The Department of Highway Safety and Highway Safety sought a writ of certiorari from the 5th District Court of Appeals to quash the opinion of the circuit court that the Department's administrative hearing officer departed from the essential requirements of the law in sustaining the driver's license suspension of Respondent, Michelle Ann Cherry ["Ms. Cherry"], for refusing to submit to a breath alcohol test. In this case, there was competent, substantial evidence in the record from which the hearing officer could conclude that, although Ms. Cherry did not expressly refuse to submit to a breath alcohol test, she did so by purposely avoiding the submission of valid samples. Despite her evasion, the BATA did report two breath alcohol readings; however, the same BATA also registered that these two readings were unreliable for purposes of determining breath alcohol level due to Ms. Cherry's failure to supply sufficient breath volume during each of her sample submissions.
Florida Administrative Code Rule 11D-8.002(12) defines an "Approved Breath Alcohol Test" as follows: [A] minimum of two samples of breath collected within 15 minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.
The court held that the language of the rule clearly establishes that in order for a breath sample to be a valid breath sample it must be reliable. In the case at hand, the Defendant's BATA generated by the testing device reported that neither of her breath samples met the minimum requirements for volume. Hence, neither was reliable, and neither was valid.
Since Rule 11D-8.002 states that a "[r]efusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test," there was enough evidence to support the hearing officer's determination that Defendant had refused to submit to a breath test.
Dep't of Highway Safety & Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2012)
A law enforcement officer arrived at a hospital to perform a DUI investigation on Defendant, a patient who had been involved in a car accident. The officer read Defendant his Miranda rights and then him whether he would give a blood sample. Defendant consented and gave a sample. The officer did not tell Defendant the consequences of a failure to consent. Defendant was subsequently charged with driving under the influence causing injury to person or property.
Defendant made a motion to suppress the results of the blood drawn from him. At the hearing, the sole issue presented to the court was whether or not the blood test results should be suppressed due to the officer's failure to inform Defendant of the consequences of a refusal to consent, as required by the statute. The court granted the motion to suppress.
The court held that a person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person's privilege to operate a motor vehicle for a period of 1 year for a first refusal. It will be suspended for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests. Defendant shall also be informed that if he or she refuses to submit to a lawful test of his breath and his driving privilege has been previously suspended for a prior refusal to submit, he or she commits a misdemeanor in addition to other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.
Defendant was arrested for driving while under the influence of alcohol and refused to submit to a breathalyzer test. Defendant filed a Motion in Limine to disallow any evidence or testimony regarding his breathalyzer refusal, especially since the officer did not advice the defendant at the time of his arrest that his refusal would be introduced against him in court.
The court held that allowing testimony regarding his refusal was allowed to be introduced against him since it did not violate his due process rights. The court held that the implied consent statute, Fla. Stat. § 316.1932(1), was not unconstitutional.
State v. Pagach, 442 So. 2d 331 (Fla. 2d DCA 1983)
Florida law requires a person arrested for a DUI to take a breath, blood, or urine test. Florida’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC) or for drugs.
The officer may decide to administer more than the breath test. If that is the case, the accused make refuse these additional tests without penalty.
In Florida, your license will be revoked for one year for your first refusal. For your second and any subsequent refusal, your license will be suspended for 18 months. There will likely be additional consequences, such as fines and jail times.
In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, the state may administer the test if you are unconscious, even if you haven’t yet been arrested. Also, if you find yourself in a situation where an officer arrests you for a DUI but hasn’t given you a test, then Florida law says that you can ask for one. Once you ask, the officer has to give you a test.
The penalties for refusing to submit to a chemical test are found in the Fl. Stat. § 316.1932 and 775.082.
