28.13 REFUSAL TO SUBMIT TO TESTING – DRIVING UNDER THE INFLUENCE

To prove the crime of Refusal to Submit to Testing – Driving Under the Influence, the State must prove the following five elements beyond a reasonable doubt:

Give 1a or 1b or both as applicable.

1. A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control of] a motor vehicle in this state while

a. under the influence of [an alcoholic beverage] [(a chemical substance listed in 877.111 Fla. Stat.)] [(a controlled substance listed in Chapter 893)] to the extent (Defendant’s) normal faculties were impaired.

b. [his] [her] [breath] [blood] alcohol level was .08 or higher.

2. The law enforcement officer lawfully arrested (defendant) for Driving Under the Influence.

3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine], [his] [her] privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.

4. (Defendant) was informed that a refusal to submit to a lawful test of [his] [her] [breath] [urine] is a misdemeanor of the second degree, or if either [his] [her] driving privilege had been previously suspended, or if [he] [she] was previously fined under s. 327.35215, for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine], is a misdemeanor in the first degree.

5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [urine] when requested to do so by a [law enforcement officer] [correctional officer].

Inference. § 316.1939(3), Fla. Stat. Give if applicable.

You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.