What Happens When Refusal To Submit To A Chemical Test 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.

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.


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.


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)

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

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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