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Palm Beach DUI lawyer States FL Supreme Court to Rule on Punishment for Breathalyzer Refusal

Palm Beach DUI lawyer Attorney Andrew Stine discusses a pending Supreme Court decision about whether it’s constitutional to punish a driver for refusing a breath test.

The Florida Supreme Court will answer a very important legal issue regarding DUI’S in Florida. The Florida Supreme Court will decide whether or not it is constitutional to criminally punish a driver for refusing to submit to a breath-alcohol test, when the stopping officer conducting the breath test does not have a warrant to request the driver’s breath be examined. Under Florida law, law enforcement officers and prosecutors have long taken advantage of Section 316.1939 of the Florida General Statutes, which is known as refusal to submit to a breath test.

Section 316.1939, refusal to submit to a breath test, provides in pertinent part that: (1) Any person who refuses to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and: (a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state, while under the influence of alcoholic beverages, chemical substances, or controlled substances; (b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to section 316.1932(1)(c); (c) Who was informed that if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months; (d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and (e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in Sections 775.082 or 775.083; 316.1939, Fla. Stat.

Under Florida law, by operating a motor vehicle on a public roadway, the driver consents by such operation of a vehicle, to allow for a test of their breath by law enforcement, when law enforcement believes the driver is under the influence of alcoholic beverages to the extent that their BAC is greater than .08 or their normal faculties are impaired. For a quick rendition of the law, look at the bottom of your Florida Driver’s License, it specifically states the law.

But with all 4th Amendment searches by the government, without a warrant, the consent to search by the citizen may be withdrawn at any time. For instance, a citizen under the protections of the 4th Amendment may consent to a warrantless search of their person, automobile, home or business by law enforcement officers, but may also withdraw the consent at any time. Thus, the search by law enforcement officers must immediately cease.

Well, the same argument is being made in the Florida Supreme Court in William Williams v. State of Florida, where Williams the driver was stopped for DUI and then refused to provide his breath sample for testing to law enforcement officers. Williams is arguing that while he may have given consent to provide a sample of his breath by using Florida’s roadways and receiving a Florida Driver’s License, he withdrew the consent to search when he was stopped by law enforcement officers for DUI and refused to provide his breath sample. Williams is right under the laws of America and Florida’s Constitution. This is because, under the “unconstitutional conditions doctrine,” the government may not deny a constitutional benefit to a person, like the rights afforded under the 4th Amendment to be free of warrantless searches and a right to operate a vehicle.

Here Williams may consent to search of his person, by law enforcement officers who do not have a warrant, as all Floridians may under the 4th Amendment, but with the consent also comes the right under the same 4th Amendment to withdraw that consent at any time! So, this doctrine is very important because under the unconstitutional conditions doctrine, it vindicates the Constitution’s enumerated rights, by preventing the government from coercing people into giving them up; in other words, what the state may not do directly, it may not do indirectly. This is exactly what the Florida breath consent laws through Florida judges, prosecutors and the Florida DMV have done for years.

The Florida Department of Motor Vehicles, through its administrative powers, has dangled the carrot of a driver’s license in front of the donkey’s nose, the Florida driver, with the Florida driver giving away their 4th Amendment rights to be searched without a warrant, since the passing of Section 316.1939. This type of legislative giveaway of a Constitutional right to secure another Constitutional right or privilege is exactly what the unconstitutional conditions doctrine aims to prevent. Briefly stated, the unconstitutional conditions doctrine aims to prevent a citizen giving up one Constitutional right to get the benefits of another Constitutional right.

If the Florida Supreme Court decides on the side of the US and Florida Constitutions, and preserves the 4th Amendment through the unconstitutional conditions doctrine, then you will see a huge blow to the Department of Motor Vehicles, DUI prosecutions and law enforcement officers through the Sunshine State. Given the huge blow to the “money” grabbers of the Florida people, namely law enforcement officers; states attorney and the Florida Department of Motor Vehicles, I will go out on a limb and report that the Florida Supreme Court will not do the right thing in William Williams v State and find that the driver’s consent cannot be withdrawn because driving an automobile is a “privilege” and not a right. Remember it’s always about the money even when you don’t think it is.
So, the 4th Amendment right to search the driver/person without a warrant, after probable cause has been established by the law enforcement officers that the driver is under the influence of alcoholic beverages will be held constitutional by the Florida Supreme Court is my guess. Therefore, it will remain legal in Florida to punish a person criminally for refusing to submit to a breath-alcohol test; when the officer conducting the test does not have a warrant to request that the driver’s breath be examined under Section 316.1939.

If you or a loved one has been arrested for DUI, DUI with injury or property damage or DUI manslaughter in Palm Beach County, FL or throughout the State of Florida, contact West Palm Beach DUI lawyer Andrew D. Stine at 561 880 4300. Palm Beach DUI attorney Andrew D. Stine has been passionately defending DUI drivers for more than 13 years. Call today for your free consultation. Hire Stine or Do the Time!

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