Those who regularly practice DUI defense are very familiar with the Implied Consent law and how it impacts our client’s cases. Essentially, Implied Consent requires “any person who accepts the privilege … of operating a motor vehicle within this state … to have given his or her consent to submit to … a test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath…” Any person who refuses such test after being lawfully arrested is subject to a year-long driver’s license suspension for a first refusal or a 18-month suspension and misdemeanor crime for a second or subsequent refusal. Fla. Stat. 316.1932(1)(a)1.a. The courts have found this to be legal.
Birchfield v. North Dakota
However, the courts look at urine and blood draws slightly different. In 2016, the U.S. Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) held that a warrantless breath test may be administered as a search incident to a lawful arrest, but a more intrusive blood test may not. But how does this effect the Implied Consent Law as it relates to a request for urine?
Request for Urine Test
The Implied Consent law with regards to urine is almost identical to the law with regards to breath. “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of chemical substances or controlled substances.”
The penalties for refusal are identical and the only difference is that the request to test requires probable cause to believe that the person is under the influence of a controlled substance as opposed to alcohol. But is this process still legal after Birchfield?
State v. Riddle
At least one court has answered that question in the negative. In State v. Riddle, a Sarasota County Court Judge held that a urine test was akin to a blood test and that it could not be compelled under Implied Consent. State v. Riddle, 26 Fla. L. Weekly Supp. 148a (Fla. Sarasota Cty. Ct. 2018).
In Riddle, the Defendant only consented to a test of his urine after having taken a breath test (.049 and .051 results), initially refusing the urine test, having Implied Consent read to him, and then consenting to the test (cocaine found in his system).
The Court found his consent involuntarily given and suppressed the results of the test. “Mr. Riddle’s consent cannot be said to have been given freely and voluntary, because he was told that he must consent or face the consequences that included the threat of being charged with a separate crime for refusing. The Supreme Court has held that drivers do not impliedly consent to a blood test. Minnesota, North Dakota and South Dakota have recently ruled that the same rule of law applies to urine testing.
The Deputy’s reading of implied consent and the consequences of refusal effectively made Mr. Riddle’s consent involuntary. The State has failed to demonstrate under the totality of the circumstances standard that the consent was freely and voluntarily made.”
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