As you know from previous posts,
refusal to submit to a breath test will result in a 1-year driver's license
suspension. This can only be remedied if your
DUI attorney is successful at your
DUI administrative hearing.
If you have had your driver's license previously suspended for refusing
a breath test, a subsequent refusal is a
misdemeanor of the 1st degree. In addition, your license will be suspended for 18 months.
In accordance with Florida law, however, police officers must inform you
of the implied consent law. This is done through a form, and while each
department's may be slightly different, they all follow similar language:
"You are under arrest for operating a vehicle while under the influence
of alcoholic beverages or chemical or controlled substance. I am now requesting
that you submit to a lawful test of your breath for the purpose of determining
its alcohol content. Will you submit to a breath test?
If you fail to submit to the test I have requested of you, your privilege
to operate a motor vehicle will be suspended for a period of one (1) year
for a first refusal or eighteen (18) months if your privilege has been
previously suspended as a result of a refusal to submit to a lawful test
of your breath, urine, or blood. Additionally, if you refuse to submit
to the test I have requested of you and if your driving privileges have
been previously suspended for refusal to submit to a lawful test of your
breath, urine, or blood, you will be committing a misdemeanor. Refusal
to submit to the test I have requested of you is admissible into evidence
in any criminal proceeding.
Will you submit to the test?"
It is this language that must be read to the accused so that they know
the consequences of their refusal. A refusal means nothing without consequences.
The whole purpose behind admitting a refusal into evidence is so that
the prosecutor can argue that the accused person knew of the consequences
(a 1-year license suspension) yet they still refused.
Now, when you are arrested, you may also be read your Miranda warnings.
As you probably know, this is where the police inform you that you have
a right not to speak with them, but if you do, anything you say can and
will be used against you in court.
Fair enough. This is why police officers are trained to read the implied
consent form to the accused first, and then read them their Miranda rights.
This is because if a subject invokes Miranda and tells police they do
not want to speak with them, how can they be made to give a yes or no
answer when asked if they want to submit to a breath test? Didn't
the cops just tell you didn't have to speak, and didn't you let
the cops know that you weren't going to talk to them? And now they
are telling me to sign this form and submit to a breath test? What is
this? I am confused!
That's exactly right. It is confusing. That's why courts have created
a "Miranda confusion" doctrine. This may permit exclusion of
the refusal itself if your DUI attorney can demonstrate that you were
read Miranda first, you invoked and chose not to speak with police, and
were then told to sign an implied consent form. In that case, the subject
was confused because they believed they had a right to remain silent.
In that case, the refusal cannot be used against them.
If you have a DUI with a Miranda rights issue,
call me to discuss the matter in greater detail. I handle DUIs in Miami-Dade and
Broward County.