Refusing Testing When Being Arrested For Drunk Driving

Who can refuse to be tested when being accused of Drunk Driving?

Unless someone was serious injured or killed as a result of an accident related to your DUI-DWI arrest, you typically have the right to refuse to allow the police to take a blood, breath or urine sample from you.

In other words, the drawing of your blood, or the taking of urine or a breath sample by the police must be voluntary.

Florida’s courts have ruled that absent a felony arrest, forcible draws of blood or urine are not authorized.

However, if you are incapacitated, either because you are unconscious, incoherent or unable to consent for whatever reason (including being too intoxicated to consent or refuse), you lose your right to refuse such samples being taken from you.

Who should refuse to be tested when suspected for drunk driving?

There are some people, perhaps because of prior DUI-DWI convictions, or because even a single DUI-DWI conviction on their criminal record would be so devastating to your life, that the punishment for a DUI-DWI conviction is significantly worse than anything they face as a penalty from the refusal to be tested.

It is certainly tougher for the prosecution to prove most DUI-DWI charges against you when there is no scientific testing of any kind which they can use as evidence.

It is true that the punishment against you for a refusal (typically an administrative loss of your driver’s license for a year or more) is automatic and immediate in Florida.

The punishment against you for the criminal charge of DUI-DWI will never occur unless the charge is proven in court by the prosecution overcoming the highest legal standard in the world (proof beyond a reasonable doubt).

There are many factual, legal and/or constitutional reasons why the criminal charges against you might be dropped or reduced, or you might win at trial.

There may be times when it is best for you to fight the charges against you, accepting no punishment for the DUI-DWI, while giving a blood, breath or urine sample as requested by the police.

Your personal history also makes a difference in this decision.

Florida is one of a growing number of states which have criminalized some refusals to submit to chemical testing in DUI-DWI cases.

In Florida, a person commits a separate misdemeanor crime when he or she refusals to submit to a breath, blood or urine test after having been validly arrested for DUI-DWI (based upon the officer having probable cause) if that person has ever previously refused to submit to a breath, blood or urine test after having been validly arrested for DUI-DWI.

This means that, while refusing to submit to a breath test, for example, might increase your chances of avoiding a conviction for DUI-DWI, you might still get convicted and punished (by a fine and/or jail) for refusing to submit to requested chemical testing.

Thus, if you are someone for whom even a single DUI-DWI on your record might be devastating, or if you have prior DUI-DWI convictions on your criminal record, especially if there is a chance you may place yourself or be placed in a position where you may be stopped and questioned regarding a subsequent DUI-DWI charge, it is a good idea to sit down beforehand with a well-seasoned DUI-DWI specialist and figure out what is best for you to do in these situations.

Will your “refusal” be used against you in court during your defense?

Whether or not you are charged with a criminal penalty for refusing blood, urine or breath testing, such refusals sometimes damage your DUI-DWI case.

The admission into evidence by the prosecution of your chemical test refusal can be detrimental and this admission has been held to be constitutional.

While a refusal can be satisfactorily explained or otherwise overcome by other evidence, the jury will normally be asked by the prosecution to assume that you refused to be tested because you had consumed too much alcohol and were afraid of failing the test.

Also, as a practical matter when evidence of a refusal is admitted during the prosecution’s case, you may feel pressured to testify in order to effectively explain your reasons for refusing to submit If your attorney gets to question on all the things that may help your case, the prosecution gets to question you on all the things that may harm it.

Obviously then, the admission into evidence of a chemical test refusal should be avoided, if at all possible.

Most experienced trial lawyers handling DUI-DWI trials prefer NOT to put their clients on the witness stand.