Florida’s Implied Consent Law

Throughout the United States, each state has an implied consent law used by law enforcement to preserve evidence showing a person was illegally impaired while operating a motor vehicle. If the request is legally under the state’s implied consent law, a person who refuses to submit to a lawfully requested chemical test can be subject to administrative and criminal penalties.

In Florida, the implied consent law is found in Section 316.1932, F.S., which gives greater protection than required under the state or federal constitution. Under that statute, any person who accepts the privilege of operating a motor vehicle within the state of Florida is deemed to have given consent to submit to an approved breath test to determine the alcohol content of his or her breath.

For a breath or urine test, Florida law requires:

• the request be incidental to a lawful arrest; and
• administered at the request of a law enforcement officer who has a reasonable belief such person was driving or in actual physical control of a motor vehicle while under:
  • the influence of alcoholic beverages as explained in Section 316.1932(1)(a)1.a., F.S.;
  • the influence of any controlled substance as explained in Section 316.1932(1)(b)1.a., F.S.

Evidence might be suppressed if the person asking for the chemical test does not have such a reasonable belief, or if the breath test or urine test is requested BEFORE a lawful arrest.

Effective October 1, 2021, the Florida Legislature amended the implied consent warning to add a provision informing the person they are subject to increased penalties if they had previously been fined under section 327.35215(1) Florida Statutes. That section deals with the penalties for failing to submit to a test after being suspected of boating under the influence (BUI).

Florida’s implied consent law helps accomplish the following goals:

• limits the power of law enforcement officers to require a person lawfully arrested for DUI to give samples of breath, urine, or blood without the person’s consent;
• sets out the methods by which samples may be taken and tested.

Any person who accepts the privilege to drive and is lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle is “deemed to have given consent” to submit to a lawfully requested breath, blood, or urine test.

Special Requirements for Breath or Urine Testing

Section 316.1932(1)(a)-(b) allows for breath and urine testing but does so only incidental to a lawful arrest “for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence.” Department of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163 (Fla. 5thDCA 2003).

Under Section 316.1932(1)(a), administering one type of test does not necessarily preclude administering another type of test. State v. Korth, 875 So.2d 790 (Fla. 3rd DCA 2004). Instead, Section 316.1932(1)(a)1.b., provides:

“Any person…in this state is, by so operating such vehicle, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in §877.111 or controlled substances 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 chemical substances or controlled substances.”

When does a defendant impliedly consent to a test of his or her urine under Section 316.1932? The defendant impliedly consents to a test of urine under Section 316.1932 only in cases in which a law enforcement officer has a reasonable basis to believe the person was driving under the influence of a controlled substance other than alcohol.

This article was last updated on Wednesday, June 7, 2023.