(321) 253-3447
2715 North harbor City Blvd., Ste. 4
Melbourne, FL 32935

The Constitutionality of Florida Statute 316.1939 after Missouri v. McNeely

If you have a Florida driver’s license or drive on Florida’s roads, then Florida law provides that you have already consented to submit to a lawfully requested breath, blood or urine test after a DUI arrest. Nevertheless, recent statistics in Florida show that more than 40% of DUI cases result in an allegation of a refusal to submit.

The typical consequences of a second refusal are serious and can include:

  1. an immediate administrative suspension for 18 months with no possibility of a hardship license (which should always be contested in a formal review hearing which must be demanded within 10 days of the arrest); and
  2. a prosecution for the underlying DUI offense when the evidence of the “refusal” is admissible at trial to show conscientiousness of guilt.

Florida law provides for a separate and independent crime for refusing the second time under Florida Statute Section 316.1939. The crime is charged in Melbourne, FL, and throughout Brevard County, FL, as a first degree misdemeanor. The crime of refusing to submit to a breath, blood or urine test under F.S. 316.1939 is punishable by up to 12 months in jail and a $1,000.00 fine.

Elements of Florida Statute Section 316.1939

The crime for a second refusal to submit to testing in violation of Section 316.1939, Florida Statutes provides:

(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. . .

§ 316.1939(1).

In State v. Caporuscio, 21 Fla. L. Weekly Supp. 930b (May 22, 2014), the Honorable David H. Foxman, County Court Judge in the 7th Judicial Circuit in and for Volusia County, found that a driver who has impliedly consented to breath test by accepting privilege of operating a motor vehicle does not have a constitutional right to subsequently withdraw that consent.

A driver who exercises the statutory option to refuse to submit to a breath test may properly be charged with unlawful refusal under section 316.1939 provided all statutory elements are met. The court ultimately found that Section 316.1939 does not violate the Fourth Amendment.

The Court found:

“a driver who has impliedly consented to a breath test by accepting the privilege of operating a motor vehicle does not have a constitutional right to subsequently withdraw that consent. A driver who exercises the statutory option to refuse to submit to a breath test may properly be charged with unlawful refusal under Section 316.1939, provided all of the statutory elements are met. Section 316.1939 does not violate the Fourth Amendment.” Furthermore, the Court opined that “perhaps the time has come to hold that implied consent constitutes its own exception to the warrant requirement….

Because of the novel basis of Defendants’ constitutional challenge to the refusal statute, the Court finds it appropriate to certify the following question to the Fifth District Court of Appeal as one of great public importance:

DOES SECTION 316.1939, FLORIDA STATUTES (2013), THE UNLAWFUL REFUSAL STATUTE, VIOLATE THE FOURTH AMENDMENT?”

Finding a DUI Attorney for a Second Refusal in Brevard County, FL

Although the attorneys at the Law Offices of Germain & McCarthy, LLC in Brevard County, FL, were not involved in this appellate decision, we pay attention to county court decisions throughout the state that can impact our pending cases. The courts are reexamining DUI laws related to implied consent after the decision Missouri v. McNeely, 133 S.Ct. 1552 (2013).

The McNeely case held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all drunk-driving cases. Instead, the court found that exigency must be determined case by case based on the totality of the circumstances. As a result, each case must be judged on its own individual facts.

Only time will tell how these issues will ultimately be resolved over the next few years. If you are charged with a second refusal under Section 316.1939 for a second or subsequent refusal to submit to testing, then contact an experienced criminal defense attorney at the Law Offices of Germain & McCarthy, LLC in Brevard County, FL. Read more about finding an attorney for DUI refusal cases in Brevard County, Florida and the surrounding areas. Call 321-253-3447 to discuss the case.

Leave a Reply

Your email address will not be published. Required fields are marked *

Client Testimonials

(321) 253-3447
  1. Menu
  2. Our Firm

  3. Practices
  4. Contact
Law Offices of Germain & McCarthy, LLC
Assign a menu in the Right Menu options.