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2nd Refusal to Submit to DUI Breath or Blood Test (Prior refusal)



What is a Second Refusal to Submit to DUI Testing?

A second refusal to submit to DUI testing in Florida occurs when an individual, who previously refused a breath, blood, or urine test during a DUI arrest, refuses again upon a subsequent DUI arrest. Under Florida Statute § 316.1939, this second refusal is considered a first-degree misdemeanor, punishable by severe penalties. This law aims to prevent individuals from repeatedly avoiding DUI convictions by refusing chemical tests.

In 2002, the Florida Legislature enacted this statute to address the issue of repeat refusals. The law is designed to deter individuals from exploiting the system by refusing tests and thereby avoiding DUI convictions. This offense is often listed on the docket as “316.1939(1)-TRAF1076 (MF) REFUSAL TO SUBMIT TO TESTING FIRST DEGREE MISDEMEANOR.”

The most critical aspect to remember if you face a second refusal is the limited time frame to contest the administrative suspension of your driver’s license. You have only ten (10) days to demand a formal review hearing. This step is essential to avoid an 18-month hard suspension, during which you will be unable to obtain a hardship license. If you miss this deadline, you will be stuck with the full 18-month suspension, significantly impacting your daily life and employment.

What is a Second Refusal to Submit to DUI Testing? A second refusal to submit to DUI testing in Florida is a first-degree misdemeanor, punishable by up to $1,000 fine and 12 months in county jail, aimed at deterring repeated refusals to avoid DUI convictions.

To avoid the 18-month hard administrative suspension, it is crucial to contest the suspension during a formal review hearing. Hiring a DUI defense attorney can significantly improve your chances of success. An attorney can help secure a 42-day permit, allowing you to continue driving to work, school, and other essential destinations while preparing for the hearing.

DUI Accident Scene

Florida’s Implied Consent Law mandates that drivers consent to chemical testing if lawfully arrested for DUI. Refusal to comply results in administrative penalties, including license suspension. A second refusal not only incurs these penalties but also constitutes a criminal offense, leading to more severe consequences.

The law enforcement officer must inform you of the implied consent warnings, which state that refusal to submit to the chemical test will cause a suspension of your driving privileges. For a second refusal, the suspension period is 18 months. Additionally, the officer must inform you that refusing the test is a misdemeanor if your driving privilege had previously been suspended for a prior refusal.

If you still decide to refuse the test after receiving these warnings, you will face both administrative and criminal penalties. The prosecutor must prove several elements to secure a conviction, including that the officer had probable cause to believe you were driving under the influence and that you were informed of the consequences of refusal.

In summary, understanding the implications of a second refusal to submit to DUI testing is crucial. It carries significant penalties and can severely impact your life. Consulting with an experienced attorney can help you navigate this complex legal landscape and protect your rights. For more detailed information, you can explore resources like the Florida DUI Refusal Guide and learn about the Implied Consent Law in Florida.

Penalties for Second Refusal to Submit to DUI Testing

The penalties for a second refusal to submit to DUI testing in Florida are stringent. As a first-degree misdemeanor, the offense can result in up to 12 months in county jail and fines up to $1,000. Additionally, the driver’s license will be suspended for 18 months without eligibility for a hardship license.

Administrative vs. Criminal Penalties

It’s crucial to differentiate between administrative and criminal penalties. Administrative penalties include the immediate suspension of the driver’s license. Criminal penalties involve court-imposed fines and potential jail time. Both sets of penalties can significantly impact the individual’s life, making it essential to contest the suspension and seek legal representation.

DUI Breath Test Device

When facing a second refusal to submit to DUI testing, understanding the full scope of penalties is vital. The administrative penalties start with an immediate suspension of your driver’s license. This suspension is a hard 18-month suspension, meaning there is no eligibility for a hardship license during this period. The impact on your daily life can be profound, affecting your ability to commute to work, attend school, or fulfill other essential responsibilities. It is essential to seek legal guidance to navigate these penalties effectively.

What are the penalties for a second refusal to submit to DUI testing? A second refusal is a first-degree misdemeanor punishable by up to $1,000 in fines, 12 months in county jail, and an 18-month license suspension without eligibility for a hardship license.

On the criminal side, the penalties are equally severe. A second refusal to submit to DUI testing is classified as a first-degree misdemeanor under Florida Statute § 316.1939. This classification carries the potential for up to 12 months in county jail and fines reaching $1,000. The criminal record from such a conviction can have long-lasting effects, potentially impacting employment opportunities, professional licenses, and personal relationships. Understanding these penalties and seeking prompt legal assistance can make a significant difference in the outcome of your case.

One of the most important steps to take after a second refusal is to demand a formal review hearing within ten days of the arrest. This hearing is your opportunity to contest the administrative suspension of your driver’s license. If you miss this crucial deadline, you will be stuck with the full 18-month hard suspension. An experienced DUI defense attorney can help you navigate this process and increase your chances of a favorable outcome.

During the formal review hearing process, your attorney can also help secure a 42-day permit, allowing you to continue driving to work, school, and other essential destinations. This permit is vital for maintaining your livelihood while the suspension is being contested. Additionally, the information gathered during the formal review hearing can aid in the defense against the criminal charges you face.

Understanding the difference between administrative and criminal penalties is crucial. Administrative penalties, like the immediate license suspension, are imposed by the Department of Highway Safety and Motor Vehicles (DHSMV). These penalties are separate from the criminal penalties imposed by the court. The criminal penalties, which include jail time and fines, are decided in court and can significantly affect your future. Therefore, it is essential to contest both the administrative and criminal aspects of your case to minimize the impact on your life.

Moreover, the financial burden of these penalties can be overwhelming. Fines, legal fees, and the costs associated with mandatory programs can add up quickly. If you’re a professional, such as a nurse or a commercial airline pilot, a DUI conviction can jeopardize your career and professional license. Consulting with an experienced attorney can help you understand the full scope of these penalties and develop a strategy to mitigate them.

For more detailed information about the implications of a second refusal and how to navigate the legal landscape, you can explore resources like the Florida DUI Refusal Guide and learn about the Implied Consent Law in Florida. These resources provide comprehensive insights into the laws and penalties associated with DUI refusals, helping you make informed decisions about your case.

Defenses Against Second Refusal to Submit to DUI Testing

Several defenses can be employed to contest a second refusal to submit to DUI testing. These defenses often focus on procedural errors, lack of probable cause, or issues with the implied consent warning. An experienced DUI attorney can evaluate the specifics of the case to determine the most effective defense strategy.

One common defense is challenging the adequacy of the implied consent warning. If the law enforcement officer failed to properly inform the individual of the consequences of refusal, this could be grounds for contesting the charges. Additionally, any procedural mistakes made by the arresting officer can be leveraged in the defense.

What is an implied consent warning? An implied consent warning informs the driver that refusal to submit to chemical testing will result in license suspension and can be used as evidence of guilt.

Another potential defense strategy involves questioning the probable cause for the traffic stop. If the officer did not have reasonable suspicion to make the stop, any evidence gathered during the encounter, including the refusal, could be inadmissible in court. This can significantly weaken the prosecution’s case.

Procedural errors during the arrest process are also critical to examine. These can include improper administration of field sobriety tests, failure to follow protocol, or inadequate documentation. For instance, if the officer did not follow the correct steps in administering a walk-and-turn test, this could be used to challenge the validity of the arrest.

Additionally, questioning the accuracy of chemical tests is another viable defense. Breathalyzers and other chemical tests are not infallible. Factors such as improper calibration, maintenance issues, and operator error can lead to inaccurate results. An experienced DUI attorney can scrutinize these aspects to challenge the validity of the test results.

Medical conditions can also be a compelling defense. Certain medical conditions or medications can affect the results of field sobriety tests and chemical tests. For example, conditions like GERD can cause false positives in breathalyzer tests. By providing medical evidence, your attorney can demonstrate that the test results were not accurate representations of your impairment.

Lastly, the defense might argue the concept of confusion doctrine. The confusion doctrine applies when a driver is misled or confused about their rights and obligations regarding chemical testing. If the driver was given conflicting information about their rights, this could be a basis for challenging the refusal.

What is the confusion doctrine? The confusion doctrine applies when a driver is misled or confused about their rights and obligations regarding chemical testing during a DUI stop.

In summary, defending against a second refusal to submit to DUI testing involves a multi-faceted approach. By examining the implied consent warning, probable cause for the stop, procedural errors, accuracy of chemical tests, medical conditions, and potential confusion, a skilled attorney can build a robust defense. If you find yourself facing these charges, it’s crucial to seek legal advice immediately to protect your rights and explore all possible defenses.

For more information on defending DUI refusal cases, you can refer to the expert tips for DUI refusal defense and understand how beating DUI refusal charges works. These resources provide comprehensive insights into the strategies and defenses available for such cases.


Importance of Formal Review Hearings

After a second refusal to submit to DUI testing, it’s crucial to request a formal review hearing within ten days of the arrest. This hearing provides an opportunity to contest the administrative suspension of the driver’s license. Successfully contesting the suspension can prevent the 18-month hard suspension and allow the individual to continue driving for essential purposes.

What is a formal review hearing? A formal review hearing is a process where you can challenge the administrative suspension of your driver’s license after a DUI arrest.

The process of requesting a formal review hearing involves several steps. First, it’s essential to act quickly to ensure the request is made within the ten-day window. Missing this deadline means you’ll be stuck with an 18-month hard suspension, with no eligibility for a hardship license. This can severely impact your daily life and ability to work.

Securing a 42-Day Permit

During the formal review hearing process, an attorney can help secure a 42-day permit, allowing the individual to drive to work, school, and other essential destinations. This permit is vital for maintaining livelihood while the suspension is being contested. The information gathered during the formal review hearing can also aid in the defense against criminal charges.

Obtaining a 42-day permit is not just about maintaining your driving privileges; it’s about giving your attorney time to gather evidence and prepare a robust defense. The permit allows you to continue with your daily responsibilities without interruption, which is particularly important if you have dependents or a demanding job. The process of securing this permit involves presenting a compelling case to the hearing officer, highlighting the necessity of maintaining driving privileges for essential activities.

DUI Lawyer and Legal Books

The formal review hearing also serves as a critical juncture for gathering evidence. During the hearing, your attorney can subpoena witnesses, cross-examine the arresting officer, and challenge the validity of the evidence presented. This can be particularly useful if there were procedural errors during the arrest or if the implied consent warning was not adequately provided.

Why is gathering evidence important? Gathering evidence during the formal review hearing can help build a strong defense for both the administrative and criminal aspects of your case.

One of the most significant advantages of a formal review hearing is the potential to invalidate the administrative suspension entirely. If the arresting officer or the breath test operator fails to appear for the hearing, the suspension is automatically invalidated and erased from your driving record. This can be a game-changer, allowing you to avoid the 18-month hard suspension and continue driving legally.

It’s also essential to understand the broader implications of a second refusal to submit to DUI testing. Under Florida law, a second refusal is treated as a first-degree misdemeanor, punishable by up to 12 months in county jail and fines up to $1,000. The administrative suspension is just one part of the equation; the criminal penalties can be equally severe. Therefore, contesting the suspension at the formal review hearing is a critical step in defending against the overall charges.

Another crucial aspect is understanding how Florida’s implied consent law works. This law mandates that drivers consent to chemical testing if lawfully arrested for DUI. Refusal to comply results in administrative penalties, including license suspension. A second refusal not only incurs these penalties but also constitutes a criminal offense, leading to more severe consequences. More details about this can be found in the Florida’s Implied Consent Law guide.

The formal review hearing is also an opportunity to explore other defenses. For instance, questioning the probable cause for the traffic stop or challenging the accuracy of the chemical tests can be effective strategies. Factors such as improper calibration, maintenance issues, and operator error can lead to inaccurate results. An experienced DUI attorney can scrutinize these aspects to challenge the validity of the test results. For more information on how to beat a DUI refusal case, check out our guide on beating DUI refusal charges.

In conclusion, the formal review hearing is a pivotal moment in contesting a second refusal to submit to DUI testing. It provides an opportunity to avoid the harsh administrative penalties and gather crucial evidence for your defense. If you find yourself in this situation, it’s imperative to act quickly and seek legal representation to navigate the complexities of the process. At Leppard Law: DUI Lawyers, we have the expertise and dedication to help you through this challenging time. Contact us today at 407-476-4111 to schedule a free consultation and take the first step towards defending your rights.

For additional resources and tips on DUI refusal cases, you can refer to our Florida DUI Refusal Guide and learn more about the Confusion Doctrine in DUI cases.


Infographic depicting the words 2nd Refusal to Submit to DUI Breath or Blood Test (Prior refusal)


What happens if I refuse a DUI breath test for the second time in Florida?

What happens if I refuse a DUI breath test for the second time in Florida? A second refusal to submit to DUI testing in Florida results in severe penalties, including up to 12 months in county jail, fines up to $1,000, and an 18-month hard suspension of your driver’s license.

How can I contest a second DUI refusal in Florida?

How can I contest a second DUI refusal in Florida? You can contest a second DUI refusal by requesting a formal review hearing within ten days of your arrest. This hearing allows you to challenge the administrative suspension of your license. Hiring an experienced DUI attorney is crucial for navigating this process.

What are the defenses against a second refusal to submit to DUI testing?

What are the defenses against a second refusal to submit to DUI testing? Defenses against a second refusal include procedural errors, lack of probable cause, and issues with the implied consent warning. An experienced DUI attorney can evaluate the specifics of your case to determine the most effective defense strategy.

Can I get a permit to drive if my license is suspended for a second DUI refusal?

Can I get a permit to drive if my license is suspended for a second DUI refusal? Yes, during the formal review hearing process, an attorney can help secure a 42-day permit, allowing you to drive to work, school, and other essential destinations while contesting the suspension.





2nd Refusal to Submit to DUI Breath or Blood Test (Prior refusal)

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Top-Rated Second Refusal to Submit to DUI Testing Attorneys Serving Florida

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2nd Refusal to Submit to DUI Breath or Blood Test (Prior refusal)

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Expert Florida DUI Attorney

Legally reviewed by Joe Easton and the content team, this article reflects the firm’s 60 years of combined criminal defense expertise. Joe Easton, with his extensive experience and strategic prowess in DUI and criminal defense, offers more than just legal representation; he brings a commitment to turning legal challenges into triumphs. His approach, combining tenacity in the courtroom with personalized client care, ensures your DUI case is not just defended but championed with dedication and expertise.

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