Florida Supreme Court Rules ‘Blood, Breath or Urine’ Language Cannot Negate Implied Consent Law – Nader v. FDHSMV

February 29, 2012 by David S. Seltzer

As a south Florida drunk driving defense lawyer, I very commonly see people who wonder whether they made the right decision about whether to submit to a blood or breath test. This is always a tough call because Florida law penalizes drivers for refusing to take a blood-alcohol concentration test. This is called the implied consent law, which means the act of driving in Florida can be taken as consent to submit to a breath, blood or urine test; failure to do so means a driver’s license suspension. However, one Florida appeals court has ruled that the language used by some police departments when they explain this to drivers is misleading. This caused the appeal in Nader v. Florida Department of Highway Safety and Motor Vehicles et al., in which Susan Nader refused a breath test and then challenged the DHSMV’s attempt to suspend her license.

Tampa police stopped Nader after they saw her sitting in her car through several light cycles, with only her parking lights on even though it was 1:30 a.m. After she failed field sobriety tests, she was taken for breath testing but refused. This led to an automatic driver’s license suspension, which Nader challenged at a hearing. At that hearing, she argued that the law requires only a breath test, but the officer’s statements required her to submit to a “blood, breath or urine” test. This argument was taken from a 2007 Fourth District Court of Appeal decision, FDHSMV v. Clark, even though Tampa is in the Second District. After losing, Nader appealed to the circuit court, which reluctantly found for her, noting that it was bound by Clark but did not agree with that ruling that the language was confusing. The state petitioned the Second District Court of Appeal for review, and it reversed, expressly disagreeing with the Fourth District. It also found that its own review was proper despite procedural rules limiting its review.

Ultimately, both issues were certified as questions to the Florida Supreme Court for review. The high court found that the “blood, breath or urine” language in Nader’s case did not violate the implied consent law such that Nader’s license may not be suspended for refusing it, but gave its blessing to district courts wishing to grant review to fix precedents they believe misinterpret the law. In its review, it noted that the “blood, breath or urine” language appears in several places in the law, leading to its appearance in a police affidavit used when drivers refuse to take a test — including in Nader’s case. Nader argued that this was inaccurate because she was offered only a breath test. The Second District, splitting with Clark, found that the use of the word “or” plainly suggests a choice, and the high court agreed; it further found no evidence that Nader felt she was obligated to take one of the other two. It went on to give district appeals courts the authority to review administrative decisions where there is a violation of clearly established law and a potential miscarriage of justice.

The dissent in this case focuses on this second issue, which gives appeals courts discretion in an area where the law limits their authority. But as a Miami DUI criminal defense attorney, I’m more interested in the first issue. This decision is bad for Florida drivers who refuse breath tests, who may not now rely on Clark if they try to challenge a driver’s license suspension. As a result, drivers may choose instead to submit to the breath test or find another defense at the administrative hearing, which every driver is entitled to request. You may have a better chance to win at this hearing than you realize, since suspensions can be invalidated by administrative mistakes or civil rights violations. That’s why, as a Fort Lauderdale intoxicated driving defense lawyer, I always recommend that my clients request this hearing if they can.

From its offices in downtown Miami, Seltzer Law, P.A., represents clients who are fighting DUI or other criminal charges. If you’d like to tell us your story and learn more about your options, call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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