Implied Consent and Refusal

Florida’s “Implied Consent” law governs the procedures the police must follow when asking an accused to submit to a breath, blood or urine test during a DUI investigation. The law, Fla. Stat. § 316.1932, states that anyone who accepts the privilege of driving within the State of Florida is deemed, through their operation of a vehicle, to have consented to submit to a lawful request for their breath, blood or urine for the purpose of determining alcohol content, or for detecting the presence of a chemical or controlled substance if that person is lawfully arrested for DUI.

A Second Refusal is a Crime
The law imposes harsh penalties on a driver who refuses to submit to a requested breath, blood or urine test upon a lawful arrest for DUI. A first refusal results in one-year driver’s license suspension.

A second refusal, however, is a first-degree misdemeanor, which carries penalties of up to one-year in jail, or 12 months of probation, and a $1000 fine.

When someone is arrested for DUI, the arresting officer will typically ask for the suspect to submit to one of these three tests, usually a breath test.  If the suspect refuses, the officer must read the suspect something along the lines of:

If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.

Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least one year and that you will be charged criminally for a subsequent refusal?

If the officer does not read this, or something substantially similar, the suspect’s refusal to submit to testing will not be admissible at trial.

Although the Implied Consent Law includes breath, blood and urine tests, the use of each is governed by separate rules. Both breath and urine tests can only be requested incidental to a lawful DUI arrest.

To request a breath test, law enforcement must have probable cause to believe the accused was under the influence of alcoholic beverages.
To request a urine test, law enforcement must have probable cause to believe that the accused was under the influence of a chemical or controlled substance – essentially drugs, whether legal or illegal.

If the police have probable cause to believe that the accused is under the influence of either alcohol or drugs, they can request both tests.

Blood Tests and implied consent
In Florida, there are only three circumstances when police can request or compel a blood test of a driver suspected of DUI:

• Breath or Urine Testing Impractical or Impossible: an accused is deemed to have given his or her consent to a blood draw “if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages . . . and the person appears for treatment at a hospital, clinic or other medical facility and the administration of a breath test is impractical or impossible.” Fla. Stat. § 316.1932(1)(c).
• Probable Cause to Believe DUI Caused Death or Serious Bodily Injury: if law enforcement has probable cause to believe “that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages . . . has caused the death or serious bodily injury of a human being.” Thus, where there is probable cause to suspect intoxication in the context of a driving incident causing death or serious bodily injury, consent and withdrawal of implied consent to the extraction of a blood sample are not options. Fla. Stat. § 316.1933.
• Voluntary Consent to Blood Test– Even where a DUI does not involve death, serious bodily injury, or an impracticality or impossibility of breath or urine testing, a police officer may nonetheless request that a driver submit to blood testing if the consent is given on a free and voluntary basis. At the time the request is made, however, the officer must fully inform the suspect that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative. Fla. Stat. § 316.1932.

Defenses to Refusal to Submit to Testing Charges
If you have been charged with refusal to submit to testing, there likely are numerous defenses available to you, starting with challenging if law enforcement abided by the requirements of the Implied Consent Law. Call Michael today for a free consultation.