Understanding Florida’s Implied Consent Laws

If you get behind the wheel and drive in Florida, you have made an agreement with the state, whether you know it or not.  This agreement is called an Implied Consent Law, and it requires that any person operating a motor vehicle in the state automatically consents to chemical testing (breath, blood, or urine) if lawfully arrested under suspicion of driving under the influence (DUI). This means that if law enforcement pulls you over because they have reasonable cause to suspect you are driving while impaired, they can request that you take one of these tests to determine blood alcohol concentration (BAC) or the presence of drugs. If you refuse, it can be used against you in court and your refusal brings additional penalties.

If you have been arrested for a DUI or have refused a chemical test, it is important to get help from an experienced Florida DUI defense attorney who can help you understand the law, evaluate your best options to have your charges lowered or dismissed, and ensure your rights are protected.

What Are Florida’s Implied Consent Laws

Florida’s implied consent law (FL Stat § 316.1932 (2023)) states that a person operating a motor vehicle within the state is considered to have given consent to submit to an approved chemical test or physical test including:

• An infrared light tests the breath. This is to determine the alcoholic content of their blood or breath (BAC) if lawfully arrested for any offense allegedly committed while driving under the influence of alcoholic beverages.
• A urine test. This is for the purpose of detecting the presence of chemical substances and must be administered at a detention or other properly equipped facility.
• A blood test. An approved blood test determines the alcoholic content of the blood or the presence of chemical substances or controlled substances.

The officer making the arrest must have probable cause for making the arrest, including after an accident that caused injuries or death. They must read you an implied consent warning, letting you know about the law and the consequences of refusing to take the test before they administer the test. If they fail to do so, it may invalidate the test refusal as evidence, should your case go to court.

If the arresting officer does not request a chemical or physical breath test and you feel that you are innocent, you may request the arresting officer to do so.  If you make this request, the arresting officer must perform the test.

Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician may withdraw blood and perform the test and only if acting at the request of a law enforcement officer. However, the failure of a law enforcement officer to request the blood does not affect the admissibility of a blood test of that was made for medical purposes.

Penalties for Refusing a Sobriety Test

You have the right to refuse sobriety tests in Florida, but refusing to do so carries its own set of penalties, in addition to those associated with a DUI conviction. For a first-time refusal, drivers face an automatic one-year driver’s license suspension, so you could lose your license even if not convicted of a DUI. For subsequent refusals, the suspension period increases to 18 months, and the act becomes a first-degree misdemeanor punishable by up to one year in jail and additional fines up to $1,000. The license suspension happens immediately, unless you request a formal review hearing to challenge the suspension within 10 days following the refusal.

Your refusal can also be used against you in court, as the prosecutor can argue that your refusal indicates consciousness of guilt. This means it can be assumed that you knew you were impaired and didn’t want to provide concrete evidence, and it makes your defense more difficult. In addition, your refusal does not prevent arrest or prosecution for a DUI, as other evidence such as field sobriety tests and the officer’s testimony can still be used against you.

You have the right to consult an attorney before deciding whether or not to refuse these tests, but you still cannot delay testing.

How an Attorney Will Defend You

Depending on your individual situation, when you are charged with a DUI there are several strategies your lawyer can use to build your defense.  In general, defenses focus on procedural errors, lack of probable cause, and misunderstandings during the arrest process, rights violations, and invalid testing. They include:

• Challenging the traffic stop and police procedures: If law enforcement lacked probable cause and reasonable suspicion to pull you over in the first place or proper protocols were not followed during the arrest, testing, and evidence handling, or law enforcement failed to properly explain Florida consent laws or provided misleading information, the refusal evidence can be excluded.
• Showing your rights were violated: Law enforcement must inform you of the consequences of refusing a chemical test under Florida’s Implied Consent Law. If this was not done or if evidence was obtained through illegal searches or seizures or there were other right violations, including the right to remain silent and not answer questions by police unless an attorney is present, the refusal may be invalidated.

  You Didn’t Actually Refuse: A claim of refusal can be challenged if you attempted but were unable to complete the test due to machine errors, your actions were misinterpreted as a refusal (such as being confused), or a medical condition prevented you from completing the test, making the refusal not “willful.”

• Contesting tests for accuracy: Field sobriety tests are notoriously inaccurate as they depend on subjective interpretation by the arresting officer. This interpretation may have been mistaken, or you might have performed poorly due to being affected by being tired or nervous. You might have a legitimate medical condition that makes it seem as if you were impaired or physical inability to comply with the test, such as respiratory issues.
• Questioning chemical test accuracy: Blood tests can be challenged based on the accuracy of the gas chromatography process used. The chain of custody in the handling of the blood could have been contaminated or tainted, errors could have been made or shortcuts taken or proper safety and policy procedures might not have been followed, leading to a false positive.
• Showing you changed your mind: If you initially refused but later agreed to take the test within a reasonable time frame, this may mitigate or challenge the refusal charge

Get Legal Help for a DUI or Test Refusal

Being charged with a DUI is a very serious crime that you should not treat lightly. It is critical to understand Florida’s implied consent laws, as non-compliance carries significant legal and administrative penalties. However, each case is unique, so consulting an experienced DUI defense attorney can determine which defense strategies apply to your specific situation.

At Taracks & Associates, founding attorney Barry Taracks is a former state prosecutor with over 30 years of professional experience. He is familiar with both sides of the courtroom and knows how to aggressively challenge the credibility and reliability of the evidence against you.

Remember, you are innocent until proven guilty. Our goal is to analyze your situation, determine the best way to defend you against DUI charges, and fight the suspension of your license and other penalties.