Tampa Refusal to Submit to Testing Attorney
If you have been arrested for refusing to submit to a breath, urine, or blood test during a DUI investigation in Tampa, you may be facing serious consequences beyond the underlying DUI charge. Under Florida’s Implied Consent Law, Florida Statute 316.1932, drivers are deemed to have consented to certain lawful chemical or physical tests after being arrested for driving under the influence. Refusing a lawful test can result in an administrative driver’s license suspension and, in some cases, a separate criminal charge under Florida Statute 316.1939. A first refusal can be charged as a second-degree misdemeanor, while a second or subsequent refusal can result in enhanced penalties. As an experienced Tampa Refusal to Submit to Testing Attorney and former Hillsborough County Public Defender’s Office Division Chief, J. Ruffin Hunt understands how to challenge DUI refusal cases, including whether the arrest was lawful, whether the officer complied with Florida’s implied consent requirements, and whether the State can prove every element of the offense. If you have been accused of refusing a breath test, urine test, or other DUI-related testing in Tampa or Hillsborough County, contact Hunt Law today for a free case consultation.
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Refusal to Submit to Testing Charges in Florida
Under Florida’s Implied Consent Law, Florida Statute 316.1932, any person who accepts the privilege of driving in Florida is deemed to have consented to certain chemical or physical testing if they are lawfully arrested for driving under the influence. These tests may include a breath test to determine a person’s breath alcohol level or a urine test to detect the presence of controlled substances or chemical substances.
However, implied consent does not mean law enforcement can ignore constitutional protections or automatically punish every driver accused of refusing a test. Before a refusal can result in criminal penalties, the State must prove that specific legal requirements were satisfied.
If you have been charged with Refusal to Submit to Testing in Tampa or Hillsborough County, an experienced DUI defense attorney can review whether law enforcement complied with Florida law, whether the request for testing was valid, and whether the State can prove the alleged refusal beyond a reasonable doubt.
What Must the State Prove in a Refusal to Submit to Testing Case?
Under Florida Statute 316.1939, prosecutors must prove several elements before a person can be convicted of refusing to submit to a lawful breath or urine test.
The State must establish that:
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The law enforcement officer had probable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, chemical substances, or controlled substances;
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The officer requested a lawful breath or urine test under Florida’s implied consent law;
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The person was properly advised of the consequences of refusing testing;
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The person was informed that refusing could result in a driver’s license suspension;
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The person was informed that refusing a lawful test could constitute a separate criminal offense; and
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After receiving the required warnings, the person still refused to submit to testing.
A refusal case involves more than simply proving that a driver did not provide a breath or urine sample. The legality of the DUI investigation, the arrest, the implied consent warnings, and the circumstances surrounding the alleged refusal may all become important issues in the defense.
Penalties for Refusing a Breath Test or Urine Test in Florida
The penalties for refusal depend on whether the person has previously refused testing.
First Refusal
A first refusal can result in:
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A one-year driver’s license suspension; and
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A criminal charge for Refusal to Submit to Testing as a second-degree misdemeanor.
A second-degree misdemeanor in Florida is punishable by:
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Up to 60 days in county jail;
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Up to 6 months of probation; and
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A fine of up to $500.
Second or Subsequent Refusal
A second or subsequent refusal carries more serious consequences. A person who has previously had their license suspended for refusing a lawful breath, urine, or blood test can face:
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An 18-month driver’s license suspension; and
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A criminal charge for Refusal to Submit to Testing as a first-degree misdemeanor.
A first-degree misdemeanor in Florida is punishable by:
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Up to 1 year in county jail;
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Up to 1 year of probation; and
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A fine of up to $1,000.
Importantly, a refusal charge can exist separately from the underlying DUI case. Even if the DUI charge is reduced or dismissed, the refusal allegation may still need to be addressed.
Can the State Use My Refusal Against Me?
Yes. Under Florida Statute 316.1932, a refusal to submit to a lawful breath, urine, or blood test may be admissible as evidence in a criminal proceeding.
Prosecutors often argue that a refusal shows a person was attempting to avoid unfavorable test results. However, there may be many reasons why someone does not submit to testing that have nothing to do with impairment.
A Tampa DUI refusal attorney can examine the facts surrounding the alleged refusal, including:
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Whether the driver understood the officer’s instructions;
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Whether the implied consent warnings were properly provided;
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Whether the officer’s request was confusing or misleading;
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Whether the person actually refused;
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Whether the arrest itself was lawful; and
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Whether law enforcement followed required procedures.
Common Defenses to Refusal to Submit to Testing Charges
Every refusal case depends on the specific facts, but potential defenses may include:
Lack of Probable Cause for the DUI Arrest
Florida’s refusal statute requires that the officer have probable cause to believe the person was driving or in actual physical control of a vehicle while impaired. If the DUI arrest was unlawful, the refusal allegation may also be challenged.
Improper Implied Consent Warning
Law enforcement officers are required to advise drivers of the consequences of refusing a lawful test. If the warnings were incomplete, incorrect, or improperly given, that may create issues for the prosecution.
No Actual Refusal Occurred
Not every unsuccessful test attempt is a refusal. Medical conditions, confusion, equipment problems, communication issues, or misunderstandings may affect whether the State can prove a person knowingly refused testing.
Problems With the DUI Investigation
Because refusal cases usually begin with a DUI investigation, issues involving the traffic stop, field sobriety exercises, officer observations, and arrest decision may all impact the refusal charge.
Tampa Refusal to Submit to Testing Attorney
Being accused of refusing a breath test or urine test during a DUI investigation can create serious consequences for your driver’s license, your criminal record, and your future. These cases require a detailed review of both the DUI investigation and the procedures law enforcement followed after the arrest.
At Hunt Law, Tampa Refusal to Submit to Testing Attorney J. Ruffin Hunt uses his experience as a former Hillsborough County Public Defender’s Office Division Chief to aggressively defend individuals accused of DUI and refusal-related offenses throughout Tampa and Hillsborough County.
If you have been arrested for DUI or charged with refusing to submit to testing, contact Hunt Law today at (813) 787-4849 for a free case consultation.
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What are the Elements of Refusal to Submit to Testing in Florida?
Jury Instruction 28.13
To prove the crime of Refusal to Submit to Testing – Driving Under the Influence, the State must prove the following five elements beyond a reasonable doubt:
Give 1a or 1b or both as applicable.
1. A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control of] a motor vehicle in this state while
a. under the influence of [an alcoholic beverage] [(a chemical substance listed in 877.111 Fla. Stat.)] [(a controlled substance listed in Chapter 893)] to the extent (Defendant’s) normal faculties were impaired.
b. [his] [her] [breath] [blood] alcohol level was .08 or higher.
2. The law enforcement officer lawfully arrested (defendant) for Driving Under the Influence.
3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine], [his] [her] privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.
4. (Defendant) was informed that a refusal to submit to a lawful test of [his] [her] [breath] [urine] is a misdemeanor of the second degree, or if either [his] [her] driving privilege had been previously suspended, or if [he] [she] was previously fined under s. 327.35215, for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine], is a misdemeanor in the first degree.
5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine] when requested to do so by a [law enforcement officer] [correctional officer].
BUI refusal
§ 327.35215 is the Florida statute that covers refusal to submit to testing after an arrest for Boating Under the Influence.
Inference. § 316.1939(3), Fla. Stat. Give if applicable.
You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.
§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.
“Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway[, but not including any bicycle, electric bicycle. motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped].
“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].
Mathis v. Coats, 24 So. 3d 1284 (Fla. 2d DCA 2010).
“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer’s knowledge, training, and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed.
Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles.
“Actual physical control” means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.
J. Ruffin Hunt
Managing Member, Hunt Law, PLLC.
Attorney J. Ruffin Hunt is a Tampa criminal defense attorney and founder of Hunt Law, a firm focused exclusively on criminal and DUI defense throughout the Tampa Bay area. Born and raised in Tampa, Mr. Hunt earned his degree from the University of Florida before attending Stetson University College of Law. He began his legal career at the Hillsborough County Public Defender’s Office, where he gained extensive courtroom and trial experience handling misdemeanor, felony, and DUI cases. Over the course of his career, he rose to leadership positions within the office, serving as a Division Chief in multiple divisions.
Mr. Hunt has dedicated his entire legal career to criminal defense and understands the serious consequences that criminal charges can carry. He represents clients facing a wide range of charges, including DUI, drug offenses, sex crimes, domestic violence allegations, theft crimes, violent offenses, probation violations, and other serious criminal matters. As a former board member of the Hillsborough County Association of Criminal Defense Lawyers, Mr. Hunt remains committed to protecting the constitutional rights of individuals accused of crimes and providing aggressive, strategic representation for clients throughout Tampa Bay.
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If you've been arrested in Hillsborough County, your case will likely involve several different locations. Understanding where your case begins and where it will proceed can help reduce confusion during an already stressful time.
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Frequently Asked Questions (FAQ)
Q: What happens after an arrest in Tampa?
A: After an arrest in Tampa, you will typically be transported to Orient Road Jail for booking, where law enforcement will fingerprint you, take your photograph, record your personal information, and formally process the charges against you. Within 24 hours of your arrest, you must appear before a judge at First Appearance, where the court will determine whether probable cause existed for your arrest, decide whether to set bond, and impose any conditions of release. During this time, it is important to exercise your right to remain silent, avoid discussing your case with anyone other than your attorney, and refrain from consenting to searches if asked by law enforcement. As your case moves forward, early involvement by an experienced Tampa criminal defense attorney can help protect your constitutional rights, advocate for a favorable bond, preserve important evidence, and begin developing a defense strategy from the outset.
Q: What is a misdemeanor in Florida?
A: A misdemeanor in Florida is a criminal offense that is less serious than a felony but can still result in significant penalties, including jail time, probation, fines, and a permanent criminal record. A misdemeanor is an offense that can result in a term of imprisonment that doesn't exceed 1 year. Florida classifies misdemeanors as either second-degree misdemeanors, which are generally punishable by up to 60 days in jail and a $500 fine, or first-degree misdemeanors, which can carry up to one year in jail and a $1,000 fine. Common misdemeanor offenses include battery, petit theft, possession of drug paraphernalia, resisting an officer without violence, and disorderly conduct. Although misdemeanors carry lower maximum penalties than felonies, a conviction can still affect employment, professional licensing, housing opportunities, and other aspects of your future. Depending on the facts of the case, it may be possible to obtain a dismissal, diversion, reduced charges, or another favorable resolution, making it important to speak with an experienced Florida criminal defense attorney as early as possible.
Q: What is a felony in Florida?
A: A felony in Florida is a criminal offense punishable by more than one year in state prison and is generally considered more serious than a misdemeanor. Florida classifies felonies into five categories: third-degree, second-degree, first-degree, life felonies, and capital felonies, with penalties ranging from up to five years in prison for many third-degree felonies to life imprisonment for the most serious offenses. Examples of felony crimes include drug trafficking, robbery, aggravated battery, burglary, kidnapping, grand theft, and certain sex offenses. In addition to prison time, a felony conviction can result in substantial fines, probation, the loss of firearm rights, employment and professional licensing consequences, and a permanent criminal record. Depending on the facts of the case, however, felony charges may be reduced, dismissed, resolved through diversion, or successfully challenged at trial, making it important to consult an experienced Florida criminal defense attorney as early as possible.
Q: Do I need a lawyer if charges haven't been filed yet?
A: It can be beneficial. In many cases, hiring a criminal defense attorney before formal charges are filed can be one of the most important decisions you make. Whether you are under investigation, have been contacted by detectives, or were arrested but are still waiting for the State Attorney's Office to decide whether to file charges, an attorney can protect your rights, communicate with law enforcement on your behalf, and help you avoid making statements that could be used against you. Early legal representation also provides an opportunity to present favorable evidence, identify weaknesses in the allegations, address misunderstandings, and advocate for prosecutors not to file charges or to pursue less serious charges when appropriate. Although no attorney can guarantee a particular outcome, getting experienced legal counsel involved as early as possible often creates opportunities that may no longer exist once formal charges have been filed.
Q: What happens if I miss court in Tampa?
A: Missing a court date in Tampa can have serious consequences, including the issuance of a bench warrant for your arrest, revocation of your bond, or stricter release conditions. Whether a warrant is issued often depends on the type of hearing you missed, the underlying criminal charge, whether you are represented by an attorney, and the reason for your absence. While emergencies such as hospitalization, transportation problems, or scheduling errors may help explain a missed appearance, it is important to act quickly before the situation becomes more difficult to resolve. In many cases, an experienced Tampa criminal defense attorney can determine whether a warrant has been issued, file a motion to quash or recall the warrant, explain mitigating circumstances to the court, and work to minimize additional penalties. Ignoring a missed court date typically makes matters worse, so seeking legal guidance as soon as possible is often the best course of action.
Q: What happens at first appearance court in Hillsborough County?
A: First appearance is the initial court hearing that takes place within 24 hours of an arrest in Hillsborough County, where a judge determines whether probable cause exists for the arrest, advises the defendant of the charges, and decides whether to set bond and impose any conditions of release. In Hillsborough County, first appearance hearings are generally held in Courtroom 17 at 1:30 p.m. on weekdays and 10:00 a.m. on weekends and holidays, with most defendants appearing by video from the jail. During the hearing, the judge considers factors such as the nature of the offense, the defendant's criminal history, risk of flight, and danger to the community when making bond decisions. While some defendants (such as those arrested for violating probation or on certain warrants) may not be eligible for bond at first appearance, an experienced Tampa criminal defense attorney can advocate for lower bond, release on recognizance, and favorable release conditions, making early legal representation an important part of protecting your rights.
Q: What happens at an arraignment hearing in Hillsborough County?
A: An arraignment is a procedural court hearing where the judge formally advises you of the criminal charges filed against you and asks you to enter a plea of guilty, not guilty, or no contest. Unlike a trial, no witnesses testify, no evidence is presented, and the judge does not determine guilt or innocence. In most cases, defendants plead not guilty, allowing the case to proceed to the discovery phase, pretrial hearings, negotiations, and, if necessary, trial. If you are represented by an attorney, your appearance at arraignment can often be waived by filing a written plea of not guilty and waiver of appearance with the court, although this depends on the specific case and court policies. Because important strategic decisions begin early in a criminal case, hiring an experienced Tampa criminal defense attorney before arraignment can help protect your rights, evaluate potential defenses, and position your case for the best possible outcome.
Q: Will my license be suspended if I'm arrested for DUI in Florida?
A: In most cases, yes. If you are arrested for DUI in Florida, your driver's license may be administratively suspended by the Florida Department of Highway Safety and Motor Vehicles (DHSMV), even before your criminal case is resolved. After the arrest, the officer will typically confiscate your driver's license and issue a 10-day temporary driving permit if you are eligible. The length of the suspension depends on the circumstances: a first-time unlawful breath or blood alcohol level of 0.08 or higher generally results in a six-month suspension, while refusing to submit to a lawful breath, blood, or urine test can result in a 12-month suspension for a first refusal and an 18-month suspension for subsequent refusals. You have only 10 days from the date of your arrest to request a DHSMV review hearing to challenge the suspension, making it critical to speak with an experienced Florida DUI defense attorney as soon as possible to protect your driving privileges.
Q: What happens if I refuse a breath test in Florida?
A: If you refuse a breath test after a lawful DUI arrest in Florida, you may face serious administrative and criminal consequences. Under Florida's implied consent law, refusing a breath test can result in a one-year driver's license suspension for a first refusal and an 18-month suspension for a second or subsequent refusal. Refusing to provide a lawful breath sample is also a crime in and of itself in Florida, meaning you'll likely face an additional criminal charge. Additionally, prosecutors are generally allowed to tell the jury that you refused the test and may argue that the refusal demonstrates a consciousness of guilt. However, refusing a breath test does not automatically result in a DUI conviction, as the State must still prove impairment through other evidence such as officer observations, field sobriety exercises, body camera footage, witness testimony, and driving behavior. Because potential defenses may exist, including challenges to the legality of the stop, arrest, or implied consent warnings, it is important to consult an experienced Florida DUI defense attorney as soon as possible.
Q: How do criminal traffic charges affect a Commercial Driver's License (CDL) in Florida?
A: Criminal traffic charges can have serious consequences for Florida CDL holders, often extending far beyond the penalties imposed in criminal court. Certain convictions (including DUI, reckless driving, leaving the scene of a crash, refusing a lawful alcohol test, and other "serious traffic violations") can result in temporary or permanent disqualification of your commercial driving privileges, even if the offense occurred while driving your personal vehicle. Two serious traffic violation convictions within three years can lead to a 60-day CDL disqualification, while three convictions can result in a 120-day disqualification. More serious offenses, such as DUI or leaving the scene, may trigger a one-year disqualification, and some repeat or felony-related offenses can permanently revoke your CDL. Because many of these penalties are triggered by a conviction rather than an arrest, it is important to consult an experienced Florida criminal traffic attorney before entering a plea to explore defenses and protect both your commercial driver's license and your livelihood.
Q: What happens if I violate probation in Florida?
A: If you are accused of violating probation in Florida, your probation officer may file an affidavit alleging a violation, which can lead to the issuance of a warrant, a warrantless arrest, or a notice to appear in court. At your first court appearance, you can either admit or deny the alleged violation. If you deny it, the court will hold a violation of probation hearing where the State must prove by the greater weight of the evidence that you committed a willful and substantial violation of your probation. If the judge finds that a violation occurred, the court may continue your probation, modify its conditions, or revoke it entirely. Revocation can result in a conviction if adjudication was previously withheld and may expose you to the maximum sentence available for the original offense. Because probation violation cases involve different procedures and a lower burden of proof than a criminal trial, it is important to speak with an experienced criminal defense attorney as soon as possible to evaluate potential defenses and protect your rights.
Q: How do I seal or expunge criminal records in Florida?
A: Florida law allows certain individuals to limit public access to their criminal records through either record sealing or record expungement, but eligibility depends on the outcome of the case and your prior criminal history. Generally, you may qualify for expungement if your case was dismissed, nolle prossed, resulted in a not guilty verdict, or was resolved through a qualifying diversion program, and you have never been adjudicated guilty of a criminal offense. You may qualify for "sealing" of records if you received a withhold of adjudication on the underlying offense. The process typically involves obtaining a Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE), then filing a petition with the court requesting that your record be sealed or expunged. If granted, the court will order the appropriate agencies to seal or destroy the record in accordance with Florida law. Because the eligibility rules are strict and the process involves detailed paperwork and court procedures, consulting an experienced Florida criminal defense attorney can help determine whether you qualify and maximize your chances of successfully clearing your record.
Q: What is Hillsborough County's RIDR DUI Diversion Program?
A: Hillsborough County's Reducing Impaired Driving Recidivism (RIDR) Program is a diversion-style program available to certain first-time, non-aggravated DUI offenders that may allow participants to avoid a DUI conviction. If accepted and all pre-plea requirements are successfully completed (such as DUI School, a MADD Victim Impact Panel, community service, and any required alcohol or drug monitoring) the State Attorney's Office may agree to reduce the DUI charge to reckless driving with alcohol as a significant factor and withhold adjudication. Eligibility is limited and generally excludes cases involving aggravating factors such as crashes, minors in the vehicle, very high breath alcohol levels, prior DUI-related offenses, or certain criminal histories. Because participation requires waiving speedy trial rights and completing significant conditions before receiving the plea offer, it is important to consult an experienced Tampa DUI defense attorney to determine whether RIDR is the best strategy or whether challenging the DUI charge may produce a more favorable outcome.
Q: Should I speak to detectives or police during a criminal investigation in Florida?
A: In most situations, no. If detectives or law enforcement officers want to question you during a criminal investigation, it is generally in your best interest to speak with an experienced criminal defense attorney before answering any questions. Even if you believe you are innocent or simply want to "tell your side of the story," your statements can be misunderstood, taken out of context, or used against you later in court. Under the Fifth Amendment, you have the right to remain silent and the right to have an attorney present during questioning, and invoking those rights cannot be used as evidence of guilt. Whether police contact you about a DUI, domestic violence, theft, drug offense, sex crime, or another investigation, you should politely decline to answer questions by stating that you wish to remain silent and speak with an attorney. Early legal representation can protect your constitutional rights, manage communications with law enforcement, and help avoid mistakes that could significantly impact your case.
Q: Can criminal charges in Florida be dropped?
A: Yes. Criminal charges in Florida can be dropped in several different ways, depending on the facts and legal issues involved. The most common occurs when the State Attorney's Office files a nolle prosequi, formally dismissing the prosecution because of insufficient evidence, witness credibility problems, constitutional issues, or other weaknesses in the case. Charges may also be dismissed after a defendant successfully completes a pretrial diversion program, such as those available for certain first-time offenders. In other situations, a judge may dismiss the case by granting a defense motion, such as a motion based on Florida's Stand Your Ground immunity law or a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) when the undisputed facts do not establish a crime. Constitutional violations, lack of probable cause, speedy trial issues, and other procedural defects may also lead to dismissal in appropriate cases. Because every case is different, an experienced Florida criminal defense attorney can evaluate the evidence, identify potential defenses, and pursue every available opportunity to have the charges reduced or dismissed.