HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 39 Refusal to Submit to Breath, Urine, or Blood Test
SPONSOR(S): Transportation & Modals Subcommittee, Koster
TIED BILLS: IDEN./SIM. BILLS: CS/SB 260
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Transportation & Modals Subcommittee 17 Y, 0 N, As CS Hinshelwood Hinshelwood
2) Infrastructure & Tourism Appropriations 12 Y, 1 N McAuliffe Davis
Subcommittee
3) Infrastructure Strategies Committee 17 Y, 3 N Hinshelwood Harrington
SUMMARY ANALYSIS
Under current Florida law, any person who accepts the privilege of operating a motor vehicle in the state is
deemed to have given consent to submit to an approved chemical test or physical test, including a breath test,
incidental to a lawful arrest for driving under the influence (DUI). Any person who refuses to submit to a lawful
breath test is subject to an administrative suspension of his or her driving privilege for one year for a first refusal
or 18 months for a second or subsequent refusal. Additionally, a person who refuses to submit to a lawful breath
test and whose license has previously been suspended for failure to submit to a lawful test of his or her breath,
urine, or blood, commits a first-degree misdemeanor. Before a driver can be convicted of a crime for a second or
subsequent refusal to submit to a lawful breath test, the state must prove that the driver was informed by law
enforcement, prior to his or her refusal, of specified potential penalties.
An ignition interlock device (IID) is an in-car breathalyzer that prevents a vehicle’s ignition from starting if the
driver blows above a 0.025 blood alcohol content (BAC) reading. Installation of court-ordered IIDs is required
following certain DUI convictions for varying time periods depending on whether the driver has any prior DUI
convictions, his or her BAC at the time of arrest, and whether the driver was accompanied by a minor at the time
of the offense. Placement of an IID is at the sole expense of the driver on all vehicles that he or she individually
or jointly leases or owns and routinely operates, and the IID may be installed when he or she qualifies for a
permanent or restricted driver license. Florida law does not currently require placement of an IID when an
administrative sanction or suspension is imposed upon a person’s driving privilege as a result of a first refusal to
submit to a lawful breath test.
The bill requires that a person who refuses for the first time to submit to a lawful breath test must install a
Department of Highway Safety and Motor Vehicles (DHSMV)-approved IID, at his or her expense, on all vehicles
he or she individually or jointly leases or owns and routinely operates for a period of one continuous year starting
at the time when he or she qualifies for reinstatement of a permanent or restricted driver license. Proof of
installation of the IID must be sent to DHSMV, and verification of the operation of the device in the person's
vehicle must be periodically reported to DHSMV. The IID placement period required by the bill for a first refusal
of a breath test may run concurrently with any other IID placement period required by a court or DHSMV.
Under the bill, before a driver can be convicted of a first-degree misdemeanor for a second or subsequent
refusal to submit to testing, the state must prove that the driver was informed prior to his or her first refusal about
the requirement to install an IID if he or she refused to submit to the lawful breath test.
The bill requires certain information to be contained in a notice of suspension and requires waiver of the IID
requirement where a person whose driver license is suspended for a first refusal to submit to a lawful breath test
has such suspension invalidated.
The bill may have an indeterminate negative fiscal impact on the state and a negative fiscal impact on the private
sector.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0039d.ISC
DATE: 2/23/2024
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Refusal to Submit to Lawful Breath Test
Administrative Driver License Suspension
Section 316.1932, F.S., specifies that any person who accepts the privilege of operating a motor
vehicle in the state is deemed to have given consent to submit to an approved chemical test or physical
test, including a breath test, incident to a lawful arrest for driving under the influence (DUI). A driver
must be notified that refusal to submit to a lawful breath test will result in an administrative suspension
of his or her driving privilege for one year for a first refusal or 18 months for a second or subsequent
refusal.1 An administrative driving privilege suspension is separate from any suspension or revocation
that may result from a criminal conviction for DUI.2
Under s. 322.2615, F.S., if a person refuses to submit to a lawful breath test, a law enforcement officer
must take his or her driver license and issue the driver a 10-day temporary permit, if he or she is
otherwise eligible to drive, and a notice of suspension.3 The suspension period applicable to the
offender begins on the date the notice of suspension is issued. 4
Based on data from the National Highway Traffic Safety Administration (NHTSA), the average
nationwide refusal rate for breath alcohol concentration tests was 24 percent in 2011. 5 In Florida, the
average breath test refusal rate was approximately 35 percent for the past five years. 6
DUI UNIFORM
YEAR TOTAL REFUSALS REFUSAL RATE
TRAFFIC CITATIONS
2018 15,093 43,715 34.53%
2019 15,506 44,890 34.54%
2020 12,294 37,310 34.64%
2021 15,182 43,787 34.67%
2022 15,199 42,947 35.39%
Criminal Penalty for Second or Subsequent Refusal
A person who refuses to submit to a lawful breath test and whose driver license has previously been
suspended for failure to submit to a lawful test of his or her breath, urine, or blood, commits a first-
degree misdemeanor punishable by up to one-year imprisonment in a county jail and a $1,000 fine.7, 8
Under s. 316.1939, F.S., before a person can be convicted of a first-degree misdemeanor for a second
or subsequent refusal to submit to lawful testing, the state must prove that the person was notified of
the following:
1 S. 316.1932(1)(a)1.a., F.S.
2 S. 322.28, F.S.
3
S. 322.2615(1)(a), F.S.
4
S. 322.2615(1)(b)2., F.S.
5 National Highway Traffic Safety Administration, Traffic Safety Facts Research Note,
https://www.nhtsa.gov/sites/nhtsa.gov/ files/breath_test_refus al_rates -811881.pdf (last visited Feb. 22, 2024).
6 House Judiciary Committee, Analysis of CS/CS/HB 197, p. 2 (Apr. 20, 2023); Florida Department of Highway Safety and Motor
Vehicles, Agency Analysis of 2024 House Bill 39, p. 3 (Oct. 5, 2023).
7 Ss. 316.1932(1)(a)1.a. and 316.1939(1), F.S. Penalties for a second or subsequent refusal also apply to a person who was previously
fined under s. 321.35215, F.S., for refusal to submit to a blood, breath, or urine test after being lawfully arrested for an alleged violation
of boating under the influence. S. 327.35215, F.S.
8 Ss. 775.082 and 775.083, F.S.
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If he or she refuses to submit to a breath test requested by a law enforcement officer incident to
a lawful arrest his or her driving privilege will be suspended for one year for a first refusal and
18 months for a second or subsequent refusal; and
If his or her driver license has previously been suspended for failure to submit to a lawful test of
his or her breath, urine, or blood, he or she commits a first-degree misdemeanor punishable by
up to one-year imprisonment in a county jail and a $1,000 fine. 9
Ignition Interlock Devices (IID)
An IID is an in-car breathalyzer that prevents a vehicle’s ignition from starting if the driver blows above
a 0.025 blood alcohol content (BAC) reading.10 Sections 316.193 and 322.2715, F.S., require a court to
order installation of an IID following a conviction of DUI in the following manner:11
DUI CONVICTION REQUIRED COURT-ORDERED IIDs
Discretionary placement for at least six
First conviction
continuous months
First conviction if BAC is ≥ 0.15, or accompanied Mandatory placement for at least six continuous
by minor months
Mandatory placement for at least one continuous
Second conviction
year
Second conviction if BAC is ≥ 0.15, or Mandatory placement for at least two continuous
accompanied by minor years
Mandatory placement for at least two continuous
Third conviction
years
Fourth or subsequent conviction Mandatory placement for at least five years
Placement of an IID must be at the sole expense of the driver on all vehicles that he or she individually
or jointly leases or owns and routinely operates, and the IID may be installed when he or she qualifies
for a permanent or restricted driver license.12 A driver whose license has been suspended or revoked
for a period of less than three years, must provide proof of compliance with the court’s order to install
an IID before his or her driving privilege may be reinstated, even in a limited capacity. 13 Furthermore, if
a driver claims inability to pay, a court may consider the driver’s ability to pay for IID installation and
may order that a portion of any fine paid as part of the judgment for his or her DUI conviction may be
allocated to defray the costs of installation.14
If a person is required to operate a motor vehicle in the course and scope of his or her employment and
the vehicle is owned or leased by his or her employer, the person may operate that vehicle without
installation of an IID if the employer has been notified of such driving privilege restriction and maintains
proof of notification in the vehicle.15
Additionally, a medical waiver may be granted for individuals having a documented medical condition
that would prohibit the IID from functioning normally. If a medical waiver is granted, a driver is not
entitled to a restricted license until the required IID placement period expires. If the driver is seeking
permanent reinstatement of his or her license, he or she must be restricted to an employment purposes
only license and be supervised by a licensed DUI program until the required IID placement period
expires.16
9 Supra note 7.
10 S. 316.1937(1), F.S.; FLHSMV, Ignition Interlock Device (IID) Frequently Asked Questions, https://www.flhsmv.gov/driver-licenses-id-
cards/education-courses/dui-and-iid/ignition-interlock-device-iid-faqs/ (last visited Feb. 22, 2024).
11 Ss. 316.193 and 322.2715, F.S.
12 S. 316.193, F.S.
13 Ss. 316.1937(4) and 322.2715(1), F.S.
14 S. 316.1937(1)(d), F.S.
15 S. 316.1937(7), F.S. This exemption does not apply if the business entity which owns or leases the vehicle is controlle d by the person
whose driving privilege has been restricted.
16 S. 322.2715(1), F.S.
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According to a study by the NHTSA, 27 states require a person to participate in an IID program
following a refusal to submit to testing. The requirements of the programs vary by state. 17
Florida law does not currently require placement of an IID when an administrative sanction or
suspension is imposed upon a person’s driving privilege as a result of a first refusal to submit to a
lawful breath test.
IID Certification and Vendor Contracts
Section 319.1938, F.S., requires DHSMV to certify the accuracy and precision of the testing component
of IIDs and publish a list of approved devices along with rules governing the accuracy and precision of
the testing component of IIDs.18 An IID model may not be certified unless it meets or exceeds current
NHTSA standards.19 NHTSA requires all IIDs to be designed to capture a variety of date and time-
stamped data, in addition to offender data, vehicle information, mileage, and service visit dates. An IID
must be able to record and transmit data including:
The results of all breath tests;
Failure to submit to a breath test;
Vehicle lockouts or early recalls;
Each time the vehicle’s ignition is turned on or off;
Attempts to tamper with or circumvent the device;
Failure to turn the vehicle off after a failed rolling retest;
The date, time, and length of time the vehicle was driven;
Mileage driven; and
The date of each service call.
The NHTSA standards require IIDs to pass a series of conformance tests, as well as be tamper-proof
and not interfere with normal functioning of the vehicle.20
DHSMV must contract with any service provider whose devices have been certified and who has made
a request to become a service provider in the state.21 The contract must include, among other things, a
requirement for the provider to electronically transmit reports to DHSMV regarding driver activity,
bypass approval, compliance, client violations, and other reports, and a requirement for the provider to
maintain a readily accessible service center in each judicial circuit. 22 Currently, DHSMV contracts with
nine different service providers in the state.23
Effect of the Bill
The bill requires that a person who refuses for the first time to submit to a lawful breath test must install
an IID, at his or her expense, on all vehicles he or she individually or jointly leases or owns and
routinely operates for a period of one continuous year starting at the time when he or she qualifies for
reinstatement of a permanent or restricted driver license. Proof of installation of the IID must be sent to
DHSMV, and verification of the operation of the device in the person's vehicle must be periodically
reported to DHSMV.
17 Hannah Barrett, Robyn D. Robertson, and G. M. Ward Vanlaar, State of the Practice of State Alcohol Ignition Interlock Programs, p.
10 (January 2023), https://rosap.ntl.bts.gov/view/dot/66102 (last visited Feb. 22, 2024).
18 S. 316.1938(1), F.S. Manufacturers of IIDs are required to pay any costs of certification.
19 S. 316.1938(2), F.S.
20 Alcolock, Are Ignition Interlock Devices Held to Any Quality Standards?, https://alcolockusa.com/faq/are-ignition-interlock-devices-
held-to-any-quality-
standards/#:~:text=The%20NHTSA%20standards%20say%20the%20IID%20should%20pass,must%20be%20able%20to%20record%2
0and%20transmit%20includes%3A (last visited Feb. 22, 2024); NHTSA, Model Specifications for Breath Alcohol Ignition Interlock
Devices (BAIIDs) (May 8, 2013), https://www.govinfo.gov/content/pkg/FR-2013-05-08/pdf/ 2013-10940.pdf (last visited Feb. 22,
2024); NHTSA, Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDs) (March 30, 2015),
https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/baiid-model-specs_2015-07161.pdf (last visited Feb. 22, 2024).
21 S. 316.1938(3), F.S.
22 S. 316.1938(4)(c) and (j), F.S.
23 FLHSMV, Ignition Interlock Program, https://www.flhsmv.gov/driver-licenses-id-cards/education-courses/dui-and-iid/ignition-interlock-
program/ (last visited Feb. 22, 2024).
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The IID must be approved by DHSMV in the same manner as devices approved by DHSMV in
accordance with s. 316.1938, F.S. The requirement for a person to install an IID under the bill is in
addition to the current requirement for his or her driving privilege to be suspended for a specified time
period. The IID placement period required by the bill for a first refusal of a breath test may run
concurrently with any othe