In Florida, implied consent means that when a person accepts the privilege of driving on the roads in Florida by obtaining a driver’s license, that person consents to take a breathalyzer test if a police officer has probable cause to arrest the person for driving under the influence of alcohol (DUI). After a DUI arrest, the police officer will still ask the DUI suspect if he/she will submit to a breathalyzer test, and the DUI suspect can still refuse. However, because of the implied consent law, a refusal could mean enhanced penalties, such as a longer driver’s license suspension.
While driving in Florida does, at least in theory, subject a person to a breathalyzer test, it does not give the police the right to automatically request a blood alcohol test. In order for a police officer to get a blood alcohol test in a regular DUI case, the suspect must consent or the police officer must get a court order for the blood. In a recent DUI case south of Jacksonville, the paramedics were called after someone saw the defendant passed out in his vehicle. The defendant told the paramedic that he was a diabetic, and the paramedic took the defendant’s blood to test his blood sugar level. A police officer arrived and suspected that the defendant was drunk. The paramedic gave the defendant’s blood sample to the police officer who had it tested for alcohol content.
The defendant was arrested for DUI. His criminal defense lawyer filed a motion to suppress the evidence of the blood alcohol test. The court ultimately threw out the evidence of the blood alcohol test because the police officer did not have the defendant’s consent or a court order to get the blood sample, whether it came from the defendant or the paramedic. As a result, the blood sample, and the subsequent blood alcohol test, was illegally obtained and could not be used against the defendant in a DUI case.