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Florida Supreme Court to Consider the Constitutionality of Breath Test Refusal Charges Without a Search Warrant


In Florida, it is a criminal offense to refuse to submit to a blood, breath or urine test if you have refused to submit to such a test on a previous occasion. A prima facie case requires that: (1) the arresting officer had probable cause to believe that the accused person was driving, or in actual physical control of, a motor vehicle while under the influence of alcoholic beverages, or chemical or controlled substances; (2) the person was placed under lawful arrest for DUI; (3) the person was informed that if he or she refused to submit to such a test, his or her privilege to operate a motor vehicle would be suspended for a period of one year or, in the case of a second or subsequent refusal, for a period of 18 months; (4) the person was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor, and (5) the person, after being so informed, refused to submit to any such test when requested to do so by a law enforcement officer or a correctional officer. Pursuant to Florida statute section 316.1939, a "second refusal" charge is a misdemeanor of the first degree.

On December 31st, 2015, the Tampa Bay Times published an article entitled "Florida Supreme Court to consider warrant-less breath tests". According to the article, the case originated in Volusia county after the appellant was arrested on suspicion of DUI and refused to submit to a breath test. As a result of the refusal, he was (apparently) also charged with a violation of 316.1939.

The appellant filed a motion to dismiss the "second refusal" charge, arguing that the statute is unconstitutional in that it violates the Fourth Amendment's protection against unreasonable searches and seizures. More specifically, the appellant argued that to withstand constitutional scrutiny, a law enforcement officer cannot ask for a "body sample" without a warrant and, therefore, a person cannot be criminally punished for refusing where a warrant is not first secured. Put a bit differently, if the appellant had a Fourth Amendment right to refuse a breath test, then he cannot be prosecuted for asserting that right. The county court denied the dispositive motion to dismiss, and certified the following question, to the Fifth District Court of Appeal, as one of great public importance: "If the implied consent statute provides consent to search as an exception to the Fourth Amendment warrant requirement, then can that consent be withdrawn by refusal to submit to an otherwise lawful test of breath, blood or urine and can the second such refusal be punishable as a criminal offense?"

Generally speaking, a law enforcement officer must have a warrant to search a person, a vehicle, a home, or to listen in on conversations where there is an expectation of privacy. It goes without saying that Fourth Amendment protections extend to intrusions into the human body. These types of searches are highly invasive and, like all searches, are presumptively unreasonable without a warrant. There are, however, some exceptions to the warrant requirement. When a person is placed under arrest, the officer may search the area within the person's immediate reach, including pockets and bags, without a warrant. This is known as the "search incident to arrest" exception. If the occupant of a motor vehicle is arrested, the officer may search (in addition to the occupant) the passenger compartment of the vehicle, including all bags and containers, without a warrant. This is known as the "automobile" exception. Another recognized exception is "consent". If you consent to a search, and your consent is freely and voluntarily given, you have waived your right to Fourth Amendment protection against unreasonable searches and seizures, and the law enforcement officer may proceed with the search. Once again, your consent cannot be the product of coercion for this exception to apply.

Under Florida law, by accepting the privilege of operating a motor vehicle within this state, you are deemed to have given your consent to submit to a chemical test for the purpose of determining the alcoholic content of your blood or breath if you are arrested for any offense committed while driving (or being in actual physical control of) a motor vehicle, while under the influence of alcoholic beverages. This is known as Florida's "implied consent" law, and most (if not all) states have them. If you remove your Florida driver's license from your purse or wallet, you will see the following words printed along the bottom: "Operation of a motor vehicle constitutes consent to any sobriety test required by law".

So that should be the end of the analysis, right? You have already given your consent to submit to a breath test simply by driving on the roads of this state, you have just been arrested for DUI, you refused to submit to such test, and you have refused once before. The "second refusal" charge (it would seem) is constitutional, as your implicit consent to submit breath samples (by virtue of driving) fits neatly into one of the recognized exceptions to the Fourth Amendment's warrant requirement. Apparently, it's not that simple.

In June of 2015, the Fifth District Court of Appeal affirmed the county court's denial of the motion to dismiss and published an insightful analysis. The Court noted that the issue of what exception to the warrant requirement (if any) applies to breath alcohol tests, conducted immediately after a DUI arrest, was one of first impression in this state. Accordingly, the Court looked to several other jurisdictions that have justified warrantless breath tests under one of three potentially applicable exceptions to the warrant requirement: (1) consent; (2) search incident to arrest; or (3) general reasonableness (remember, the Fourth Amendment prohibits only unreasonable searches and seizures).

With regard to consent, the Fifth District opined that "implied consent" is not equivalent to Fourth Amendment consent. When you think about it, this makes sense. As indicated above, consent must be freely and voluntarily given, and cannot be the product of coercion. Florida's implied consent laws are, however, inherently coercive. If you withdraw your "implied consent" to a breath test, and refuse, you will lose your privilege to drive for at least a year. That being said, many people feel like they don't have a choice (that sounds a bit coercive to me). The Fifth DCA followed the reasoning of all state supreme courts that have addressed this issue and held that statutory implied consent does not constitute a per se exception to the warrant requirement.

The Fifth District also held that a warrantless breath test is not justified under the "search incident to arrest" exception. The rational for the "incident to arrest" exception is twofold: (1) officer safety; and (2) preservation of evidence. In DUI cases, officers do not need to perform breath tests for their own safety nor do they need to perform them to keep the accused person from deliberately destroying evidence (the court noted that unlike physical evidence, an arrestee is incapable of actively destroying his or her BAC). Also, BAC evidence dissipates in a predictable manner which allows experts to "work backwards" from the BAC at the time the sample is taken to the time of the alleged offense (this is often referred to as a "retrograde extrapolation").

The Fifth District did, however, opine that a warrant less breath test upon a DUI arrestee is constitutional because it satisfies the general "reasonableness" requirement of the Fourth Amendment and, therefore, section 316.1939 (which makes a second refusal criminal) is also constitutional. In reaching its conclusion, the court balanced the State's legitimate interest in securing a BAC result, for purposes of prosecution, against the intrusion upon the appellant's privacy. It reasoned that by virtue of driving on a public road, and having been arrested for DUI, the appellant had a "diminished expectation of privacy" and the breath test that appellant was asked to submit to was "minimally intrusive", even though it is, technically, a search "below the surface of the body".

In the end, the Fifth District Court of Appeals concluded that the appellant had no Fourth Amendment right to refuse because a warrantless breath alcohol test would have been reasonable under the circumstances. Thus, there was no constitutional bar that prohibited the state from prosecuting the appellant for a second refusal.

As indicated in the December 31st Times article, the Florida Supreme Court has agreed to review the decision of the Fifth District. If it reaches a different conclusion, the law in Florida could change. As the Fifth DCA noted in its opinion, however, not a single court that has dealt with a criminal "refusal to submit" statute, like 316.1939, has struck it down as unconstitutional. I don't believe that the Florida Supreme Court will hold otherwise but I will keep you all updated as this progresses.