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Refusal to Submit to BAC Testing

After an alleged suspect has been arrested for driving under the influence (DUI) in Orlando, the arresting officer will ask the driver to submit to a chemical test of their blood, breath or urine. Most frequently, the arresting officer will ask the suspect to submit to a breath test on the Intoxilyzer 8000, which is also commonly known as a breathalyzer. If the breath test registers the driver’s Blood Alcohol Concentration (BAC) under 0.08, the officer may still request a urine test to determine if drugs are in the driver’s system. In DUI cases where a breath test is not possible, due to a crash or if the suspect has been taken to the hospital, the arresting officer may utilize a blood test to determine the driver’s BAC.  

If the driver refuses to take any of these BAC tests, the driver may face immediate consequences including arrest for suspected DUI and refusing to submit to chemical testing.  

Orlando Refusal to Submit Defense Attorney

In order to potentially avoid serious consequences for refusing to submit to blood alcohol concentration testing in Orange County, Florida, contact the law office of Hale & Hale at (407) 425-4640. The attorneys at Hale & Hale are knowledgeable in all areas of Florida’s Driving Under the Influence laws, and will make every effort to help you find defenses or other mitigating factors to your particular DUI case. Call Hale & Hale today for a consultation about your alleged refusal to submit to BAC testing for a DUI offense.


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Implied Consent in Florida

Under Florida law, if a driver refuses to submit to chemical testing of their blood, breath or urine, the arresting officer is required to give the driver Florida’s Implied Consent Warnings. These warnings advise the driver of the consequences to their driving privileges in Florida if they still refuse to submit.

  • Florida Statute § 316.1932(1) – Implied Consent Laws:
    • If a person operates a motor vehicle in Florida, they have given their implied consent to submit to chemical testing of their blood, breath or urine at the request of a law enforcement officer after lawful a stop for arrest for driving under the influence of alcohol or controlled substances.

If a driver still refuses to submit to testing after the law enforcement officer has given the implied consent warnings, the driver may be subjected to penalties.


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What is Considered a Refusal in Florida

Although refusal to submit to chemical testing typically occurs when the driver actually tells the law enforcement officer they will not take the tests, there are other ways the court may infer the driver constructively refused to submit to chemical testing. 

  • If the driver agrees to take a chemical test of blood, breath or urine, but is then unable to provide two sufficient samples of their breath within the statutory time period following arrest, the law enforcement officer may determine this is a refusal to submit.
  • If the driver does not specifically state yes or no to take a chemical test of their blood, breath or urine, the arresting officer may consider this a refusal to submit.
  • If the driver provides breath samples that are not within .02 of each other, and then refuses to take a third test, or if the driver blows on a breathalyzer once, but then does not blow a subsequent time when requested, the officer may consider these refusals to submit.
  • If the driver becomes abusive or argumentative, the arresting officer may determine this is a refusal to submit.

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Penalties for Refusal to Submit in Orlando

After a law enforcement officer has given a suspected DUI offender their implied consent warnings, and the driver still refuses to submit to chemical testing of their breath, blood or urine, the driver may be subjected to a suspension of their driver’s license and driving privileges for up to one year.

If a driver has previously refused to submit to chemical testing of their blood, breath or urine for a previous DUI arrest, and their driving privileges were already suspended, they can be charged under Florida Statutes § 316.1939 for refusing to submit a second time. This offense is punishable as a misdemeanor of the first degree, and the driver can be subjected to 18 months of driving privileges suspended, up to one year in Florida county jail and/or fines not more than $1,000. The arresting officer is required to give the driver implied consent warnings, and warn them of the increased penalties for a second refusal offense.

In the case of a second refusal, the department’s records showing the driver’s license and driving privileges had previously been suspended for refusal creates an admissible rebuttable presumption the driver previously refused to submit.


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Consequences for Commercial Driver Refusal to Submit

If the driver of a commercial vehicle is charged with refusing to submit to chemical testing while driving a commercial vehicle under the influence of alcohol or drugs, they may be suspended from driving a commercial motor vehicle for one year. The driver will not be allowed to apply for a hardship license during the suspension, and after completion of the suspension, they must pay a fee in order to reinstate their commercial driver's license. If the driver was transporting hazardous materials when charged, they may be subjected to a three year suspension from commercial driving privileges.


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Effects of BAC Testing Refusal on a Criminal DUI Case

Although refusal to submit to BAC testing will result in a suspension of driving privileges, the prosecution will not have concrete evidence the driver’s BAC was over the legal limit at the time of the arrest. If the driver’s BAC was over the legal limit of .08, this is prima facie evidence the driver was driving under the influence of alcohol or controlled substances.

The prosecution will be forced to rely on evidence of the driver’s refusal to submit to testing and field sobriety tests.  Neither of these types of evidence will show the driver was definitely driving under the influence of alcohol or drugs, and will make the prosecution’s case of proving DUI beyond a reasonable doubt more difficult.


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Hale & Hale, P.A.  | Orlando Refusal to Submit to BAC Testing Defense Attorneys

Contact the attorneys at Hale & Hale, P.A. to discuss the particular facts of your driving under the influence charge, and alleged refusal to submit to BAC testing in Orange County, Florida. The attorneys at Hale & Hale will make every effort to help you avoid harsh punishments to your charge of drinking and driving, and will try to find the best possible outcome for your situation. Contact Hale & Hale, P.A. at (407) 425-4640 for a consultation about your alleged DUI charge and refusal to submit to BAC testing in Orlando, Florida and the surrounding areas of Seminole County, Osceola County, Winter Park and Kissimmee.