Florida's Implied Consent Warning
In order 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. Section 316.1932(1)(a)1.a, Florida Statutes (2007). Otherwise, the driver is not knowingly refusing to submit to a breath test and the allegation of refusing is invalid.
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If the refusal is invalid, then the administrative suspension can be invalidated (assuming the driver demands a formal review hearing within 10 days of the arrest). At trial, if the officer didn't read the implied consent warning then any evidence of a "refusal" should be excluded from trial because it is irrelevant.
After an arrest for DUI and refused testing in Tampa, FL, then contact an experienced criminal defense attorney at the Sammis Law Firm to find out how Florida's Implied Consent laws might impact your case. Call 813-250-0500 today.
What is "Implied Consent" in Florida?
Florida's Implied Consent statute provides, in pertinent 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:
- when a person applies for a driver's license; and
- after they have been lawfully arrested for DUI.
§316.1932(1), Fla. Stat. (2013). 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, then the officer will usually take you in a room at central booking where the reading of implied consent will be video and audio recorded. In some cases, the arresting officer will just 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.
__ 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.
__ 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 (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood.
Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor.Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.
Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least one year and that you will be charged criminally for a subsequent refusal?
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.
Florida's Implied Consent Statute Written in Spanish
Many local law enforcement agencies have a implied consent warning form written 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].
It the subject does not agree to content to the testing then the officer will read: “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.”
[If you refuse to submit to the test that has been requested from you, your privilege to operate a motorized vehicle would be suspended for one year for a first refusal, or 18 months if your privilege has been suspended previously as a result of a refusal to submit to a breath test or a urine test or a blood test. In addition, if you refuse to submit to the test that has been requested from you and your driving privileges have been previously suspended for a previous refusal to submit to a legal breath test or urine test or blood test, you would be committing a misdemeanor. To refuse to submit to the exam or the test that has been requested from you would be admissible into evidence in any criminal procedure].
Tomara el examen,” [Would you submit to the test?].
Florida Implied Consent Warning - Visit the website of the National Highway Traffic Safety Administration. NHTSA was created by the Highway Safety Act of 1970 to carry out safety programs previously administered by the National Highway Safety Bureau. On the NHTSA website, you will find APPENDIX E which 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."
This article was last updated on Wednesday, March 1, 2017.