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.