Many Florida driver’s are unaware that by getting a Florida driver’s license, they are agreeing to consent to a breath test in a DUI investigation. If you look at the very bottom of your driver’s license it says “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” In Florida driving is considered a “privilege” not a “right”. What’s the difference you might ask? All Americans have certain “rights”, the right to vote, the right to freedom of speech, the right to be free from unreasonable search and seizures. It’s the search and seizure right that calls the consent to sobriety tests into question.
If you refuse the breath test on the second DUI arrest the refusal itself becomes a 1st degree misdemeanor, punishable by up to a year in jail. Some lawyers have unsuccessfully argued that the refusal to take the breath, blood, or urine tests is merely a withdrawal of your consent to search. And since you have a “right” not to be unreasonably searched, and can withdraw your consent at any time, you should therefore not be punished for refusing to take any sobriety test.
The courts, all the way up to the U.S. Supreme Court agree that law enforcement must have probable cause to search a person or his property. The same courts also agree that bodily searches, like blood, breath, urine, DNA, body cavity searches, are a “search” within the meaning of the Fourth Amendment. However, despite this rule of law, and because the search of blood, breath and urine cannot be forced upon a person, some courts have said that law enforcement needs a warrant to make these kind of searches. But as with all things legal, there are exceptions to the warrant requirement.
One of those is exigent circumstances. Exigent circumstances mean that the evidence may be destroyed before the law enforcement officer can come back with a warrant, as warrants must be written and signed by a judge. For example, in drug cases, if they arrest a known drug dealer at his home and there are other people left in the home when the dealer is taken to jail, that may be considered an exigent circumstance allowing law enforcement to search the house because chances are, by the time they got back with a warrant, the house would be cleaned of any contraband by those left in the house.
In a DUI case, the results of any sobriety test would be compromised if the arresting officer had to go get a warrant. As we all know, alcohol metabolizes in your blood, and the longer you wait, the less alcohol will be in your system. Therefore, waiting to get a warrant would jeopardize a DUI investigation and most likely destroy the evidence. (Note in Arizona, the law provides for forced blood draws, however the warrant process is so streamlined, law enforcement can get the warrant almost immediately)
The most used exception to the warrant requirement, however, is CONSENT. If a person is arrested and they give consent to search their home or car then there is no need for law enforcement to get a warrant. If a person is stopped for a traffic violation and the officer asks for consent to search their person, car, or other belongings, the officer doesn’t even need a lawful arrest to conduct the search. Consent validates any search, even one without probable cause. And you, by accepting the privilege of driving in Florida, have consented to the search of your breath, blood, or urine. Just so you are reminded of that, if you arrested for DUI, there is “script” that law enforcement must read to you advising you of the consequences of not taking the test, if you refuse the test when they initially ask. (Blood tests may be taken in the case of accidents, urine tests when the results of the breath test are inconclusive because there was an intoxicant other than alcohol involved)
In a DUI case, breath tests, blood tests or urine tests are considered a search. Thus, it would appear that law enforcement needs either a lawful arrest or a warrant to take those tests, OR they need an exception to the warrant requirement. They have that by virtue of the consent you gave when you got a driver’s license.
Here’s the interesting part of consent – a person who has given consent can withdraw that consent at any time. And since you have a RIGHT against unreasonable search and seizure, it would appear that you can withdraw your consent to take any sobriety test. Right? In Volusia county, that is the argument being made by the defense attorneys. So far, the county courts have disagreed. However, they did submit this questions to the Fifth District Court of Appeal for an answer: “DOES SECTION 316.1939, FLORIDA STATUTES (2013), THE UNLAWFUL REFUSAL STATUTE, VIOLATE THE FOURTH AMENDMENT?” I guess we’ll have to wait and see.