In Florida, as well as in all other states, if a chemical test shows that a driver's blood alcohol concentration is 0.08 percent or above, it's a "per se" driving under the influence (DUI) charge. The blood alcohol concentration is determined by a breathalyzer or other chemical tests, like a blood or urine test.
Given a free choice, only Florida drivers who know they are sober would consent to take a chemical test. That's why the Florida legislature enacted the state's implied consent law to build consent into the statute.
Per Se DUIs in Florida
A driver can be charged and convicted of a DUI in Florida without taking a chemical test to determine their blood alcohol concentration (BAC). But for this to happen, the prosecutor must present other evidence that the driver was intoxicated, usually in the form of testimony from the law enforcement officers who stopped the car. The officers can testify about observing erratic driving behaviors, whether the driver looked intoxicated, whether their breath smelled of alcohol, and how they performed on the roadside sobriety test. But the evidence of intoxication must be strong enough to convince the jury beyond a reasonable doubt that the person's ability to drive was substantially impaired by alcohol.
However, the per se DUI statutes make obtaining a conviction easier. The law provides that if a driver has a blood alcohol concentration (BAC) of 0.08 percent or higher, as established by a chemical test, they are presumed to be intoxicated. Legally, this is sufficient evidence to convict someone of a DUI in and of itself. But why would a Florida driver agree to take a chemical test?
Implied Consent Law
The legislature recognized that a driver who had consumed more than a few drinks of alcohol in an evening might not be eager to take the breathalyzer or any chemical test to establish their BAC. That is why it enacted the implied consent law. Under this law, anyone who drives in the state of Florida automatically consents to submit to a chemical test.
The Florida Motor Vehicles Law Section 316.1932 provides: "Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is...deemed to have given his or her consent to submit to an approved chemical test or physical test." The approved chemical tests include a breathalyzer test, a blood test and a urine test.
Requirements for a Chemical Test
Several requirements must be met before a driver is required to take a chemical test under the implied consent law to determine their BAC. The statute provides that the person must submit to a chemical test only when they have been lawfully arrested for a DUI offense that was committed while they were driving or in actual control of a vehicle, and while under the influence of alcohol.
First, the implied consent law applies only after a valid arrest. A lawful arrest means that the police must have had a legitimate reason to stop the vehicle – reasonable cause to believe that the driver was committing an offense. Then, the police must have probable cause to arrest the driver.
This is an important caveat to Florida’s implied consent law. In 2011, the Florida Supreme Court ruled that the state could not suspend a person’s driver’s license for refusing to take a breathalyzer or other chemical test if the DUI arrest itself was unlawful. So, if a driver is stopped without reasonable suspicion that they were driving while intoxicated, or if they were arrested without probable cause, a refusal to submit to alcohol testing cannot be used against the driver.
And note that only the driver – the person in control of the vehicle – can be tested. The implied consent rule does not apply to passengers in the car.
Consequences of Test Refusal
The implied consent law applies to a person who has been lawfully arrested by a law enforcement officer for driving under the influence of alcohol. If the person refuses to take a chemical test, that is an illegal act. The legal consequences depend on whether it is the first time that the driver has refused to take a chemical test after a DUI arrest. The potential penalties increase with repeat offenses.
For a first refusal, an administrative license suspension is automatic. The Florida Department of Highway Safety and Motor Vehicles will suspend the person's driver's license for a period of one year. The license suspension is immediate and occurs at the time of the refusal.
However, the driver can appeal the suspension by asking for a hearing before an administrative law judge in the Florida Department of Highway Safety and Motor Vehicles within 10 days of the arrest. The driver can present any defenses to the suspension at the hearing. If they lose the hearing, the suspension will be imposed.
The Refusal as Evidence in a DUI Trial
In addition to a license suspension, the fact of the refusal can be used at the person's criminal DUI trial as evidence. The prosecution can suggest that the driver refused to take the test because of consciousness of guilt. That is, the jury can infer that the driver thought they would test at 0.08 percent or higher and that’s why they refused the test.
Consequences of a Second Test Refusal
The consequences of a second refusal are more severe. If the person stopped for a DUI refuses the test, had previously refused a chemical test, and had been given a one-year driving license suspension, the suspension period for a second refusal is 18 months. In addition, a second or subsequent refusal to take a chemical test is charged and prosecuted as a misdemeanor.
Clear Notice to the Driver of the Penalties
The law enforcement officer is required to give the arrested person clear notice of the penalties that will result from a failure to submit to a lawful chemical test. The officer must read to the person the implied consent warning that explains the consequences of refusing to take the test. This warning describes the penalties for a first offense and for a repeat offense.
If the officer neglects to provide this warning to the driver, the refusal to submit to the testing cannot be used against the driver for administrative or criminal actions. That means that the state cannot suspend the person's license, and the refusal cannot be referenced in a criminal DUI trial. However, the prosecutor can still bring the DUI charge as long as no mention is made of the refusal.
Rules Surrounding Blood Testing
Blood alcohol testing is recognized as more accurate than breath testing, but it is also more invasive. In addition, it cannot be done in a police station – the driver must be taken to a clinic, hospital or other area where medically trained personnel can administer the blood test.
Generally, in Florida, the police cannot order a blood draw from someone who refuses it. They must first get a search warrant to do so. However, there are exceptions.
If the driver is unconscious, the state can draw blood for a chemical test even if they haven't been arrested yet for DUI. In addition, the state can take a blood draw if a third party was injured or if the driver has two prior DUIs.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.