Belated Friday Florida Law Update- Breathalyzer Tests

Hope everyone had a great weekend (hollow sentiment to us Miami Heat fans but oh well) and my apologies for this tardy Florida law update!

As most of my readers know, I don’t do any criminal law, but today we will discuss a criminal law issue as I am always a sucker for Florida Supreme Court opinions as well as cases with practical implications.

In Florida Department of Highway Safety and Motor Vehicles v. Hernandez, 2011 WL 2224791 (Fla. Jun. 9, 2011), the Florida Supreme Court decided two keys issues with respect to breathalyzer tests:  1) Are license suspensions for refusal to take a breathalyzer test valid if the breathalyzer was not requested pursuant to a lawful arrest?; and 2) is the hearing officer permitted to review the validity of the underlying arrest at a hearing to appeal the suspension?   The short answers to these questions are No and Yes. 

Basically this one went well for drivers on both accounts.  The Supreme Court held that, reading all the relevant sections of the Florida Statutes together, a breathalyzer test may only be issued pursuant to a “lawful arrest,” which includes probable cause of a violation of the law.  What I wonder about are random stops that we see out on the roads, particularly on weekend nights and holidays like New Year’s Eve.  I’m sure this case is not doing anything to cease those types of random stops, but it appears that police officers cannot administer breathalyzers at those stops unless they have probable cause to believe you are under the influence.

Still, while it’s always good to be informed, please don’t drink and drive out there, folks. 






THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.
Explore posts in the same categories: Florida Law Updates

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