other people have asthma issues. These are not willful refusals. In other words, it is not an intentional refusal to provide a breath sample. This is a valid defense in both administrative and criminal court proceedings.
Do I have to give a blood sample? Is giving a blood sample an invasion of my privacy? Do the police need a warrant to take my blood?
Giving a blood sample to the police is extremely invasive and much more personal than providing a breath sample. The police can obtain a warrant to take a person's blood sample, but it is not always required. Judges have recognized this principal and have highly scrutinized cases where blood samples are taken by police. Since it is such an invasive procedure, there are only certain situations where you are required to provide a blood sample. If your case does not fall under one of these limited situations, then a skilled DUI lawyer can file a Motion to Suppress to exclude the blood tests results. This means any blood test result cannot be used against you.
There are a couple circumstances when the police can request a blood sample. One is when there is a crash, and the police believe there are serious bodily injuries to a person involved in the crash. Another circumstance is when a person is under investigation for DUI and being medically treated, and the police cannot practically obtain a breath sample. Both of these above listed examples are ripe to be challenged by a DUI lawyer.
Do I have to give a urine sample to the police? Is giving a urine sample an invasion of my privacy?
Just like giving a blood sample, giving a urine sample to police is much more invasive than a breath sample. Judges have recognized this principal and have highly scrutinized cases where urine samples are taken by police. So there are only limited circumstances where you are required to provide a urine sample. If your case does not fall into a limited circumstance, then a skilled DUI lawyer can file a Motion to Suppress to exclude the urine test results. This means any urine test result cannot be used against you.
Usually, the police only ask for a urine sample after a person has provided a breath sample and the breath sample has either no alcohol reading or a very low alcohol level.
Is it a refusal if I could not go to the bathroom to provide a urine sample?
Any refusal to provide a urine sample must be intentional. For example, if a person cannot urinate because they are dehydrated that is not an intentional refusal. Generally, police will provide water for a person to drink so that they can urinate. However, there are documented situations where people have anxiety or a shy bladder and cannot urinate. Other times, people are on prescription medications that have a side effect that makes it difficult to urinate. These are not intentional refusals. These cannot be used against you in administrative or criminal law proceedings. A skilled DUI lawyer can keep these situations from being used against you.
Will I go to jail for refusing to blow or refusing to give a blood or urine sample?
There is only the possibility of jail time if you are charges with the crime of Refusal to Submit to Testing. This crime is a first-degree misdemeanor, which means it is punishable by up to a year in jail and a $1,000.00 fine.
How can you be charged with Refusal to Submit to Testing?
If you are placed under arrest for DUI, and after being requested by police and implied consent is read you refuse to submit to a breath, blood, or urine test (when required); and your driver's license has previously been suspended for refusing to submit to a breath, blood or urine test; then you can be charged with this crime. This crime is very technical. If there are any deficiencies or technicalities, a skilled DUI attorney will be able to exploit these issues and provide a successful defense.
If you or a loved one has a Refusal to Submit case, call us. We represent clients throughout Florida including Palm Beach County, Broward County, Miami-Dade County, St. Lucie County and Martin County.