For a refusal to be admissible implied consent must be read properly. If an individual is not made aware of the consequences of the refusal then it cannot be used against them. Another possibility is that if an individual is misled into thinking that a blood sample is required when it is not authorized by law the refusal might not be admissible. The appellate courts split on the issue and it usually comes up when the officer requests blood breath or urine. The argument is that when all three tests are listed it could cause the defendant to believe that a much more intrusive blood test is being requested. If the officer requested a blood test when it is not authorized by law that would be a much stronger case.
Implied Consent "If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor [per Florida Statute 319.1939]. Refusal to submit to the test I have requested is admissible into evidence in any criminal proceeding.you still refuse to submit to this test, knowing that your driving privilege will be suspended for a period of at least one (1) year and that you may be charged criminally for any subsequent refusals?"
The general purpose of the implied consent is to insure that the accused is aware of the consequences of refusal. In a perfect world the officer will advise the accused which test they are requesting. You can bet if you take the breath test and blow .000 they will change their mind and ask for urine. The timing of implied consent is incident lawful arrest. For the refusal to be admissible the State must show that the arrest was lawful. Statute permitting a police officer to suspend a motorist's driver's license for refusal to submit to a lawful breath test did not allow suspension to be predicated on refusal to take a breath test following an unlawful arrest, even though statute was amended to omit mention of a motorist's arrest or its lawfulness; obligation to take the breath test arose from Implied Consent Law, which required a lawful arrest. Dep't of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. Dist. Ct. App. 2008) review denied, 984 So. 2d 519 (Fla. 2008).
Breath Blood or Urine Currently the appellate courts are divided on the issue of requesting blood, breath or/and urine. Some of the recent case law has come out in favor of the state but the law might vary depending on the jurisdiction you reside in. Driver's license could not be suspended under implied consent law after driver refused to submit to breath test to determine blood alcohol content, where law enforcement officer gave driver implied consent warnings that erroneously informed driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test, when statute only authorized a breath test. State, Dept. of Highway Safety & Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. Dist. Ct. App. 2007). The position is acknowledged as dicta in a footnote by the 3rd DCA in Boesch but was not ruled upon.
As Boesch's counsel certainly seems to have known, the separate implied consent statute applicable to blood tests, subsection 316.1933(1), Florida Statutes (2006), did not warrant a blood test in this case. Although we have not ruled (and do not here) on this point, at least one district court of appeal has held that the erroneous inclusion of the blood test implied consent warning may invalidate the breath test warning, preventing suspension of the defendant's license. State, Dept. of Highway Safety & Motor Vehicles v. Boesch, 979 So. 2d 1024, 1027 (Fla. Dist. Ct. App. 2008), reh'g denied (Apr. 18, 2008).
Other appellate courts have taken a different opinion focusing on the and/or meaning.
Improper Implied Consent The officer is not required to strictly comply with the reading of implied consent. Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence. Grzelka v. State, 881 So. 2d 633, 634-