Anyone arrested for DUI / DWI in Florida is required under the state’s implied consent law to submit to a chemical test to determine blood alcohol content (BAC). Any motorist who refuses to submit to a chemical test faces serious consequences from both the DMV and the courts

Anything other than unequivocal agreement to a chemical test is often considered a refusal. However, there are really two kinds of refusals: Express refusals – where the driver says no – and implied refusals, where the police say a refusal occurred but the person did not explicitly decline to cooperate. An experienced Florida DUI / DWI lawyer will analyze each case on an individual basis to determine whether a valid reason for a refusal might exist.

For example, if an individual arrested for drunk driving opts for a breath test but cannot provide a sufficient sample, police may regard this as a refusal, assuming the person is intentionally balking.  However, the driver may have been ill or injured and unable to provide a sample, or the breath machine may not have been working correctly. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, it may be excused. 

In some cases, drivers refuse to take breath tests, only to have their blood drawn. If the driver does not object to the draw – even though technically there is no permission either – a refusal does not exist.  If the officer had honored the driver’s initial denial and not done the forced blood draw, the refusal would have been valid. 

Some drivers arrested for DUI / DWI are physically unable to refuse or consent because of a loss of consciousness or other medical condition.  However, courts have ruled that a driver who is semiconscious should not be deemed to have refused due to a medical condition that is unrelated to drinking or drug use.

If a driver is not warned of the consequences of refusal or isn’t told about the implied consent law, he or she may not suffer the repercussions of a refusal.  Also, if police fail to advise the driver of the consequences, the motorist may also have a valid defense at a DMV hearing to determine the status of the driver’s license.