Refusing to submit to the breath test on the Intoxilyzer 8000 breath test machine can be a criminal offense separate from the crime of driving under the influence (DUI).
Florida Criminal Statute 316.1939 makes it a first degree misdemeanor punishable by up to a year in the county jail if a person arrested for DUI refuses to take the breath test (or any chemical or physical test of the driver’s breath, blood, or urine), in certain circumstances.
In order for the 2nd breath test refusal to be a crime in addition to the DUI, the driver’s license must have been previously suspended for refusing to submit to the breath test (or blood or urine test). The officer must have probable cause to believe a new DUI was committed, place the driver under arrest, inform the driver of Implied Consent (refusing a breath test would result in the suspension of the driver’s license for a period of 1 year for a first refusal and a period of 18 months for a 2nd refusal), that refusing the breath test (or other physical test) a 2nd time would be a misdemeanor, and the driver arrested for DUI refuses the breath test.
Therefore, you could be charged with 2 crimes, the DUI and refusing to submit to a breath test.
This is one reason why it is so important to request a Formal Review within 10 days of your arrest for driving under the influence in order to fight the suspension for refusing a breath test. New defenses to the crime may be discovered and if the suspension is overturned, you will not be facing a crime and jail time for refusing the breath test in the future if ever arrested for DUI again.
YOU HAVE A RIGHT TO TO HAVE A HEARING ON WHETHER THIS SUSPENSION IS UPHELD OR INVALIDATED.
YOU MUST APPLY FOR THE FORMAL REVIEW HEARING WITHIN 10 DAYS OF YOUR ARREST.
- Click here for the Formal Review Request Form
- Click here for answers to some answers to DUI FAQ
- Click her for DUI penalties
As your attorney, I will fight the administrative suspension of your driver’s license. This hearing is called a Formal Review. I will assist you in obtaining 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. Call now to set up your free consultation so I can answer these and other questions you may have regarding your DUI.
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Tampa, FL (813) 789-6404
No, you will not be eligible to apply for the Diversion Program if you refused to blow the breathalyzer. If you blow, there’s a higher chance that you will receive a lighter sentence.
Having represented many clients facing a DUI case related to a breath test, we are experts in the legalities surrounding breath tests and the myriad of factors which affect the reliability and efficacy of these tests. We pride ourselves on staying up to date with the latest DUI laws, breathalyzer cases, and technological developments as they relate to breath tests. As such, we have a wealth of tools at our disposal to help contest the results of breathalyzers and potentially even have the evidence from a breath test dismissed from court.
Immediately contact a competent criminal defense attorney with experience handling DUI cases with breathalyzer evidence. Remember that the results of a breath test are only one of many factors in a DUI case. A skilled criminal defense attorney may even be able to have evidence based on a breath test dismissed, as there are many confounding factors and questions of reliability in regards to breathalyzer tests.
The Florida Diversion Program is a deferred prosecution program for a particular felony, misdemeanor, and misdemeanor DUI offenders offered by the state Attorney’s Office and supervised by County and State Corrections.
Your defense attorney will assess the situation and seek out any confounding factors which may have affected the results of your breath test. They will investigate to ensure that the officers administered the test properly and legally, that the test was performed under the best possible conditions, and research the specific details of your case to determine if there is any chance of having the breath test dismissed from court.
There aren’t a lot of valid reasons to refuse a breathalyzer test, and refusing one may lead to violations. However, there are reasons that police officers may consider. This includes having asthma and hyperventilation. For asthma, you’d need to have documents that will prove you have the illness, and for hyperventilation, the police officer may ask you to calm down and relax before he asks you to retake the breathalyzer test.
No. Refusing to take the test is not an admission of guilt. But, if you do it, the officer may use it as evidence against you. Also, if you refuse the test, you might be charged with harsher penalties and fines.
Your license would be suspended for a year if you refused a breath test. With this, it’s worth noting that you essentially surrender your driving privileges, and Florida will penalize you for this.
If you’ve refused a breathalyzer test and your license has been suspended, you may have it reinstated, given that you are not found guilty of a DUI charge against you. If you’re subjected to a breathalyzer test, it is best not to refuse so that you won’t do more harm than good.