How Refusing a Breathalyzer Test Could Result in Harsher Penalties Under Two Potential Florida Bills

March 6, 2024 Don Pumphrey, Jr. Criminal Defense, Drunk Driving/DUI, News & Announcements Social Share

Florida legislators are seeking to pass two new bills to prevent the increasing drunk driving cases. Citizens should be made aware of the new implications that can arise if the two pieces of legislation pass into law.

Under SB 232 and SB 260, lawmakers are attempting to make a first refusal for a breath test a criminal offense and would require that person to pay for the placement of an ignition interlock device (IID) in their motor vehicle for a specific period. While most representatives view the proposed bills as efforts to curb drunk driving, there has also been some backlash due to concerns regarding due process issues.

We’ll break down the two proposed laws and the resulting penalties you could face if they pass into law this year. For any person facing allegations of drunk driving, consider speaking with a Tallahassee defense attorney to represent your case.

What is the Proposed Legislation?

The two bills that are currently moving through the Senate are SB 232 and SB 260.

• SB 232 – Titled Driving Under the Influence, the bill would amend Florida Statute Section 316.1932 to have more severe penalties for those who refuse tests for alcohol, chemical substances, and controlled substances. The language changes made in the statute would require law enforcement to inform a person suspected of DUI that refusing to submit to a lawful test of their breath-alcohol level for a first suspected DUI offense will be charged as a second-degree misdemeanor along with having their license suspended for one year. If the suspect has previously refused DUI testing or had their driving privileges suspended in the past, they will be charged with a first-degree misdemeanor along with having their license suspended for 18 months. The amendments to Florida Statute Section 316.1939 explain that to charge a suspected DUI driver with this offense, the following must apply:
  1. The arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in Florida while under the influence of alcohol, chemical substances, or controlled substances;
  2. The person was placed under lawful arrest for a violation of DUI or test was requested pursuant to F.S. 316.1932(1)(c);
  3. The person was informed that, if he or she refused the test, they would have their driving privileges suspended for 1 year (or 18 months for a second refusal); and
  4. The person, after having been informed as required, still refuses to submit to a lawful test of their breath or urine.
• SB 260 – Titled Refusing to Submit to a Breath, Urine, or Blood Test, the bill would amend Florida Statute Section 316.1932 to require the installation of an IID. The language changes in the statute requires law enforcement to inform a person suspected of DUI that their refusal to submit to any lawful test of their breath when they are suspected of their first DUI offense will result in that person being subjected to the mandatory placement of an IID for one continuous year, following the person’s one-year driver’s license suspension. The IID would be required to be placed on all motor vehicles that are individually or jointly owned or operated by the DUI suspect. If a DUI suspect has previously refused testing or had their license suspended, a second or subsequent refusal will result in their license being suspended for 18 months. Amendments made under Florida Statute Section 316.1939(1)(b) requires the DUI suspect to show proof of the IID’s installation to the department, along with periodic reports of the device’s operation inside the vehicle.

Keep in mind that these bills are not yet laws; however, it is important for Florida citizens to be made aware of the increased penalties for suspected DUI if the legislations pass.

Data on Florida Drunk Driving Cases

During the Senate Fiscal Policy Committee meeting on February 7^th, advocates who voted in favor of SB 260 (resulting in a 19-1 passing vote) gave insight into the current data on drunk driving in Florida, including:

• 35% of individuals suspected of DUI in Florida refuse the breathalyzer test, which is higher compared to the rest of the nation, at 24%;
• There were 1,115 people killed in Florida during 2022 from drunk driving; and
• From 2006-2022, IIDs “have stopped over 131,000 attempts to drive with a blood-alcohol concentration of .08 or above; nearly 12,000 in 2022 alone.”

Ignition Interlock Device

An ignition interlock device (IID) is essentially a breathalyzer that is installed into a person’s motor vehicle. Its purpose is to prevent a person who has been drinking from being able to operate their vehicle. The process of an IID works as follows:

1. A driver with an IID is required to blow into the device before the vehicle can start or operate;
2. The driver’s breath-alcohol level is measured and analyzed by the device; and
3. If the driver has a breath-alcohol concentration that is over the programmed amount, the device will prevent the motor vehicle from starting.

When a person has an IID installed, it can require multiple breath samples (referred to as a rolling retest) in random increments once the car has been started. If the driver fails to provide their breath sample into the IID or if the breath-alcohol level is above the preset limit, the event is logged through the device and the driver will receive an alarm until the motor vehicle is turned off or until the driver can provide a clean breath sample.

Important: A DUI defendant required to obtain an IID must do so out of their own pocket. Under Florida Statute Section 316.1937(2)(d), a person who claims they are unable to afford to install an IID can inform the court, who may order that any portion of a fine paid by the defendant can be allocated to the cost of installing an IID.

Responses to the Bill

Sponsor Nick DiCeglie gave his closing statement on SB 260 during the Senate meeting on February 7^th, claiming that driving is a privilege and not a right.

“This bill is about accountability. We’ve heard some great testimony today. I appreciate them coming here,” said DiCeglie. “Drunk driving is a major problem in our state…There are a lot of people that have refused to take a breathalyzer test…The best way to not be in this situation is to not drive drunk.”

The meeting also had speakers including a Tallahassee police officer who was nearly killed by a drunk driver and Kristen Allen, the Florida executive director for Mothers Against Drunk Driving. Both indicated their concerns over drunk driving in Florida and how stricter penalties for refusing DUI testing could help prevent more cases in the future.

However, not everyone is on board. Geraldine Thompson of Windemere was the single lawmaker who voted against SB 260.

“Unfortunately, I cannot support the bill because I really believe in due process,” Thompson said during the Senate meeting. “I believe that you are presumed innocent until proven guilty. Under this bill, there is no finding that an individual was driving under the influence, however, that a person is required to obtain the interlocking device.” Thompson went on to address the different scenarios in which a person may legitimately refuse DUI testing, including medical issues or medication.

Despite his team being for the bill, Florida Bar’s legislative chair, and Pumphrey Law DUI Defense attorney, Aaron Wayt, gave his concerns during the meeting:

“Currently, there’s already multiple ignition interlock device penalties in law. If you’re a repeat offender; if you blow more than a .15, around half the legal limit; or if you have someone under the age of 18 in the car; you get an ignition interlock device if you’re convicted in court. This penalty for refusals is being placed after the arrest and most likely before the person has their first court date…So if passed, this bill would create an odd structure as it relates to public safety, because we’re placing a device on first offenses who refuse a breath test right after the arrest but repeat offenders and people who blow three times the legal limit get their day in court.”

During the January Senate Committee hearing on Criminal Justice, Wayt explained that DUI tests are often decades old and therefore can be unreliable. The Florida Department of Law Enforcement (FDLE) received $3.5 million in state trust funds for obtaining new breathalyzers. However, Vice Chair Jennifer Bradley acknowledged that “they are being procured, although not at the speed I think that we would like.”

Additionally, defense attorneys are unable to inspect a breath-alcohol test when a DUI case goes to trial. This can make it difficult to challenge the reliability of its results.

Lawmakers still stress that the bills are intended to reduce DUI situations in Florida. The next legislative session is set to end on March 8^th, 2024. We will continue to follow SB 232 and SB 260’s progress.

Charged with DUI in Tallahassee, FL? Contact our DUI Defense Lawyers

If you or someone you love has recently been arrested for suspected drunk driving, consider working with an attorney. The State’s laws for DUI offenses can be confusing to the average person and will likely be more confusing if these legislations pass into law. What you need is an aggressive defense team who have a deep understanding of the Statutes and potential defenses to fight off a conviction.

Contact the Tallahassee DUI defense lawyers with Pumphrey Law Firm. Our attorneys have decades of combined experience representing those in Leon County, Bay County, Gadsden County, and the rest of the North Florida region. We will do everything we can to get you the best outcome in your criminal case. Call our office today at (850) 681-7777 for a free consultation.

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