Implied Consent Laws in Florida

Once you have received your driver’s license and signed your name,  you have agreed to abide by Florida’s Implied Consent Law. This law provides that, as part of using your privilege to drive, you consent to a blood, breath, or urine test to indicate your blood alcohol content or drug content at the time you were driving. If an accused driver refuses to take a BAC test, the Department of Highway Safety and Motor Vehicles (DHSMV) in Florida will take immediate administrative actions against their license.

What should I know about implied consent?

When a driver is stopped for DUI, a police officer may ask them to submit to preliminary tests. These are roadside sobriety tests, which will work to examine the motor skills of the driver and see if they match with the known motor impairments of someone with an elevated BAC. An officer may also ask you to take a breath test on the side of the road. Unless you have been formally placed in custody for driving under the influence, you can politely refuse to take any of these tests.

Any testing of BAC that occurs after a formal arrest is legally mandated. You can find yourself facing:

• 1 year license suspension for a first refusal
• 18 month license suspension for a second or subsequent refusal

The license suspension is action automatically taken by the DHSMV. When you go to court to fight against these accusations, refusing to take a BAC test while in custody can be used as evidence against you.

A driver that has been stopped for DUI must make every attempt to minimize the evidence against them. It is generally recommended that, unless you are completely sober, you refuse to take the test offered before your arrest. Be aware, however, that a second refusal could be charged as a first degree misdemeanor. Working with a skilled DUI defense attorney can help apply one of the many defenses to debunk breath test evidence, perhaps even getting the charges against you eliminated.

If you are wondering how you may be affected by a mandatory BAC test under Florida’s implied consent law, Attorney Jonathan Blecher can help. Contact the firm for a free initial case consultation and begin your defense against your DUI charges.

Horizontal Gaze Nystagmus Test

The Horizontal Gaze Nystagmus (HGN) test is a field sobriety test used by law enforcement to determine whether or not a suspected driver is under the influence of alcohol. The test involves an officer asking a driver to follow some stimulus, usually a pen, with their eyes to the left and right. The officer will then determine when the eye begins involuntarily jerking, or exhibiting nystagmus. While all eyes experience this involuntary twitch when looking at a significant angle, those with higher blood alcohol levels begin twitching sooner. According to the National Highway Transportation Safety Administration, HGN tests are 77% reliable in determining whether or not a driver’s BAC is above .10%.

How does an officer determine nystagmus?

A HGN test cannot confirm or deny the amount of alcohol that a suspected driver may have in their system, but indicates to the police officer that there may be some level of impairment present.

When testing HGN, an officer will check for the following questions:

1. Are the eyes moving smoothly from one side to the other or noticeably jerking?
2. Are the eyes jerking when they have moved as far as possible to one side?
3. Does the eye begin jerking before it has reached a 45-degree angle?

There are a few factors that can affect the outcome of an HGN test. A suspect that is wearing eyeglasses may make it more difficult for the officer to see the angle at which the suspect’s eyes begin to twitch. Additionally, if the HGN test is not administered in a well-lit area, the officer may not be able to tell when nystagmus occurs. Suspects should not be facing headlights or the lights of a police vehicle since this can cause nystagmus without the help of alcohol. If any of these apply in a suspected driver’s case, the results of the HGN test may be inadmissible in court. 

There are other defenses to HGN tests, including the ability of the officer to determine a 45-degree angle, the presence of prescription drugs in the body of the accused, the presence of a head injury, and more. Working with a DUI defense attorney will be the best bet in clarifying the cause of nystagmus and whether the results of this test can be permitted in court.