A second refusal to submit to a lawful request for a breath test in Florida is a criminal offense
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.
This boggles my mind
Let's follow with our Constitution;The Fifth Amendment regarding Rights of Persons;
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Now let's focus on the relevant language as it would (should) apply in a DUI, second refusal, situation: "nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law"
It has been made clear that driving is a right, not a privilege. So when you agree to drive you agree to submit to tests like the breathalyzer. This is fine. You refuse; you suffer civil penalties like longer suspensions, loss of driving privilege, etc...When people began to refuse, which can be used against you in court as evidence of a guilty mind, prosecutors were faced with a decline in their conviction rates. and along came the lobbyists, scurrying up to Tallahassee to demand from our elected officials that something be done. No politician wants to seem to fight for the rights of impaired drivers, somehow forgetting the presumption of innocence, which comes to us from English jurisprudence and is well settled in law. Our standard jury instructions state:
"The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the indictment through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt."
How can the Florida Legislature and the DHSMV (Dept. of Highway Safety and Motor Vehicles) compel evidence against a person that results in criminal prosecution without due process?
Compelling certain evidence from criminal suspects is not unheard of and I agree, not unconstitutional, when due process exercised. Blood, semen, hair, photos of tattoos, etc... can all be forcibly acquired when, after a judicial hearing, ordered by a judge of the competent jurisdiction.
Driving is a privilege. When someone is suspected of a criminal offense, I believe a long time ago some people got together and decide it would be a good idea to protect them from the government and afford them some basic rights. So they refuse a breath test. So suspend their license, make them put and interlock device on their car, don't let them drive. In Florida with our stellar mass transit system, that is quite a punishment for breaking an agreement to be granted a privilege. Take away the privilege, but for God's sake, don't take away their liberty without due process.
Again, I remind us all: NO PERSON SHALL be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law"
For more information visit my website at www.robinfuson.com or if you need representation for a DUI, DWI or other Criminal matter call me at 813.933.6807