A second or subsequent refusal to submit to a breath, blood or urine test in Florida carries enhanced penalties. Recent changes, effective October 1, 2021, have complicated matters for drivers. Under the former statute, a refusal resulting from a boating under the influence arrest carried only a $500 civil penalty, a possible misdemeanor charge, and no driver license implications . Florida Statute 327.352. A second refusal from a motor vehicle arrest carried an eighteen-month license suspension and a possible misdemeanor charge. Florida Statute 316.1939. A driver must have had a prior refusal of the same type to be subject to enhancement. Recent amendments to the Florida’s Implied Consent Law now permit a boating-refusal and a motor vehicle refusal to be treated interchangeably. The law now requires (and includes) the warning that being previously fined for a boating refusal will count as a prior refusal for motor vehicle-refusal cases. “The person shall be told that his or her failure to submit to any lawful test of his or her urine under this chapter will result in a civil penalty of $500, and shall also be told that if he or she refuses to submit to a lawful test of his or her urine and he or she has been previously fined under s. 327.35215 or has previously had his or her driver license suspended for refusal to submit to any lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor of the first degree…” The motor-vehicle version reads, in part, as follows: Who was informed that a refusal to submit to a lawful test of his or her breath or urine, if his or her driving privilege has been previously suspended or if he or she has previously been fined under s. 327.35215 for a prior refusal to submit to a lawful test of his or her breath, urine, or blood as required under this chapter or chapter 327, is a misdemeanor of the first degree…”
So, while a driver can’t get a license suspension for a boating-refusal, a prior boating-refusal can be used to suspend a driver license after a second motor-vehicle refusal. Simply being fined is enough to count? What if the refusal civil violation is dismissed? To make matters worse, even if an attorney successfully defends a motor vehicle-refusal at the FLHSMV level, the State will still charge a second or subsequent refusal misdemeanor simply because the suspension existed at all.
