Gainesville Personal Injury, Divorce and Alimony Attorney

Recanting Refusal, Changing your Mind When arrested for DUI

After a DUI arrest in Florida, a person will be asked to submit a sample of their breath for analysis. Also referred to as taking the breath test. Upon refusing to provide a sample, the arresting officer is supposed to read a warning that the license will be suspended. Sometimes, people change their mind and provide a sample immediately. What if the officer says it is too late to blow and announces the arrestee has refused?

A person has changed their mind and agrees to take the chemical test, for breath, blood or urine. Now what? The answer is ‘it depends’. Having a changed mind may matter if (1) the request to submit to is made within a reasonable time after the refusal; (2) the test administered would still be accurate; (3) the machine or testing facility is still readily available; (4) there has been no substantial inconvenience or expense to the police; and (5) the Defendant has been in custody while under continuous observation.

The changing of the mind cannot be conditional. Presuming the above listed elements, then a criminal defense attorney can file a Motion to Suppress the refusal so that the State cannot make the argument in the criminal trial that “the Defendant refused because they were guilty”. The case is not necessarily dismissed, but a big piece of evidence can be missing from the prosecution’s case. In addition, long before a DUI trial, a DUI lawyer may be able to successfully challenge the automatic driver’s license suspension that results from refusal. A successful challenge will keep the refusal off of the Driver Record. That is important because a second refusal is a misdemeanor.

Driver’s license proceedings are at the Department of Highway Safety & Motor Vehicles, or DMV and are separate from the criminal proceedings in the courthouse. The Public Defender does not assist at the DMV and the accused must act within ten (10) days to protect the license.

DUI defense is technical and specialized. To schedule a strategy session with a DUI Defense lawyer, click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Summons in Florida

What happens upon receipt of a Criminal Summons in Florida? In some jurisdictions, the use of a Criminal Summons was part of criminal justice even prior to COVID. Some people are surprised to receive a Summons, while others are made aware of a criminal investigation and may be expecting it or relieved to receive a Summons instead of being arrested.

When the State of Florida files criminal charges and, presuming a person is not arrested on the scene of an alleged crime, there are two ways to notify the defendant. A criminal defendant is notified either by an arrest or by issuing a Summons, also called a Notice to Appear. When a person receives a Summons, they must respond or else the Judge will issue an arrest warrant. Most people should view receiving a Summons as better than being arrested.

Typically, the Sheriff’s Office will not discuss a Summons over the telephone, and someone has to physically appear at the Sheriff’s Office. A lawyer may be able to respond to the summons on behalf of the summonsed individual, which can be beneficial or just bring peace of mind. A person receiving a Summons in criminal cases should respond to the Summons by themselves or by a lawyer instead of choosing to be arrested. Upon responding to a Summons, an arrest can be avoided. As for timing and all the rules, the service of a Summons functions the same as an arrest. For example, it starts the clock of speedy trial.

In any criminal case, the accused is entitled to have a lawyer appointed, however, lawyers are not appointed to the accused during the investigation, arrest or Summons portions of the case. A Public Defender is assigned by the Court after the Summons is served or an arrest is made. For assistance responding to a Summons or any criminal case, please click, call, or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529