Florida DUI Statute § 316.1932
Florida’s DUI Laws on Testing, Implied Consent, and Test Refusals
Title XXIII, Chapter 316, Florida Statute § 316.1932 Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal states that people who choose to drive in the state of Florida have impliedly consented to alcohol and controlled substance testing. The tests must use approved methods and must be requested by a law enforcement officer during the course of a lawful arrest for driving under the influence. The arresting officer must have reasonable cause for the belief that a person was under the influence while driving or while in “actual physical control” of a motor vehicle in Florida.
Tests for alcohol and controlled substances can be performed in the following ways, pursuant to § 316.1932(1)(a)1.a – c:
- By breath test using infrared light;
- By urine test using sample supplied by the person; or
- By blood test using sample supplied by the person.
The use of one test does not prohibit a law enforcement officer from requesting another test. Refusing to submit to a test for alcohol or controlled substances during a lawful arrest can result in serious penalties for a person, including license suspension and a misdemeanor charge (if the person has refused testing in the past).
Summary of Florida’s Implied Consent and Refusal Laws in § 316.1932
Implied Consent – In Florida, implied consent, as it pertains to Florida DUI laws, means that every person who drives on the state’s roadways has given permission to be tested for the presence of drugs and alcohol in his or her system when a law enforcement officer reasonably suspects that he or she has been driving while under the influence of drugs or alcohol.
A person gives such consent when he or she (1) obtains a driver’s license in the state of Florida, or (2) becomes the subject of a lawful driving under the influence arrest. The concept of implied consent is triggered by reasonable cause combined with a lawful arrest for driving under the influence.
Testing Types – Testing for drugs or alcohol on a person suspected to be driving under the influence can be conducted via breathalyzer, urine sample, or blood sample. If an officer performs a breathalyzer test, the officer may still request another test (urine or blood), regardless of the outcome of the breath test.
Refusal – Refusal of a test of any type in a situation of lawful arrest on reasonable suspicion of driving under the influence carries certain penalties, depending on a person’s history. For a first refusal, the fact of refusal will result in a one-year suspension of the person’s license. For a second refusal and prior suspension due to refusal, the person’s license will be suspended for 18 months, and the person can be charged with a misdemeanor offense.
Driving vs. Actual Physical Control – An officer may request a test in the event a person is reasonably suspected to have been driving under the influence or to have been in actual physical control of a motor vehicle. This means an officer does not have to witness a person in the act of driving in order for the parameters of § 316.1932 to apply.
Definition of “Actual Physical Control” in Florida’s Implied Consent Statute
“Actual physical control” in Florida presents a situation in which a person might be arrested for and charged with driving under the influence when a law enforcement officer never saw him or her driving. Actual physical control relates to a person’s reasonable ability to drive the vehicle and the probability that the person was recently driving the vehicle.
Some factors in these situations that law enforcement officers will consider include:
- Where are the keys? If the vehicle’s keys are in the ignition or are right beside a person, this will lend toward a finding that he or she was in actual physical control of the vehicle.
- Where is the vehicle? If the vehicle is stopped at an intersection or appears to have recently been moved, an officer might conclude that a person was in actual physical control.
- What condition is the vehicle in at the time? Officers might check to see if the vehicle is running, if the engine is still warm, or if the lights are on to ascertain whether a person was recently driving or is in actual physical control of the vehicle.
Examples of Actual Physical Control Giving Rise to a Request to Test in Florida
When an officer pulls someone over while driving and develops reasonable cause to believe the person is under the influence of drugs or alcohol, it is clear that the officer will request a test from the person. It is less clear when the person was not in the act of driving when the officer came upon him or her.
Examples of actual physical control that might give rise to an officer’s request for testing could include (provided the officer also develops a reasonable suspicion that the person is under the influence):
- An officer discovers a person asleep in a vehicle stopped on the side of a road while the keys are still in the ignition.
- An officer encounters a person who is no longer inside the vehicle but just arrived at a residence or establishment.
- An officer finds a person sitting in the driver’s seat of a vehicle, and the person says he was simply retrieving something from the vehicle. The keys to the vehicle are in the person’s pocket.
Florida § 316.1932(1)(a)2 Regulation of Breath Test Instruments
Under § 316.1932(1)(a)2, the Florida Department of Law Enforcement’s Alcohol Testing Program handles the regulation of breath test instruments. This includes overseeing the instruments’ registration, inspections, and operation. The Alcohol Testing Program also regulates persons who perform blood tests pursuant to Florida’s driving under the influence and boating under the influence laws.
Non-Residents and Implied Consent Under Florida’s § 316.1932(1)(b)2
Non-residents and people who are Florida residents but are exempt from the driver’s license laws in the state are covered under § 316.1932(1)(b)2. People in this category still give their implied consent to testing when they choose to travel on state roadways.