Increased Penalties for a First Refusal for DUI Arrests

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The Wade Law Firm

Plant City, FL

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In December 2015 a new Senate Bill was proposed that would increase the penalties if a person who is arrested for DUI refuses to provide a breath, blod or urine test. These increased penalties will apply to a first time refual and include a fine of $500 - $1000, probation for 6 months and 4 points on your driving record.

The possible sanctions for a second refual remain largely unchanged. A second refusal will still be a crime and punishable by up to 1 year in jail, 12 months probation and a $1000 fine. However, the bill does make one very important change: It requires the judge to impose a criminal conviction for this charge which will result in a permanent criminal record that cannot be sealed or expunged.

The good news is that even the new bill would not make a first refusal a criminal offense. The bill still defines a first refusal as an "offense" while it clearly defines a second refusal as a first degree misdemeanor - the highest class misdemeanor that exists under Florida law. The problem arises however in the definition of non-criminal offense under Florida Statute 775.08. Under that statute a non-criminal offense is defined as an offense that can only be punished by a fine and only misdemeanors and felonies are punishable by probation. But misdemeanors and felonies are also punishable by jail time. According to the new bill, a first refusal would be punishable by probation just like misdemeanor and felonies but it would not be punishable by jail time as misdemeanors and felonies are. Therefore, it seems that a first refusal would be somewhere in the middle of a crime and a non-criminal offense.

Since it would not be a crime as it is defined in the Florida Statutes, it appears that the state attorney's offices would not be able to prosecute this charge and it also appears that if a person does not comply with the conditions of the probation, the judge would not be able to sentence the person to jail time. That is because Florida law only allows the judge to sentence the person to the maximum possible punishment that would be available for a first time refusal when in court for a violation of the probation. Since the maximum penalty for a first time refusal does not include jail time but only a fine and points on the person's driving record, it appears that those are the only sanctions available in case of a violation of probation. If the person was originally already sentenced to the maximum 6 months of probation for the first refusal, the judge would not even be able to extend the probation term because that would then excede the maximum sentence that is allowed for this offense.

However, the new bill is only in the first stages of becoming a law and it could still change before and if it goes into effect. The earliest date it would go into effect is December 2016. If charged with this offense it is best to hire an attorney to look into all of the possible defenses for the charge.

 

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