An element of the Florida DUI laws allows a police officer to request one of three chemical tests depending upon the circumstances. The testing can be done using the suspect’s blood, breath or urine. While a suspect is deemed to have consented to testing, the suspect may refuse, but a refusal has consequences. Consequences are lengthened license suspension, and for a second refusal it may become a misdemeanor with possible jail time.
Implied Consent in Florida
The suspensions based upon the testing or refusal are grounded in the concept of implied consent. In return for the State of Florida giving someone the privilege of driving in the state he or she gives Florida law enforcement consent to test them upon the existence of probable cause that he or she is operating amotor vehicle under the influence of alcohol or an illegal substance.
License Suspensions
When the driver agrees to testing and the test reveals a blood alcohol concentration (BAC) greater than .08 or the presence of an illegal substance, the administrative penalty is a driver’s license suspension of 6 months. For a second suspension involving DUI testing, if the driver has taken the test and has greater than .08 or the presence of illegal substances, then the suspension is for one year.
In the event of a refusal to take a legally requested test, the license suspension will be for one year. In the event of a refusal by someone with a prior suspension under implied consent rules, the suspension shall be for 18 months.
Driving during these suspensions are criminal acts with criminal penalties.
The Ten Day Rule
The license suspension starts with notice provided by the law enforcement officer. The suspension starts immediately, but the person suspended is given a temporary permit to drive. This permit is good for ten days. Unless the driver requests a hearing to contest the suspension within ten days, the suspension takes effect.
The request must be made within ten days and must be made in writing to the Department of Highway Safety and Motor Vehicles (DHSMV). Failure to make the request within the ten day period means the chance to contest the suspension is lost. There are two types of review available. The reviews are designated as informal and formal hearings.
In the event a driver requests a formal hearing, it is possible to apply for a limited license for business, educational or medical purposes until the hearing. This extension will not last beyond the scheduled hearing date if a postponement of the hearing is at the request of the driver.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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