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Many Floridians do not realize that refusing to take a breathalyzer test is considered a separate criminal offense. It is not a DUI defense.

It may come as a shock to Florida drivers who are stopped for suspicion of driving while under the influence (DUI), but if they refuse to give a breath sample, the refusal can be classified as a criminal offense separate from the charge of driving under the influence. Under the Florida Criminal Statute 316.1939, the refusal is a first-degree misdemeanor, and can result in a stint in county jail, which may be up to a year. This does not just apply to failing to be breath-tested on request. It includes refusing any physical or chemical breath test, or urine or blood tests.

For refusing to be breath-tested to be a crime, in addition to the DUI, the person’s driver’s license must have already been suspended for refusing to take a breathalyzer, urine or blood test. Additionally, a police officer must have probable cause to believe a new DUI offense took place. The driver must be arrested and enlightened about Implied Consent, which is, in a nutshell, refusing once results in a suspended license for a year, and refusing twice garners a suspended license for a year and a half. The suspected drunk driver must be clearly informed that refusing any test for a second time is a misdemeanor. In short, you may be charged with two crimes: failing to blow and DUI.

It is vitally important to fight the suspension for refusing to take a breath test and this must be done within ten days. You need a Lakeland criminal defense lawyer to request a formal review of your case and arrest. The main reason for this is that there are more defenses than you may realize that can overturn a suspension, such as the Intoxilyzer 8000 was not properly calibrated, the officer not properly trained on its use, the equipment provided a false positive, and so forth. Once that is accomplished, you would not face jail time and will not be considered to have committed a crime for refusing to blow if you were ever arrested for DUI on another occasion.

Keep in mind that you must apply for a formal review hearing within ten days of your arrest. A Lakeland criminal defense attorney can do that on your behalf and help you get a hardship license to allow you to drive to work, provided you are eligible for the license. The formal review process is an excellent tool to help prepare your case for trial. No two DUI cases are alike, and each one reveals different details that may work in your favor. Never assume that you have no hope or no choices when charged with DUI and/or refusing to submit to a breath test.

As your attorney, I will fight the administrative suspension of your driver’s license. This hearing is called a Formal Review. I can help you get a hardship license so you can continue to drive to work if you are eligible. It is important that you have an experienced criminal defense lawyer represent you at the Formal Review. The Formal Review can be a valuable discovery tool to help prepare your case for court and for trial.
Each DUI case is different and unique based upon the individual facts of your case and thus your defense may be different than another individual’s case. Your options are fully explained to you when you discuss your situation with an experienced Lakeland criminal defense lawyer.


Tags: arrest breath test DUI Florida Criminal Statute Formal Review Intoxilyzer misdemeanor


May 2013


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112 E Poinsettia St Lakeland, FL, 33803

(863) 688-4606


4107 N. Himes Ave #200 Tampa, FL, 33607

(813) 789-6404


24140 FL-54 #101e Lutz, FL, 33559

(727) 457-8660


Thomas Grajek is a great lawyer

After my husbands DUI, I met with a couple of lawyers but NONE were as attentive as Thomas Grajek. Thomas was able to beat the DUI charge that I thought would be impossible. Not only did he save us money, he also helped put our lives back. I would recommend Mr. Grajek to anyone in our situation. Thsnkd Tom!!!

Thomas Grajek is a great lawyer

Excellent Attorney....called this attorney on a Saturday. He was quick to call me back and even gave me free advice as to how to handle the situation we were in. We ended up hiring him best decision we made. Would recommend this attorney to anyone.

Thomas Grajek is a great lawyer

Got a DUI a few months ago and got Toms name from a friend of mine.. I am more then satisfied with the way he handled my case and the way he kept me informed the whole time.. I got off on reckless with a with hold which i am more then happy to have on my record then a dui... He's a very down to earth guy and definitely trys to relate to where ur comin from.. I would with no doubt recommend Tom to friends and family... Thanks Tom ur the best!!!!!!

Thomas Grajek is a great lawyer

Great DUI Lawyer!! He got my DUI dropped to a reckless driving charge!! definitely went above and beyond for my case!!!He is very easily accessible and always promptly returned my phone calls/emails.

Thomas Grajek is a great lawyer

I have just moved to the Tampa area. I was intoduced to Tom after being arrested for a DUI. Within minutes of being bonded out Tom came to my place of employment with all needed documents to "get the ball rolling". He always kept me informed on my case and when the time came for my hearing, I plead guilty to wreckless and had no fines and very little commuity service. Thomas Grajek is a great attorney and I feel he would be a valuable assett in anyone's defense.