Driving in Florida is a privilege that comes with both freedom and obligations. If you have a valid driver's license, for example, you have the freedom to drive your vehicle on roads and highways, and this comes with the obligation of obeying Florida's traffic laws.
If you fail to do so, the state can impose fines and penalties on you and, in some cases, revoke your driving rights.
One fundamental idea behind Florida's implied consent law: When you drive on Florida's roadways, you have consented to a test to determine whether you are under alcohol or drugs.
If you fail to honor this obligation by not agreeing to alcohol and drug testing, the state can impose sanctions on you or strip you of your driving privileges.
The implied consent law can put drivers in a tough spot during DUI investigations. If you submit to a breath, blood, or urine test to determine the presence of alcohol or drugs, you may fail such a test. However, implied consent means that you are compelled to provide evidence to law enforcement that implicates you in impaired driving.
On the other hand, if you refuse to consent to a test despite the implied consent law, you may face administrative sanctions. You could still be charged with DUI, and the prosecutor can even argue that your refusal to submit to a BAC test to determine the presence of alcohol or drugs is evidence of your guilt.
You do not have the right to speak to an attorney before deciding whether to submit to BAC testing. Therefore, it is imperative to learn as much as you can about Florida's implied consent law now so you can make an informed decision at the moment.
To best answer the question, “What is the implied consent law?” it is helpful to look at the law. You can find the rules regarding implied consent in Chapter 316, Section 1932 of the 2022 Florida Statutes. The law applies to any “person who accepts the privilege extended by the laws of this state to operate a motor vehicle within this state.”
Therefore, the group of people to whom the implied consent law applies is rather broad. It includes not just individuals who have a driver's license or drive a vehicle on a road or highway; it consists of all persons who operate any motor vehicle anywhere within the state, no matter whether:
Implied consent means a driver, by choosing to operate a motor vehicle within the state, has been “deemed to have given [their] consent to submit to an approved chemical test or physical test.”
Through this language, Florida asserts that your choice to operate a motor vehicle anywhere in the state proves you are willing to submit to BAC testing. If you refuse such testing, it is akin to accepting the privilege of driving without obtaining the obligations that come with it.
The types of testing to which drivers of motor vehicles implicitly consent include chemical and physical testing. This is a broad term; it includes tests of a person’s breath, blood, saliva, and urine, as well as other types of testing.
Generally, an officer has the right to give you one of these tests if they have reasonable cause to believe you were driving under the influence. Such tests are to be conducted as part of a lawful arrest.
Finally, the statute indicates that refusing a test violating the implied consent law can suspend your driving privileges for one year. If you have previously refused a request to test, the suspension period can be up to 18 years.
A second or subsequent refusal can also be punished as a separate crime, a first-degree misdemeanor.
The statute also contains detailed instructions identifying who may conduct the various types of approved tests and how to conduct them. It is up to the officer requesting the trial to ensure that each test requested is conducted in substantial conformity with the statute.
"Substantial conformity" means that while the test does not have to follow the exact process outlined in the statute, it must be conducted in a manner that is as close as possible to the law.
A test not conducted in substantial conformity with the statute, either because the person conducting the test was not authorized to do so or because the test was conducted in an unapproved manner, may have negative consequences for the prosecutor's case.
What is the implied consent law’s relationship to driving? Driving is the activity that triggers your implied consent. If you never operate a vehicle in Florida, you can never be said to have implicitly given your consent to BAC testing.
Once you operate a motor vehicle, no matter how long or far, then for as long as you are driving that vehicle, you are implicitly consenting to BAC testing.
Put another way, no matter how intoxicated you may appear. Suppose an officer has no probable cause to believe you were operating a motor vehicle. In that case, the officer cannot rely on implied consent to compel you to submit to a chemical or physical test. Furthermore, penalties or sanctions should not be enforced for refusing to consent to such testing.
When you are behind the wheel of a motor vehicle in Florida, you are implying to law enforcement officers, without actually saying the words themselves, that you agree to submit to physical or chemical tests.
Upon being stopped by a law enforcement officer and placed under arrest for DUI, the arresting officer will request you to submit to one or more tests.
While making this request, the officer must advise you of the penalties and sanctions you face if you refuse to submit to testing, including the enhanced penalties that may be available if you have previously refused to submit to BAC testing.
Once correctly advised by the law enforcement officer, you will be asked to submit to one type of approved test. Technically, the implied consent law assumes you will agree to and cooperate with any approved test requested by the officer. In reality, however, you can refuse the officer's request.
Saying no to the officer's request for any test is a refusal. Even refusing a requested second test after agreeing and submitting to a first test is sufficient to trigger the sanctions and penalties for refusal.
It is the officer's decision what chemical or physical tests to offer, as long as the tests are of an approved type. As a driver, you do not get to ask for a specific test to be administered.
Every state in the United States, except for Wyoming, has some implied consent law. Regarding implied consent law, conditions generally agree with Florida: They presume that a person has consented to alcohol or drug testing because they have chosen to operate a motor vehicle within that state.
Eleven states have an implied consent law that provides for administrative sanctions and criminal penalties for refusing a request for BAC testing. These ten states are Alaska, North Dakota, Nebraska, Arkansas, Kentucky, Virginia, Florida, Maine, Rhode Island, and Vermont.
The remaining states have an implied consent law that only provides administrative sanctions for refusing a requested test for drugs or alcohol.
This means drivers who refuse an officer's request for testing in these states will not face additional criminal charges. They can, however, be subjected to administrative penalties like a suspension of their driving privileges.
Not all of the states whose implied consent laws only provide for administrative penalties were initially designed to be this way.
For example, Kansas's implied consent law provided administrative and criminal penalties for refusal when written. However, that state's supreme court determined the implied consent law to be unconstitutional. After this ruling, the meaning of implied consent in Kansas changed, and the state could no longer criminalize a test refusal.
If you submit to a breath, blood, or urine test and the results show that you are over the legal limit of .08%, you are in a difficult position. The prosecutor will want you to believe that this result is irrefutable evidence of your guilt. Armed with the results of your alcohol test, the prosecutor may attempt to pressure you into pleading guilty to DUI.
A failed BAC test is not the end of your DUI case. Nor does it mean you have no defense available to your DUI charges. A skilled Florida DUI defense lawyer will want to evaluate all aspects of your BAC test, from the type of test administered to who administered the test, before advising you on whether to take a plea offer.
Breath, blood, and urine tests must be conducted according to specific protocols, and the chain of custody of the samples collected must be preserved. Those involved in collecting and testing biological samples must meet specific qualifications and training standards. The testing equipment must be maintained and regularly tested for accuracy.
Any issues with these aspects of your BAC test could call the reliability of the test results into question. Your defense attorney may successfully argue to keep the results of your failed BAC test from being used against you in court.
Even if the test results are admissible, your defense attorney might argue that the BAC test results are not trustworthy to the judge or jury.
If you have been charged with DUI because you either failed a BAC test or refused BAC testing, you and your rights are in jeopardy. At The Denson Firm, we are wholly committed to protecting your rights throughout every stage of your DUI proceedings.
Attorney Bruce Denson has over twenty years of experience defending Floridians charged with DUI and other serious crimes. By retaining us quickly following an arrest for DUI or BAC refusal, we may be able to limit the risk to your driving privileges while searching for the best defenses to your criminal charges.
Schedule your free phone consultation with our team today to discuss your case and begin developing your defense strategy.
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