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Can I win the administrative hearing for refusal to blow with the DMV if the arresting officer gave me incorrect information?

Fort Myers, FL |

I know this is a long shot, but the officer that asked me to blow during my dui arrest told me my license would be suspended for 18 months if I didn't blow. I've never been arrested before (including for dui), and I've never refused to blow or even been asked to take a breathalyzer, so my license would only be suspended for 12 months, not 18. Is the fact that the officer gave me incorrect information cause for dismissal? Thank you.

Attorney Answers 5

Posted

Formal review hearings in Florida center around very few issues. Luckily for you, one of those issues is whether or not Implied Consent laws were read properly. The hearing officer must determine whether or not you knew that your license would be suspended for 12 months prior to providing a breath sample.

There are several other issues addressed, such as whether or not the officer had probable cause to initiate a traffic stop or request roadside exercises. Although you do not face any jail time or a criminal conviction should you lose your formal review - you will be without a license for 90 days because you refused to provide a breath sample. It is important that an experienced attorney reviews your case.

Benjamin Fernandez, Esq.
www.benfernandezlaw.com

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Posted

A number of issues will be considered by the hearing officer. Was implied consent read correctly?
Contact a local criminal defense attorney for a free consultation.

Scott Moorey

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Asker

Posted

I'm not sure if implied consent was read correctly, I don't know what would constitute it being read "incorrectly," though.

Posted

Maybe. A proper reading of implied consent is an issue at the formal review hearing and if this portion wasn't read correctly, one wonders if anything else was, as well.
Misstatements of law can be a grounds to suppress the evidence. On the other hand, there is appellate authority that says that the driver needn't be told of all the consequences of refusal; if the officer warned the driver of "at least one adverse consequence that would result from the refusal," then the refusal is admissible.
As usual, it's complicated. I suggest consulting with a lawyer experienced in these matters for assistance.

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Posted

It could very well be grounds to suppress the breath test results. Feel free to contact my office for a free confidential consultation.
www.colleenglenn.com

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Posted

I agree with my colleagues, there is a script that must be read by statute when an officer is informing you of the consequences of a refusal. If the officer misinformed you of the consequences then your submission to the test was not voluntary. This can be utilized in both the administrative hearing and the criminal case.

Michael Mastrogiovanni, Esq.
www.mastrolaw.com

Visit our website at www.mastrolaw.com to ask your legal question or call for a more detailed free consultation for your legal issue. The information presented is for information purposes only based on the information provided. An attorney client relationship is not formed.

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