Florida DUI Law by Blake Mevis: What Constitutes Probable Cause to Justify Administration of Tests (Field Sobriety, Breath, Urine, and Blood)

§ 736. What constitutes probable cause to administer tests
"The key consideration for determining whether the Fourth Amendment allows a blood draw from a defendant is whether probable cause exists to believe the defendant was driving under the influence of alcohol to the extent that his normal faculties were impaired."

§ 418 Generally; implied consent to testing
"The legislature has chosen to extend greater protection to Florida citizens who are required to give samples for testing in driving under the influence (DUI) cases than is provided by the federal or state constitutions. The Implied Consent Law provides this protection. That law deals with the collection of breath and blood samples for determination of alcohol concentration. It provides for the collection of urine for testing to establish chemical or drug consumption. The Implied Consent Law identifies the permissible procedures that apply to the collection of these samples."

§ 427 Administration of tests, generally
"The statutory and administrative scheme known as the Implied Consent Law is designed to relieve the State of the burden of proving the traditional scientific predicate for the introduction of breath and blood test results. That traditional predicate is reliability, qualifications of the technician, and the meaning of the results. To avoid the necessity of showing the traditional scientific predicate, the State must prove substantial compliance with the regulations. The tests determining the weight of alcohol in the defendant's blood or breath must be administered at the request of a law enforcement officer substantially in accordance with the rules and regulations that have been adopted by the Department of Law Enforcement. The administration of one type of test will not preclude the administration of another type of test."

§ 420. Implied consent to blood test
"Any person who accepts the privilege of operating a motor vehicle within Florida is, by operating such vehicle, deemed to have given consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances if there is reasonable cause to believe the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. The blood test must be performed in a reasonable manner."

"Where the results of a blood or breath alcohol test indicate the presence of a small amount of a controlled substance, which amount could not be shown to have affected the defendant's driving, then evidence of that presence is inadmissible due to its prejudicial effect.
Thus, the trial court erred in admitting evidence that a driver had a trace of valium in his blood on a prosecution for alcohol-based DUI manslaughter, because the expert testimony was that the valium had no measurable effect on the driving and, therefore, the evidence had no probative value or relevance to the charge of driving under the influence of alcohol and was unfairly prejudicial.
However, where the test results indicate a low blood-alcohol level, which level would not explain the defendant's apparently intoxicated state, evidence of the controlled substance may be admissible even if there is no evidence of its effect on the defendant's impairment."

"The standard for compelling a roadside sobriety test is reasonable suspicion that a crime is being committed. Evidence of the results of field sobriety tests are admissible in prosecutions for driving under the influence, where the observations of police officers as to the defendant's performance of the walk-and-turn test, one-legged stand test, the balance test, and the finger-to-nose test is relevant, and its probative value is not outweighed by the danger of unfair prejudice. The testimony presented by police officers must be restricted to lay observation and such terms as "test," "pass," "fail," and "points" must be avoided to minimize the danger that a jury will attach greater significance to the results of field sobriety exercises and to other lay observations of impairment."

§ 449. Generally
"The standard for compelling a field or roadside sobriety test is reasonable suspicion that a crime is being committed.
Evidence of the results of field sobriety tests is admissible in prosecutions for driving under the influence where observations of police officers as to the defendant's performance of the walk-and-turn test, one-legged stand test, the balance test, and the finger-to-nose test is relevant, and its probative value is not outweighed by the danger of unfair prejudice as long as the testimony presented by police officers is restricted to lay observation, but such terms as “test,” “pass,” “fail,” and “points” should be avoided to minimize the danger that the jury will attach greater significance to the results of field sobriety exercises and to other lay observations of impairment."

§ 424 Consultation with counsel or presence at testing
"A defendant arrested for driving under the influence (DUI) is not entitled to an opportunity to consult a lawyer prior to submitting to a breathalyzer test. Moreover, the administration of a blood, breath, or urine test for alcohol or other substances at the direction of a law enforcement officer does not require the presence of counsel for the person tested."

§ 434 Responsibility for breath test instruments
"The Alcohol Testing Program within the Department of Law Enforcement is responsible for the operation, inspection, and registration of breath test instruments utilized under the statutes concerning driving and boating under the influence of alcohol; that program is also responsible for regulation of the blood analysts who conduct blood testing. Modification of a component part of a previously certified breath-testing instrument requires recertification of that instrument before the alleged test results from that instrument may be admitted into evidence."

§ 1529 Breath Test
"The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe that the person was driving or was in actual physical control of the motor vehicle within Florida while under the influence of alcoholic beverages. Under the statute, "incident to a lawful arrest"means the arrest must precede the breath test."

§ 432 Breath Test, Generally
"The results of a prearrest breath test are not admissible into evidence in any civil or criminal proceeding."

"The refusal of a person to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided by statute is admissible into evidence in any criminal proceeding. Moreover, the exclusionary rule under the Federal Constitution is not implicated where state law provides that evidence of a defendant's refusal to submit to a breath test is inadmissible if the underlying arrest was unlawful. However, the implied consent law does include an exclusionary rule that prohibits the use of blood results taken contrary to its core policies of ensuring reliability of the tests and protecting the health of the test subjects."

§ 435 Urine test
"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 a urine test for the purpose of detecting the presence of chemical substances 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. The urine test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe that the person was driving or was in actual physical control of a motor vehicle within Florida while under the influence of controlled substances."

"The refusal of a person to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided by statute is admissible into evidence in any criminal proceeding. Moreover, the exclusionary rule under the Federal Constitution is not implicated where state law provides that evidence of a defendant's refusal to submit to a breath test is inadmissible if the underlying arrest was unlawful. However, the implied consent law does include an exclusionary rule that prohibits the use of blood results taken contrary to its core policies of ensuring reliability of the tests and protecting the health of the test subjects."

"A chemical analysis performed in accordance with the approved methods must be conducted by individuals possessing a Florida Department of Health and Rehabilitative Services permit, even when conducted under the supervision of such a permittee. However, the implied consent law does not absolutely forbid the admission into evidence of blood-alcohol test results and related testimony produced by an unlicensed expert as long as the blood has been drawn by a person authorized to do so by the implied consent statute and the state establishes the reliability of the test, the qualifications of the operator, and the meaning of the test results by expert testimony."

§ 733 Required submission to blood test when death or serious injury occurs.
"If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a blood test to determine alcoholic content or the presence of chemical substances or any controlled substances."

316.1933. Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force.
not fixed

§ 420. Implied consent to blood test
"Any person who accepts the privilege of operating a motor vehicle within Florida is, by operating such vehicle, deemed to have given consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances if there is reasonable cause to believe the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. The blood test must be performed in a reasonable manner."

"A law enforcement officer may request the administration of a blood test in cases where a defendant does not appear at a hospital, clinic, or other medical facility as a result of his or her involvement as a driver in a motor vehicle accident and where administration of a breath or urine test is not impractical or impossible, provided that the defendant has been fully informed that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative.1 A defendant does not voluntarily consent to a blood test where the defendant's injuries that render the administration of a breath or urine alcohol test impossible or impractical are unrelated to the motor vehicle accident and the officer fails to inform the defendant that the implied consent law requires submission only to a breath or urine test and that the blood alcohol test is offered as an alternative."

"The refusal to submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any criminal proceedings, and the admission of such evidence does not violate the defendant's Fifth Amendment right against self-incrimination.1 A person's refusal to submit may also result in the suspension of his or her driving privilege, and the person must be told of the results of a failure to submit."

"When the blood-alcohol test is taken a significant amount of time after the person has been stopped on suspicion of driving under the influence, the test results are not rendered inadmissible, even if the state is unable to “relate back” the blood-alcohol evidence to the time the defendant was driving a vehicle. Instead, the matter of time is a question of credibility and of weight of the evidence, not of admissibility, provided the test is conducted within a reasonable time after the defendant is stopped; a test is conducted at an unreasonable time if the results of that test do not tend to prove or disprove a material fact, or if the probative value of the evidence is outweighed by its potential to cause prejudice or confusion."