Definition of Implied Consent- Florida

The “Implied Consent” law is defined in Section 316.1932, Florida Statutes.  Under the law, any person who accepts the privilege of driving within the State of Florida is deemed, by operating a vehicle, to have given his or her consent to submit to lawful requests for breath or urine testing for the purpose of determining the alcohol content of his or her breath or blood, or for detecting the presence of chemical or controlled substances if lawfully arrested for DUI.

In other words, by accepting the privilege of driving in Florida, a person legally accepts the responsibility of permitting law enforcement to test for the presence of alcohol or drugs in the course of a lawful arrest for DUI.

Penalties for Refusing Implied Consent

Florida’s Implied Consent Law imposes serious penalties on a driver who refuses to submit to an appropriate breath test, urine test, or blood test upon a lawful arrest for DUI.

  • First Refusal: results in a 1 year driver’s license suspension;
  • Second Refusal: results in an 18-month driver’s license suspension. A second refusal is also classified as a first degree misdemeanor, with penalties of up to 1 year in jail or twelve months probation, and a $1,000 fine.  In addition to these penalties, a refusal is admissible into evidence against the accused in any criminal proceeding.

Scope of Implied Consent

The scope of Implied Consent includes breath tests, urine tests, and blood tests, although there are specific conditions under which each type of test may be utilized.

Breath Tests

Breath tests in Florida must be incidental to a lawful DUI arrest and conducted at the request of a law enforcement officer who has probable cause to believe such person was under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test.  Thus, police may request a breath test in conjunction with a urine test.

Urine Tests

Florida’s Implied Consent law also applies to urine testing conducted to detect the presence of chemical substances or controlled substances. The urine test must similarly be incidental to a lawful DUI arrest and administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests.

Moreover, the police officer requesting the test must have reasonable cause to believe such person was driving or was in actual physical control of a motor vehicle within this state while under the influence of chemical substances or controlled substances.

Blood Tests

In Florida, there are three circumstances when police can request or compel a blood test of a driver suspected of DUI: (1) when breath or urine testing is impractical or impossible; (2) when there is probable cause to believe that a DUI driver has caused death or serious bodily injury; and (3) by voluntary consent of the suspect driver.

  1. Breath or Urine Testing Impractical or Impossible- Section 316.1932(1)(c), Florida Statutes, states that any person operating a motor vehicle in Florida is deemed to have given his or her consent to an approved blood draw for testing “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.”
  2. Probable Cause to Believe DUI Caused Death or Serious Bodily Injury- Under Section 316.1933(1)(a), Florida Statutes, a blood test may also be compelled, by reasonable force if necessary, if the officer 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. State v. Serrago, 875 So. 2d 815, 818 (Fla. Dist. Ct. App. 2d Dist. 2004);
  3. 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. Chu v. State, 521 So. 2d 330 (Fla 4th DCA 1988).

Defenses to Implied Consent- Florida

There are multiple defenses available to challenge the admissibility of test results requested pursuant to the Implied Consent Law, or to contest a criminal charge brought on the basis of refusal.  Some common examples include the following:

  • Lack of probable cause to request that a defendant submit to testing;
  • Lack of probable cause or reasonable suspicion for the initial traffic stop;
  • Mistake of law by police as to existence of a law violation justifying the traffic stop;
  • No actual refusal;
  • Improper statement of Implied Consent warning;
  • Lack of Implied Consent warning;
  • No probable cause to believe that the suspect was driving or in actual physical control of the vehicle;
  • Breath or urine test not impractical or impossible (blood test cases);
  • No probable cause to believe that a suspect caused the accident leading to death or injury (blood test cases);
  • Invalid consent;
  • Improper threats, promises, or inducements;
  • Inaccurate statements of the law.