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Implied Consent Law – DUI – Important Info You Need to Know

Posted by Powers Sellers & Finkelstein | Sep 25, 2020 | 0 Comments

Dui Manslaughter

The Florida legislature enacted its DUI Implied Consent Law which requires that a person who has been extended the privilege of securing a driver's license in Florida is deemed to have given his or her consent to submit to an approved sobriety test when suspected of driving under the influence.

So, if you are pulled over by a Florida police officer based on suspicion that you were driving under the influence of alcohol or drugs, do you have to consent to a sobriety test? The answer is – it depends.

Although Florida's Implied Consent Law requires that you have consented to perform approved testing, this consent is not absolute, and people are able to refuse a sobriety test. However, refusal may lead to serious consequences and even harsher penalties.

Here is what you need to know about Florida's Implied Consent law when pulled over on suspicion of drunk driving.


In order for an investigating officer to request or compel you to submit to an approved testing method, the investigating officer must have probable cause that you were driving under the influence. The approved sobriety tests under Florida's Implied Consent Law include:

  • Breathalyzer – A breathalyzer is a device that utilizes a person's breath in order to measure blood alcohol content. Often the breathalyzer may be administered at the scene of the arrest, or traffic stop, and may be repeated later at the detention facility.
  • Urine Tests – The urine test should also be incidental to a lawful DUI arrest, but it is not performed at the scene of the arrest. Instead the urine test is often performed at the detention facility in which you are being processed.
  • Blood Tests – Since blood tests are the most intrusive testing method, an investigating officer can only request or compel a blood test if one of three situations occur: (1) breath and urine tests are impractical or impossible, (2) there is sufficient probable cause that the suspected DUI driver caused serious bodily injury or death, and (3) by voluntary consent of the driver.

A blood test will typically be administered at a medical facility with an investigating officer supervising to track the chain of custody of the blood sample. If the State is unable to prove the chain of custody of the blood sample, then the testing may be deemed inadmissible. However, blood samples drawn for medical purposes, even without an officer's request, may be admissible in court.


Field Sobriety Tests are not included in the scope of Florida's Implied Consent law since the determination of sobriety is based on the investigating officer's own observation. Typically, an officer will ask you to perform a field sobriety test if he or she has a suspicion you may be driving under the influence and needs further evidence to prove there was probable cause to compel you to take a breathalyzer, urine, or blood test.

Examples of field sobriety tests are balancing on one leg, walking in a straight line and turning around, and following a light with your eyes only. There are many factors which can affect the outcome of a field sobriety test such as weather conditions, uneven pavement, illness, and other physical conditions. It is always best to refuse a field sobriety test due to the subjectivity of determining a person is driving under the influence.


If you refuse to consent to the sobriety tests encompassed under the Implied Consent Law, then your refusal may be admissible in court. However, the investigating officer will need to show that he conformed with the Implied Consent Warning requirement found in Florida Statute 316.1932(1)(A)1.a. Pursuant to this statute, an officer must warn you of the consequences for refusing the sobriety test. The Implied Consent Warning must be explained prior to the refusal to submit to the sobriety testing in order for the refusal to be admissible in Court. Many times, experienced investigating officers may video record you or have you sign a document acknowledging the Implied Consent Warning and your refusal to submit to testing.


Unfortunately, the penalties for refusing a Florida Statute approved breathalyzer, urine test, or blood test are severe. The first refusal to submit to testing will result in a one-year suspension of your driver's license. If your driver's license has been previously suspended due to a prior refusal, then the second refusal may be classified as a first-degree misdemeanor and the punishments increase in severity. If you are charged with a second refusal, you will face an 18-month suspension of your driver's license and possibly up to one year in jail or probation, as well as a $1,000 fine.


If you have been arrested for driving under the influence, it is important you seek legal counsel to protect your rights. An experienced attorney will be able to review the facts of your arrest for possible defenses to challenge the admissibility of the test results or your refusal to take a test. These possible defenses may include:

  • Insufficient probable cause or reasonable suspicion to initiate a traffic stop,
  • Insufficient probably cause to request a sobriety test,
  • Failure to provide an Implied Consent Warning,
  • Invalid consent to a sobriety test, and
  • Insufficient probable cause that the person was driving the vehicle which led to the traffic stop.

If you have been arrested for driving under the influence, we urge you to get in touch with our experienced attorneys as soon as possible. We possess decades of experience and a deep understanding of Florida criminal law. We will examine the details of your case and determine which defenses may apply to you. Contact our office today to schedule a free and confidential evaluation by calling (727) 531-2926 or filling out our Quick Contact Form here.

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