Uncategorized

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

DUI News

TRAF1076 REFUSAL TO SUBMIT TO TESTING 316.1939.1

TRAF1076 316.1939.1, Misd 1st, REFUSAL TO SUBMIT TO TESTING
Second Refusal to Submit to Breath, Blood, or Urine Test
Form Code: TRAF1076 Florida Statute: 316.1939.1 Level: Misd (Misdemeanor) Degree: 1st Description: REFUSAL TO SUBMIT TO TESTING

“after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment

Second Refusal to Submit to Breath, Blood, or Urine Test


A second refusal to submit to a chemical test is frequently prosecuted in Tampa DUI cases and in Hillsborough County, Florida. Charge codes like TRAF1076 are used by police, the courts, and prosecutors to classify the type of criminal charge that has been filed. The Penalties for Refusal to Submit to testing in a Florida DUI case are discussed below. What  the Jury will be told about a Second Refusal to Submit to testing in a DUI case in Florida is also included.

Quick Guide to Second Refusal to Submit to Breath Test in Florida DUI Cases


  • Second Refusal to Submit to Testing
  • Driving
  • Lawful Arrest
  • Informed of Penalties for Refusal
  • Misdemeanor 12 Months in Jail
 

What are the Penalties for Refusal to Submit to Testing in a Florida DUI Case?


316.1939 Refusal to submit to testing; penalties.—
(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.
(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege does not affect a criminal action under this section.
(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.
Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0316/Sections/0316.1939.html

What will the Jury be told about a Second Refusal to Submit to testing in a DUI case in Florida?

 
Florida Standard Jury Instruction 28.13 Refusal to Submit to Testing § 316.1939, Fla. Stat.
28.13 REFUSAL TO SUBMIT TO TESTING § 316.1939 Fla. Stat.
To prove the crime of Refusal to Submit to Testing, the State must prove the following six elements beyond a reasonable doubt: Give 1a and/or 1b 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.
Give 2a in cases where the defendant was arrested. Give 2b in cases where the defendant appeared for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test was impractical or impossible.
2. a. The law enforcement officer lawfully arrested (defendant) for Driving Under the Influence.
b. The law enforcement officer requested a blood test.
3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her][breath] [blood] [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 it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [blood] [urine], if [his] [her] driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].
5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath][blood] [urine] when requested to do so by a [law enforcement officer] [correctional officer]. 6. (Defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine]. Inference. 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. Definitions. § 316.003(21) Fla. Stat. “Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, swamp buggy, or moped.
“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.
“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.
Lesser Included Offenses
REFUSAL TO SUBMIT TO TESTING — 316.1939 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04 5.1 Comment Where the lawfulness of the arrest is at issue, a special instruction may be warranted. This instruction was adopted in 2007 [965 So. 2d 811] and amended in 2013.
Source: http://www.floridasupremecourt.org/jury_instructions/chapters/entireversion/onlinejurryinstructions.pdf