|DUI Drug Test Refusal|
“the Court finds that the Petitioner simply lacked the ability to perform the test as requested; consequently, his failure to provide a urine sample cannot constitute willful refusal”
Refusal to Submit to Chemical Test
“Corporal Zeichman transported the Petitioner to the police station and, while recording on camera, asked the Petitioner to submit to a breath test even though he did not believe that the Petitioner was under the influence of alcohol. The Petitioner agreed to take the breath test and was “very cooperative.” The Petitioner performed the breath test which subsequently resulted in scores of .000 and .000. Corporal Zeichman then asked the Petitioner on camera recording to perform a urine test, and the Petitioner agreed to do so. The Petitioner drank numerous glasses of water, repeatedly asked for additional time and water, and never told Corporal Zeichman that he refused to take the urine test. After forty-five minutes, Corporal Zeichman determined that the Petitioner’s failure to urinate was a refusal. Corporal Zeichman then allegedly read the Petitioner Implied Consent Warnings. ” (Citations to Record Omitted).
“In the context of an alleged refusal to submit to a urine test, it must be determined that the driver’s “refusal [was] willful to the extent that if the [driver] is able to submit, he or she is expected to take the test.” 11 Fla. Prac., DUI Handbook § 10:2 (2010-2011 ed.) (emphasis added). In Wolok v. Department of Highway Safety and Motor Vehicles, 1 Fla. L. Weekly Supp. 204 (Fla. 11th Cir. Ct. 1992), the Eleventh Judicial Circuit of Florida held that the failure to perform a urine test is not a refusal when the driver physically cannot provide a urine sample. See also Stack v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322a (Fla. 11th Cir. Ct. 2006) (holding that the driver did not refuse a test because the driver was confused about whether the urine test was required).3 In Wolok, the defendant’s failure to provide a urine sample was the result of the defendant having a ‘bashful kidney’ and because “he was inhibited by the officer who stared at his genitals.” Wolok, 1 Fla. L. Weekly Supp. 204. The Wolok court thereby recognized that “[t]he only evidence before the hearing officer was that the petitioner could not urinate on demand.” Id.” (Citations to Record Omitted).
“In this case, there is evidence that the Petitioner did not willfully refuse to provide a urine sample. Specifically, the record indicates that the Petitioner promptly performed a roadside sobriety test and a breath test when requested by Corporal Zeichman. ” (Citations to Record Omitted).
DUI Drug Urine Test Refusal? Call Casey at 813-222-2220.