How Does The Implied Consent Law Come Into Play In A Situation?

Implied Consent Suspension In Florida When It Comes To A DUI

Implied consent in Florida is an agreement that you make with the state when you get a driver’s license. Part of that agreement is that if you’re ever stopped and arrested for DUI, you give permission for the arresting officer to get a blood, breath or urine sample to test for its alcohol contents. If you refuse to submit to that requested test, that’s where the suspension comes in.

What If Someone Is Incapacitated Or Can’t Give A Breath Sample? Would That Be Considered A Refusal?

A refusal has to be knowing and intentional. If you are unconscious, obviously you can’t willingly refuse. Usually, if someone was incapacitated, they’d be taken to a hospital and there they would take a blood draw, not only for purposes of treatment of any issues you might have, but also to test for alcohol or drug level.

Should Someone Give A Breath Test When Stopped On Suspicion Of Driving Under The Influence?

People usually ask, “If I get stopped by the police and they suspect me of DUI, should I blow the breathalyzer or not?”

The answer depends on how much you’ve had to drink. If you feel that you are not impaired and you haven’t had that much to drink, then you can take the breathalyzer. If you blow under 0.08 in Florida, there is no presumption of you being intoxicated and they can’t argue that. The law says it’s unlawful to drive while impaired. However, it is not unlawful to drink and drive if you are not impaired or are not over .08

Conversely, if you’ve had too much to drink and you know it, then blowing the breathalyzer will secure a conviction against you. In Florida, you can be convicted if the jury believes that you were impaired or if your blood or breath alcohol is 0.08 or higher. It is like an automatic conviction, unless you can successfully challenge the veracity of the breathalyzer machine.

If you want to have any chance of successfully defending the case, you certainly don’t want to give them the option of proving you guilty merely because of the readout on a machine. There are other ways to defend the case and the most likely one that has success, is how you perform on the roadside field exercises.

If you are able to do those exercises without staggering or falling and are able to maintain your balance properly, that’s a very strong argument and evidence that you were not impaired. Oftentimes that’s exactly how to win DUI cases at trial, by convincing the jury based on the videos that they take of these things that the person was not impaired.

In a case, where they didn’t blow the breathalyzer, there is no alternative way to prove DUI. They can only prove it by convincing a jury that you are impaired. That’s something that people should appreciate and use to their benefit if they can.

Do Police Need A Warrant To Be Able To Take A Blood Sample?

No. They can use reasonable force but obviously, if you are incapacitated, you are not going to resist. In cases where you’re charged with DUI with serious bodily injury or manslaughter, they do have a right to actually physically restrain you to take the sample. They don’t need a warrant in the case of manslaughter.

Admin Per Se Suspension Law In Florida

Under the Implied Consent law, if the officer believes that you’re driving under the influence and asks you to submit to the test and you refuse, the Florida Department of Highway Safety & Motor Vehicle will suspend your license for 12 months for the first refusal and 18 months for a second or subsequent refusal.

A first refusal gives you a 90-day hard suspension, meaning the first 90 days of that 12 months’ suspension, you would not be able to get a hardship license. If you are caught driving on a suspended license for a DUI, it results in a mandatory jail sentence. The consequences are serious for driving under the suspended license because of a refusal.

Once the 90-day period expires, you are entitled to get a hardship license and that would allow you to drive to work, school, and doctor appointments and for religious purposes.

If you need information regarding the Implied Consent Law In Florida, call the law office of Attorney Randy Berman for a free initial consultation at (561) 866-5717 and get the information and legal answers you’re seeking.