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What Happens When There Is A Second Refusal To Submit To A Chemical Test In Florida?

What Is The United States Supreme Court Opinion When There Is A Second Refusal To Submit To A Chemical Test In Florida?

What is the United States Supreme Court opinion when there is a Second Refusal to submit to a Chemical Test in Florida?

United States Supreme Court opinion Florida Second Refusal of Chemical Test

Now, it is time to revisit the constitutional basis for criminalization of a second refusal to submit to a chemical test in Florida. Recently, the United States Supreme Court has consolidated a number of cases from a few different states where the issue will be whether or not it is a violation of the right to remain silent to refuse to submit to a breath test for the second or subsequent time.

Since “Driving Is A Privilege”, Do I Still Have Rights In Tampa DUI Cases?

While courts have consistently allowed refusal of breath test submission to penalize drivers in DUI prosecution or driver’s license suspension, now, the issue is whether the constitutional right to remain silent, will outweigh the government’s interest in “safety.” Mothers Against Drunk Driving has pushed second refusal criminalization in several states. For instance, Florida is one of those states. The old standard excuse of “driving is a privilege” not a right may not be used in the right to remain silent. After all, the right to remain silent is a constitutionally protected right. Let’s see what the Supreme Court does. DUI defense attorneys in Florida should preserve this issue in the event the Supreme Court rules in favor of the right to remain silent. I have attached a copy of a motion to dismiss based on the violation of a defendant’s rights and a memorandum of law.

Is It Legal To Penalize A Driver For A Second Time Refusal To Take A Breath Test?

One Florida lawyer, Aaron D. Delgado, of Damore, Delgado, Romanik & Rawlins, 227 Seabreeze Blvd. Daytona Beach, FL  32118 386-255-1400 http://www.communitylawfirm.com/Attorneys/Aaron-D-Delgado.shtml  has begun filing motions in cases where people are accused of refusing to submit to a breath test for the second time. A copy of his motion follows. Anyone representing people in second refusal cases should consider filing this motion in the event that the United States Supreme Court rules favorably for defendants charged with DUI including those charged in Florida.

UPDATE

The Florida Supreme Court will decide on whether a Second Refusal to Submit to a Breath Test in a Florida DUI can be a crime without violating defendant’s rights.

The DUI Second Refusal to Submit to Chemical Testing case is Williams vs. State Of Florida,  Supreme Court of Florida Case No.: SC15-1417 (Fla 2015) “The Court accepts jurisdiction of this case.” Labarga, C.J., And Pariente, Quince, And Perry, J.J., Concurred while Lewis, Canady, And Polston, J.J., Dissented.

What Defense Is Available To A Florida Driver Charged With Refusing To Take A Breath Test?

Defendant’s Motion to Suppress and to Stay Proceeding Pending Ruling From the United States Supreme Court

Pursuant to Rule 3.190(b), Fla.R.Crim.P., U.S. Const., amends. IV, V & XIV., Art.1, §9 and §12, Fla. Const., Missouri v. McNeely, 133 S.Ct. 1552 (2013), Williams v. State, No. 5D14-3543, 2015 WL 3511222 (Fla. Dist. Ct. App. June 5, 2015) and all other applicable provisions of the Federal and State Constitutions, Defendant moves this Court to enter an suppressing evidence but requests this Court stay proceeding on this matter until the United States Supreme Court rules on the issue and in support states:

Procedural Background

Currently, there is uncertainty about the process by which police may obtain a chemical sample from a DUI suspect and to what extent, if any, Florida’s implied consent warnings render a search involuntarily. Further, the constitutionality of criminalizing a refusal to submit to a breath test has been challenged and the resulting decision Williams v. State, 167 So. 3d 483 (Fla. Dist. Ct. App. 2015), rehearing denied (July 1, 2015) in pending acceptance of jurisdiction in the Florida Supreme Court.

On Friday December 11, 2015, the United States Supreme Court consolidated three cases for review; Birchfield v. North Dakota (14-1468), Bernard v. Minnesota (14-1470), and Beylund v. North Dakota (14-1507).  The lead case is Birchfield and a copy of the Court’s Order granting certiorari and consolidating for review is attached as Exhibit “A”.  By accepting review of three cases, the Court will be covering a variety of legal scenarios (a refusal to submit to a breath test, a refusal to submit to a blood test, and a “forced” blood draw) left in the “wake” of Missouri v. McNeely.  The trilogy of cases under review will address the grounds raised in Defendant’s Motion and also determine the correctness of Williams, currently pending acceptance of jurisdiction before the Florida Supreme Court. It is likely the United States Supreme Court will issue its ruling prior to the Florida Supreme Court.  

Recognizing the unique timing presented by nationwide appellant litigation, Defendant files this Motion but, as discussed below, requests proceedings be stayed.  To date, local Courts, following their interpretation of Williams, have denied relief on fact patterns which will now be reviewed by the United States Supreme Court; such a ruling would be binding on Florida’s Courts by operation of our constitutional conformity clause.

Brief Statement of Facts

In preparing this Motion, defense counsel relies on the “Probable Cause” Narrative prepared by the arresting officer and attached as Exhibit “B” as the statement of pertinent facts supporting the stop, detention and arrest of defendant. 

Request for Judicial Notices

Pursuant to §90.201-203, Fla.Stats., this Motion constitutes timely written notice of Defendant’s request the Court take judicial notice of the pleadings and contents of the Court file. See State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975) (court may review court file to take judicial notice of the fact that no warrant has been filed, thereby placing burden on the prosecution to prove the validity of the police’s actions under the Fourth Amendment). This Motion, having been filed with the Court and served on the State as certified below, enables the State to prepare to meet the request.

While it cannot be disputed in good faith, Defendant formally requests the Court take judicial notice of the absence of both a search warrant and an arrest warrant in the Court file. Further, the Defendant request the Court take judicial notice of the “probable cause affidavit” contained in the Court file to show defendant has standing to bring this Motion because defendant was the person seized and searched.  No good faith basis exists to challenge defendant’s standing.

Presumptions

Absent warrants, defendant’s warrantless detention, search and arrest are presumptively unconstitutional.  Once the Court takes judicial notice of the absence of these warrants or should the State stipulate to their absence, the burden of going forward shifts to the State. See Palmer v. State, 753 So.2d 679, 680 (Fla. 2d DCA 2000), Irons v. State, 498 So. 2d 958, 959 (Fla. 2d DCA 1986) and State v. Lyons, 293 So. 2d 391, 393 (Fla. 2d DCA 1974)

Burdens of Proof

The State has the burden of establishing the defendant’s warrantless detention was lawful, see e.g., Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000), Sunby v. State, 845 So.2d 1006 (Fla. 5th DCA 2003), Maurer v. State, 668 So.2d 1077 (Fla. 5th DCA 2003), and also that defendant’s warrantless search and arrest were lawful, see State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000) and Dooley v. State, 501 So.2d 18, (Fla. 5th DCA 1987).  The Court is not required to accept the police officer’s version of the facts, see Dooley, Maurer, and Sunby, supra.

Should the State rely on “consent” to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given.  Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) and Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). This burden must be met by the “greater weight of the evidence.” Jorgenson v. State, 714 So.2d 423 (Fla. 1998).

It is well-settled that breath test, as well as a urine or blood test, is a search. Skinner v. Ry. Labor Executives’ Ass’n, 109 S. Ct. 1402, 1414, (1989) and Missouri v. McNeely, 133 S. Ct. 1552 (2013). See also Williams v. State, No. 5D14-3543, 2015 WL 3511222 (Fla. Dist. Ct. App. June 5, 2015) Just because a defendant permits a search to occur does not mean the search was actually consensual:

General Statements of Law

Valid consent has long been recognized as a “jealously and carefully drawn” exception to the warrant requirement. See Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones v. United States, 357 U.S. 493, 499 (1958)). For a search based upon the consent exception to be valid, the consent must be given freely and voluntarily; it cannot be the product of coercion. See, e.g., Norman v. State, 379 So.2d 643, 646 (Fla.1980) (citing Bumper v.. North Carolina, 391 U.S. 543, 548 (1968)). Voluntariness is a question of fact to be determined by the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973). Additionally, consent for purposes of the Fourth Amendment is revocable and can be withdrawn at any time. See, e.g ., Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000).”

Williams v. State, No. 5D14-3543, 2015 WL 3511222, at *5 (Fla. Dist. Ct. App. June 5, 2015)

Implied Consent Statutes Does Not Itself Prove Free Will Choice

Florida’s Implied Consent statutes do not create per se valid Fourth Amendment consent.  In Williams, the 5th DCA instructs:

… [S]tatutory implied consent is not necessarily given freely and voluntarily. Thus, allowing implied-consent statutes to constitute a per se, categorical exception to the warrant requirement would make a mockery of the many precedential Supreme Court cases that hold that voluntariness must be determined based on the totality of the circumstances. We also find it improbable that the Supreme Court would mention implied-consent statutes in McNeely, yet completely ignore this important potential exception to the warrant requirement. In McNeely, the Court recognized that nearly every state had an implied-consent statute, including Missouri.”

See 133 S.Ct. at 1566

U.S. Supreme Court Holds Statutory Implied Consent Not By Itself Exception To Warrant

When McNeely was arrested, he was told that refusal to submit to the test would lead to the revocation of his driver’s license and could be used against him in future prosecutions. Id. at 1557. And still, the Court in McNeely assumed that he had not consented. See id. at 1556 (framing issue as “non-consensual” blood testing). So, allowing implied consent to constitute a per se warrant exception would devour the McNeely rule and contradict McNeely’s general reasoning that these cases must be decided using a totality-of-the-circumstances approach. Therefore, we choose to follow the majority of courts, including all of the state supreme courts that have addressed this issue, in holding that statutory implied consent does not constitute a per se exception to the warrant requirement.”

Williams v. State, No. 5D14-3543, 2015 WL 3511222, at *6 (Fla. Dist. Ct. App. June 5, 2015) See also Williams v. Georgia (attached) stating “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.


Implied consent is also inherently coercive.”

State v. Medicine, 865 N.W. 2d 492 (2015)

Relief Requested

Defendant requests this Court:

  • Suppress any and all results of a chemical test of breath blood or urine (a search) as the product of a warrantless illegal search.
  • Suppress any and all evidence defendant refused to submit to a search of his breath blood or urine for the purposes of determining its alcoholic content or the presence of chemical or controlled substances as a valid exercise of a constitutional right to be free from unreasonable search and seizure.
  • Dismiss as unconstitutional the charge of refusing to submit to a chemical test for criminalizing a valid exercise of a constitutional right to be free from unreasonable search and seizure.

Stay Requested

DUI Prosecution Generally Reasonable Exception

It is appropriate to delay further litigation on this matter because the only Florida District Court to write on this issue is the Fifth District Court.  And in deciding Williams, the District Court relied on Birchfield, Bernard and Hawaii v. Yong Shik Won (since overruled) and created a new “generally reasonable” exception.  Considering Hawaii has radically changed DUI prosecution and the questions before the United States Supreme Court cover the scenario in Williams, 167 So. 3d 483 and others in litigation, Defendant requests a final ruling be deferred even if this means a delay in the instant prosecution.   While Defendant may “preserved the record” as to relief on this issue, the reality of life at the trial level is that most DUI sentences will be long done before the United State’s Supreme Court rules and a stay pending appeal does not protect the defendant’s driving privileges, etc.

Defendant brings this Motion in good faith.  Moreover, this particular subject matter is rapidly evolving (by legal standards if not Darwinian) and Defendant, through counsel, has timely filed all applicable Motions and notified the Court of changes to the law.

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DUI Officer Misses Hearing – Driver Gets License Back

The arresting officer was properly subpoenaed and did not appear at, the formal review hearing

The arresting officer was properly subpoenaed and did not appear at, the formal review hearing

What Happens When The Arresting Officer Is Subpoenaed To Appear At A Driver’s License Suspension Hearing And Fails To Show?

A breath test administered after a DUI traffic stop and arrest indicated the driver’s blood alcohol level exceeded 0.08 percent. The driver requested a formal review of the license suspension at the Bureau of Administrative  Reviews. The arresting officer was properly subpoenaed and did not appear at, the formal review hearing.  

DUI License Suspension Case Summary

The driver got his license back. The arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.  

The Court’s Ruling In A DUI Suspension Case

One court just ruledThe circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision (enforcing /  sustaining a DUI suspension). Accordingly, we grant the petition and quash (dismiss) the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We . . .  direct that [thedriver’s] suspension be invalidated . . . “

COMPLETE TEXT OF OPINION

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Case No. 5D15-769

JEFFREY M. OBJIO, 
Petitioner,
 
v. 
 
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
________________________________/
Opinion filed November 20, 2015
 
EDWARDS, J.
 

    Through a petition for certiorari, Jeffrey Objio asks this court to consider whether the suspension of his driver’s license for driving under the influence of alcohol, must be invalidated where the arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.1 Accordingly, we grant the petition and quash the circuit court’s order.

BACKGROUND FACTS

    Objio was stopped by Officer Dunn and ultimately arrested by Officer Fowler for driving under the influence of alcohol. A breath test administered by Ray Garcia revealed that Objio’s blood alcohol level exceeded 0.08 percent. Pursuant to section 322.2615, Florida Statutes (2014), Objio’s driver’s license was suspended, and he was issued a temporary business-only driving permit. In accordance with section 322.2615(6), Objio sought a formal review of the suspension. Subpoenas were issued and timely served on Dunn, Fowler, and Garcia. The subpoenas required them to attend the formal review hearing scheduled by the Department.  

    When Officer Fowler did not appear at the hearing, Objio moved for invalidation of the suspension pursuant to section 322.2615(11), which provides that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena . . ., the department shall invalidate the suspension.” The hearing proceeded in part, during which time Objio’s counsel questioned Dunn and Garcia. Although the hearing officer stated that he would be willing to continue the case and would extend the duration of Objio’s temporary driving permit,  

1 This is not a situation where the formal hearing was continued based upon the arresting officer’s pre-hearing written request for a continuance.

    Objio’s counsel declined. Objio reiterated his position that section 322.2615(11) was absolute in its terms and required the hearing officer to invalidate the suspension. At this point, the hearing officer asked whether Objio would object to a continuance; when Objio’s counsel did not provide an immediate answer, the hearing officer said he would check back with him later. The hearing officer wanted time to consider this issue because section 322.2615(11) was recently revised, so he informed Objio’s counsel that they would reconvene by recorded telephone call to complete the argument and ruling on this specific issue.

    Several days later, as agreed, the hearing officer contacted Objio’s counsel by telephone and was informed that Objio was not going to request a continuance because section 322.2615(9) provides that a temporary driving “permit may not be issued to a person who sought and obtained a continuance of the hearing.” The hearing officer entered a written order that denied Objio’s request for invalidation of the suspension under section 322.2615(11); and sustained the license suspension.

    Objio appealed the hearing officer’s ruling to the circuit court by petition for certiorari. The circuit court noted that Fowler timely submitted a written request for continuance of Objio’s formal review hearing. However, no continuance was ever ordered by the hearing officer. A Department rule, that predates the revision of section 322.2615(11), provides that a properly subpoenaed witness who fails to appear at a scheduled hearing may submit a written statement showing just cause for the failure to appear within two days of the hearing. Fla. Admin. Code R. 15A-6.015 (2014). “[J]ust cause shall mean extraordinary circumstances beyond the control of . . . the witness which prevent that person from attending the hearing.” Id. The reason given for requesting the continuance was that Fowler would be on leave on the date of the hearing. The circuit court agreed with the Department that the arresting officer did not “[fail] to appear” at the hearing since he had sought a continuance, rather than simply not showing up. The circuit court reasoned that Fowler’s absence did not trigger the mandatory invalidation provision of section 322.2615(11) and found that Objio could not avoid the consequences of license suspension by refusing to accept the hearing officer’s initial offer of a continuance. The circuit court upheld the hearing officer’s order sustaining the suspension of Objio’s license and noted that there seemed to be a conflict between sections 322.2615(6) and (11). Objio timely petitioned for certiorari review by this court.

STANDARD OF REVIEW

    When a party seeks review of the circuit court’s ruling on an administrative action, the district court of appeal conducts what is known as “second-tier” review and must determine “[1] whether the circuit court afforded procedural due process and [2] applied the correct law.” Broward Cty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). Objio does not claim that he was denied procedural due process, so we only need to decide if the circuit court applied the correct law in reaching its decision.

APPLICABLE LAW

    The applicable law regarding the consequences of the failure of an arresting officer to appear at a review hearing is section 322.2615 (11). When it comes to a formal review hearing, section 322.2615 treats the non-attendance of subpoenaed arresting officers differently than the non-attendance of other subpoenaed witnesses. Section 322.2615(6)(c) provides that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate suspension.” (emphasis added). Even a driver’s failure to appear at his own hearing will be excused unless “the hearing officer finds such failure to be without just cause.” Id. § 322.2615(6)(b). However, in a situation such as this, where no continuance is ordered, section 322.2615(11) is absolute, mandatory, and quite clear when it states that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.” Id. (emphasis added). Because there is no ambiguity in the wording of subsection (11), there is no need to resort to any other source for explanation or definition, such as Florida Administrative Code Rule 15A-6.015, which was discussed above. Thus, when the arresting officer, Fowler, failed to appear at the hearing after being duly subpoenaed, the hearing officer was required, under section 322.2615(11), to invalidate the suspension of Objio’s driver’s license. 

    The circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision. Accordingly, we grant the petition and quash the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We remand with instructions to the circuit court to grant Objio’s original petition for certiorari, reverse the hearing officer’s order, direct that Objio’s suspension be invalidated, and ordering the Department to revise its records relating to him accordingly.

PETITION GRANTED; ORDER QUASHED; REMANDED WITH INSTRUCTIONS. 

EVANDER and WALLIS, JJ., concur.

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Tampa Bay DUI Convictions and Dismissals by the Numbers

Hillsborough DUI Conviction Rate

“Hillsborough County has the highest conviction rate”

Recently obtained statistics for conviction of driving under the influence in the major counties in the Tampa Bay area. We considered Hillsborough, Pinellas, and Pasco Counties.
 
We thought we would ask three questions:
 
  • First, which county has the highest conviction rate?
  • Second, which county has the most DUI charges in the Bay Area?
  • Third, which county dismissed the most DUI charges?
Hillsborough DUI Conviction Rate

Which Tampa Bay Area county has the highest conviction rate?

As for which county has the highest conviction rate. In an election year, this is an important statistic. Hillsborough County has a hotly contested race for the state attorney’s office and has the highest DUI conviction rate at 79.6%. Pinellas County’s DUI conviction rate was very close at 79.3%. Pasco County brought up the rear with only a 62.1% conviction rate.
 

 

Which county has the most DUI charges?

Which county has the most DUI charges in the Tampa Bay Area?

 
Hillsborough County had the highest number of DUI charges in 2015 with 4,111 charges.  The Florida Highway Patrol had 652 charges in Hillsborough County. The Hillsborough County local police departments had 1722 and the Sheriff’s Office had 1731 .
 
Second in the number of bay area criminal cases for DUI was Pinellas County which had 3355 DUI charges.  The total number of DUI charges for the Three Counties in this study was 8623.
 

In The Tampa Bay Area Which County Dismissed The Most DUI charges?

 
Pasco County Florida dismissed the most DUI charges. Nearly 1 in every 10 charges are dismissed. There was an average conviction rate of 77.15% for drivers charged with driving under the influence in the three counties we studied.
 
So on average, the odds of getting a DUI charge dismissed or reduced to a lesser charge is about one in four. We have included the raw data for you to study. That is available at this link for the Tampa Bay DUI statistics. We have also included a summary in the chart below.
 
What are your thoughts on conviction rates for DUI in the Tampa Bay area?  
 
“the odds of getting a DUI charge dismissed or  reduced to a lesser charge is about one in four”
 

Here are the data we used to calculate Tampa Bay DUI Convictions by the Numbers. The source of the data was https://services.flhsmv.gov/SpecialtyPlates/UniformTrafficCitationReport

Summary of Data in Tampa Bay DUI Convictions by the Numbers Study

County Population DUI 
Charges
DUI
per
capita
Dismissed
DUI
Charges
Percent
charges dismissed
Convictions Conviction
Rate
Hillsborough   1,325,563 4111 0.31% 90 2.19% 3273 79.62%
Pasco      487,588 1157 0.24% 111 9.59% 719 62.14%
Pinellas      944,971 3355 0.36% 25 0.75% 2661 79.31%
Tri-County Total   2,758,122 8623 0.31% 226 2.62% 6653 77.15%
 

Complete Data Used in this Driving Under the Influence Study

Complete Data Used in this Driving Under the Influence Study

To estimate your Breath Alcohol Concentration, use this.

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St. Pete Pride Always A Busy Weekend For DUI And Law Enforcement

St. Pete Pride A busy weekend for DUI
St. Pete Pride – A busy weekend for DUI

DUI Enforcement at St. Pete Pride

DUI Enforcement officers and other law enforcement will swarm St. Pete Pride as over 200,000 will gather June 22, 2019 to support and celebrate Florida’s LGBTQ community at the St. Pete Pride Parade. The parade and street festival will take place this Saturday in the Grand Central District of St. Pete from 2pm to 11pm.  Plan ahead. Do not drink and drive. Do not become another statistic. If you do get arrested Call Casey 813-222-2220
The parade will run on Central Ave between 22nd St and 32nd St. Traffic will start picking up around 2pm on Saturday when drivers head to the parade. DUIs will be highest from 9pm to midnight as the parade, concert and fireworks wrap up.
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Florida and Other States Can Punish Refusal to Submit to a Breath Test

DUI Refusal To Submit Breath Test

Refusal to Submit to a Breath Test

The US Supreme Court gave the OK to punish DUI defendants for breath test refusal. This allows Florida to give harsher penalties to defendants for their breath test refusals, even with no search warrant. The Court ruled DUI arrests Breath Tests are likely to happen. So, Breath Tests do NOT need a warrant.

Three Reasons Court Used to Justify Punishment of a DUI Refusal

Here is why the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.

  • “First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.””
  • “Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”
  • “Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”

The case is Birchfield V. North Dakota No. 14–1468. ( June 23, 2016). This was a combining of three cases: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi.

History of Breath Testing

As far back as, 1905 the LA Times covered a felony manslaughter trial of B. Hook. Hook had been drinking whiskey with his friends and struck and killed a pedestrian. There was no reliable way to prove a driver’s drunkenness. Most roadside tests are subjective. The National Safety Council started a campaign in 1936.

If you drink, don’t drive.”

So after prohibition, police used the new Widmark Formula to determine blood alcohol concentration (BAC). The equation was innovative. The method used was difficult, messy and had unreliable results.

Widmark Formula
Widmark Formula

Later, in 1936, biochemist and toxicologist Harger patented the “Drunkometer.” The driver would blow into a small balloon. The officer would put the captured air into the Drunkometer. Alcohol produced a color change. The officer could measure and calculate the BAC. The results were reliable and accepted by the courts. Then Borkenstein patented the smaller and easier “Breathalyzer” in 1954.

Over time, improved Breath Test machines continue to improve. Today, devices detect alcohol more quickly and accurately than before. Some use infrared technology rather than a chemical reaction. The National Highway Traffic Safety Administration approves all breath testing machines used in courts. Federal Standards require the devices be accurate and reproducible at a variety of BAC levels.

20 Percent of Drivers Refuse a Breath Test

On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. Source: NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 2014).

To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. It is a crime under state law to refuse to submit to a legally required BAC test.

Punishment for Refusing Breath Test

The officers asked Bernard to take a breath test. He refused. The officers told Bernard he had to comply. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. The state prosecuted Birchfield for refusing a warrant-less blood draw. Bernard and Birchfield each refused to undergo a test. Each was convicted of a crime for his refusal. But Bernard refused a Breath Test and Birchfield refused a blood test. Beylund agreed to a blood test after police told him that the law requires it.

Success for all three depends on the idea that the law does not make someone submit to testing without a warrant. If warrant-less searches agree with the Fourth Amendment, then States may make laws demanding someone to submit to these tests.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – Amendment IV

Search Incident to Arrest

In the three cases, the officers arrested the drivers for drunk driving. Next, they searched the drivers. Then the officers told the drivers the law required the search. The Court reflected on using the search-incident-to-arrest with breath and blood tests.

  • First, breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.”
  • Second, breath tests are only reveal one bit of information, the amount of alcohol in the subject’s breath.
  • Finally, taking a breath test does not increase embarrassment of the arrest.

If every arrest required a search warrant, search warrants would inundate the courts.

Fourth Amendment Permits Warrant-less Breath Tests Incident to Arrests for DUI

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrant-less breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.” – Birchfield v. North Dakota, 136 S. Ct. 2160 – Supreme Court 2016

The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests.

The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests. First,the state did not prosecute Beylund for refusing a test. The state needs to re-evaluate that case. Second, Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed. Finally, since the state prosecuted Bernard for refusing a warrant-less breath test. That test did not conflict with Fourth Amendment, Bernard had no right to refuse it.

Complete Opinion: http://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf