FSC To Review Refusal To Submit Law
As the national debate over the use and admissibility of DUI evidence continues, the Florida Supreme Court will decide if it is a crime to refuse to take a Breathalyzer test.
Under current law, a second or subsequent refusal to provide a chemical sample results in an 18-month driver’s license suspension and a first degree misdemeanor charge. Now, a Volusia County driver is challenging this law. According to court documents, after the man refused to provide a breath specimen in October 2013, he received five citations, including one for violating Section 316.1939 of the Florida Statutes, which is the Refusal to Submit Law. Last year, the Fifth Court of Appeals upheld the law. The Florida Police Chiefs Association, which claims that waiting for a search warrant taints the test results, supports the law, as does Mothers Against Drunk Driving.
Florida is one of twelve states which have laws that go beyond driver’s license suspension in at least some refusal cases.
DUI License Suspension
When a driver is lawfully arrested for DUI, the only way to avoid the threat of license suspension is to provide a chemical sample and have a BAC under the legal limit, and this outcome is very unlikely. If the results indicate a BAC above the legal limit, the state can suspend the driver’s license for up to six months. A first refusal means up to a 12-month suspension; a subsequent refusal is a maximum 18-month suspension and a separate misdemeanor charge.
Upon arrest or refusal, the officer issues a temporary license that is good for ten days. If an attorney requests a review hearing before the ten days expire, the driver receives an interim hardship license. The business-purposes-only license, which is good for driving to and from work, to and from the store, and other limited purposes, is usually good for 30 to 45 days.
License Suspension Hearing
The presiding officer at the DMV hearing is not a judge and, more than likely, not even a lawyer; in fact, the hearing officer is nearly always a paid DMV employee. Furthermore, in most counties, the hearing officer acts as prosecutor, judge, jury and executioner: the officer questions witnesses, decides the case, and administers punishment. Finally, since the suspension hearing is not a criminal matter, the normal constitutional protections do not apply. For example, the accused drivers are often forced to testify against themselves. The only issue at this hearing is the stop, and if the stop was valid, the request to provide a specimen was legal and the suspension stands.
However, even if the suspension is upheld, the accused still “wins.” The DMV hearing serves as free discovery, because the defense attorney gets to question the officer under oath. Furthermore, some drivers are still eligible for a hardship permit, after either thirty or ninety days of no driving. When the suspension period is over, drivers normally have to pay a reinstatement fee to get their licenses restored.
Contact Aggressive Lawyers
The DMV hearing is an important part of a DUI defense. For a free consultation with an assertive criminal defense attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. Convenient payment plans are available.