DEFENDANT, by and through the undersigned attorney and pursuant to Rule 3.190(b), Florida Rules of Criminal Procedure, requests this Honorable Court to dismiss Count 2 of the Information filed in this case. As grounds for this Motion, Defendant states as follows:
- Defendant is charged by Information with Count 1: Driving Under the Influence (M2) contrary to section 316.193(1) of Florida Statutes (2011) and Count 2: Refusal to Submit to Breath Test After Previous Suspension for Refusal (M1) contrary to section 316.1939(1)(e).
- On November 6, 2011, at approximately 11:50 P.M., the Defendant was stopped by Brevard County Sheriff’s deputies for operating a bicycle on a public roadway without an illuminated headlight. Upon contact with the Defendant, the deputies allege that they detected an odor of alcoholic beverages on the Defendant’s breath. The Defendant consented to and participated in field sobriety exercises administered by the deputies. The deputies alleged that the Defendant failed the exercises and was, as a result, arrested for DUI. The Defendant was offered a breath test and read Florida’s Implied Consent instruction. The Defendant refused to take the breath test resulting in his arrest and formal charge by the State.
- Section 316.193(1) of Florida Statutes, Florida’s DUI law, prohibits the operation of any “vehicle” while impaired by drugs or alcohol. The term, “vehicle,” as defined by section 316.003(75), is “[e]very device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” There is no question this broad definition of “vehicle” includes bicycles, therefore, the Florida DUI law applies to bicycles and Count 1 of the present information is a legally charged offense. See State v. Howard, 510 So.2d 612 (Fla. 3d DCA 1987).
- However, Florida’s Implied Consent statute is implicated under different circumstances. That statute reads as follows:
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages (emphasis added).
- As stated, the Implied Consent law is triggered when a person accepts the privilege of operating a “motor vehicle” within Florida. The term “motor vehicle” is defined by law as “[a]ny self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped.” §316.003(21) (emphasis added).
- The statutory language plainly states that the Implied Consent law applies to persons who accept the privilege to operate a motor vehicle in the State of Florida, not a bicycle. Therefore, a bicycle operator has no duty under the Implied Consent law to submit to a breath test and cannot, as a matter-of-law, be legally charged for refusing to do so.
WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Count 2 of the Information in this case and discharge him from prosecution of that charge.