Like every other state in the country, Florida law states that drivers give their implied consent to chemical testing when they are suspected of driving under the influence (DUI). Florida Statute § 316.1932(1)(a)1.a reads:
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.
This means that if a driver is stopped for suspected drunk driving, a police officer is required to tell the alleged offender, “I am now requesting that you submit to” a test of either “your breath for the purpose of determining the alcoholic content of your breath,” “your urine for the purpose of determining the presence of any chemical or controlled substance,” or “your blood for the purpose of determining its alcoholic content and/or the presence of any chemical or controlled substance.” After reading that one sentence, the officer then simply asks, “Will you take the test?”
If a person refuses, the officer is further required to say the following:
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 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.
The officer will then ask a person if he or she still refuses knowing that his or her driving privilege will be suspended for a period of at least one year and that he or she will be criminally charged for the refusal. As the language in that warning indicates, a driver can have his or her license suspended for one year for first refusal or 18 months for a second or subsequent refusal. Additionally, a person who refuses for the second time can also be sentenced to a minimum of 10 days in jail or a minimum of 30 days in jail for third or subsequent refusals.
A driver has only a mere 10 days to request a Formal Review Hearing to challenge any suspension. It may be possible to raise any number of potential defenses as to why a person refused to testing. These may include, but are not limited to the police officer having no probable cause to suspect the person of DUI, the alleged offender being physically unable to provide a sample, or confusion about having the right to an attorney.