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Refusal to Submit to DUI Testing - Florida Statute 316.1939 | West Palm Beach Drunk Driving Defense Lawyer

traffic offenses lawyer

You go out to drink with some friends and then you decide to head home. You are driving along and the police turn on their lights. You pull over and briefly talk to the officer. The officer asks you to step out of the vehicle and do some field sobriety exercises to determine if you are driving under the influence. You timidly comply and conduct the exercises which are at some time concluded by the officer placing you under arrest. You are put in the back of the police car and then driven to some location. The individuals at the jail put you in a room and ask if you want to submit to testing. You say no just like you did the first time you were arrested for drunk driving. Does this sound familiar?

Florida Statute 316.1939 makes it a crime to refuse to submit to testing a second time when the police have probable cause that you were driving under the influence in West Palm Beach. In 2012, there were 56,664 arrests in the State of Florida for driving under the influence of which 18,268 refused to be tested. Florida Statute 316.1939 says that if a person refuses to submit to testing, then the person’s driver’s license would be suspended for a year. That doesn’t sound so bad when faced with a potential DUI conviction, but the State Legislature changed the law to now criminalizing a second refusal to prevent people from dodging DUI convictions by continually refusing to test. When a person refuses to test, it is harder for the prosecutor to prove that you were driving under the influence of alcohol.

Ways you might act which will be deemed a refusal by the officer:

  • You say “No.”
  • You start getting argumentative or abusive with the officer.
  • You pretend to blow into the machine.
  • You blow once but do not blow a second time.
  • You remain silent.

The Police Testing

The police are checking to see if you have alcohol in your system by having you blow into a machine which measures the amount of alcohol in your breath which correlates to the amount of alcohol in your blood. If you blow and your blood alcohol level is below the legal limit, the officer might ask you to urinate to see if you are under the influence of a drug.

If you are involved in an accident and are unable to blow in West Palm Beach, the officer might ask you if you want to be tested by allowing someone to draw your blood. In Florida, police can forcibly draw blood if you were involved in a wreck where someone was seriously injured. See Florida Statute 316.1933.

Florida’s Implied Consent Warning Florida Statute 316.1932 says that if you operate a vehicle in Florida, you are impliedly consenting “to submit to an approved chemical test or physical test including[,]” if you were lawfully arrested. Driving a car is a privilege and not a right. If you start driving, you are in effect saying you will submit to testing.

What the State Prosecutor has to Prove to Convict a Defendant of This Crime

The state prosecutor has to prove beyond a reasonable doubt:

  1. A law enforcement officer had probable cause to believe defendant drove or was in actual physical control of a motor vehicle in this state while either:
    1. Under the influence of alcoholic beverage, a chemical substance listed in 877.111 Fla. Stat, or a controlled substance listed in Chapter 893 to the extent the defendant's normal faculties were impaired; or
    2. His breath or blood alcohol level was .08 or higher;
  2. The law enforcement officer either:
    1. Arrested the defendant for driving under the influence; or
    2. Requested a blood test;
  3. The defendant was informed that his refusal to submit to a chemical or physical test of his breath, blood, or urine, would be grounds to suspend his privilege to operate a motor vehicle for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months;
  4. The defendant was informed that it is a misdemeanor to refuse to submit to a lawful test of his breath, blood, or urine, if his driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his breath, blood, or urine;
  5. The defendant, after being so informed, refused to submit to a chemical or physical test of his breath, blood, or urine when requested to do so by a law enforcement officer or correctional officer; and
  6. The defendant's driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his breath, blood, or urine.


A police officer cannot pull you over without reason. They have to have probable cause or reasonable suspicion which is based upon the facts of the situation; otherwise, the stop, the observations of the police officer, and the refusal to submit to testing are going to be suppressed.

Did you really refuse to submit or did you not understand what was going on? Were their language problems? Were you injured and not mentally “there” as a result of a crash? Our attorneys will look at the facts of the situation to see if you really did refuse or was there confusion as to the question.

While not a complete defense, you will most likely be prosecuted for DUI and the refusal. A good defense attorney could maybe negotiate with the prosecutor to have the DUI changed into a reckless driving plea deal which does not have the minimum mandatory sentencing like DUI does.


The first refusal results in a one year suspension of the driver’s license. That refusal can be used for a prosecution for a second refusal. A second refusal is a first-degree misdemeanor which is punishable up to 365 days in jail and a $1,000 fine.

Contact the Law Office of Roger P. Foley, P.A.

Our West Palm Beach attorneys have experience in dealing with driving under the influence cases. Roger Foley is a member of the National College of DUI Defense. He is extremely experienced in this area. Call today to set up a 5 minute free consultation with Roger Foley to discuss your case and any questions you might have. He has handled many DUI types of cases. He has attended seminars on DUI cases taught by the leading experts around the nation. The experience and training that our attorneys have will go towards crafting your defense strategy. We can even take your case all the way to trial, but before we can fight for you, we need you to call!

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