Update June 13, 2019: In 2014, NHTSA research incorrectly found that as of 2011, Florida had the nation’s highest refusal rate at eighty-two percent. See Esther S. Namuswe, Heidi L. Coleman & Amy Berning, Breath Test Refusal Rates in the United States–2011 Update Report No. DOT HS 811 881, National Highway Traffic Safety Administration 1, 2 (Mar. 2014), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/breath_test_refusal_rates-811881.pdf. Neither NHTSA nor the authors of that study have yet to correct that mistake.

I just came across a law review article in which Hon. Karl B. Grube noted that the 82% refusal rate was disputed by the DHSMV, which maintained that Florida’s refusal rate was not more than 36%. See Florida’s Non-Statutory, De Facto Dui/Dwi Diversion Programs: Diverting Justice for Judicial and Prosecutorial Expediency?, 48 Stetson L. Rev. 547, 568 (2019).

The author of the law review article explained in a footnote that: “[a]t the May 22, 2014 meeting of the Florida Impaired Driving Coalition, a representative of the FDHSMV reported that the 2011 refusal rate was ‘not more than 36 percent.'” Id.

Original Blog Post

I was talking to a DUI enforcement officer with the Hillsborough County Sheriff’s Office a few days ago while we were waiting for a hearing. We started talking about this proposed legislation to increase the penalties for a first DUI refusal found in Florida’s 2016 Senate Bill 1244.

The officer told me that he was in favor of the legislation because the number of DUI refusals had skyrocketed across the State of Florida. When all of these articles about SB 1244 started coming out, I was reading the same thing – more people refuse DUI testing in Florida than other state and something had to be done about it.

The analysis for SB 1244 includes data from a study released by the U.S. Department of Transportation National Highway Traffic Safety Administration regarding breath test refusal rates. See Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005. And this figure was cited in the Florida Senate Bill Analysis and Fiscal Impact Statement that was prepared by “the professional staff of the Committee on Judiciary.”

The study showed that Florida had the highest rate of refusal of any state in the country. In fact, the country as a whole ranged from 19 to 25 percent.

It looks like that data is just plain wrong. The report explains how it arrived at this breath test refusal rate of 82 percent in Florida.  The authors of the study reported that Florida has only 26,777 BAC test requests and 21,966 BAC refusals which does equal 82.0%.

However, Florida had way more than 26,777 BAC test requests in 2011 because nearly every DUI arrest results in a request for a BAC test. The DHSMV reported that 55,722 DUI tickets were issued in Florida in 2011 – 9,328 were issued by the FHP, 23,649 were issued by police departments in Florida, and 21,868 were issued by Florida Sheriff’s departments.

Assuming that 55,722 DUI tickets were issued and all of them involved a BAC test request, then the percentage of refusals is closer to 39%. That number is almost the same as the percentage of refusals in 2005 which was 40%. So the authors totally got those numbers wrong. Florida’s S.B. 1244 is, at least in part, a reaction to the flaw in that study.

Florida’s refusal rate is about the same as what it was in 2005.

Other studies show that there were 33,625 DUI convictions in Florida in 2011. Although the conviction does not necessarily occur in the same year as the offense, it would be nearly impossible to have more convictions for DUI then BAC test requests.

That also means that if Florida officers are issuing 55,722 DUI tickets but only requesting a BAC test in 26,777 of those cases, then a request for BAC testing is only being made 48% of the time. If that were true, instead of creating a new criminal offense, officers should just be trained to request a BAC test in every DUI case.

Does anyone else think the numbers in that study is wrong? If so, isn’t be Florida legislature making a big mistake by going off those numbers before considering this piece of legislation?

Find the link to the Bill Analysis – HERE. I also cut and paste it below [with a few minor modifications to the formatting to make it easier to read online.]

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Florida Senate Bill Analysis

The Florida Senate Bill Analysis and Fiscal Impact Statement for SB 1244, prepared by the professional staff of the Committee on Judiciary, provides:

Summary:

SB 1244 increases the penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, while operating a motor vehicle, while operating a motor vehicle. The penalties include a fine, probation, and points assessed against an individual’s license. The increased penalties for first refusal closer resemble the penalties for a first-time DUI conviction under Florida law.

The bill also increases penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, and whose driving privileges were suspended for a prior refusal to submit to testing. In addition to the potential fines and jail time under current law, the person must have an ignition interlock device placed on his or her vehicle for a period of at least 1 year.

Furthermore, a court may not withhold adjudication of guilt, or the imposition of a sentence or penalty, on a person who has had a prior license suspension for refusing testing.

Present Situation: Florida’s Informed Consent Refusal

Any person who accepts the privilege of operating a motor vehicle within this state is deemed to have given his or her consent to submit to an approved test of the alcohol content of his or her blood, breath, or urine. Section 316.1932(1)(a)1.a., F.S.

The test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has a reasonable belief such person was driving a motor vehicle while under the influence of alcoholic beverages.

The Department of Motor Vehicles will administratively suspend a person’s driving privileges for 1 year after the first refusal of alcohol testing. Section 322.2615(1)(b)1.a., F.S.

Note added by the author of this blog article:

The driver can and should contest the administrative suspension during a formal review hearing by demanding the hearing within 10 days of the arrest. This is especially true since the legislature keeps increasing the penalties for a second or subsequent refusal during an administrative hearing.

The second refusal to consent to a test will result in an administrative suspension as well as criminal charges. A second refusal occurs when a person’s driving privileges were suspended for a prior refusal, and he or she refuses to submit to an alcohol test for a second time. A person’s motor vehicle license is suspended by the Department of Motor Vehicles for 18 months if found liable for a second refusal. Section 316.1939(1)(c), F.S.

A person who refuses to submit to an alcohol test for a second time faces criminal liability for a first-degree misdemeanor, punishable by up to 12 months in jail and $1,000 fine. Sections 316.1939(1)(e), 322.2615, F.S.

Florida’s DUI Laws

Florida’s current DUI laws provide for both administrative and criminal sanctions. A first conviction results in a fine of not less than $500 or more than $1,000. Section 316.193(2)(a)-(b), F.S.

If the individual’s blood or breath-alcohol level is 0.15 or higher, or if he or she has a minor in the vehicle, the fine is not less than $1,000 or more than $2,000. Section 316.193(4), F.S. There is a community service requirement of 50 hours. Section 316.193 (6)(a), F.S.

A first-time conviction can also lead to imprisonment for a period of no more than 6 months and up to 1 year of probation. Sections 316.193 (2)(a), 316.193 (5)(6), F.S.

Breath Test Refusal Rates

In 2014, the U.S. Department of Transportation National Highway Traffic Safety Administration released a study regarding breath test refusal rates. Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005.

The National Highway Traffic Safety Administration also found the average refusal rate for the country as a whole ranged from 19 to 25 percent. State authorities reported to the authors of the study that refusal rates will remain high if the sanctions for failing a breath-alcohol concentration test are more severe than those for refusing to submit to the test. States recommended the license suspension periods for first and repeat refusals be at least as severe as those penalties for driving under the influence.

Ignition Interlock Device

The Florida Legislature’s Office of Program Policy Analysis & Government Accountability conducted a study researching ignition interlock devices and DUI recidivism rates. Office of Program Policy Analysis & Government Accountability, Ignition Interlock Devices and DUI Recidivism Rates, (December 2014).

An ignition interlock device prevents the start of a vehicle with a breath sample above .025, collects data, and records and stores visual evidence of device use. Ignition Interlock Program at www.flhsmv.gov.

Research shows that ignition interlock devices, while installed, were more effective at reducing re-arrest rates for alcohol-impaired driving when compared to other sanctions, such as license suspensions. Office of Program Policy Analysis & Government Accountability, supra note 11 at 1.

The study found the six-month recidivism rate for first-time DUI offenders that were not required to install an ignition interlock device was 1.74 percent. When compared, the recidivism rate for first-time offenders required to use the ignition interlock device was less with a rate of 0.34 percent.

However, the study also found that only 49 percent of Florida DUI offenders installed an ignition interlock device, as required, after completing their period of license revocation.

Effect of Proposed Changes:

SB 1244 amends section 316.1939, F.S., to require stricter penalties for all first time and subsequent alcohol test refusals. The heightened penalties reduce the incentive for a person to refuse submission to testing for the first time in order to receive an advantage of a lesser penalty. Under the proposed law, a person who refuses to submit to testing for the first time faces the following additional penalties:

• A fine of at least $500 but not more than $1,000;
• Probation for 6 months; and
• 4 points assessed against his or her driver license.

The bill also increased penalties on a person whose driving privilege was suspended for a prior refusal and he or she subsequently refuses to comply with requirements for testing. A person who fails to comply with testing after having driving privileges previously suspended for a prior refusal commits a misdemeanor of the first degree, punishable by up to 1 year in jail or a fine of up to $1,000. Additionally, the court is required to implement an ignition interlock devise upon all vehicles that are owned and routinely operated by an individual convicted of a second refusal.

The ignition interlock device remains on the vehicle for at least 1 year at the convicted individual’s sole expense.

Furthermore, the court may not suspend, defer, or withhold adjudication of guilt or the imposition of a sentence or penalty for an individual who has failed to comply with informed consent for a second time.

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This blog article was originally​ published on Saturday, January 23, 2016, and last updated on Thursday, June 13, 2019.