The Law Offices Of Kevin J. Pitts
For a refusal to be admissible in your case Florida implied consent must be read properly. If the defendant is not made aware of the consequences of the refusal then it cannot be used against them under the safe harbor doctrine. Another possibility is that if an individual is misled into thinking that a blood sample is required when it is not authorized by law. Under those circumstances the refusal might not be admissible. The appellate courts are currently split on the issue and it usually comes up when the officer requests blood breath or urine. The argument is that when all three tests are listed it could cause the defendant to believe that a much more invasive blood test is being requested. If the officer requested a blood test when it is not authorized by law that would be a much stronger case.
Implied Consent 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 including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.
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 reasonable cause 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. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person's privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding. Fla. Stat. Ann. § 316.1932.
The general purpose of the implied consent is to notify the accused of the consequences of Florida DUI refusal. In a perfect world the officer will advise the accused which test they are requesting. It is almost certain that if you take the breath test and blow .000 the officer will change their mind and ask for a urine sample. The timing of implied consent is incident lawful arrest. For the refusal to be admissible the State must show that the arrest was lawful.Statute permitting a police officer to suspend a motorist's driver's license for refusal to submit to a lawful breath test did not allow suspension to be predicated on refusal to take a breath test following an unlawful arrest, even though statute was amended to omit mention of a motorist's arrest or its lawfulness; obligation to take the breath test arose from Implied Consent Law, which required a lawful arrest. Dep't of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. Dist. Ct. App. 2008)review denied,984 So. 2d 519 (Fla. 2008).
Breath Blood or Urine Currently the appellate courts are split on the issue of requesting blood, breath or/and urine. Some of the recent case law has come out in favor of the state but the law might vary depending on the jurisdiction you reside in. A driver's license could not be suspended under implied consent law after driver refused to submit to breath test to determine blood alcohol content, where law enforcement officer gave driver an implied consent warning that erroneously informed driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test, when statute only authorized a breath test. lt State, Dept. of Highway Safety & Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. Dist. Ct. App. 2007)The position is acknowledged as dicta in a footnote by the 3rd DCA in Boesch but was not ruled upon. The Court stated as Boesch's counsel certainly seems to have known, the separate implied consent statute applicable to blood tests, subsection 316.1933(1), Florida Statutes (2006), did not warrant a blood test in this case. Although we have not ruled (and do not here) on this point, at least one district court of appeal has held that the erroneous inclusion of the blood test implied consent warning may invalidate the breath test warning, preventing suspension of the defendant's license. lt State, Dept. of Highway Safety & Motor Vehicles v. Boesch, 979 So. 2d 1024, 1027 (Fla. Dist. Ct. App. 2008), reh'g denied (Apr. 18, 2008).
Other Florida appellate courts have based their opinion based upon an and/or distinction. A request that drivers who were arrested on suspicion of driving under the influence of alcohol (DUI) submit to a test of their “breath, blood, or urine” did not mislead drivers into thinking that they were required to submit to the more invasive blood or urine tests and, thus, did not preclude suspension of drivers' licenses to drive, pursuant to the implied consent law, based on their refusal to take any of the tests, even though implied consent law required only that drivers submit to a breath test; use of word “or” suggested that drivers had a choice as to the test to which they wished to submit. Dep't of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. Dist. Ct. App. 2009)review granted,36 So. 3d 84 (Fla. 2009). Implied consent warning that asked motorist to submit to a “breath, urine, or blood” test was not improper, and thus motorist's refusal to submit to a breath alcohol test in a driving under the influence (DUI) investigation warranted suspension of her driver's license, even if the circumstances justified only a breath test. Stevenson v. Dep't of Highway Safety & Motor Vehicles, 17 So. 3d 1260 (Fla. Dist. Ct. App. 2009).
Improper Implied ConsentThe officer is not required to strictly comply with the reading of implied consent. Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State,846 So.2d 502, 505 (Fla.2003)Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence. Grzelka v. State, 881 So. 2d 633, 634-35 (Fla. Dist. Ct. App. 2004)Menna stands for the proposition that evidence can't be used against you if the request is believed to be optional without negative consequences.The trial court concluded that Menna was not told of any adverse consequences associated with refusing to take the test. Moreover, according to the officer, she was asked to submit to the test in a manner that made it seem optional. Thus, there were viable alternative explanations as to why she refused to take the test, including her desire to seek “safe harbor” or choosing to take the safest possible path totally devoid of negative consequences. Menna deals with a gunshot residue test but the logic is relevant to a breath test refusal without knowledge of the consequences. If you are arrested for DUI in Volusia County contact Daytona Beach DUI lawyer Kevin J. Pitts. Seminole County DUI attorney Kevin J. Pitts has offices in Sanford and Daytona Beach.