Florida/Georgia Personal Injury & Workers Compensation

...ing the judiciary with the responsibility for hearing tort suits against the state, its agencies, and political subdivisions. We should not resurrect sovereign immunity under the label of the separation of powers or police powers doctrine. NOTES [1] § 316.1932(1)(b)(1), Fla....

...1 Under Florida law, those who drive in the state are deemed to have given their implied consent to physical or chemical tests for alcohol levels in their blood or breath, or risk suspension of their driving privileges. Fla. Stat. § 316.1932. 2 According to the parties, this is known as "slipping." The cuffed person steps through her cuffed arms to bring her arms from the back to the front. 3 car, slammed her hea...

...The due process question thus is whether the accused has sufficient opportunity to question the results of the tests. There is no indication in this case that the state failed to refrigerate the sample in bad faith. The defendant was free to seek discovery as to the devices used in the testing, section 316.19321(f)4., Fla. Stat. (1983), and to cross-examine the technician who actually performed the test. He was also free to introduce evidence as to the general reliability of blood alcohol testing to further attack the reliability of the results. Finally, section 316.19321(f)3....

...An accused's due process right to attack the credibility of the results of the tests is preserved, and the extreme sanction of suppression is unnecessary. We therefore hold that the state is not obligated to take affirmative steps to preserve a blood sample, drawn pursuant *1196 to section 316.1932, on the behalf of criminal defendants....

...ALDERMAN, J., concurs in part and dissents in part with an opinion. ALDERMAN, Justice, concurring in part, dissenting in part. I agree with the majority opinion on the first and the third questions. The state is not obligated to take affirmative steps to preserve a blood sample, drawn pursuant to section 316.1932, on behalf of criminal defendants....

...I would approve the decision of the district court and hold a defendant may be sentenced for both DWI manslaughter and *1198 vehicular homicide for effecting a single death. NOTES [1] We do not construe this section to require preservation of the sample taken at police request for analysis by defendant's expert. Section 316.1932 speaks of a "blood test" in a unitary manner, i.e....

...We accepted jurisdiction to answer the following question which was certified to be of great public importance: [1] IS THE STATE REQUIRED TO TAKE AFFIRMATIVE ACTION TO ASSIST A PERSON IN CUSTODY FOR DUI IN OBTAINING AN INDEPENDENT TEST FOR BLOOD ALCOHOL WHEN IT IS REQUESTED, PURSUANT TO SECTION 316.1932(1)(f)3, FLORIDA STATUTES? 658 So.2d at 1014....

...vely prevent Unruh from obtaining a blood test. Thereafter, Unruh was tried and convicted of DUI under section 316.193, Florida Statutes (1991). On appeal, the circuit court reversed and remanded for a new trial, noting the apparent conflict between section 316.1932(1)(f)3., Florida Statutes, [2] which provides for the independent blood test, and section 316.193(9), Florida Statutes, [3] which requires a mandatory holding period for DUI arrestees....

...will depend on the circumstances of each case. We begin our analysis with a review of the law in this area. This Court has recognized that a DUI arrestee "has the right to have a [blood] sample taken and analysis made by an independent expert" under section 316.1932(1)(f)3....

...The requests were denied because "law enforcement policy did not authorize or require that a blood alcohol test be made available to a DUI arrestee upon request." Id. On motion of the arrestees, the county court suppressed the breathalyzer results for failure to comply with section 316.1932(1)(f)3....

...therefore useless, legislation." Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962). Contrary to these guiding principles, the Fifth District's interpretation in the instant case and the Second District's interpretation in Saylor render section 316.1932(1)(f)3....

...btain independent blood test). Accordingly, we answer the certified question in the affirmative and hold that when requested by a DUI arrestee, law enforcement must render reasonable assistance in obtaining an independent blood test authorized under section 316.1932(1)(f)3....

...We also disapprove Saylor to the extent it is inconsistent herewith. It is so ordered. OVERTON, SHAW, HARDING and ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion, in which GRIMES, C.J., concurs. WELLS, Justice, dissenting. I dissent because I do not read sections 316.1932(1)(f)3 and 316.193(9) to require the State to undertake any affirmative action to assist a DUI arrestee to obtain an independent *246 test for blood alcohol. I believe that Judge Thompson's majority opinion in the opinion below sets forth a correct and workable analysis of the statutes at issue, and I would approve that decision. Under section 316.1932(1)(f)3., a DUI arrestee has a right to have an independent blood test....

...dent blood test. State v. Unruh, 658 So.2d at 1014. Accordingly, I would approve the district court's opinion in this case. GRIMES, C.J., concurs. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. [2] Section 316.1932(1)(f)3, Florida Statutes (1991), provides: The person tested may, at his own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervis...

...or tests taken at the direction of a law enforcement officer. [7] This right is not absolute, as an arrestee's failure to arrange the test or to have the independent test performed does not affect the admissibility of the State's required test. See § 316.1932(1)(f)3., Fla.Stat....

...Quant arrested him. At the stationhouse, Taylor was read Florida's implied consent law, which provides that once a person is arrested for any crime while operating a motor vehicle, he or she may be asked to submit to alcohol or substance tests. See § 316.1932, Fla....

...ld sobriety test results, in State v. Taylor, 648 So.2d 701 (Fla.1995), our supreme court determined that a defendant's refusal to take the field sobriety tests could be admissible in a prosecution for DUI based on Florida's implied consent law. See § 316.1932, Fla....

...le cause to believe that the driver is guilty of driving under the influence. Bear in mind that an officer is not allowed to administer a breath- or blood-alcohol test under the informed consent law until after the officer has made a DUI arrest. See § 316.1932(1)(a), Fla....

...ntrolled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s....

...1st DCA 1983), the district court certified the following question: WHETHER THE RULES ADOPTED DECEMBER 16, 1982, BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES GOVERNING THE ADMINISTRATION OF CHEMICAL TESTS FOR BLOOD ALCOHOL CONTENT UNDER SECTION 316.1932, FLORIDA STATUTES, CAN BE APPLIED TO TESTS ADMINISTERED BEFORE THEIR ADOPTION, THEREBY ALLOWING THE TEST RESULTS INTO EVIDENCE AT A TRIAL SUBSEQUENT TO THE RULES' ADOPTION. *106 We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. The courts below addressed the issues of whether the 1982 amendments to subsection 316.1932(1)(f)1, Florida Statutes (Supp....

...verning the chemical tests used to determine blood alcohol content, and if so, whether the rules adopted by HRS in December 1982 could be applied retrospectively to arrests made prior to their adoption. Because we hold that the 1982 amendments to subsection 316.1932(1)(f)1 did not require that HRS immediately adopt new rules, we find it unnecessary to answer the district court's question of whether the rules later adopted by HRS could be applied retrospectively....

...Effective July 1, 1982 the legislature substantially revised the laws regarding driving under the influence of alcohol and implied consent to tests for impairment. Among numerous other revisions, subsection 322.261(2)(a), Florida Statutes (1981), was renumbered as subsection 316.1932(1)(f)1 and amended in the following manner: The tests test determining the weight of alcohol in the defendant's blood shall be administered at the direction of the arresting officer substantially in accordance with rules and regulati...

...The responsibility for adopting rules governing the administration of chemical tests had been shared by DHSMV with HRS through the authority granted to HRS under subsection 322.262(3), Florida Statutes (1981). [*] Thus, it is apparent that the 1982 amendments to section 316.1932 were intended to eliminate DHSMV's authority to adopt rules governing the chemical tests and rest that responsibility solely on HRS....

...on of impairment. They filed motions in limine to exclude the chemical test results from evidence on the ground that at the time of their tests no valid rules and regulations for the administration of the chemical tests were in effect as required by section 316.1932. *107 In March 1983 the Duval County Court granted the motions in limine on the grounds that the 1982 amendments of section 316.1932 required that HRS issue new rules, and, therefore, no rules were in effect at the time of the petitioners' arrests....

...ur decision on basic principles of statutory interpretation rather than the retrospective application of HRS rules adopted subsequent to the petitioners' arrests. Both the county and circuit court erroneously concluded that the 1982 amendments to subsection 316.1932(1)(f)1 required HRS to promulgate new rules....

...deferentially stated that the "instruments must be operated in accordance with the procedures of the Department of Health and Rehabilitative Services." Fla. Admin. Code Rule 15B-3.04(1). It is apparent that one of the reasons the legislature amended section 316.1932 was to consolidate rule-making authority in one agency and thereby eliminate a bureaucratic duplication of effort. Petitioners contend that the effect of the legislature's affirmation of HRS's rulemaking authority was to require that HRS adopt new rules. In support of this contention petitioners focus on the language of subsection 316.1932(1)(f)1 which states that "such rules shall have been adopted" by HRS....

...lication of those provisions to actions which arose before their re-adoption is not destroyed or interrupted. We therefore quash that portion of the district court opinion relating to the retrospective application of HRS rules adopted pursuant to subsection 316.1932(1)(f)1, Florida Statutes (Supp....

...according to the dictates of Robertson, and thus certified the aforementioned question. See id. THE IMPLIED CONSENT LAW To address the problem of drunk driving on Florida roads, the Legislature enacted what is known as the implied consent law. See §§ 316.1932, 316.1933, 316.1934, Fla....

...Any insubstantial differences between approved methods or techniques and actual testing procedures, or any insubstantial defects concerning the permit issued by the department, in any individual case, shall not render the test or test results invalid. Id.; cf. § 316.1932(1)(b)(2), Fla....

...ntrolled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s....

...Minor deviations in compliance with the HRS regulations, such as storage location or absolute timeliness of periodic inspection, will not prohibit the test results being presented, provided that there is evidence from which the fact finder can conclude that the machine itself remained accurate. [2] Accord § 316.1932(1)(b)(1), Fla....

...AW, IS THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT REQUIRED TO ADOPT RULES IN ACCORDANCE WITH THE FLORIDA ADMINISTRATIVE PROCEDURES [SIC] ACT GOVERNING THE COLLECTION, PRESERVATION, AND ANALYSIS OF URINE SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(1)(a), FLORIDA STATUTES. [1] Because we conclude that section 316.1932(1)(a)(1), Florida Statutes (2002), does not require that urine testing procedures be promulgated by rule in accordance with the Florida Administrative Procedure Act (APA), we answer the certified question in the negative....

...Bodden filed two motions in limine requesting that the trial court suppress any reference to his urine test results because no regulatory criteria for testing had been promulgated in accordance with chapter 120, Florida Statutes (2002) (the APA). *683 Bodden argued that section 316.1932, part of the implied consent law pertaining to the operation of motor vehicles, [3] requires that any scientific test conducted pursuant to the implied consent law, including a urine test, be an approved test....

...in accordance with the APA, and granted Bodden's motions to suppress. The county judge also certified to the Second District Court of Appeal the same question the Second District subsequently certified to this Court in this case — that is, whether section 316.1932(1)(a)(1) requires that urine testing procedures be approved through formal rule promulgation in accordance with the APA. [5] The Second District answered the question in the affirmative. See Bodden, 872 So.2d at 917. According to the Second District, the sole question to be answered was whether the term "approved" in section 316.1932(1)(a)(1) refers to urine tests as well as breath and blood tests....

...Interpreting the same statute under similar factual circumstances, the Fifth District Court of Appeal in State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003), reached a decision contrary to that of the Second District in Bodden. In Pierre, the Fifth District concluded that section 316.1932, taken as a whole, "evinces an unambiguous intent that urine tests need not be approved." See id. at 233. The Fifth District in Pierre certified conflict with Bodden. See id. at 232. [6] ANALYSIS A. Certified Question The certified question presents the narrow issue of whether section 316.1932 *684 requires that procedures for the collection, preservation, and analysis of urine samples be promulgated and approved by rule in accordance with the APA....

...to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances.... (Emphasis supplied.) The key to the resolution of the narrow issue we confront is whether the word "approved" in section 316.1932(1)(a)(1) modifies "urine test." An "approved" test under this provision is one that is adopted through rule promulgation in accordance with the APA....

...Applying that principle of statutory construction, we conclude, contrary to the Second District, that the language of the implied consent law provides that the methods for conducting urine tests are not required to be "approved" through APA rule promulgation. We begin with the actual language used by the Legislature in section 316.1932(1)(a)(1)....

...Hubbard, 751 So.2d 552, 562 (Fla.1999) (relying on Bourquardez for this principle of statutory construction); Beach v. Great Western Bank, 692 So.2d 146, 152 (Fla.1997) (same), aff'd sub nom. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). The grammatical structure of the first sentence of section 316.1932(1)(a)(1) is such that the implied consent deemed to have been given by an operator of a motor vehicle applies equally to two independent, unrelated tests — the first an "approved chemical test" to determine blood- or breath-alcohol...

...The plain language of this section demonstrates that "approved" does not modify "urine test." [8] In the alternative, Bodden argues that the Legislature intended for "urine test" to fall within the subset of included approved chemical tests. However, the language of section 316.1932(1)(a)(1) in its entirety "makes a distinction between the two tests in numerous places ..., evincing that urine tests are not merely subsets of `chemical tests.'" Pierre, 854 So.2d at 233....

...The urine test shall be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved. § 316.1932(1)(a)(1)....

...cline to interpret this statute in a way which would render superfluous the separate references to urine tests throughout this section. Our interpretation that urine tests are distinct from chemical tests is borne out by a review of the remainder of section 316.1932. Although we are initially guided by the clear language of section 316.1932(1)(a)(1), we also look to the other provisions of the implied consent law to discern if there is any indication that the Legislature intended urine testing methods to be "approved." Indeed, in Mehl v....

....") (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)); T.R. v. State, 677 So.2d 270, 271 (Fla.1996) (all parts of a statute must be read together so that the statute is consistent in its entirety). Reading section 316.1932(1)(a)(1) in pari materia with the remainder of the implied consent law leads to a logical and harmonious construction in which "approved" does not modify "urine test." The implied consent law as a whole consistently treats tests relating to breath and blood distinctly from urine tests. For example, section 316.1932(1)(a)(2) confers on FDLE the responsibility for the regulation and approval of blood and breath testing. [9] Specifically, sections 316.1932(1)(a)(2)(n) and 316.1932(1)(b)(2) *688 grant FDLE the authority to approve blood and breath testing techniques and methods, respectively. [10] Section 316.1932(1)(a)(2)( l ) grants FDLE the authority to "[p]romulgate rules for the administration ... of [the] section, including definitions," and sections 316.1932(1)(a)(2)(f), (g), and (p) address FDLE's authority to "approve" operators, instruments, and repair facilities relating to breath and blood testing....

...ons of the implied consent law. [13] As noted by the Fourth District in Montello, "[n]owhere in Chapter 316 has the Legislature given FDLE the authority to promulgate rules for urine testing for non-commercial drivers." 872 So.2d at 615. To construe section 316.1932(1)(a)(1) in the manner urged by Bodden would require the Court to "ignore the remainder of the statute, which, taken in its entirety, clearly conveys a contrary intent." Pierre, 854 So.2d at 233; see also Jones v....

...ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) ("A basic tenet of statutory interpretation is that a statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts."). Accordingly, we hold that section 316.1932(1)(a), which requires that blood and breath tests be approved, does not similarly require that urine tests be approved through formal rule promulgation in accordance with the APA....

...s a rational basis for doing so. In this regard, we note that the goals of the breath and blood tests are different from the goals of urine testing. Breath and blood tests detect alcohol content, whereas urine tests detect controlled substances. See § 316.1932(1)(a)(1)....

...a Statutes (2002), and one count of possession of drug paraphernalia in violation of section 893.147, Florida Statutes (2002). Those charges are not at issue. [3] The implied consent law pertaining to operation of motor vehicles encompasses sections 316.1932-.1934, Florida Statutes (2002)....

...tandards or rules on the same subject; and the notice required by subparagraph 1. [8] We recognize that the Legislature drafted section 322.63, Florida Statutes (2002), which contains the implied consent law for commercial vehicles, differently than section 316.1932. However, section 322.63 is not at issue in this case, and we therefore express no opinion on whether urine tests conducted under that statute must be "approved." [9] Section 316.1932(1)(a)(2) provides: The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boatin...

...The specifications in this section are derived from the power and authority previously and currently possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of chapter 99-379, Laws of Florida. (Emphasis supplied.) [10] Section 316.1932(1)(b)(2) provides: An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement....

...ase of death or serious bodily injury. [12] Section 316.1934 addresses testing methods that must be employed in order for the State to benefit from the statutory presumption of impairment. [13] We also note that the subsequent legislative history of section 316.1932(1)(a)(1) buttresses our conclusion that the Legislature did not intend for "approved" to modify "urine test." See Lowry v....

...an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law...."). During the 2003 legislative session, the Legislature amended section 316.1932 in order to clarify that "approved" was not intended to modify "urine testing." See Ch.2003-54, § 1, Laws of Fla....

...view of the reports of the arresting officer and the documents related to the administration of the breath test. Section 316.1934(5), Florida Statutes (2000), provides that an affidavit containing the results of any breath alcohol test authorized by section 316.1932, Florida Statutes (2000), is admissible in evidence without further authentication and is presumptive proof of the results obtained if the affidavit discloses certain required information....

...Instead, he argued that the questions he raised about specific procedures used in his case established that the test results were invalid because they were not substantially performed according to methods approved by the Florida Department of Law Enforcement. See § 316.1932(1)(b)(2). However, section 316.1932(1)(b)(2) also provides, "Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid." Although we can conceive of a scenario in which...

...on in Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983), rev. granted, S.Ct. Case No. 64,727 is DENIED. Drury relates solely to the use of blood test results in the absence of duly adopted HRS rules for testing blood alcohol content as required by section 316.1932, Florida Statutes (Supp. 1982). Appellant's argument that Drury is applicable to the present case is founded upon the assumption that the blood sample herein was taken under section 316.1932. As discussed in our opinion, the blood sample was properly taken pursuant to the authority of section 316.1933, Florida Statutes (Supp. 1982), and not pursuant to section 316.1932....

...Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [2] Appellant signed a consent form after he was informed by Trooper Roberts that a blood sample would be taken. The state, however, does not rely on appellant's voluntary consent to the sample under section 316.1932, Florida Statutes (1982 Supp.), as a basis for admitting the test results into evidence....

...Burns refused to repeat the tests and refused to take a breath test. The deputy then read Burns his Miranda rights off a form. Burns signed the form and invoked his rights. The trial court excluded evidence of his refusal. We find that Burns's refusal to submit to the breathalyzer test is clearly admissible. See Section 316.1932, Fla....

...Martin, were each arrested by the TPD and charged with DUI between October 26, 1990 and January 23, 1991. [2] Each defendant submitted to a breathalyzer test, which was performed on the I-3000 Rev. B1, Serial No. 3707, after being informed of the implied consent warnings set out in Section 316.1932(1)(a), Florida Statutes (1989), namely, refusal to take an approved chemical test would result in suspension of the person's license and use of his or her refusal as evidence at trial....

...ad been modified in that the T-cell had been bypassed and/or overridden. The defendants contended that since the machine was modified, it was no longer an "approved" instrument; therefore, it could not be said that the defendants had consented under section 316.1932(1)(a) to an "approved" test....

...l. The defendants next filed a motion to suppress the test results, arguing that because the modification required reapproval of the testing device, the intoximeter was no longer an "approved" testing instrument, and because they had consented under section 316.1932(1)(a) to submit only to an "approved" chemical test, it could not be said that they had voluntarily consented to submit to the unapproved test that was actually performed....

...In so concluding, the county judge certified the following two questions to this court as issues of great public importance: (a.) Is the bypass of the T[a]guchi Sensor such a modification of the breath instrument that it is no longer an "approved" instrument under Florida Statutes, Section 316.1932(1)(b) or Rules 10D-42.022, F.A.C.? (b.) If yes, is the State precluded from otherwise establishing a scientific predicate for admission of the test results when the breath sample tested was obtained by reading the implied consent war...

...nd that the implied consent statute did not apply and thus that the defendant's consent had not been voluntarily given in that it was based upon misinformation. Similarly, because the intoximeter here was not an "approved" instrument, as required by section 316.1932(1)(a), the tests given to the defendants could not be considered "approved" tests....

...When the T-cell is deactivated, the intoximeter can no longer distinguish between alcohol and acetone and interfering hydrocarbons and instead measures acetone and hydrocarbons as alcohol. [2] Appellee Martin was charged with violations of Sections 316.074 and 316.1934, Florida Statutes (1989). [3] Section 316.1932 provides in pertinent part: (1)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his consent to sub...

...Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid. (Emphasis added.) [4] The Department of Health and Rehabilitative Services (HRS) is authorized under section 316.1932(1)(b), supra note 3, to develop and approve satisfactory techniques and methods for performing chemical tests....

...e broad deference to such interpretation as is ordinarily given in administrative appeals. [6] Dr. Jenson was also the defendant's expert in State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988), discussed infra. [7] We reject appellant's argument that section 316.1932 permits license suspension for failure to take any lawful test....

...w that added the *796 "breath alcohol percentage": "The percent of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood when analyzing blood, or upon grams of alcohol per 210 liters of breath when analyzing breath." § 316.1932(1)(b)1., Fla.Stat....

...d this complex machine in that period would have concluded that it measured breath alcohol as a "percent." The fact that this "percent" was actually a mathematical ratio based on grams of alcohol per 210 liters of breath, the same ratio contained in section 316.1932(1)(b), Florida Statutes (Supp.1992), would only have been obvious to an expert or to someone who took considerable time to learn about these machines....

...Second, the legislature has decided that the formula used to measure blood alcohol and breath alcohol reach equivalent percentages. Because we must look outside the text of the statute to define the formula for "percent," it is reasonable to examine the definition in section 316.1932(1)(b), the implied consent law, which is a statute in pari materia....

...s own expert witness' agreement with the defense that the two terms are not the same (since one term has meaning and one does not). The statute provides a crucial addition that must be taken into account when evaluating its meaning. This is found in Section 316.1932(1)(b)1.: (b)1....

...This would seem to indicate that some mathematical operation should be performed upon the results, rendered in terms of grams per 210 liters, in order to convert that result into a percentage of alcohol in the blood. If the legislature had chosen to use the phrase "expressed as" instead of "based upon," in Section 316.1932(1)(b) 1., this inquiry would be finished, since that definition, even if not acceptable in scientific circles, would suffice to foreclose any question of ambiguity or relevance....

...efense lawyer needs is an opportunity to argue reasonable doubt. It wasn't long before defense counsel began arguing the shortcomings of the blood to breath ratio assumption to juries, with predictable results. To counter this, the legislature added Section 316.1932(1)(b) 1., Florida Statutes (1991) and added the words "or breath" to Section 316.193(1)(b)....

...For years, none of us was "confused" until some bright soul figured out that "percent" was an improper scientific term to use in this context. It does not require an inappropriate degree of legal legerdemain to substitute the term "expressed as" for "based upon" in Section 316.1932(1)(b) 1., which would have the effect of defining "percent" in a new, but now consistent, way, especially when one considers that the results of granting defendants' motions, if upheld on appeal, would be to create chaos across the state and perhaps mandate an emergency session of the legislature....

...R.App.P. 9.030(b)(4), 9.160. Moreover, for the reasons which follow, we answer the certified question in the negative upon a holding that the withdrawal of such a blood sample (1) constitutes a violation of Florida's implied consent law under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and (2) cannot otherwise be justified on the basis of the defendant's voluntary consent; accordingly, we affirm the order under review suppressing as evidence the results of the subject blood test....

...n the blood sample taken from him. The motion came on for an evidentiary hearing at which the above-stated facts were adduced. The defendant contended below that the police were only authorized to demand a blood sample from a motorist under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and that neither of these statutes were applicable to this case; accordingly, he argued that the blood sample was illegally obtained from the defendant and the results of the subsequent blood test...

...implied consent statutes were observed in this case. *425 The trial court agreed with the defendant and suppressed the blood test results based on its conclusion that "blood may be withdrawn for a DUI prosecution only within the parameters of [§§] 316.1932(1)(c) and 316.1933(1)" which, without dispute, were not complied with by the police in this case....

...1989) (pen registers regulated under Article I, section 23 of the Florida Constitution) with Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (pen registers; Fourth Amendment). Indeed, it is the established law of this state that Florida's implied consent statutes [§§ 316.1932, 316.1933, 316.1934, Fla....

...the right of the state of Florida to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution [through the Fourth Amendment]. This it has done through the enactment of section 322.261, Florida Statues (1975) [now sections 316.1932, 316.1933, Florida Statutes (1991)]." As further stated by the Fifth District Court of Appeal in State v....

...A First, as to the limitation on police power to require a person to give breath, urine, and blood samples after a DUI arrest, the implied consent statutes impose certain well-defined restrictions which otherwise exceed Fourth Amendment standards. *426 1 Section 316.1932(1)(a), Florida Statutes (1991), provides that any person who accepts the privilege of driving a motor vehicle in this state and who is lawfully under arrest for DUI is "deemed to have given his consent" to the withdrawal of breath an...

...gh certain consequences are imposed for the refusal. Accordingly, the person must be advised that the failure to submit to a lawful test of his/her breath or urine "will result in the suspension of his [or her] privilege to operate a motor vehicle," § 316.1932(1)(a), Fla....

...(1991), for a certain period of time, which suspension becomes effective immediately upon such refusal, see § 322.2615, Fla. Stat. (1991); further, the refusal to take the breath or urine test "shall be admissible into evidence in any criminal proceeding." § 316.1932(1)(a), Fla....

...As the Florida Supreme Court has stated, "[u]nder this provision, a conscious person is given the right to refuse to take a chemical [breath or urine] test if he [or she] is willing to suffer a ... suspension of his [or her] driving privilege," and "[a]ny careful reading of section [316.1932(1)] leads to the inescapable conclusion that a person is given the right to refuse [breath or urine] testing." Sambrine v....

...cal testing purposes. Notwithstanding the above implied consent statutes, however, it is clear that a person who is arrested for DUI may volunteer or otherwise freely consent to give a sample of his/her breath or urine for chemical testing purposes. § 316.1932(1)(c), Fla....

...cumstances as well, quite apart from the implied consent statutes. See Robertson v. State, 604 So.2d 783, 790 (Fla. 1992) (following State v. Wallin, 195 N.W.2d 95, 98 (Iowa 1972)); compare Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988). 2 Sections 316.1932(1)(c) and 316.1933(1), Florida Statutes (1991) carve out two exceptions to the above statutory scheme under which a blood sample may be taken from a person lawfully arrested for DUI. An involuntary blood withdrawal arguably represents a greater intrusion into an arrestee's personal privacy than breath and urine withdrawals and, consequently, is not permitted if these two exceptions are inapplicable. Section 316.1932(1)(c) provides that a person who is lawfully arrested for DUI is "deemed to have consented" to the withdrawal of a blood sample "if such person appears for treatment at a hospital, clinic, or other medical facility and the administra...

...paired is: (1) before an arrest, the suspect may consent to or demand a breath test; and (2) after an arrest, the person is deemed to have implicitly consented to a breath test and a urine test. The first exception to this general scheme is given in section 316.1932(1)(c), whereby a `person whose consent is implied' i.e., is lawfully arrested, is taken for treatment to a medical facility and a breath or urine test is impossible or impractical to perform....

...Similarly, the Fourth District Court of Appeal in Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988) has interpreted the above statutes as follows: "We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist....

...this purpose," but Section 316.1934(3), Florida Statutes (1991) provides that "[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case, shall not render the test or test results invalid." [5] Section 316.1932(1)(a), Florida Statutes (1991) also provides that a "urine test shall be ... administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests at the request of a law enforcement officer... ." Section 316.1932(1)(b), Florida Statutes (1991) also provides that an analysis of a breath sample "must have been performed substantially according to methods approved *429 by the Department of Health and Rehabilitative Services," [6] but "[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case does not render the test or test results invalid." § 316.1932(1)(b), Fla....

...Although it is assumed for purposes of this appeal that the police had probable cause to arrest the defendant for driving a motor vehicle while under the influence of an alcoholic beverage, there was utterly no showing below that "a breath or urine test [was] impractical or impossible," and so there was no basis under Section 316.1932(1)(c), Florida Statutes (1991), for the police to require the defendant to give a blood sample nor to advise the defendant that he would lose his driver's license if he failed to consent to such a blood withdrawal. Nor was there any showing below that the defendant was incapable of a refusal to consent to a blood withdrawal "by reason of unconsciousness or other mental or physical condition" which would have authorized such a blood withdrawal under Section 316.1932(1)(c), Florida Statutes (1991); to the contrary, the record shows that the defendant was fully conscious and alert at the time the blood sample was taken from him at the hospital....

...To the contrary, the record shows that the defendant was involved in a one-car traffic accident in which neither he nor any third party was seriously injured in any way. Because the blood sample taken from the defendant in this case was entirely unauthorized under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and was otherwise involuntarily given, it is plain that this blood sample and the results of the scientific test performed on this sample were inadmissible in evidence at the defendant's DUI trial below under the Sambrine-Perez line of cases....

...n involuntary blood withdrawal from a person lawfully arrested for DUI than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). Florida has done precisely that by enacting Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), which, without dispute, the police violated in this case....

...Second, the state argues that the blood sample was scientifically withdrawn from the defendant and subsequently tested in full compliance with the "core policies" of the implied consent statutes and therefore — notwithstanding the violation of Sections 316.1932(1)(c), 316.1933(1) — the blood test results were admissible under the exclusionary rule announced in Robertson v....

...dmissible in evidence. For the above-stated reasons, the county court order under review suppressing the results of a blood test performed on a blood sample involuntarily drawn from the defendant at the request of the police in violation of Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), is, in all respects, Affirmed....

...e); State v. Burnett, 536 So.2d 375 (Fla. 2d DCA 1988) (blood sample taken from a defendant who was lawfully arrested for DUI not involving a traffic accident after he was injured in the county jail following his arrest held unauthorized by Sections 316.1932(1)(c), 316.1933(1), and thus results of scientific test performed on such sample were inadmissible in evidence); State v....

...Evidence of the reliability of the machine can be presented by the person conducting its testing and inspection or, if records of use and periodic testing are kept in the regular course of business, by production of such records.") (citing State v. Bender, 382 So.2d 697 (Fla.1980)). See § 316.1932, Fla....

...Public Defender, South Miami, for respondent. OVERTON, Justice. This is a petition to review Strong v. State, 465 So.2d 549 (Fla. 3d DCA 1985), in which the district court reversed defendant's manslaughter convictions, holding the admission of blood test evidence violated section 316.1932(1)(f)2, Florida Statutes (Supp....

...of alcohol in Strong's blood. Based on this evidence, Strong was convicted of two counts of manslaughter. The Third District Court of Appeal reversed Strong's manslaughter convictions, finding that the blood samples and tests were inadmissible under section 316.1932(1)(f)2....

...er or drawn by authorized medical personnel, the blood samples and tests should have been suppressed. We disagree. In this action, Strong does not challenge the validity of the search warrant or the seizure of blood samples and tests. He argues that section 316.1932(1)(f)2 establishes the procedures which must be followed when blood is taken to render the samples and tests admissible as evidence....

...Further, he contends that this section provides the only procedure by which the state may invade a person's privacy to draw blood. We reject Strong's asserted per se rule that no blood test may be admitted in evidence without fulfilling the technician qualification requirements of section 316.1932(1)(f)2. As stated in State v. Bender , qualification requirements for technicians are to protect drivers required to take blood tests under the implied consent law. [2] The present implied consent statutes, sections 316.1932, 316.1933, and 316.1934, Florida Statutes (1985), require a medical technician to possess a valid Department of Health and Rehabilitative Services permit and direct the Department to approve methods by which blood taken should be tested....

...Under this statutory scheme, once the state establishes that a certified technician conducted an approved test, it is relieved of the traditional evidentiary burden of establishing (1) the reliability of the test, (2) the qualifications of the technician, and (3) the meaning of the test results. The sole purpose of section 316.1932(1)(f)2 is for the protection of drivers whom the government requires to give blood samples under the implied consent law....

...Further, either the state or the defendant may have the blood test evidence admitted on establishing the traditional predicates for admissibility, including test reliability, the technician's qualifications, and the test results' meaning. In conclusion, we hold that section 316.1932(1)(f) is not implicated because the implied consent law, of which that section is a part, is not involved under the facts of this case....

...for reasonable cause to believe that appellee was under the influence of alcohol. The state appealed the suppression order and the county court certified two questions of great public importance, which we rephrase as follows: WHETHER FLORIDA STATUTE SECTION 316.1932(1)(c), WHICH AUTHORIZES A POLICE OFFICER TO ORDER BLOOD TESTING OF A PERSON WHO APPEARS FOR TREATMENT AT A HOSPITAL OR OTHER MEDICAL FACILITY AND IS UNCONSCIOUS AND INCAPABLE OF REFUSING SUCH TESTING, REQUIRES THAT THE OFFICER HAVE R...

...DOES THE MERE ODOR OF ALCOHOL ON THE BREATH OF AN UNCONSCIOUS DRIVER, WHO WAS INVOLVED IN AN ACCIDENT NOT IN ANY WAY ATTRIBUTABLE TO SAID DRIVER, WITHOUT OTHER INDICIA OF IMPAIRMENT, GIVE AN OFFICER REASONABLE CAUSE TO BELIEVE THAT THE DRIVER WAS UNDER THE INFLUENCE OF ALCOHOL, WITHIN THE MEANING OF FLORIDA STATUTE SECTION 316.1932(1)(c)? The legislature has narrowly defined the circumstances in which a blood draw may be performed in place of a breath or urine test without the driver's express consent....

...because, as the parties stipulated, the police officer did not reasonably believe that appellee caused the injuries resulting from the accident. The other circumstance in which a police officer may obtain an involuntary blood sample is described in section 316.1932(1)(c)....

...inic or medical facility, and (3) the administration of a breath or urine test is impractical or impossible or the person is incapable of refusal due to unconsciousness or other mental or physical condition. The trial judge correctly determined that section 316.1932(1)(c) applies to the facts in this case....

...It simply showed that he had consumed alcohol to an unknown extent. In Brown, the defendant's blood was tested under section 316.1933(1), because the officer believed that the defendant caused fatal injuries to a bicyclist while the defendant was driving under the influence of alcohol. Similar to section 316.1932(1)(c), this section requires the officer to have probable cause to believe that the driver was "under the influence of alcoholic beverages." The fifth district noted that: The statute does not define what is meant by `under the influ...

...indicated impairment—i.e., the defendant's blood shot eyes, erratic driving pattern, and behavior after the accident. We first address the question whether the term "under the influence of alcohol" means "impaired" by alcohol under Florida Statute section 316.1932(1)(c)....

...A person is deemed to be under the influence of alcoholic beverages when (1) affected to the extent that the person's normal faculties are impaired or (2) when the person has a blood-alcohol level of 0.08 percent or higher. [2] The Implied Consent Laws (sections 316.1932 through 316.1934) provide procedures for gathering and testing physical evidence for DUI investigations and prosecutions....

...of `relevance and likely success of a test of petitioner's blood for alcohol' ... The officers in the instant case had sufficient `clear indication' that a blood test was called for. Id. at 622. It follows, then, that forcible blood extraction under section 316.1932(1)(c) requires a "clear indication" or probable cause that a DUI crime has been committed....

...ufficient probable cause to request a blood test under section 316.1933(1). We point out, however, that the blood sample in this case was ordered under a different statute. Unlike section 316.1933(1), the section applicable to the blood draw herein, section 316.1932(1)(c), does not require that the driver cause death or serious bodily injury to someone....

...impaired by alcohol or has an unlawful amount of alcohol in his system. Once established, probable cause can then provide the means for measuring degrees of impairment or blood alcohol concentration through breath or blood testing. We conclude that section 316.1932(1)(c) requires a police officer to have "reasonably trustworthy information" sufficient to cause a person of reasonable caution to believe that the driver is under the influence of alcoholic beverages to the extent that the driver's normal faculties are impaired or the driver's blood or breath alcohol level is .08 or higher. Although section 316.1932(1)(c) contains no express language corresponding to the statutory elements of DUI, we find that such additional language is necessarily implicit in the reasonable cause requirement of this section in order for compulsory blood withdrawals to comport with Fourth Amendment principles. [4] Furthermore, construing the two subsections, (a) and (c) of section 316.1932, in pari materia to ascertain legislative intent, we think it is clear that the legislature intended that reasonable or probable cause for a DUI arrest exist prior to administering compulsory blood tests under this statute....

...trial court's ruling that the sole evidence of an odor of alcohol on appellee's breath was insufficient reasonable cause for the officer to believe that appellee was "under the influence" of alcoholic beverages and subject him to a blood draw under section 316.1932(1)(c), Florida Statutes....

..., he ordered the physician at the hospital to draw blood from him and report on the blood-alcohol level. The report showed a blood-alcohol level of .09. The officer ordering the blood test acted under one of Florida's implied consent statutes. See §§ 316.1932 and 316.1933, Fla. Stat. (1999). Section 316.1932(1)(c) is the statute used in this case, and it requires three elements for a valid utilization of its consent to a blood test: 1....

...nce. That is, after all, the basis for criminalizing the mere presence of alcohol in the blood at a specified level, as well as the basis for the consent for blood tests. Properly understood, the legislature's use of the term "under the influence in section 316.1932(1)(c) does not disclose any purpose to require a showing of impairment in all prosecutions under section 316.193(1)....

...Thus when it uses instead reasonable cause, I take the meaning to be different than full-fledged probable cause—an intentional lessening of the burden of showing the statutory trigger to the consent to the blood test. [12] I think the drafters of the statute fully intended to adopt a reasonable cause standard in section 316.1932(1)(c)—not a standard of probable cause—for believing that a driver may be under the influence of alcohol....

...one may very well be under the influence of alcohol and consequently impaired. The proposition that the legislature was aware of the distinction between probable and reasonable is evident from a comparison of the two implied consent statutes— viz., section 316.1932(1)(c) and section 316.1933(1)....

...Section 316.1933(1) is restricted to cases of death or serious injury and provides that an officer may require the driver to submit to a blood test if the officer has probable cause to believe that the driver was under the influence of alcoholic beverages. Section 316.1932(1)(c), the implied consent applicable in this case, does not use the term probable cause....

...Thus it is apparent that subsections (1)(b) and (c) have an additional strict liability consequence not shared by subsection (1)(a). [15] Because section 316.193(1) punishes the mere act of driving after consuming alcohol even when impairment is not shown, nothing in section 316.1932(1)(c) requires anything beyond the mere presence of some alcohol having been consumed to trigger reasonable cause. Section 316.1932(1)(c) was deliberately drafted as a consent to the test, not as brute authority for the state to take the blood....

...undation to indicate that one may well be impaired in one's driving ability. In fact he does not even dispute the proposition that just a small amount of alcohol in the system might affect the driving ability of some people. Lacking such challenges, section 316.1932(1)(c) surely cannot be said to be arbitrary....

...test the blood of the accused driver? [19] Neither of the two majority opinions addresses this question. State v. Mitchell, 245 So.2d 618 (Fla. 1971), also supports my analysis. The essential issue in Mitchell was whether the predecessor statute to section 316.1932 required the defendant to be under arrest before blood could be taken under the consent provision....

...This is especially true with regard to a subject that so directly and pervasively affects public health and safety as the prevention and punishment of operating motor vehicles while under the influence of alcohol. [21] The addition of probable cause to arrest would mean that all blood authorizations under section 316.1932(1)(c) will necessarily require this extra showing of impairment....

...1826, 16 L.Ed.2d 908 (1966). The timing of this legislation suggests that it is connected to Schmerber. Schmerber was decided in 1966, and the statute involved in this case was adopted in 1967. Ch. 67-308, § 1, Laws of Fla. When the statute was adopted, section 316.1932(1)(c) [22] , at issue in this case, did not contain the requirement of reasonable cause although there was a reasonable cause requirement in section 316.1932(1)(a) [23] ....

...5th DCA 1986), the defendant challenged subsection 1(c) as violating the Fourth Amendment's protection against unreasonable search. In order to uphold the constitutionality of subsection 1(c), the fifth district held that there was a reasonable cause requirement in subsection 1(c) "implied from reading section 316.1932(1)(c) together with section 316.1932(1)(a)." Id....

...Judge Taylor and I share Judge Farmer's concerns about the problem of drunk driving. The fact remains, however, that the Fourth Amendment requires probable cause for a search and seizure and there was no probable cause in this case. NOTES [1] In 1996, the legislature amended subsection (c) of Florida Statutes section 316.1932(1) and inserted the requirement for "reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages..." [2] DUI may be established in two ways: by...

...lcohol level. See Dejerez v. State, 580 So.2d 656 (Fla. 4th DCA 1991); see also State v. Rolle, 560 So.2d 1154 (Fla.1990). [3] The blood sample obtained in Mitchell was authorized under Florida Statutes section 322.261(1)(b) (1989), a predecessor to section 316.1932(1)(c). See also Kenson v. State, 577 So.2d 694 (Fla. 3d DCA 1991)(under section 316.1932 an arrest is not a prerequisite for a blood test request)....

...icle which caused a death). [7] See Mendez v. State, 678 So.2d 388 (Fla. 4th DCA 1996)(upon completion of field sobriety tests, officer developed probable cause to arrest defendant for DUI and search his vehicle incident to a lawful arrest). [8] See § 316.1932(1)(c), Fla....

...ked the fact that even simple DUI under section 316.193(1) can become a felony for a fourth or subsequent conviction. See § 316.193(2)(b), Fla. Stat. (1999). Even still, without death or serious injury I think that the blood test consent statute in section 316.1932(1) would very likely still apply to the officer's investigation leading to a fourth successive charge and conviction....

...Auld, 450 So.2d 217 (Fla.1984). Courts will not ascribe to the Legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950). No one suggests that section 316.1932(1)(c) is ambiguous....

...lyzes two of four consecutive sets of samples. The person analyzing Mehl's blood sample had been qualified and licensed under this procedure. The trial court granted the motion to suppress on grounds that this procedure did not meet the standards of section 316.1932(1)(f)1., Florida Statutes (1989). The Fifth District reversed. The district court found that section 316.1932 was not applicable to this case; that the blood sample instead was taken pursuant to section 316.1933; and that the presumption of admissibility established in section 316.1934 must prevail here....

...Finally, the district court held that, even if the trial court's order was correct, the trial court still should have determined if the test was admissible under the common law standard of Robertson v. State, 604 So.2d 783 (Fla. 1992). We begin by recognizing that the various provisions of Florida's implied consent laws, §§ 316.1932-.34, Fla. Stat. (1989), are not a model of clarity. Here, the district court has seized upon the different wording of subsections 316.1932(1)(f)1....

...In this light, we believe the more reasonable conclusion is that the legislature intended for HRS to "specify precisely the test or tests" that must be used as well as to "provide an approved method of administration which shall be followed in all such tests," see § 316.1932(1)(f)1., Fla....

...The decision under review is approved, and this cause is remanded to the trial court for further proceedings consistent with our views. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] Subsection 316.1932(1)(f)1....

...plea, reserving for review the trial court's ruling. The fourth district affirmed, but held: We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist....

...Unlike Chu, this case does not involve implied consent. In Chu, the trooper had probable cause to believe that she had been driving while under the influence of alcohol. No such evidence existed in this case. Hence, the limitations on blood testing found in section 316.1932(1)(c), Florida Statutes (2007), and section 316.1933(1)(a), Florida Statutes (2007), are not implicated because this test was done outside the scope of the implied consent law....

...If Chu is read to require a contrary result, we acknowledge our direct and express conflict with it. Because both Murray and Brink voluntarily consented to the blood draw, the suppression order is reversed. REVERSED and REMANDED. MONACO, C.J. and GRIFFIN, J., concur. NOTES [1] The implied consent law, section 316.1932(1)(a)1.a., Florida Statutes (2007), provides that a person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to testing to determine the "alcoholic content of his or her blood or breath if the person is lawfully arrested. . . ." Further, section 316.1932(1)(c), Florida Statutes (2007), authorizes blood withdrawals where an officer has probable cause to believe that the driver was impaired and the driver appears for treatment at a medical facility and the administration of a breath or urine test is impractical or impossible....

...Here, Murray and Brink were not under lawful arrest and did not seek medical treatment, and the troopers did not have probable cause to believe that they were impaired. Consequently, the implied consent law was clearly not implicated. [2] While Robertson involved section 316.1933(1)(a), the provisions of section 316.1932(1)(a)1.a....

...coholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties, the results of any test administered in accordance with § 316.1932 or § 316.1933 and this section shall be admissible into evidence when otherwise admissible, ......

...What did he know that we don't know? More correctly, what did he know that we now also know? ... Why did the defendant refuse to have his hands swabbed for gunshot residue? I submit to you the answer to that is obvious." [2] This principle was embodied in Section 316.1932(1)(a), Florida Statutes, with its passage in 1982....

...shall be admissible into evidence in any criminal proceeding," but only when the person has first been told that his failure to submit to either or both tests "will result in the suspension of his privilege to operate a motor vehicle... ." See State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983) (Section 316.1932(1)(a), Florida Statutes, making refusal to submit to blood alcohol tests admissible after warning of adverse consequences, not unconstitutional under reasoning of South Dakota v....

...(the taking of a blood sample) not incident to arrest. On appeal, appellant contends that the trial court erred in denying the motion. Section 316.1933(1) provides: Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...s or impairment of the function of any bodily member or organ. In enacting section 316.1933, the Legislature has clearly differentiated between the rights of motor vehicle operators with respect to tests for impairment or intoxication under sections 316.1932 and 316.1933, depending upon whether the operator has "caused the death or serious bodily injury of a human being." Some of the differences are specifically delineated in the statutes; others are implicit....

...Additionally, there is no requirement that the request of the officer follow lawful arrest. These limitations of section 319.1932 do not apply when there has been an accident involving a death or serious bodily injury. It is interesting to note, however, that the blood test authorized under section 316.1932(1)(c) does not have to follow lawful arrest, as do the breath and urine tests provided for in section 316.1932(1)(a)....

...5th DCA 2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. See per curiam op. at 1076 ("[W]e conclude that the DHSMV cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest."); Justice Quince's concurring-in-result-only op....

...fusal was incident to a lawful arrest in the proceedings before the hearing officer who is reviewing the legality of the suspension. See per curiam op. at 17 ("Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest....

...2.2615(7), Florida Statutes (2007). The First District, relying on the reasoning of the Fifth District in Pelham, concluded that section 322.2615(7)(b), Florida Statutes, governing proceedings to review license suspensions must be read together with section 316.1932(1)(a)1.a., Florida Statutes (2007), Florida's implied consent law, because under the "statutory scheme, the lawfulness of the suspension is central to any determination that there is `sufficient cause' to `sustain'" the suspension....

...sal is not incident to a lawful arrest. Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006), [4] commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's "implied consent law")....

...coholic content of his or her blood or breath 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 alcoholic beverages." § 316.1932(1)(a)1.a., Fla....

...test of his or her breath and his or her driving privilege has been previously *1076 suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. § 316.1932(1)(a)1.a., Fla....

...Despite using the adjective "lawful" in section 322.2615, nowhere in that section does the Legislature define or provide notice as to what constitutes a lawful breath-alcohol test. The only location in the Florida Statutes where the definition can be found is section 316.1932(1)(a), which provides that a driver is only required to submit to an breath-alcohol test if the driver is (1) operating a motor vehicle within this state and (2) subject to a lawful arrest for (3) an offense allegedly committed while...

...Nowhere else does the Legislature mandate the circumstances under which an individual must submit to a breath-alcohol test or else face suspension of his or her driver's license under section 322.2615, Florida Statutes, in this context. [6] The only definition of a lawful breath test under section 322.2615 is found in section 316.1932(1)(a). For that reason, the statutes must be read in pari materia. In other words, section 316.1932 is the only statute that defines the parameters of a lawful breath-alcohol test in section 322.2615....

...citizens are required to submit to the test or else face suspension of their driver's licenses. Accordingly, we hold that a "lawful test" under section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as specified in section 316.1932, Florida Statutes. For this reason, we conclude that the DHSMV cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest....

...This second question is related to the first question and concerns the method *1077 of challenging a suspension for refusal to submit to a breath test. After an individual's driver's license is suspended under section 322.2615 for refusing to submit to a breath test under section 316.1932, that section entitles the driver to request a formal or informal review of the validity of the suspension....

...18, 2007) (order denying petition for writ of certiorari) (stating that the Legislature had created an "unnerving quagmire"). We agree with the First and Fifth District Courts of Appeal that section 322.2615 cannot be read in isolation but must be read in concert with section 316.1932, which defines the scope of the driver's obligation to submit to a breath test. As the Fifth District cogently explained: Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest....

...We conclude, as did the First and Fifth Districts, that reading the two statutes together leads to the conclusion that there must be a means for challenging the legality of the suspension when the request for a breath test was not incident to a lawful arrest. Once section 322.2615 and section 316.1932 are read together, it becomes clear that under the statutory scheme, "sufficient cause" to sustain the suspension under section 322.2615(7) and "whether the person whose license was suspended refused to submit to any such test" require that the hearing officer make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes. Accordingly, we answer the second rephrased certified question in the affirmative. Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest....

...However, the dissent overlooks the fact that a driver is on notice that he or she must consent to a breath test or else face suspension of his or her *1080 driver's license only if the test is administered incident to a lawful arrest. That is what the Legislature has expressly provided for in section 316.1932....

...[2] The Florida Association of Criminal Defense Lawyers filed an amicus brief in support of Respondent McLaughlin in Case No. SC08-2394. [3] These cases were consolidated for oral argument, and we now consolidate the cases for disposition. [4] The current 2010 version of section 316.1932, Florida Statutes, remains unchanged from the 2006 version....

...review capacity. Perry, the respondent, had her driver's license suspension sustained by the Department after it found she refused to take a breathalyzer test following her arrest for driving under the influence of alcoholic beverages. See generally § 316.1932(1)(a), Fla....

...Code R. 15A-6.013. Accordingly, we grant the writ and quash the circuit court's order. Petition for Writ of Certiorari GRANTED; Order QUASHED. DAUKSCH and COBB, JJ., concur. NOTES [1] See generally, § 322.2615(13), Fla. Stat. (1999). [2] See generally, § 316.1932(1)(a), Fla....

...In addition, we certify a question of great public importance to the Florida Supreme Court. The issue in this case concerns one of the rules promulgated by the Florida Department of Law Enforcement (FDLE) to implement the provisions known as Florida's implied consent law. "The implied consent law consists of sections 316.1932, 316.1933, and 316.1934, Florida Statutes, which essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence." See Robertson v....

...WOLF, J., CONCURS IN PART AND DISSENTS IN PART WITH WRITTEN OPINION. WOLF, J., concurring in part and dissenting in part. I dissent from that portion of the majority opinion affirming the trial court's decision; I would also certify an additional question to the supreme court. Section 316.1932, Florida Statutes, does not require the Florida Department of Law Enforcement (department) to adopt rules relating to preservation of blood samples, nor does the failure to adopt such rules constitute a denial of due process....

...See State v. Bender, 382 So.2d 697, 700 (Fla. 1980). I do believe, however, that some confusion has been caused by the case of Mehl v. State, 632 So.2d 593 (Fla.1993); therefore, I would certify the following question to the supreme court: WHETHER EITHER SECTION 316.1932(1)(f)1, FLORIDA STATUTES, OR CONSTITUTIONAL DUE PROCESS REQUIRES THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT TO ADOPT RULES PERTAINING TO THE PRESERVATION OF BLOOD SAMPLES TAKEN PURSUANT TO SECTION 316.1933, FLORIDA STATUTES? I concur,...

...esult. A careful reading of the case law concerning the duty to adopt rules in this area does not support the trial court's position concerning the state's failure to adopt rules or the remedy for failing to do so. The statutory duty is contained in section 316.1932(1)(f)1., Florida Statutes, which provides in pertinent part as follows: The tests determining the weight of alcohol in the defendant's blood or breath shall be administered at the request of a law enforcement officer substantially in accordance with rules of the Department of Law Enforcement....

...There are some perplexing aspects of Mehl. In Mehl, the supreme court addressed the sufficiency of the rulemaking undertaken by the Department of Health and Rehabilitative Services (the predecessor agency responsible for overseeing the tests) pursuant to section 316.1932(1)(f)1....

...ish the chain of custody. However, we conclude that these claims are unfounded. Section 322.261(a), which contains the reasonable cause provision, deals only with chemical breath tests. In 1982, the legislature amended and renumbered this statute as section 316.1932, which unambiguously provides that "[t]he breath test shall be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving ......

...The defendants filed motions to suppress the results of the chemical breath tests, claiming that the arresting officers gave them an improper warning, by stating that the defendants did not have a right to refuse to take the test. The defendants assert that they did have a right to refuse to take the test under section 316.1932, *32 Florida Statutes (1983), and therefore the breath tests were unlawfully administered. The county court granted the motion to suppress and the State appealed. The circuit court, sitting in its appellate capacity, affirmed the order. Section 316.1932(1)(a), Florida Statutes (1983) provides in pertinent part: Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have...

...We agree with the circuit court's observations as to the illogic of the result, and hold that Ducksworth does not control the case here. The parties appear to agree that the warning used by the police officers here was composed in part from the statutory language of section 316.1932 and in part from State v....

...used to submit to a breath test. The supreme court stated the issue to be "whether or not a chemical test for blood alcohol is admissible evidence when a driver exercises the option given him by the Florida legislature in Section 322.261(1)(a), [now section 316.1932(1)(a)] Florida Statutes (1975), to refuse to consent to a chemical test of his breath." The court concluded that although there was no constitutional impediment to the taking of the blood sample over a defendant's protest, the Florid...

...Insofar as Duke and Ducksworth hold that evidence of a defendant's refusal is not admissible in evidence, those cases are no longer good law. See South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983), and the amendments to section 316.1932 enacted after Ducksworth was decided. The defendants in the instant case argue that the results of the chemical breath tests were fruits of tests administered unlawfully because the warning incorrectly stated the law. The problem with defendants' argument is that section 316.1932, Florida Statutes, does not require that a person lawfully arrested be warned that he has a right to refuse the chemical breath test; he must only be told that his failure to submit to such a test will result in the suspension of his privilege to operate a motor vehicle....

...PETITION GRANTED; ORDER QUASHED, REMANDED. COBB, C.J., and COWART, J., concur. NOTES [1] Duke was decided prior to the decision of South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), and prior to the insertion by the legislature of Florida into section 316.1932 of language which makes a driver's refusal to take the test admissible into evidence....

...The trial court denied Durkee's motion to dismiss but granted the alternative relief of suppressing Durkee's post-arrest breath test results, finding a clear violation of Durkee's right to conduct discovery by obtaining an independent blood test as authorized by section 316.1932(1)(f)3 of the Florida Statutes (1989)....

...CIRCUIT COURT ANALYSIS: The circuit court held that dismissal, rather than suppression, is the appropriate remedy when the state unreasonably thwarts or interferes with an accused's due process right to obtain potentially exculpatory evidence in the form of an independent blood test as codified in section 316.1932(1)(f)3....

...lding that the state's refusal to afford a post-arrest blood test upon demand constituted a due process violation which mandated dismissal of the charge for DUI against Weier and (possibly) against Durkee. This determination involved construction of section 316.1932(1)(f)3 which states: The person tested may, at his own expense, have a physician, registered nurse, duly licensed clinical laboratory technologist or clinical laboratory technician, or other person of his own choosing administer a te...

...The state appealed the order granting suppression to the circuit court — and came to regret that it did so. The state argued (erroneously) to the circuit court that it was not obligated to honor an arrestee's statutory right to an independent blood test and that the last sentence of section 316.1932(1)(f)3, emphasized in the above quotation, precluded the sanction of suppression....

...The circuit court reversed the trial court's suppression order and remanded the cause to the trial court, ostensibly to determine whether there was a due process violation sufficient to warrant dismissal. The state has petitioned for certiorari review. We hold now that the trial court was correct in its reading of section 316.1932(1)(f)3 in the Durkee case....

...We also grant certiorari in Weier and quash the circuit court order of affirmance with directions that the trial court's order of dismissal be reversed and the cause be remanded to the county court for further proceedings consistent with Youngblood, Trombetta, Louissaint, and a correct reading of section 316.1932(1)(f)3....

...eived in a motor vehicle accident in which a person was killed. We affirm the order suppressing the blood test results. Wenger's blood sample was drawn for medical treatment purposes rather than for determination of blood alcohol content pursuant to section 316.1932 or section 316.1933, Florida Statutes (1987)....

...ne his or her blood alcohol content. To allow the State to suspend a license when the test is administered prior to the individual's lawful arrest for DUI would, according to the circuit court's reasoning, be contrary to the requirements of sections 316.1932 and 322.2615....

...means that the circuit court failed to apply the correct law and that the failure resulted in a miscarriage of justice. Ivey. Having determined the appropriate standard of review, we proceed to address the issues. Probable Cause There is nothing in section 316.1932(1)(a)1....

...4th DCA1999) ("[A]ppellant's erratic driving behavior provided sufficient justification for her stop and arrest."); Smith. We must next decide whether administration of the test was incidental to a lawful arrest. Incidental To A Lawful Arrest The circuit court held, pursuant to section 316.1932(1)(a)1., that the administration of the breath test must be incidental to a lawful arrest for DUI and that a person's license may not be suspended unless the person is first arrested for DUI and, thereafter, administered the breath test....

...The circuit court held that because Whitley was not arrested for DUI until after the breath test was administered, his license should not be suspended. In order to determine whether the trial court correctly stated and applied the law, we logically start with an analysis of section 316.1932(1)(a)1., which provides in pertinent part: 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 an approved chemical test or physical test ......

...The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. § 316.1932(1)(a)1., Fla....

...arrested for DUI before the breath test is administered, it does provide that the "test must be incidental to a lawful arrest." Id. In State v. Barrett, 508 So.2d 361, 362 (Fla. 5th DCA), review denied, 511 So.2d 299 (Fla.1987), this court, applying section 316.1932(1)(a)1., held that "the legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible." We note that the statute has not been substantially changed or amended since Barrett was decided, and we are, therefore, bound by that decision. [1] Thus, based on Barrett, "incidental to a lawful arrest" as that term is used in section 316.1932(1)(a)1....

...However, the statute does not specifically say that the arrest must be for DUI; rather, it only provides that the person be "lawfully arrested for any offense allegedly committed while the person was driving ... while under the influence of alcoholic beverages ...." § 316.1932(1)(a)1., Fla....

...nd attempting to elude which he committed while under the influence of alcohol. We therefore conclude that the breath test was incidental to a lawful arrest because it was administered well after Whitley was lawfully arrested. Hence, the dictates of section 316.1932(1)(a)1....

...The question arises why this principle should not be applied to a pre-arrest breath or chemical test. Because we have decided that the arrest in the instant case actually took place before the breath test was administered, we need not resolve this issue. [2] We note that section 316.1932(1)(a)1....

...Thus, when a "defendant was informed of his Miranda rights, handcuffed, and placed inside the patrol car, he was arrested." Poey v. State, 562 So.2d 449, 450 (Fla. 3d DCA 1990) (citation omitted); see also Kearse. However, because we have concluded that the requirements of section 316.1932(1)(a)1....

...IS FLORIDA ADMINISTRATIVE CODE RULE 10D-42.023 VOID FOR VAGUENESS, AND IF SO, DOES THIS PRECLUDE THE STATE'S USE OF BREATH TESTING INSTRUMENTS IN A CRIMINAL TRIAL? II. DO THE CURRENT METHODS OF HRS' MONTHLY AND YEARLY MAINTENANCE ACCURACY CHECK COMPLY WITH THE REQUIREMENTS OF SECTION 316.1932(1)(f)(1), FLORIDA STATUTES, AND/OR THE FLORIDA ADMINISTRATIVE PROCEDURES ACT, SECTION 120.50, et seq., FLORIDA STATUTES, AND, IF NOT, DOES THIS PRECLUDE THE STATE'S USE OF BREATH TESTING INSTRUMENTS IN A CRIMINAL TRIAL? III....

...[8] If a defendant objects to the admission of a test *144 result because the testing procedures required by the rule were not substantially followed, [9] the state must carry the burden of proving that the test was made substantially in conformity with the laws and the rules. [10] Section 316.1932(1)(f)1....

...the original form. However, the machine in this case was not tested using the original form. Both sides agreed the revised form was utilized here and that this form had never been promulgated as a formal rule, contrary to the express requirements of section 316.1932(1)(f)1....

...ed at trial. [3] The implied consent statute establishes a presumption that those who have elected to enjoy the privilege of driving will, in turn, be required to submit to chemical testing if they are suspected of driving under the influence. See §§ 316.1932, 316.1933, and 316.1934, Fla. Stat.; State v. Busciglio, 976 So.2d 15, 19-20 (Fla. 2d DCA 2008) (explaining that by exercising the privilege to drive, all drivers have already consented to taking a breath test pursuant to section 316.1932)....

...Thereafter, appellant withdrew her previous plea of not guilty, entered a plea of no contest and reserved her right to appeal the denial of the motion to suppress. In an amended order denying appellant's motion to suppress, the trial court certified the following question as one of great public importance: DOES SECTION 316.1932(1)(c), FLORIDA STATUTES (1986) PROHIBIT A LAW ENFORCEMENT OFFICER FROM REQUESTING THE ADMINISTRATION OF A BLOOD TEST IF A DEFENDANT DOES NOT APPEAR AT A HOSPITAL, CLINIC OR OTHER MEDICAL FACILITY AS A RESULT OF HIS INVOLVEMENT AS A D...

...issued a summons for driving under the influence of alcohol. Appellant contends that notwithstanding her consent to submit to a blood alcohol test, the trial court erred when it failed to suppress the results of the test because the requirements of section 316.1932(1)(c), Florida Statutes (1986) had not been met. The state agrees that the record would not support a blood test taken pursuant to the implied consent provisions of section 316.1932(1)(c). However, the state contends that section 316.1932(1)(c) does not preclude the admission of blood alcohol test results where the driver has given actual consent to the blood test. The state further argues that the statutory requirements of section 316.1932(1)(c) apply only to cases where the driver's consent will be implied as a matter of law....

...meaning of the legislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions." (citations omitted). The plain language of the implied consent statute shows that when the circumstances described in sections 316.1932(1)(c) and 316.1933(1) are not present, the legislature provided for the use of a breath test to determine the alcoholic content of the operator's blood and for a urine test to determine the presence of chemical substances: Any person who acc...

...877.111 or controlled substances, *332 if he 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 alcoholic beverages, chemical substances, or controlled substances. Section 316.1932(1)(a), Florida Statutes (1985)....

...ages or controlled substance has caused death or serious bodily injury of a human being." [2] We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist....

...4th DCA 1987); Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976). Since appellant did not challenge the voluntariness of her consent, we affirm the order denying appellant's motion to suppress. AFFIRMED. DOWNEY and GLICKSTEIN, JJ., concur. NOTES [1] Section 316.1932(1)(c) provides: (c) Any person whose consent is implied as provided in this section shall be deemed to have consented to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the...

...administration of a breath or urine test is impractical or impossible. The blood test shall be performed in a reasonable manner. [2] Section 316.1933(1) provides: (1) Notwithstanding any recognized ability to refuse to submit to the test provided in s. 316.1932 or any recognized power to revoke the implied consent to such test, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic b...

...The State appeals from an order suppressing the result of a blood alcohol test in a prosecution for manslaughter by operating a motor vehicle while intoxicated. The ruling was based upon the admitted fact that the defendant's blood sample was drawn by a hospital intern who did not qualify under Section 316.1932(1)(f)2., Florida Statutes (1983): Only a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician, or a paramedic certified as provided in s....

...On appeal, the defendant contends that the trial court erred in admitting the blood alcohol test results because there was no showing that the blood was withdrawn by a physician, nurse, or technician as required by section 322.261(2)(b), Florida Statutes (1979) [now 316.1932(1)(f)2.]....

...individuals exclusively authorized to invade the defendant's person and to the scientific trustworthiness of the results of that process. The state argues that the only consequence of a non-compliance with the "technical" *863 prerequisites of Sec. 316.1932 is to preclude the automatic admissibility of the test results and the consequent applicability of the percentage presumptions created by Sec....

...the other district court opinions we have cited. More important, the express terms of the controlling statute mandatorily provide that "only" a designated person "may withdraw blood for the purpose of determining the alcoholic content thereof." Sec. 316.1932(1)(f)2....

...NOTES [1] There is no claim that the intern in this case was in any way certified under this provision as was the technician involved in State v. Gillman, 390 So.2d 62 (Fla. 1980). [2] 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). [3] the results of any test administered in accordance with s. 316.1932 or s....

...o refuse the test, but who agree to take it, and measure above the prohibited levels. [5] But the more severe penalties are also applicable to unconscious motorists, who have no option to refuse, [6] and who are later convicted of DUI. §§ 316.193, 316.1932(1)(c), Fla....

...not to take the blood test, under certain circumstances. [7] Pursuant to Florida's *1373 statutory scheme, a person suspected (with adequate cause) of driving under the influence, can be asked to take a blood alcohol test by the police, pursuant to section 316.1932(1)(c), [8] if he or she is conscious and if no death or great injury is involved in the accident....

...atutes (1989). Sentences VACATED; REMANDED for resentencing. COBB, J., concurs. GOSHORN, J., concurs specially with opinion. GOSHORN, Judge, concurring specially. In my view the appellee in this case attempts to mix apples and oranges. Section *1375 316.1932(1)(e)1 specifies that by applying for, accepting and using a driver's license a person is deemed to have impliedly consented to the other provisions of section 316.1932 authorizing breath, urine or blood testing when that person is lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. A licensee has the privilege of withdrawing his implied consent by refusing to take the test, as long as he is not incapable of refusing to take the test or has not caused an accident involving death or serious bodily injury. §§ 316.1932(1)(c) and 316.1933(1), Fla. Stat. (1989). The legislative "trade-off" for the consent withdrawal privilege is suspension of the licensee's driver's license and the admissibility of the refusal into evidence in a criminal proceeding. § 316.1932(1)(c), Fla....

...not more than 12 months for a third conviction. (b) Any person who is convicted of a fourth or susequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [4] §§ 316.193, 316.1932, Fla. Stat. (1989). [5] § 316.193(2) & (4), Fla. Stat. (1989). [6] § 316.1932(1)(c), Fla. Stat. (1989); Filmon v. State, 336 So.2d 586 (Fla. 1976), cert. denied, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977). [7] Section 316.1932(1)(a), Florida Statutes (1989) provides: (1)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his c...

...ubmit to such a test or tests. The refusal to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding. [8] Section 316.1932(1)(c), Florida Statutes (1989) provides: Any person whose consent is implied as provided in this section shall be deemed to have consented to an approved blood test for the purpose of determining the alcoholic content of the blood......

...Any person who is incapable of refusal by reason of unconsciousness ... shall be deemed not to have withdrawn his consent to such a test... . [9] Section 316.1933(1), Florida Statutes (1989) provides: (1) Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...ubmit, upon the request of a law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof... . [10] State Department of Highway Safety and Motor Vehicles v. Bell, 505 So.2d 472 (Fla. 2d DCA 1987). [11] § 316.1932(1), Fla. Stat. (1989). [12] State v. Young, 483 So.2d 31 (Fla. 5th DCA 1985), rev. dismissed Craft v. State, 517 So.2d 691 (Fla. 1988). [13] State v. Bender, 382 So.2d 697 (Fla. 1980); § 316.1932, Fla. Stat. (1989). [14] This option, however, is not without consequences. Motorists automatically have their driver's licenses suspended for six months to one year (for a second refusal). See §§ 316.1932, 322.261, Fla. Stat. (1989). If later convicted of DUI, the more severe sentences will not be applicable to them but their refusal to take the test may be used against them in the criminal trial. [15] §§ 316.1932(1)(c), 316.1933, Fla....

...The State of Florida is prosecuting Mary Bastos and Ralph Vlad on a criminal charge of driving under the influence contrary to section 316.193, Florida Statutes. As part of the investigation of these cases, the defendants submitted to a breath test pursuant to Florida's implied consent laws. See § 316.1932, Fla....

...These reports, in the form breath cards, are admissible in evidence under a simplified procedure requiring the state attorney to prove only that the machines were operated and maintained in accordance with regulations promulgated by the FDLE. See §§ 316.1932(1) & 316.1934(2), Fla....

...th Amendment, [1] and therefore did not violate Geiss's right under article 1, section 23 of the Florida Constitution. Implied Consent Law The trial court also erred in finding that the search in this case violated Florida's implied consent statute, section 316.1932, Florida Statutes (2009). This is because the search in this case was conducted pursuant to a warrant, and the *647 implied consent law deals only with warrantless searches. Regarding blood draws, section 316.1932(1)(c) states that any person operating a motor vehicle in Florida is deemed to have given his or her consent to an approved blood draw for testing "if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages ... and the person appears for treatment at a hospital, clinic or other medical facility and the administration of a breath test is impractical or impossible." § 316.1932(1)(c), Fla....

...I agree with much of what my colleagues have said. Were I reviewing this case against a pristine precedential backdrop, I would probably concur. Nevertheless, I am constrained to dissent to that portion of the opinion that addresses the effect of the implied consent statute, section 316.1932, Florida Statutes, in light of our high court's precedent in Sambrine v....

...lly modified by the inclusion of parts that were not on the schematics or whether the machine was approved by the Florida Department of Law Enforcement (FDLE). [1] Only approved breath testing machines may be used to establish impairment pursuant to section 316.1932(1)(a), Florida Statutes (2002), commonly known as Florida's "Implied Consent Law." E.g., State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992); State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988). FDLE rule 11D-8.003 establishes the procedures for approval of the machines. Section 316.1932(1)(f)(4), Florida Statutes (2002), requires that when a person tested with a machine requests it, full information concerning the test is to be made available....

...The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.... § 316.1932(1)(a), Fla. Stat. (1997). Section 316.1932(1)(b)1. provides that "[t]he breath-alcohol level must be based upon grams of alcohol per 210 liters of breath." Section 316.1932(1)(b)2....

...ment. *98 For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid. Section 316.1932(1)(f)1....

...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 an approved chemical test or physical test, " including a breath-alcohol test, if lawfully arrested for any offense committed while driving or in physical control of a motor vehicle. § 316.1932(1)(a), Fla. Stat. (1997) (emphasis added). In addition to being "approved," tests performed to determine breath-alcohol levels "must have been performed substantially according to methods approved by the Department of Law Enforcement." § 316.1932(1)(b)2....

...dministrative hearing officer concluded that her license was properly suspended. Clark then sought review in circuit court, which reversed her license suspension, and the state now petitions for certiorari review in this court. We deny the petition. Section 316.1932(1)(a)1.a., Florida Statutes (2006) provides that a person who accepts the privilege of operating a motor vehicle in this state is deemed to have consented to a breath test to determine alcohol in the blood....

...The statute requires a law enforcement officer who reasonably believes a driver is under the influence of alcohol to advise the driver that a refusal to submit to a breath test will result in the suspension of the driver's license. Other statutory provisions such as section 316.1932(1)(c) (medical condition precludes breath test) or section 316.1933(1) (impaired driver caused serious injury or death) authorize blood withdrawal; however, they were not applicable in this case....

...Rojas, Case No. 95-923; and State v. Perez, Case No. 95-1204. [2] Judge Carol E. Draper and Judge Frank N. Kaney, Acting County Judge. [3] § 316.193, Fla.Stat. (1993). [4] Fla.R.App.P. 9.160(b). [5] Fla.Admin.Code Rule 11D-8.001 through 8.006. [6] § 316.1932, Fla.Stat....

...Gen., Daytona Beach, for appellant. James Russo, Public Defender, and John D. Galluzzo, Asst. Public Defender, Sanford, for appellees. DAUKSCH, Judge. This is an appeal from a county court order suppressing evidence in a criminal case and from the declaration in that order that Section 316.1932(1)(a), Florida Statutes (1982) is unconstitutional....

...The hearing officer's written decision denied Mr. McLaughlin's motion without further explanation. Mr. McLaughlin challenged the hearing officer's written decision by petition for writ of certiorari in the circuit court. Mr. McLaughlin argued that section 322.2615 conflicted with section 316.1932, because the latter did not require that a driver submit to a breath, blood, or urine test unless he or she was first lawfully arrested....

...the lawfulness of the arrest in a postsuspension hearing. [1] The DHSMV contended that the plain language of the statute indicated that the legislature's intent was to make the lawfulness of the arrest a relevant factor in criminal proceedings under section 316.1932 but not in postsuspension administrative hearings authorized by section 322.2615....

...But the Fifth District has interpreted section 322.2615 to allow a hearing officer to consider the lawfulness of the arrest during a postsuspension hearing in Pelham, 979 So.2d 304. [2] The Pelham court reached this conclusion by construing section 322.2615 in pari materia with section 316.1932....

...However, the rules of construction "`are useful only in the case of doubt and should never be used to create doubt, but to remove it.'" Fajardo v. State, 805 So.2d 961, 964 (Fla. 2d DCA 2001) (quoting State v. Egan, 287 So.2d 1, 4 (Fla.1973)). Thus section 322.2615 cannot be read in pari materia with section 316.1932 to create an ambiguity that does not exist....

...lood alcohol test administered to Bruce E. Burke, appellee. The county court in its order certified the following question to be one of great public importance: DO RULES 10D-42.028 — 10D-42.030 (INCLUSIVE) COMPLY WITH THE MANDATE OF FLORIDA STATUTE 316.1932(1)(f)1 REQUIRING THE FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES TO ESTABLISH BY RULE AND REGULATION AN APPROVED METHOD OF ADMINISTRATION TO BE FOLLOWED IN ALL BLOOD TESTS USED TO DETERMINE THE WEIGHT OF ALCOHOL IN THE DEFENDANT...

...sdiction to suppress evidence solely on the basis that an agency rule is invalid, and (2) that the rules adopted by the Department of Health and Rehabilitative Services (HRS) specified a method of administration of blood alcohol tests as required by section 316.1932(1)(f)1., Florida Statutes (1989)....

...Appellee, who was arrested for driving with an unlawful blood alcohol level, moved to suppress the results of a blood alcohol test conducted by the Florida Department of Law Enforcement. The motion was based on HRS's failure to adopt rules required by section 316.1932(1)(f)1., Florida Statutes (1989), which states in pertinent part: The tests determining the weight of alcohol in the defendant's blood or breath shall be administered at the request of the arresting officer substantially in accordanc...

...State, 566 So.2d 856 (Fla. 1st DCA 1990). Reliability may be proven by a showing of general acceptance within the scientific community. Stokes v. State, 548 So.2d 188 (Fla. 1989). Prior to the adoption of section 322.261 and section 322.262, Florida Statutes (1977) (now section 316.1932 and section 316.1933, Florida Statutes (1991)), the state was required to demonstrate reliability of the blood or breathalyzer testing in all cases where it sought to introduce the results of such tests....

...t, failure to follow the statutory prerequisites will generally preclude admission pursuant to the statute. State v. Bender, supra ; Evans Packing Co. v. Department of Agriculture, 550 So.2d 112 (Fla. 1st DCA 1989). Thus, substantial deviations from section 316.1932, Florida Statutes (and its predecessor), which impede the statutory purpose may result in rendering the test inadmissible....

...r, will not prohibit the test results from being presented. State v. Donaldson, 579 So.2d 728 (Fla. 1991). [1] Results of breathalyzer tests which are run in substantial compliance with the approved techniques and procedures shall be admissible. See § 316.1932(1)(b)2, Fla....

...NOTES [1] It appears that a number of earlier cases which seem to require absolute and strict compliance with the statute are no longer valid. See Campbell v. State, 423 So.2d 488 (Fla. 1st DCA 1982); State v. Roose, 450 So.2d 861 (Fla. 3rd DCA 1984). [2] See § 316.1932(1)(f)....

...Turner, Asst. Atty. Gen., Daytona Beach, for appellee. HARRIS, Judge. James Albritton appeals his conviction for DUI manslaughter. He contends that the trial court erred in permitting into evidence the results of his blood test in contravention to Section 316.1932(1)(f)2, Florida Statutes (1987)....

...ere is no stated requirement in any Florida Statute that breath testing machines must be `recertified,' or even, for that matter, `certified.'" The state is technically correct in its assertion as to "certification" and the appellees agree. However, section 316.1932(1)(a), Florida Statutes (1985), provides in part: (1)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have gi...

...For this purpose, the department is authorized to approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid. § 316.1932(1)(b)1 (emphasis supplied.) Consequently, the issue of approval of these machines is left to HRS per Florida statutory authority....

...What is mentioned is approval, and that's exactly what Defendants are arguing to this Honorable Court. The Defendants have *1182 examined the machine that was used in their cases and allege that it is not the machine that is on the approved list and is, therefor [sic], not an approved machine pursuant to Section 316.1932, Florida Statutes....

...Petitioner does not contend otherwise but instead maintains that the lawfulness of the police action is not legally relevant in an administrative proceeding to suspend a driver's license. [1] The obligation to submit to testing for alcohol and chemical substance impairment emanates from section 316.1932, Florida Statutes (2007)....

...This statute, sometimes referred to as the Implied Consent Law, provides that any person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to testing to determine the "alcoholic content of his or her blood or breath if the person is lawfully arrested . . . ." § 316.1932(1)(a)1.a., Fla....

...tute, Petitioner contends that the lawfulness of the arrest is no longer an issue in the suspension process. Respondent counters that the text of the amended statute does not support this construction, especially when considered in pari materia with section 316.1932. Petitioner responds that sections 316.1932 and 322.2615 should be read in isolation because they are intended to address different issues. *307 Section 316.1932, Petitioner contends, is a criminal statute, while section 322.2615 is a statute that authorizes administrative sanctions....

...on Transp., HB 7079 (2006) Staff Analysis 25 (Apr. 26, 2006). We agree with Respondent. Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest....

...at the refusal involves a "lawful" test. § 322.2615(1)(a) and (1)(b)1.a., Fla. Stat. (2007). There is no definition of what constitutes a "lawful" test, so it is necessary to examine the entire statutory scheme for breath testing, and in particular section 316.1932, to determine what is lawful. Under this statutory scheme, clearly, a "lawful" test is, at a minimum, one that drivers are required to take pursuant to section 316.1932, which must be incident to a lawful arrest....

...xplained the implied consent law [1] to the driver and asked her whether she would submit to a "breath, blood, or urine" test. Because each woman refused, the Department sought to suspend each woman's driver's license for a period of one year. See §§ 316.1932(1)(a)(1)(a), 322.2615(1), Fla....

...lcohol test, we disagree with the opinion in Clark. We also conclude that a circuit court's opinion quashing a license suspension *708 on this basis is a departure from the essential requirements of the law meriting common law certiorari relief. II. Section 316.1932(1)(a)(1)(a), which is commonly referred to as the "Implied Consent Law," provides: 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 vehicl...

...lly indicates that alternatives were intended). Notably, there is no evidence in these cases that either driver was confused, that they requested clarification, or that they asked specifically for a breath test and were denied that request. Sections 316.1932(1)(a)(1)(a) and 322.2615 plainly require the suspension of a driver's license when the driver refuses to submit to a lawful request for a breath-alcohol test....

...tance to the supreme court: 1. DOES A LAW ENFORCEMENT OFFICER'S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(A) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER'S LICENSE FOR REFUSING TO TAKE ANY TEST? 2....

...ER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW? Petitions granted; circuit court opinion quashed; questions certified. CASANUEVA and WALLACE, JJ., Concur. NOTES [1] See § 316.1932, Fla....

...The Circuit Court's order reversing the County Court Judge's order should contain directions to the County Court Judge to deny the defendant/respondent's motion for dismissal of the DUI charge. Certiorari granted; order quashed, remanded with directions. NOTES [1] See Florida Statutes, § 316.1932(1)(f)3. Section 316.1932(1)(f)3 reads, in pertinent part, as follows: The person tested may, at his own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, superv...

...his blood or urine, or by chemical or physical test of his breath. The failure or inability to obtain an additional test by a person shall not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. § 316.1932(1)(f)3, Fla....

...Perez moved to suppress the blood-test evidence at trial, claiming the sample was drawn illegally. The trial court stated that it believed the sample had been drawn lawfully pursuant to section 316.1933(1), which provides: Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...blood." To "submit" means something more in this context than merely being physically incapable of preventing the blood test. It is a mandate to yield to a test, and it supersedes "any recognized ability to refuse to submit to the tests provided in section 316.1932 or ......

...Rodriguez, 365 So.2d 157, 159 (Fla. 1978) (to determine legislative intent, court will view entire statute). Sections 316.193 through 316.1934, Florida Statutes (1985), address the offense of driving under the influence of alcohol, or chemical or controlled substances. Section 316.1932(1)(a) provides that motorists in this state will be deemed to have given their consent for a breath test and a urine test, pursuant to a lawful arrest, for an alleged offense committed while driving under the influence of "chemical substances set forth in s....

...[2] Thus, the general scheme for determining if a motorist is impaired is: (1) before an arrest, the suspect may consent to or demand a breath test; and (2) after an arrest, the person is deemed to have implicitly consented to a breath test and a urine test. The first exception to this general scheme is given in section 316.1932(1)(c), whereby a "person whose consent is implied," i.e., is lawfully arrested, is taken for treatment to a medical facility and a breath or urine test is impossible or impractical to perform....

...Section 316.193 delineates the offenses committed when driving impaired. Subsection (1) defines "driving under the influence" of "any chemical substance set forth in s. 877.111" — the same substances to be determined by the general breath/urine testing scheme described in section 316.1932....

...other than the suspect driver. This does not mean, of course, that those who drive under the influence and injure only themselves will not be subject to testing and prosecution. They will still be subject to the breath and urine tests authorized by section 316.1932 and subject to a blood test where the former tests are impossible or impractical....

...GRIMES, J., concurs. NOTES [1] The opinion of the district court of appeal erroneously concludes that Perez was the only one involved in the accident. [2] The provision relating to a driver consenting to or demanding a pre-arrest breath test, contained in section 316.1932(1)(b), Florida Statute (1985), has been repealed by the legislature, effective July 1, 1988....

...We do not think we are in conflict with State v. Reisner, 584 So.2d 141 (Fla. 5th DCA), rev. denied, 591 So.2d 184 (Fla. 1991), when we reach this seemingly contrary conclusion. The Reisner court held that with the original form 1514 incorporated, rule 10D-42.024, the rule adopted pursuant to section 316.1932(1)(f)1....

was the correct standard. Id. at 321-322; see § 316.1932(1)(f), 4 Fla

...When a subsequent breathalyser test revealed an alcohol content of .051, Burnham became suspicious that Jump was under the influence of a controlled substance and ordered a urinalysis. At the DUI processing center, Jump and Detective Burnham engaged in a conversation about the implied consent law. See § 316.1932(1)(b), Fla....

...resence of illegal drugs, primarily cocaine. Serrago moved to suppress the results of the blood and urine tests. Following a hearing, the trial court suppressed only the results of the blood test. Applying what it believed to be the correct statute, section 316.1932(1)(c), Florida Statutes (2000), the trial court found that although Trooper Burke had probable cause to order a blood draw, because a urine test had not been impractical or impossible, the requirements for ordering a blood draw had not been met....

...at statute did not apply to the instant facts. Finally, the court denied Serrago's motion to suppress the results of the urine test because the court determined that the urine test met the requirements of what it deemed to be the applicable statute, section 316.1932(1)(c). Although the trial court was convinced, as was the State, that section 316.1932(1)(c) was the correct statute to be applied in determining the validity of the blood draw, we disagree. We believe that the factual circumstances here require the application of section 316.1933. The statute that was incorrectly applied by the trial court, section 316.1932(1)(c), provides, in pertinent part: Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to subm...

...ion is deemed not to have withdrawn his or her consent to such test. (Emphasis added.) The statute that the court should have applied, section 316.1933(1), provides: Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...hich consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. (Emphasis added.) The trial court specifically found that section 316.1932(1)(c) applied here because "[i]t is the statute envisioned for use when a driver suspected of driving under the influence of alcohol or chemical or controlled substances has appeared for medical treatment." While it is true that section 316.1932(1)(c) applies in such cases, the instant case presents the additional fact that the officer had probable cause to believe that the driver, while under the influence of alcohol or drugs, caused death or serious bodily injury to another....

...a slight odor of alcohol on the driver's side of the passenger compartment of her car, the trial court was correct. In addition, the *818 record not only supports the trial court's conclusion that the trooper had the requisite reasonable cause under section 316.1932(1)(c) to believe that Serrago was driving under the influence of alcohol or drugs, but also supports the conclusion that he had the probable cause required by section 316.1933(1) to believe that while driving in such a condition, she caused the death or serious bodily injury of a human being....

...In the context of this statute, the officer's request is the proverbial "offer that one cannot refuse." Having found no merit in the two reasons offered by the trial court for not applying section 316.1933, and finding that the trial court improperly applied section 316.1932, we conclude that the trial court erred in requiring the State to show that a breath or urine test was impractical or impossible before allowing admission of the blood test....

...3 have been met, and that the results of the blood test should have been admitted. We accordingly reverse the trial court's exclusion of the blood tests. Turning to the question of the admissibility of the urine tests, the trial court concluded that section 316.1932(1)(c) authorized these tests....

...if the same statutory requirements were met. We give de novo review to issues of statutory interpretation, BellSouth Telecorms., Inc. v. Meeks, 863 So.2d 287 (Fla. 2003), and we cannot agree with the trial court's interpretation here. Our reading of section 316.1932(1)(c) leads us to conclude that it cannot reasonably be read to allow a urine test because it simply does not provide for same. Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances. Section 316.1932(1)(a) allows for breath and urine testing but does so only pursuant to a lawful arrest. Section *819 316.1932(1)(c) authorizes blood draws but only under the following circumstances: (1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances; (2) where the person appears for treatment at a medical facility; and (3) where the administration of a breath or urine test is impractical or impossible. The only reason that section 316.1932(1)(c) mentions breath or urine tests is to limit blood draws to those situations in which a breath or urine test, impliedly authorized pursuant to section 316.1932(1)(a), was impossible or impractical. It does not specifically authorize any breath or urine tests, nor is its language susceptible of an interpretation that impliedly authorizes breath or urine tests. Rather, section 316.1932 clearly distinguishes between breath and urine tests, which are authorized by section 316.1932(1)(a), from blood tests, which are authorized by section 316.1932(1)(c). We conclude, therefore, that the trial court erred in concluding that section 316.1932(1)(c) impliedly authorized the urine test performed here....

...es to breath and urine when it changed the law regarding blood tests. Id. at 758. In State v. Hilton, 498 So.2d 698, 700 n. 4 (Fla. 5th DCA 1986), the court observed: "We note that, unlike breath or urine tests, a blood test administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest." In addition, Department of Highway Safety & Motor Vehicles v....

...has made pre-arrest breath tests inadmissible.' "The court noted that since Barrett, the legislature had not substantially amended the statute, indicating its intent that prearrest breath tests should remain inadmissible. Given our interpretation of section 316.1932, which clearly places breath and urine tests in a category that is separate from blood tests, we conclude that the trial court erred when it applied the blood test requirements portion of section 316.1932(1)(c) to Serrago's urine test in order to find that it was admissible. Because section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest, and because Serrago was not under arrest at the time that the urine test was taken, the urine test here was not admissible....

...e. Schmerber. The Florida legislature covered some of the same ground as Schmerber in the enactment of section 316.1933. Subsection (1) of that section provides that notwithstanding any recognized ability to refuse to submit to the tests provided in section 316.1932 (the implied consent law) or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person un...

...dily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof. Subsection (2)(a), however, contains the same provision as in section 316.1932(1)(f)2, describing those persons who may withdraw blood for the purpose of such a test....

...The state vigorously argues for the affirmative, relying on the recent decision of the Florida Supreme Court in State v. Strong, 504 So.2d 758 (Fla. 1987). In that case, the court held that blood alcohol test results based on a blood sample taken outside the parameters of section 316.1932 may nevertheless be admitted into evidence upon the establishment of the traditional predicates for admissibility of scientific tests, including test reliability, the technician's qualifications, and the test results' meaning....

...bile collision. The state obtained the blood samples and the resulting tests by means of a lawful search warrant. The supreme court rejected Strong's contention that this evidence was inadmissible because the technician qualification requirements of section 316.1932(1)(f)2 were not met....

...First, "a main focus of Florida confession law has always been on guarding against one thing—coercion." Traylor, 596 So.2d at 964. Asking a defendant to comply with conduct he has no "right" to refuse does not invoke any degree of coercion associated with impermissible interrogation. Section 316.1932(1)(a)(1)(a) provides: "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 an approved chemical *20 test....

...Of course, if unimpaired, the test result could provide exonerating evidence. However, there is a telling maxim that applies in this instance: no injury can be complained of by a consenting party. As discussed earlier, once Busciglio exercised his privilege to drive, he consented to taking a breath test. See § 316.1932....

...ected by the Fifth Amendment or Miranda, even though criminal penalties apply to the refusal. See State v. Morale, 174 Vt. 213, 811 A.2d 185, 186 (2002). In Morale, the Vermont Legislature had enacted an implied consent law very similar to Florida's section 316.1932....

...raffic device by going through a parking lot and could also have impounded Busciglio's vehicle, he exercised officer "discretion" not to do so. [2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [3] To be guilty of violating section 316.1932, the defendant must have been "informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months." § 316.1939(1)(c)....

VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(l)(A)(l)(a) SUCH THAT THE DEPARTMENT MAY NOT

...ent part: The technician, arresting officer, or person administering the collection of the breath sample must make certain the subject has not taken anything by mouth or has not regurgitated for at least twenty minutes before administering the test. Section 316.1932(1)(b)(2), Florida Statutes (1991) provides: An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Health and Rehabilitative Services....

...Gen., Tampa, for appellant. Elliott C. Metcalfe, Jr., Public Defender, and Linda Mason, Asst. Public Defender, Sarasota, for appellee. PARKER, Judge. The county court has certified to this court the following two questions of great public importance: I. DOES SECTION 316.1932(1)(c), [1] FLORIDA STATUTES (SUPP....

...NVOLUNTARY THE SUSPECT'S CONSENT TO THE BLOOD ALCOHOL TEST WHERE THE SUSPECT IS NOT EXPRESSLY INFORMED THAT THE IMPLIED CONSENT LAW REQUIRES SUBMISSION ONLY TO A BREATH OR URINE TEST OR THAT THE BLOOD TEST IS OFFERED ONLY AS AN ALTERNATIVE? II. DOES SECTION 316.1932(1)(c), FLORIDA STATUTES (SUPP....

...In her order, the judge made the following conclusions of law: [W]here a suspect is in custody and under arrest for driving under the influence, and where that suspect has not appeared at a hospital, clinic, or other medical facility as a result of his involvement as a driver in a motor vehicle accident, Florida Statutes 316.1932(1)(c) (1986) [sic], prohibits the law enforcement officer from advising that suspect of the "implied consent" warnings for a blood test....

...egislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions.'" Barruzza v. Suddath Van Lines, Inc., 474 So.2d 861, 864 (Fla. 1st DCA 1985) (quoting 49 Fla. Jur.2d, Statutes § 118 (1984)). The language of section 316.1932(1)(c) is clear that the following two requirements must be present before that section is applicable: (1) The individual tested must appear for treatment at a hospital, clinic, or medical facility as a result of his involvement as a...

...2) the administration of a breath test or urine test must be impossible or impractical. State v. Hilton, 498 So.2d 698, 700 (Fla. 5th DCA 1986), petition for review denied, 506 So.2d 1041 (1987). Here, the first requirement was not met. Accordingly, section 316.1932(1)(c) was not applicable to this situation; therefore, the implied consent warning should not have been given to Burnett....

...or impractical? The legislature has *378 provided for only two instances when a blood draw may be performed in place of a breath test. [2] State v. Perez, 531 So.2d 961 (Fla. 1988). The first circumstance in which blood may be drawn is set forth in section 316.1932(1)(c), which has been discussed above....

...gly and voluntarily made and not the result of acquiescence to lawful authority. Chu v. State, 521 So.2d 330, 332 (Fla. 4th DCA 1988). [3] This statute provides: (1) Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...Between July 1, 1982, and December 16, 1982, the petitioners were arrested and charged with driving while under the influence of alcohol. At the time of their arrest, the petitioners submitted to chemical tests for blood alcohol content pursuant to Section 316.1932, Florida Statutes (Supp. 1982). The county court granted the motions to suppress the test results on grounds that there were no rules lawfully in force, at the time the defendants were arrested, governing the testing procedures as required by Section 316.1932....

...effect on the proper administration of justice throughout the state: WHETHER THE RULES ADOPTED DECEMBER 16, 1982, BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES GOVERNING THE ADMINISTRATION OF CHEMICAL TESTS FOR BLOOD ALCOHOL CONTENT UNDER SECTION 316.1932, FLORIDA STATUTES, CAN BE APPLIED TO TESTS ADMINISTERED BEFORE THEIR ADOPTION, THEREBY ALLOWING THE TEST RESULTS INTO EVIDENCE AT A TRIAL SUBSEQUENT TO THE RULES' ADOPTION....

...83-12-AP; State of Florida v. Danny Paul Johnson, Case No. 83-13-AP; State of Florida v. Sandra P. Lemunyon, Case No. 83-14-AP; State of Florida v. John D. Thompson, Case No. 83-15-AP; and State of Florida v. Ripley C. Davis, Case No. 83-16-AP. [2] Section 316.1932(1)(f)1, Florida Statutes (Supp....

application of Florida’s implied consent law, § 316.1932, Fla.Stat. (1987), violated a driver’s constitutional

...from staying a driver's license suspension while certiorari review was being sought was unconstitutional, and (3) that the circuit court erred in finding Griffin's license suspension invalid for failure to read the entire implied consent warning in section 316.1932, Florida Statutes, when Griffin agreed to take the breathalyzer test, obviating the need for the warnings for a failure to comply with the test.

...g a suspension of a license for refusal to submit to a test, was also to consider "[w]hether the person was placed under lawful arrest for a violation of s. 316.193." Section 322.2615 was amended prior to Hernandez' arrest to delete this subsection. Section 316.1932(1)(a)1.a, Florida Statutes (2007), provides in pertinent part that 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 hav...

...In Department of Highway Safety and Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008), rev. denied, 984 So.2d 519 (Fla.2008), the reviewing court considered the effect of the revision to section 322.2615 and concluded, when reading the revised statute in pari materia with section 316.1932, that it is "inescapable that a suspension may not be predicated on refusal to take a test that is the product of a[n] unlawful arrest." 979 So.2d at 307....

...In reaching this conclusion, the Pelham court was not unmindful of a legislative staff analysis which indicated that the amendment of section 322.2615 negated the need for DHSMV to show in an administrative review of a license suspension that a lawful arrest for a violation of section 316.1932 (the DUI statute) occurred. 979 So.2d at 307-08. However, given the provision in section 316.1932 that a breath or blood test must be incident to a lawful arrest, a provision which remains in force, our sister court rightly indicated that "[i]f the legislature intends to authorize DHSMV to suspend a driver's license for refusal t...

...xpressly." 979 So.2d at 308. We agree with this analysis. This court's review is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). Section 316.1932 unambiguously provides that a driver has impliedly consented to submit to a breath or blood test only when such is incidental to a lawful arrest....

...od alcohol level of 0.10 percent or higher. (emphasis added) This section contemplates applicability to all "vehicles" since it is not limited to "motor vehicles," as are many of the other statutes dealing with driving while under the influence. See § 316.1932-.1934, 322.261, *613 261, .28, Fla....

...es of refusing to take the test. The State charged the defendant with driving under the influence. The defendant moved to exclude the breath analysis results on the basis that the informed consent advisement was incomplete and not in compliance with section 316.1932, Florida Statutes (2002)....

...to inform persons only that they are required by law to submit to the test before asking them if they are willing to submit. Because of this policy, defense counsel argued that Gunn was distinguishable. The county court granted the motion. It found section 316.1932(1)(a), Florida Statutes, "expressly states that a subject arrested for DUI `shall' be advised of the consequences of refusing to provide a sample of breath," thereby making the full advisement mandatory. The court found "a limited and/or partial legal advisement represents a material modification of the plain language and intent of" section 316.1932(1)(a), Florida Statutes, and "affirmatively violates principles of fundamental fairness and Defendant's right to Due Process...." The trial court distinguished Gunn and Pardo v....

...hich excludes the portion of the Implied Consent Warnings pertaining to refusal and advisement of right to refuse a chemical *1153 test and/or the criminal and administrative consequences of a refusal is deemed to be in substantial compliance with F.S. 316.1932(1)(a)? Kim Case Law enforcement stopped the defendant for a traffic infraction....

...suppressing the introduction of a chemical breath test in a DUI criminal prosecution of respondent Eduardo Rivas-Marmol. The county court suppressed the test results on the ground that the test was not made incident to a lawful arrest as required by section 316.1932, Florida Statutes (1993)....

..." Rivas-Marmol prior to the breath test, but "formally" placed him under arrest after it. Based on Officer Mendez' testimony, the county court concluded that the arrest was made after the breath test, and therefore the test was given in violation of section 316.1932, Florida Statutes (1993), and the results of the test were not admissible in evidence....

...rrested him after the test, we conclude from an objective view that the arrest took place prior to the test. In State v. Coron, 411 So.2d 237 (Fla. 3d DCA 1982), this court dealt with the question of a "silent" arrest. Although Coron did not involve section 316.1932, Florida Statutes (1993), it did involve section 856.021, Florida Statutes (1979), which required a specific procedure by the law enforcement officer involved prior to an arrest for loitering or prowling....

...Although Officer Llano-Montes did not announce `You are under arrest,' his conduct *810 clearly informed Coron that he was, in fact, under arrest." 411 So.2d at 238. Here, Officer Mendez, in fact, arrested Rivas-Marmol before the breath test was administered. We find no violation of section 316.1932, Florida Statutes (1993)....

...e arresting officer], that after the Defendant performed several physical sobriety exercises, [the officer] was unsure whether to arrest him for DUI, for no determination could be made whether Rivas' normal faculties were impaired." Order at 2 n. 2. Section 316.1932, Florida Statutes (1993), states that a driver is deemed to have given implied consent to submit to, among other things, a breath test " if he 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 alcoholic beverages.... The chemical or physical breath test shall be incidental to a lawful arrest ...." § 316.1932(1)(a), Fla.Stat....

...The legislature evidently wrote the statute this way in recognition of the fact that it will frequently be necessary to transport the defendant to another location in order to administer the tests allowed by the statute, which includes breath, chemical, urine, and blood tests. See § 316.1932, Fla.Stat....

...the defendant and transport him to the police station amounted to an arrest, that is, to a seizure of the person within the meaning of the Fourth Amendment. The state urges that Fourth Amendment standards should be applied in analyzing the terms of section 316.1932. Under that analysis, if a detention of a defendant could be deemed to be an arrest or seizure of the person for Fourth Amendment purposes, then section 316.1932 is satisfied. The problem with that reasoning is, quite simply, that for purposes of section 316.1932, Florida has decided to create a higher level of citizen protection than that which is required by the Fourth Amendment. As stated in State v. Slaney, 653 So.2d 422 (Fla. 3d DCA 1995): [I]t is the established law of this state that Florida's implied consent statutes [Secs. 316.1932, 316.1933, 316.1934, Fla.Stat....

...the right of the state of Florida to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution [through the Fourth Amendment]. This it has done through the enactment of section 322.261, Florida Statutes (1975) [now section 316.1932, 316.1933, Florida Statutes (1991)]." As further stated by the Fifth District Court of Appeal in State v....

...In determining whether the lower court violated an established principle of law, the district court may consider, among other things, recent controlling case law, rules of court, statutes, and constitutional law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). This case is controlled by section 316.1932, Florida Statutes (2001), which provides that anyone who accepts the privilege of operating a motor vehicle under Florida law thereby consents to submit to a breath test for the purpose of determining the alcohol content of his or he...

...Petition for writ of certiorari granted. NOTES [1] The statute provides, in pertinent part: "A law enforcement officer ... shall, on behalf of the department, suspend the driving privilege of ... a person who has refused to submit to a breath ... test authorized by s. 316.1932." § 322.2615(1)(a), Fla....

...state while under the influence of alcoholic beverages.... The person shall be told that his or her failure to submit to any lawful test of his or her breath ... will result in the suspension of the person's privilege to operate a motor vehicle.... § 316.1932(1)(a)1., Fla....

...therwise appealable" by the state and, hence, within Rule 9.140(c)(1)(B) must suppress "before trial confessions, admissions or evidence obtained by search and seizure." The standard set forth in that rule is not met in this instance. In the face of section 316.1932, Florida Statutes, the taking of the appellee's blood and the subsequent result were neither "pretrial confessions" or "admissions" shielded by the Fifth Amendment, South Dakota v....

...The other driver, Maria Oxonian, was killed. During the police investigation of the accident, Ms. Wicky either impliedly or actually consented to giving a sample of her blood to be analyzed for alcohol content and the presence of controlled or chemical substances. See §§ 316.1932-.1933, Fla....

...Wicky's blood is sought, we note that her certiorari petition claims such a test would violate her privacy rights. She also points out that she has an interest in preserving her right to test the blood sample herself under the implied consent law, § 316.1932(1)(f), Fla....

...Robert Wesley, Public Defender, and Jennifer MeLander Davis, Assistant Public Defender, Orlando, for Appellee. TORPY, J. In this driving under the influence (DUI) case, the county court has certified to us a question of statutory interpretation *232 involving the "Implied Consent Law," section 316.1932(1)(a) 1., Florida Statutes (2002)....

...ressed the urine test results, but it certified to us the following question as one involving great public importance: Can the state introduce a defendant's urine test results of a urine sample obtained by law enforcement pursuant to Florida statute section 316.1932(1)(a), Florida's implied consent law, by establishing the traditional Bender and Robertson predicates, where the Florida Department of Law Enforcement has not promulgated rules governing the urine testing? We have jurisdiction. Art. V, § 4(b)(1), Fla. Const. § 35.065, Fla. Stat. (2002), Fla. R.App. P. 9.160. We restate the question as follows: Does section 316.1932, Florida Statutes (2002), require that urine testing procedures first be "approved" by the Florida Department of Law Enforcement before they may be administered to persons who are suspected of DUI? We answer the question in the negative. In so doing, we certify that our decision directly conflicts with Bodden. Our decision today turns on whether an ambiguity exists in the following portion of section 316.1932(1)(a) 1., Florida Statutes (2002), commonly referred to as the "Implied Consent Law:" 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 veh...

...aces throughout the statute, evincing that urine tests are not merely subsets of "chemical tests." For example, the statute states: "The refusal to submit to a chemical or physical breath test or to a urine test ... is admissible into evidence ...." § 316.1932(1)(a)1., Fla....

...2d DCA 1966) (words in statute not to be construed as superfluous if reasonable construction exists that gives effect to all words). We conclude, therefore, that no ambiguity exists by the failure to define "chemical tests." The second possible ambiguity is illustrated by Appellee's purported quote to section 316.1932(1)(a) 1., contained within his brief, which states: "approved ......

...a whole). Nowhere else within the statute is any reference made to the "approval" of urine tests. Further, the specific grant of authority given to the FDLE to implement rules for blood and breath testing is devoid of any reference to urine testing. § 316.1932(1)(a) 2., Fla....

...be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved. § 316.1932(1)(a) 1., Fla....

...he requirements for admission of "scientific evidence" set forth in the evidence code. [2] Even if an ambiguity does exist, we are not convinced that section 775.021, Florida Statutes, which codifies the rule of "lenity," necessarily applies because section 316.1932 is not a statute that defines an "offense." Moreover, the rule of lenity is not applicable where the interpretation urged by a defendant is not reasonable....

...racy" of breath testing instruments, these standards are to be tested in accordance with procedures outlined in form 1514 which fails to list the procedure to be used for monthly maintenance or the standard for accuracy. Appellees urged that because section 316.1932(1)(f)1....

...The county court found that rules 10D-42.023 and 10D-42.024 failed to provide standards or directions with regard to which the annual and monthly tests are to be performed concerning accuracy and reproducibility. Thus, the court held that the tests performed did not comply with section 316.1932 and were, therefore, inadmissible in evidence....

...Turning to the second certified question, we determine that HRS' failure to promulgate a rule to provide a test for reliability at the monthly and annual inspections does not preclude the state's use of breath testing results in a criminal trial. The statutory language of section 316.1932(1)(f)1., Florida Statutes (1991), very clearly requires that the rules and regulations precisely specify the test or tests and that they be adopted after public hearing....

...His refusal thus is relevant to show consciousness of guilt. If he has an innocent explanation for not taking the tests, he is free to offer that explanation in court. Id. Although not expressly mentioned in our Taylor opinion, a provision of the implied consent law, section 316.1932(1)(a), Florida Statutes (1991) requires the person under suspicion of intoxicated driving to be told that refusal to take the test will result in a one-year license suspension....

...Clements acknowledged drinking four or five beers, attempted a series of field sobriety exercises, performed poorly, and was arrested. At the jail, he was informed of Florida's Implied Consent Law and the consequences of refusing blood and breath tests, see § 316.1932, Fla....

...ety exercises, all of which Pipkin failed. Smith then arrested Pipkin for careless driving and driving under the influence, and transported him to the Coral Gables police station. At the station, Pipkin was informed of Florida's implied consent law, § 316.1932, Fla....

...easonable suspicion, subsequent arrest was invalid); Sobrino, 587 So.2d at 1347 (stating that under analysis of extrajurisdictional arrest, private citizen must have probable cause and belief that person arrested is guilty of a felony). [2] See also § 316.1932(1)(a), Fla....

...produce information that is not within its possession or control. Appellant urges, however, that the State is obligated to either produce the information or suffer the imposition of sanctions pursuant to the disclosure obligation imposed upon it by section 316.1932(1)(f)4., Florida Statutes (2004), [2] as construed in our decision in State v. Muldowny, 871 So.2d 911 (Fla. 5th DCA 2004). We disagree. Section 316.1932(1)(f)4., Florida Statutes (2004), which applies to alcohol testing, requires that the State provide "full information concerning the test taken....

alcoholic content of his or her blood or breath ....” § 316.1932(l)(a)l.a., Fla. Stat. (2013). Although this appears

...This is an appeal from a misdemeanor judgment and sentence. The county court has certified the following issue as one of great public importance: WHETHER REFUSAL ON THE PART OF A LAW ENFORCEMENT AGENCY TO GIVE A PRE-ARREST BREATH TEST PURSUANT TO FLORIDA STATUTE *510 316.1932(1)(b)1 (1985) SHOULD BE CAUSE FOR DISMISSAL OF DRIVING WHILE IMPAIRED CHARGES OR SUPPRESSION OF EVIDENCE FOLLOWING THE LAW ENFORCEMENT AGENCY'S REFUSAL TO ADMINISTER A PRE-ARREST BREATH TEST....

...charges or to suppress all evidence observed or obtained after he was denied his request for a pre-arrest test. It is undisputed that the Palm Beach Sheriff's Office did not have either a procedure or the equipment for offering roadside tests prior to an arrest. Section 316.1932, Florida Statutes, provides: (1)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his consent to su...

...The state asserts that a prearrest test is not required where an officer has probable cause to make an arrest without a breath test. See 1975 Op. Att'y.Gen.Fla. 075-46 (Feb. 20, 1975). The state also makes the point that, in any event, the results of the prearrest test would not be admissible under any circumstances. § 316.1932(1)(b)1, Fla....

requirement [of section 316.1932(l)(c) ] was *481 not met. Accordingly, section 316.1932(l)(c) was

...esults constituted only harmless error where other competent evidence established the appellant's state of intoxication. Thus we find no reversible error in the admission of appellant's refusal to take the test. We note that after appellant's arrest section 316.1932, Florida Statutes (Supp....

...tates Supreme Court, in construing a similar South Dakota statute, approved the admissibility of the refusal in South Dakota v. Neville, 459 U.S. ___, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Relying on Neville, the Second District Court of Appeal held section 316.1932(1)(a), Florida Statutes, to be constitutional....

...Firmani, Asst. Public Defender, Clearwater, for appellee. *332 GRIMES, Judge. The state appeals from an order of the county court suppressing evidence of appellee's refusal to submit to a chemical breath test and declaring unconstitutional a portion of section 316.1932(1)(a), Florida Statutes (1982 Supp.)....

...On August 3, 1982, appellee was arrested for driving while under the influence of alcohol. He refused to submit to a breathalyzer test and subsequently filed a motion in limine to prohibit any testimony relating to his refusal. At the motion hearing, appellee argued that section 316.1932(1)(a), Florida Statutes (1982 Supp.), commonly referred to as the "implied consent law," was unconstitutional in that it violated the federal and state privilege against self-incrimination....

...264, 202 N.W.2d 202 (1972); State v. Tabisz, 129 N.J. Super. 80, 322 A.2d 453 (1974); McKay v. Davis, 99 N.M. 29, 653 P.2d 860 (1982); State v. Gardner, 52 Or. App. 663, 629 P.2d 412 (1981); Commonwealth v. Robinson, 229 Pa.Super. 131, 324 A.2d 441 (1974). Accordingly, we hold section 316.1932(1)(a), Florida Statutes (1982 Supp.), to be constitutional and remand this cause to the county court for further proceedings consistent with this opinion....

...to whether appellee was driving under the influence of alcohol. For present purposes we assume that appellee suffered serious bodily injury in the accident, that the blood test was taken without his consent, and that the state failed to comply with section 316.1932, Florida Statutes (1983). The issue is whether the blood test was properly administered pursuant to section 316.1933, Florida Statutes (1983). That statute provides, in pertinent part: (1) Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic...

...It has, however, been addressed indirectly and in dicta by two other district courts of appeal. In State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982), the court noted that the "more lengthy revised statute which goes into effect July 1, 1982" (referring to sections 316.1932 and 316.1933) contains "a new `get tough' section [which] provides that a driver ......

...316.1933 ... is guilty of a felony of the third degree... ." (emphasis added.) We conclude that section 316.1933(1) is inapplicable here and that the trial court did not err in granting appellee's motion to suppress. Since the state failed to comply with section 316.1932, the blood sample was properly excluded....

...solution used to test the machine was actually the substance required by the administrative rules. We disagree. Betham's testimony demonstrates substantial compliance with the inspection and testing procedures required by the statutes and rules. See § 316.1932(1)(b)(2), Fla....

...ffidavit is to be self-authenticating and admissible in evidence. Section 316.1934(5), Florida Statutes, provides: *1076 An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s....

...ving, [5] and one count of leaving the scene of an accident. [6] Defendant filed a series of pretrial suppression motions, including a motion to suppress/motion in limine in which he sought suppression of his blood alcohol test results, arguing that section 316.1932(1)(f), Florida Statutes, applies to all blood testing conducted in Florida and that the Department of Health and Rehabilitative Services ("HRS") failed to comply with the requirements of this statute by not adopting rules for use, maintenance, calibration, testing, upkeep, or repair of the gas chromatograph....

..., because HRS had failed to promulgate rules and regulations establishing standards for use, maintenance, testing, and upkeep of the gas chromatograph, there was no procedure that assured accuracy of blood tests done on such equipment as required by section 316.1932(1)(f)1....

...s constitutional rights of due process and equal protection. In State v. Burke, 599 So.2d 1339 (Fla. 1st DCA 1992), the First District Court of Appeal recently held that HRS has substantially complied with the mandate set forth by the legislature in section 316.1932(1)(f) by adopting the blood alcohol testing rules contained in rule 10D-42.028.030 of the Florida Administrative Code; therefore, the results of blood tests administered pursuant to these rules are admissible evidence. [13] *1386 We agree with the First District that the rules adopted by HRS for blood alcohol testing meet the requirements of section 316.1932(1)(f)1, Florida Statutes; [14] but we also question whether, in the present case, section 316.192(1)(f)1 is the statute that must be complied with. The legislature has enacted two statutes that authorize the withdrawal of blood for the purpose of determining the alcohol content of the blood. Section 316.1932 provides that "any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state" shall be deemed to have consented to an approved blood test for the purpose of determining the alc...

...law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof. The latter statute applies to the present case. Section 316.1933 does not have language paralleling the key language of paragraph (1)(f) of section 316.1932 relied on by defendant; instead, paragraph (2)(b) of section 316.1933 requires that the chemical analysis of the person's blood: must have been performed substantially in accordance with methods approved by the Department of Health a...

...iques or methods, ascertain the qualifications and competence of individuals to conduct such analysis, and issue permits which will be subject to termination or revocation at the discretion of the department. § 316.1933, Fla. Stat. (1989). Sections 316.1932 and 316.1933 have similar, but clearly independent functions and the language of the two statutes is different. Section 316.1933 does not reference or incorporate the testing provision of section 316.1932(1)(f). The legislature has maintained this same dichotomy in the subsequent legislation concerning operation of a watercraft while intoxicated. The "driving privilege" statute incorporates 316.1932(1)(f), but the probable cause statute does not....

...deemed appropriate where law enforcement has probable cause to believe the driver had caused death or serious injury through driving under the influence of alcohol. Section 316.1934 provides: [T]he results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible *1387 into evidence when otherwise admissible... . (emphasis added). We can find no basis to conclude that section 316.1932 controls availability of the section 316.1934 presumption in the case where a blood sample is taken pursuant to section 316.1933. Because it appears that section 316.1932 does not control in this case, we must consider whether the procedure utilized by HRS complies with the terms of sections 316.1933(2)(b) and 316.1934....

...This is exactly the procedure that was followed in these cases. HRS had approved the specific method proposed by the FDLE toxicologist in his application and had issued a permit to him to conduct blood analysis using that specific method. Unlike the problem we encountered with breath analysis pursuant to section 316.1932 in State v....

...esults of appellee's blood alcohol test and in the questions certified to the Florida Supreme Court. However, I cannot subscribe to any suggestion that the legislature intended different requirements regarding the administration of blood tests under section 316.1932(1)(f) and sections 316.1933(2)(b) and 316.1934(3) of the Florida Statutes (1989), depending on whether the method of blood testing is required to be "adopted" or "approved". There is no rational basis to draw a distinction between blood tests in a section 316.1932 DUI case and a section 316.1933 case of driving a motor vehicle while under the influence causing death or serious bodily injury....

...gent criteria for assuring reliable blood test results, then we are faced with the question of whether such a distinction is reasonable because the effect of such a construction is to require greater reliability for the lesser offense encompassed by section 316.1932. In order to avoid such a construction and because the provisions of section 316.1933 augment the provisions of section 316.1932, I conclude that the provisions of these two sections as well as the applicable provisions of section 316.1934(2) and (3) were intended to be read in pari materia....

...dure, performed the blood test on appellant. There is no indication that the operator deviated from the approved method or that the utilized method would not provide accurate results. Thus, appellee's blood test results are admissible under sections 316.1932(1)(f), 316.1933(2)(b) and 316.1934(2) and (3) of the Florida Statutes (1989) and rules 10D-42.028 through 10D-42.030 of the Florida Administrative Code....

...bodily injury. [3] § 316.193, Fla. Stat. (1989). [4] § 843.15(1)(a), Fla. Stat. (1991). [5] § 316.192, Fla. Stat. (1989). [6] § 316.061(1), Fla. Stat. (1989). [7] The "due process" claim is based on the lack of adequate standards as required by section 316.1932(1)(f)1....

...Moreover, section 316.1934 expressly provides that insubstantial differences between approved techniques and actual testing procedures in any given case do not invalidate the test results for purposes of the presumption. [12] Fla. Admin. Code Rule 10D-42.031. [13] Section 316.1932(1)(f) provides: [T]he tests determining the weight of alcohol in the defendant's blood shall be administered at the request of a law enforcement officer substantially in accordance with rules and regulations which shall be adopted by the Department of Health and Rehabilitative Services....

...ment of Health and Rehabilitative Services for reliability of result and facility of administration, and shall provide an approved method of administration which shall be followed in all such tests given under this section. [14] Defendant urges that section 316.1932(1)(f) requires HRS adopt rules that include the testing and maintenance of blood testing equipment similar to the requirements for breath testing equipment....

...The orders of suppression were entered on the authority of a decision of the Fifth District Court of Appeal in State v. Durkee, 584 So.2d 1080 (Fla. 5th DCA), cause dismissed, 592 So.2d 682 (Fla. 1991). In Durkee, the court's opinion was based on the premise that section 316.1932(1)(f)3 (section 3) confers a discovery right on the part of a DUI arrestee to obtain a blood alcohol test upon request and that the denial of that request justifies the sanction of suppression under Florida Rule of Criminal Procedure 3.220(n)....

requesting the blood draw did not comply with section 316.1932(1)(c) of the Florida Statutes, more commonly

...the officer to assist the driver in obtaining a blood test after the driver has taken the test selected by law enforcement. Unruh was a criminal proceeding in which the supreme court suppressed a breath test because the police failed to comply with section 316.1932(1)(f)3, Florida Statutes (1991)....

...on that its holding is limited to circumstances in which the driver complies with the arresting officer's request and then wishes to obtain a second test. See, e.g., State v. Coviello, 4 Fla. L. Weekly Supp. 186 (Fla. Palm Beach Cty. Ct.1996) (under section 316.1932(1)(f)3, driver who refuses to submit to test requested by law enforcement, but agrees to independent blood test, is not entitled to assistance in obtaining independent test); see also Sheeran v....

...ng first taken breath test); cf. State v. Kilpatrick, 4 Fla. L. Weekly Supp. 176 (Fla. 15th Cir.Ct.1996) (defendant who intentionally fails breath test does not have right to assistance in obtaining additional blood test). A fair reading of sections 316.1932 and 322.2615 makes it clear that a driver is deemed to have consented to "an approved chemical test or physical test" "administered at the request of a law enforcement officer." [2] It is the officer who "re quests" the test, not the driver who selects it....

to permit a blood test administered under section 316.1932(l)(c)? As so phrased, we answer the question

...Hofer noted that according to section 322.2615, in any implied consent case, the license suspension is based on a refusal to take a breath, blood, or urine test or on an alcohol level in excess of the legal limit. He also explained that the obligation to submit to a breath, blood, or urine test is imposed by section 316.1932, Florida Statutes (2006), which requires that any such test must be incident to a lawful arrest....

...ge of justice that warrants the exercise of this court's certiorari jurisdiction. C. The Pelham, Hernandez, and McLaughlin decisions are distinguishable. In the circuit court proceedings, Mr. Hofer briefly mentioned the relationship between sections 316.1932 and 322.2615. In Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA), review denied, 984 So.2d 519 (Fla.2008), the Fifth District addressed the interplay between sections 316.1932 and 322.2615 in considerable detail....

...Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008). However, the circuit court focused on Mr. Hofer's claim that the hearing officer must consider the legality of the stop "`in order to maintain the constitutionality of [section] 316.1932 and [section] 322.2615.'" Hofer, 15 Fla....

...Sept.15, 2003), the trial courts granted the motions to suppress because they were bound by it. We reverse and adopt the reasoning of State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003). As did the court in Pierre, we rephrase the question certified by the county court: Does section 316.1932, Florida Statutes (2002), require that urine testing procedures first be "approved" by the Florida Department of Law Enforcement before they may be administered to persons who are suspected of DUI? Id....

...finite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Id. (citation omitted). The statute at issue in this case, Bodden, and Pierre, is section 316.1932(1)(a)1., Florida Statutes (2002) which stated [1] : 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...

...Pierre points out that Chapter 316 "makes a distinction between the two tests [urine and "approved chemical test"] in numerous places throughout the statute, evincing that urine tests are not merely subsets of `chemical tests.'" 854 So.2d at 232-33. Section 316.1932(1)(a)1. distinguishes between urine and breath tests. One sentence began: "The chemical or physical breath test must be incidental to a lawful arrest ...." § 316.1932(1)(a)1., Fla....

...The separation of "urine test" from "chemical or physical breath test" in these two sentences indicates a legislative intent to treat the two items separately. The distinction between breath and urine tests is further demonstrated by the structure of the last sentence in section 316.1932(1)(a)1.: The refusal to submit to a chemical or physical breath test or to a urine test *615 upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding....

...be viewed not only in its internal context within the section, but in harmony with interlocking statutes." WFTV, Inc. v. Wilken, 675 So.2d 674, 679 (Fla. 4th DCA 1996). Bodden indicated that it was following this principle of statutory construction "in reading section 316.1932(1)(a)(1) in conjunction with sections 316.1932(1)(b)(2) and 316.1932(1)(f)(1)" to "conclude that an `approved' urine test is one in which the method of administration and the analysis of the test are `performed substantially according to methods approved by' the FDLE." 27 Fla. L. Weekly at D2382-83, ___ So.2d at ___. Bodden did not explain how a reading of those statutes led to its decision. Our examination of Chapter 316 leads us to draw the opposite conclusion. Section 316.1932(1)(f)1....

...explicitly gave FDLE the authority to create rules for breath and blood testing. No statute directs FDLE to establish rules for urine testing for non-commercial drivers. Moreover, other sections in Chapter 316 clearly link FDLE's authority to promulgate regulations with breath and blood testing, but not urine tests. See § 316.1932(1)(a)2., Fla....

...is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter ....") (emphasis added); § 316.1932(1)(b)2., Fla....

...To implement Bodden's requirement that urine testing be "approved" by FDLE, further legislation would be required to give FDLE the authority to promulgate rules. The statute should not be read in a way that renders it inoperative without further legislation. Finally, in 2003, the legislature amended section 316.1932(1)(a) in a way that unambiguously reflects the legislative intent to exempt urine testing from any FDLE approval requirement....

...reement with Bodden. Fla. H.R. Comm. on Tests for Alcohol, Chemical Substances, or Controlled Substances, HB 947 (2003) Staff Analysis 2 (final Apr. 2, 2003). It is proper to consider the 2003 legislation in arriving at the correct interpretation of 316.1932(1)(a)1....

...Appellant's friends collected him between 5:30 and 6:00 a.m., two to three hours following the draw. At the hearing on the motion to suppress, appellant's father testified that had appellant been allowed uninterrupted telephone access with him, he would have advised his son of his right, provided by section 316.1932(1)(f)3, Florida Statutes (2001), to obtain an independent blood test....

...ependent test once probable cause was established to believe that he had operated a vehicle while under the influence of alcoholic beverages, resulting in the death of another human being. Such interpretation is clearly at variance with the terms of section 316.1932(1)(f)3, authorizing the administering of an independent test, in addition to that administered at the direction of a law-enforcement official pursuant to section 316.1933(1)(a)....

...775.082, the sentence required by the code must be imposed." [1] Unruh was arrested only for driving under the influence of alcohol, and therefore had the right, unlike Smallridge, not to consent to a test, a consequence that could result in a suspension of his driving privileges. § 316.1932(1)(a)1, Fla....

322.2615 is to be read in pari materia with section 316.1932, Florida Department of Highway-Safety & Motor

(2016). Florida's implied consent statute, section 316.1932(1)(a)1.a., Florida Statutes (2016), provides:

...The passenger in the car died at the scene of the accident. The investigators went to the hospital to interview Rutherford. They perceived the odor of an alcoholic beverage on his breath and requested that a blood sample be taken from him pursuant to either section 316.1932(1)(c) or 316.1933, Florida Statutes (1995)....

...evancy. The showing must be made from facts established without resort to the medical records themselves. As further evidence of the minimal privacy interests attaching to blood tests where a DUI prosecution is involved, the majority recognizes that section 316.1932(1)(c) or 316.1933, Florida Statutes, allows the taking of a person's blood sample without their consent or the due process requirements of section 395.3025(4)(d). Indeed, that is precisely what was done in this case. Even without the other records sought under the subpoena, the state may have sufficient evidence to proceed with Rutherford's prosecution. In another case, however, where section 316.1932 or 316.1933 blood samples were not obtained, the state might be faced with having to drop pending charges....

...I recognize that the subpoena was requested without notice to the defendant, but I think his operation of the motor vehicle amounted to a consent to the state to have the records of any blood alcohol tests administered after the incident. As Judge Polen rightly suggests, section 316.1932(1)(c) clearly provides that such a request for treatment by the driver is a consent to a blood alcohol test. In my mind, a consent to the test is tantamount to a consent to the test results. Hence, reading section 395.3025(4)(d) together with section 316.1932(1)(c), yields the conclusion that any failure to give notice with the subpoena request is inconsequential in light of the obvious consent to the test and its results....

...referred to under section 322.2615(2), thus permitting the Department to issue a subpoena to the agency inspector identified in this report pursuant to section 322.2615(6)(b). This standardized agency inspection report form was created to implement section 316.1932, Florida Statutes (2007), which is entitled "Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal." Section 316.1932(1)(a)(2) states that the Alcohol Testing Program within the Department of Law Enforcement "is responsible for the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327" and requires the Program to promulgate rules and regulations regarding the testing. Section 316.1932(1)(b)(1) sets forth the proper criteria for measuring blood- and breath-alcohol levels, and (b)(2) provides: "An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantiall...

...The inspection validates the instrument's approval for evidentiary use...." Finally, rule 11D-8.006 requires such breath test instruments to be inspected monthly and specifically requires the use of certain forms for the report, including "FDLE/ATP Form 40." Construing these provisions together, under sections 316.1932(1)(a)(2) and (b)(2), a breath test result is valid for purposes of chapter 322, and specifically section 322.2615, if performed substantially according to methods approved by the Department....

that he could refuse a blood draw pursuant to section 316.1932(1)(c), Florida Statutes (2016) (the “implied

...this state," a driver is "deemed to have given his or her consent to submit to an approved chemical test ... of his or her breath for the purpose of determining the alcoholic content of his or her blood," if the person is lawfully arrested for DUI. § 316.1932(1)(a), Fla....

...In its order of dismissal, the county court found that technicians of the Orange County Sheriff's Office were improperly conducting *938 monthly maintenance tests on their Intoxilyzer 5000 breath-testing instruments. The practice of testing the instruments on a monthly basis was required by the State of Florida. See § 316.1932(1)(f)1, Fla....

consent law under section 316.1932(l)(a)l.a., Florida Statutes (2010). Section 316.1932(l)(a)l.a. provides

The implied consent law is codified at section 316.1932(1)(a)1.a., Florida Statutes (2021), and provides

defendant by a duly qualified medical person under Section 316.1932(l)(f)(2), Florida Statutes (1985), after the

promulgated in the Florida Administrative Code. § 316.1932(1)(b)2., Fla. Stat. (2005); see also Dep’t of

...this state," a driver is "deemed to have given his or her consent to submit to an approved chemical test ... of his or her breath for the purpose of determining the alcoholic content of his or her blood," if the person is lawfully arrested for DUI. § 316.1932(1)(a), Fla....

...or revoked." § 322.23(1), Fla. Stat. (2007). Advising a DUI arrestee of the consequences of refusing to submit to a breath test is not a prerequisite to the admissibility of the breath test results into evidence. The implied consent requirements of section 316.1932(1)(a) are not limitations on the admissibility of competent evidence....

...driver an escape from suspension of driving privileges, should he, in fact, face such a suspension by virtue of having refused testing." State v. Gunn, 408 So.2d 647, 649 (Fla. 4th DCA 1981); State v. Iaco, 906 So.2d 1151 (Fla. 4th DCA 2005). Under section 316.1932, an officer's roadside description of the effects of refusing to submit to a breath test is not a procedural trap for the admissibility of test results....

administered pursuant to the implied consent law. See § 316.1932(l)(a), Fla. Stat. (2000). In the order, the county

Tronolone’s blood was properly drawn pursuant to section 316.1932(l)(c), Florida Statutes (1985), which provides

was the test given for a medical purpose, see § 316.1932(l)(f)l, Fla.Stat. (1989). The trial judge specifically

...We affirm.  Appellants are individuals charged with DUI after submitting to a breath test on the Intoxilyzer 8000 breath instrument. Appellants submitted to a breath test pursuant to Florida’s implied consent law. The implied consent law requires that drivers submit to an “approved” test. See § 316.1932(1)(a)1.a., Fla....

...��regulation of the operation, inspection, and registration of breath test instruments utilized” under the driving under the influence statutes; and for promulgating rules necessary for the administration and implementation of its obligations. See § 316.1932(1)(a)2., Fla....

guilt. The implied consent law set forth in section 316.1932, Florida Statutes (Supp.1992)1 governing tests

breath testing machine to ensure its accuracy. See § 316.1932(l)(f)l., Florida Statutes (1999) (requiring FDLE

consented to submit to a breath test under section 316.1932(l)(a). That section provides, in pertinent

The implied consent law is codified at section 316.1932(1)(a)1.a., Florida Statutes (2021), and provides

about Florida’s implied consent law. See, e.g., § 316.1932(1)(a)1.a., Fla. Stat. (2019) (“The person shall

concur. . § 316.193, Fla.Stat. (1993). . § 316.1932, Fla.Stat. (1993).

sample must be strictly construed. Both Florida Statute 316.1932(l)(f)(2) and Florida Statute 316.1933

for refusal to take the test authorized by section 316.1932, Florida Statutes (1997). Our opinion in Davidson

and his driving privileges were suspended. See § 316.1932(l)(a), Fla. Stat. (2005) (“failure to submit

consent to testing of their blood alcohol content. § 316.1932(l)(a)l.a., Fla. Stat. (2010). The “underlying

giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016) (“Any

prescribed by rule or regulation required by section 316.1932(l)(f)l and adopted pursuant to chapter 120

individual pursuant to the mandatory provisions of section 316.1932(l)(f)2., Florida Statutes (Supp.1982). As

without first arresting him, as required by section 316.1932, Florida Statutes (1997),1 and (2) that, based

function of any bodily member or organ. . Section 316.1932(l)(f)(l), Florida Statutes (1983), provides:

trial court. FARMER and KLEIN, JJ., concur. . "F.S. 316.1932, F.S. 316.1933, F.S. 316.1934, (2000).”

importance: Does the following sentence in § 316.1932(1)(c), Florida Statutes, Any

PER CURIAM. Affirmed. § 316.1932(1)(b)1, Fla.Stat. (1983); Fla.Admin. Code Rule 10-D-42.23.

was not a registered nurse as required by section 316.-1932(l)(f)(2), Florida Statutes (1983) and, therefore

independent of the implied consent statute [section 316.1932], are admissible”); see also State v. Murray

alcohol test because HRS has not complied with section 316.1932(l)(f)(l), Florida Statutes (1991), which directs

refusal to submit to the postarrest breath test. Section 316.1932(l)(b)l, Florida Statutes, provides that:

provided with assistance as required ' under section 316.1932(l)(f)3., Florida Statutes. 5) Ms. Cherry did

that respondent submit to a breath test under section 316.1932(l)(a). Even if we were to agree with the Department

SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(l)(a), FLORIDA STATUTES? 1 This question has

consent law requires that it be admitted. See § 316.1932, Fla. Stat.1 The defendant is thereafter free

be suppressed: first, the court held that section 316.1932(f)(1), Florida Statutes (1988), requires that

implied consent warning in accordance with section 316.1932, Florida Statutes (2021).2 2

Section 316.193, Fla. Stat. (1994 Supp.). 2 Section 316.1932, Fla. Stat. 3 Cf., Department of Highway Safety

and declaring unconstitutional a portion of section 316.-1932(l)(a), Florida Statutes (1982 Supp.), the

incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id. at 1079. Following

incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id. at 1079. Following

incident to a lawful arrest, as required by section 316.1932, Florida Statutes.” Id. at 1079. Following

...OR TO AUGUST 1, 1991] VOID FOR VAGUENESS, AND IF SO, DOES THIS PRECLUDE THE STATE'S USE OF BREATH TESTING RESULTS IN A CRIMINAL TRIAL? II. DO THE CURRENT METHODS OF HRS'S MONTHLY AND YEARLY MAINTENANCE ACCURACY CHECKS COMPLY WITH THE REQUIREMENTS OF SECTION 316.1932(1)(f)1, FLORIDA STATUTES, [3] AND IF NOT, DOES THIS PRECLUDE THE STATE'S *1131 USE OF BREATH TESTING RESULTS IN A CRIMINAL TRIAL? III....

...evices used in the breath test method shall be inspected at least once each calendar month by a technician to ensure general cleanliness, appearance, and accuracy." That rule now can be found in Florida Administrative Code Rule 10D-42.024(1)(b). [3] Section 316.1932(1)(f)1, Florida Statutes (1989) provides: The tests determining the weight of alcohol in the defendant's blood shall be administered ......

988 So. 2d 120, 123 (Fla. 5th DCA 2008). Section 316.1932(1)(a)(1)(a), Florida Statutes (2021), and

observations of the officer conducting the test. . See § 316.1932, Fla. Stat. (2007) (Florida's "Implied Consent

its burden under section 316.1932(l)(b)2., Florida Statutes (2004). Section 316.1932(l)(b)2. states: An

(noting, in dicta, that a 2003 amendment to section 316.1932, Florida Statutes (2002), clarified meaning

Pumper or Engine" by EMS personnel pursuant to section 316.1932(1)(c), Florida Statutes. It is assumed for

1932, 316.1933, 316.1934, Fla. Stat. (2001). See § 316.1932(l)(a)(2)(e), Fla. Stat. (2001)(one capable of

where the test is incidental to a lawful arrest. § 316.1932(1)(a), Fla.Stat. (1985). The results of a pre-arrest

(2016). Florida's implied consent statute, section 316.1932(1)(a)1.a., Florida Statutes (2016), provides:

the technician was not one qualified under section 316.1932(l)(f)2., Florida Statutes (1985). The basis

82-2482, 82-2483 and 82-2484 upon authority of Section 316.-1932(l)(a), Florida Statutes (1982); South Dakota

Hearing” adjudging that the provisions of section 316.1932 and 322.261 “have been sustained in that [Solomon’s]

draw and test the blood were authorized. See § 316.1932(l)(f)(2), Fla.Stat. (1985); Fla.Admin.Code Rules

...The statement did not suggest that Hammons had a prior breath test refusal; rather, the statement was a proper reference to the arresting officer's testimony regarding the standard warning he gave to Hammons on the implied consent for a breath test. See § 316.1932(1)(a)(1)(a), Fla. Stat....

giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016) (“Any person

breath-alcohol test was implied under the provisions of section 316.1932(1)(a)(1)(a), Florida Statutes (2007): This

The state appeals from an order ruling that section 316.1932(l)(a), Florida Statutes (1982) is unconstitutional

4011AS test was not a chemical test pursuant to section 316.1932(l)(a), Florida Statutes, and Department of

prove the legality of the blood draw under section 316.1932(1)(c), Florida Statutes (2021), an implied

sentence for refusal to submit to testing under section 316.1932(1)(a)(1)(a), Florida Statutes (2016), driving

of determining its alcoholic content .... § 316.1932(1)(f)2.a., Fla. Stat. (2009). Potential

will not render the test results invalid. Id.; § 316.1932(1)(b)(1), Fla.Stat. (1991). The circuit court

So.3d 779, 782 (Fla. 5th DCA 2010); see also § 316.1932(l)(b)(2), Fla. Stat. (2011). Once admitted, the

74 So.3d 1070, 1075 (Fla.2011) (citing to section 316.1932(l)(a)l.a., Fla.,Stat. (2011) (finding a, breath

court noted the apparent conflict between section 316.1932(l)(f)3, Florida Statutes,2 which provides

automatic suspension of his driver’s license. See § 316.1932(l)(a), Fla. Stat. (2004) (“failure to submit

granted by the lower court on the ground that section 316.1932(l)(c), Florida Statutes, is unconstitutional

PER CURIAM. Whitehead, contending that Section 316.-1932(l)(a), Florida Statutes (Supp.1982), which

or urine test is impractical or. impossible. § 316.-1932(l)(c), Fla.Stat. (1985). Consequently, an interpretation

...Id.; City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982). In a per curiam decision issued by a panel of three judges, the circuit court determined that it was improper for the DHSMV to suspend Sarmiento's license for failing to take a breath test. After quoting section 316.1932(1)(a), Florida Statutes, the circuit court wrote: It is clear that the statute implies consent to a breath test when any person accepts the privilege of operating a motor vehicle in Florida....

...1st DCA 1987) (finding a lack of actual physical control where vehicle was found to be inoperable so that it could not be moved except by an outside agency). The record establishes that the vehicle at issue was inoperable. Therefore, the statutory implied consent contained in Florida Statute § 316.1932(1)(a) does not apply and the suspension of the petitioner's license must be set aside. We hold that the circuit court afforded procedural due process and applied the correct law. Moreover, a miscarriage of justice has not occurred. In considering section 316.1932(1)(a) and Jones v....

...The circuit court quashed an order of the Department of Highway Safety and Motor Vehicles suspending Sarmiento's license for refusal to submit to a breath test. The circuit court held that because the vehicle was inoperable, the statutory implied consent contained in section 316.1932(1)(a), Florida Statutes, did not apply....

constitute a misdemeanor, as is required by section 316.1932(l)(a)l.a., Florida Statutes (2003). Appellant

...In this case, the record suggests no reason why the medical blood test would have been irrelevant to the charges contained in the information. Thus, Mr. Laws can argue only that his decision to refuse to comply with the request for a sobriety test under section 316.1932 somehow prevented the introduction of otherwise relevant evidence. It is noteworthy that subsection 316.1932(1) expressly makes a refusal to submit to the statutory test a separate misdemeanor offense and provides that the refusal is admissible in evidence "in any criminal proceeding." Nothing in sections 316.1932, .1933, or .1934 suggests that the commission of this separate misdemeanor requires the suppression of relevant evidence in a criminal proceeding under section 316.193. Mr....

...Paul, III, DWI: Blood, Tests & Fears: A Crash Course in Blood Alcohol Samples, 25 Champion 39 (June 2001); Carol A. Roehrenbeck & Raymond W. Russell, Blood is Thicker than Water: What You Need to Know to Challenge a Serum Blood Alcohol Result, 8 Crim. Just. 14 (Fall 1993). -5- 316.1932(1)(f)....

therefore not an approved test, as required by section 316.1932(1)(a). The trial court rendered an order

therefore not an approved test, as required by section 316.1932(1)(a). The trial court rendered an order

therefore not an approved test, as required by section 316.1932(1)(a). The trial court rendered an order

section 316.1933(1)(a), the provisions of section 316.1932(1)(a)1.a. and (c), not at issue in Robertson

is upheld.” According to the motion, under section 316.1932(1)(c) the State must show that administration

consequences of refusing the breath test. See § 316.1932(l)(a), Fla. Stat. (1993). In contrast, the pre-release

prerequisite to a request for a blood sample pursuant to § 316.1932(l)(c) if a person is taken to a medical facility

4th DCA 2007). Under this statutory scheme, section 316.1932 provides that any person who drives a motor

4th DCA 2007). Under this statutory scheme, section 316.1932 provides that any person who drives a motor

license under the implied consent statute. See § 316.1932, Fla. Stat. (1997). Indeed under Florida law

be said *978that they had consented under section 316.-1932(l)(a) to an “approved” test. The district

giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016) (“Any