Florida’s Implied Consent Warning

Florida’s implied consent statute requires the officer to read the warning after the DUI arrest. If the person after that refused to submit to the lawfully requested chemical test, that refusal might trigger an administrative “on the spot” suspension of the driver’s license. Additionally, the refusal might be admissible at trial to show “consciousness of guilt.”

If the refusal is invalid, the administrative suspension should be invalidated (assuming the driver demands a formal review hearing within ten (10) days of the arrest). If the officer didn’t read the implied consent warning at trial, evidence of a “refusal” should be excluded from trial because it is irrelevant.

For the refusal to be admissible in the civil or criminal case, the DUI officer must show that he complied with Florida’s Implied Consent Statute as required by Florida Statute Section 316.1932(1)(a)1.a.

Effective October 1, 2021, the Florida Legislature amended the implied consent warning to inform individuals that they would be subject to increased penalties if they had previously been fined under section 327.35215(1) Florida Statutes. That section deals with the penalties for failing to submit to a test after being suspected of boating under the influence.

As a result, Florida’s new implied consent warning is even longer, harder to read, and more challenging to understand.

Attorney for the Implied Consent Warning in Tampa, Florida

After an arrest for DUI and refused testing in Tampa, FL, contact an experienced criminal defense attorney at the Sammis Law Firm to determine how Florida’s Implied Consent laws might impact your case.

If the arresting officer didn’t read the implied consent warning or gave you affirmative misadvice, the court might suppress or exclude any mention of the “alleged refusal” or even dismiss the charges because of a due process violation.

Visit our main office in downtown Tampa, FL, in Hillsborough County. We also have offices in Clearwater and New Port Richey, FL. We also represent clients in all surrounding counties, including Hernando County, Pasco County, Pinellas County, and Polk County, FL.

Contact us for a free and confidential consultation. We can discuss the charges pending against you, the typical penalties for that type of charge, and the best defenses that can be used to fight the case aggressively.

Call 813-250-0500 today.

What is “Implied Consent” in Florida?

Florida’s Implied Consent statute provides, in part:

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….

The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reason to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages….

Consent to submit to a chemical or physical test of breath, blood, or urine is given at two different times in the implied consent statute:

1. when a person applies for a driver’s license; and
2. after they have been lawfully arrested for DUI.

See Florida Statute §316.1932(1).

By accepting the privilege to drive and obtaining a driver’s license, Florida drivers consent in advance to a test of their breath, blood, or urine once probable cause arises that they have driven under the influence.

Florida’s Implied Consent Warnings in DUI Refusal Cases

In Hillsborough County, the DUI officer is trained to ask you to consent to a breath test. If you indicate that you will refuse to take the breath test, the officer will usually take you to a room at central booking where the reading of implied consent will be video and audio recorded.

In some cases, the arresting officer will read the implied consent warning at the roadside immediately after the arrest. The officer is trained to read you the following implied consent warning required under Florida law:

__ BREATH TEST

I am now requesting that you submit to an approved test of your breath for the purpose of determining the alcoholic content of your breath.

or

__ URINE TEST

I am now requesting that you submit to a test of your urine for the purpose of determining the presence of any chemical or controlled substance.

or

__ BLOOD TEST

I am now requesting that you submit to an approved test of your blood for the purpose of determining its alcoholic content and/or the presence of any chemical or controlled substance.

Will you take the test? __YES __ NO

If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one year for a first refusal, or a period of 18 months if your privilege has been previously suspended, or if you have previously been fined under §327.35215, F.S., as a result of a refusal to submit to a lawful test of the breath, urine or blood, required under Chapters 316 or 327, F.S.

Additionally, if you refuse to submit to the breath or urine test I have requested of you and if your driving privilege has been previously suspended, or you were previously been fined under §327.35215, F.S., for a prior refusal to submit to a lawful test of your breath, urine or blood, required under Chapters 316 or 327, F.S., you will be committing a first degree misdemeanor, in addition to any other penalties provided by law.

Refusal to submit to the test I have requested of you admissible into evidence in any criminal proceeding.

If this warning is not given, or if you did not refuse to take the chemical test after being advised of these consequences, then any evidence of the alleged DUI refusal might not be admissible at trial.

The legislature recently updated Florida’s implied consent law to include a warning that a prior refusal in a BUI case can trigger enhanced consequences.

The DUI Officer’s Duties after the Refusal

in a DUI RefusalWhen a person refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352, F.S., a law enforcement officer authorized to make arrests for DUI is required to file with the clerk of the court, on a form provided by the commission a certified statement that probable cause existed to arrest the person for a violation of s. 327.35, F.S., and that the person refused to submit to a test as required by s. 327.352, F.S.

Along with the statement, the officer is also required to submit a sworn statement that the person has been advised of both the penalties for failure to submit to the blood, breath, or urine test and the procedure for requesting a hearing. Section 327.35215(2), F.S.

Florida’s Implied Consent Statute Written in Spanish

Many local law enforcement agencies have an implied consent warning form in English and Spanish.

“Estoy pidiendole en este momento que se sometu a un examen legal de su ALIENTO con la finalidad de determiner su contenido de alcohol,” [I am now requesting you to submit to a legal BREATH exam with the purpose of determining the alcohol contents].

If the subject does not agree to consent to the test, then the officer will read the following warning:

Si se niega a someterse al examen que le he solicitado, su privilegio para operar un vehiculo motorizado sera suspendido por un (1) ano por la primera denegacion, o dieclocho (18) meses sis u privilegio ha sido suspendido con anterioridad como resultado de haberse negado a someterse a un examen de aliento, orina, o sangre.

Adicionalmente, si se neiga a someterse al examen que le he solicitado y si su privilegio para mancjar ha sido suspendido anteriormente por una previa denegacion a someterse a un examen legal de su aliento, orina o sangre estara cometiendo un delito menor. Negarse a someterse a el examen gue le he solicitado es admitible coma evidencia en cualquier proceso criminal.”

Tomara el examen?”

Florida’s Implied Consent Warning for Blood Testing

The arresting officer will follow different procedures when requesting a blood draw. In most cases, a warrant is required to draw blood unless the officer has free and voluntary consent or exigent circumstances.

The DUI field packet currently being used by deputies with the Polk County Sheriff’s Office provides the following:

***Read Implied Consent for Blood Draw when Probable Cause for Arrest is Present***

• ____ Implied Consent was read to the subject:
  • ___ Legal Draw
  • ___ Consensual Draw
  • ___ Court-Ordered Draw
• ___ Blood Kit is Sealed.
  • ___ Blood Kit has not expired.
  • ___ Expiration Date is: ____
•  ___ Blood Kit was opened in the presence of _______________ (Collector) and provided to him/her in order to conduct the blood draw.
• ___ Both blood collection tubes were inspected and found to be in good condition.
• ___ The seals appear new, with no visible cracks, holes, or flaws.
• ___ Both blood collection tubes contained the preservative and anticoagulant powder inside.
• ___ Observed injection site to be cleaned with a non-alcohol swab (iodine, betadine, etc.) by _________ (Collector).
• ___ Collection site used was new and not a preexisting IV site.
• ___ Observed the entire blood draw procedure and that both tubes were inverted back and forth to mix the powder with blood.
• ___ Tool custody of the blood collection tubes and placed them into plastic containers from the blood kit.
• ___ Blood was drawn at _________ (Location) on ________ (Date) at ________ (Time).
• ___ Ensured Specimen Collector signed label and Blood Collection Report Card.
• ___ One label was applied to each tube, and an absorbent pad was placed in the kit before closing.
• ___ Secured plastic container containing tubes of blood with two red integrity seals was placed the container inside the plastic bag and then secured inside the Blood Kit cardboard box.
• ___ Sealed box with two or more Evidence Seals and one piece of Evidence Tape.
• ___ Placed Blood Kit inside an Evidence bag.
• ___ Completed the Evidence Card or Label and completed the Lab Request Form for Blood Alcohol Level/Drug Sctccn. (Fill out the correct Lab Request (FDLE or Wuesthoff) and submit it at the time of collection.
• ___ The blood kit was placed inside a refrigerator at the PCSO Crime Scene Investigation Section or another approved depository.
• ___ The key was placed inside a lock box.

Read more about attorneys for DUI legal blood tests in Florida.

Additional Resources

Florida Implied Consent Warning – Visit the National Highway Traffic Safety Administration website. NHTSA was created by the Highway Safety Act of 1970 to carry out safety programs previously administered by the National Highway Safety Bureau. APPENDIX E on the NHTSA website provides a form for reading Florida’s Implied Consent Warning after a DUI arrest.

Florida Statute Section 316.1932  – Read the statutory language for “Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.”

Wikipedia on Implied Consent – Read an article on Wikipedia about implied consent statutes and legal theories throughout the United States. The article explains implied consent for breath, blood, and urine testing after driving while intoxicated or impaired and legal theories of implied consent for sexual assault, spousal rape, medical care, reproductive healthcare, and organ donation.

This article was last updated on Friday, August 16, 2024.