HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 197 Refusal to Submit to a Breath, Urine, or Blood Test
SPONSOR(S): Judiciary Committee, Criminal Justice Subcommittee, Koster and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 296
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Judiciary Committee 16 Y, 3 N, As CS Leshko Kramer
SUMMARY ANALYSIS
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,
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. Under s. 316.1939, F.S., 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. Sections 319.193 and 322.2715, F.S., require installation
of an IID following certain DUI convictions for varying time periods depending on whether the driver has any prior
DUI conviction, 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.
CS/CS/HB 197 amends s. 316.1932, F.S., to require a person who refuses to submit to a lawful breath test to install
an IID, approved by the Department of Highway Safety and Motor Vehicles (DHSMV) in accordance with section
316.1938, F.S., at his or her expense, in all vehicles he or she individually or jointly leases or owns and routinely
operates, when he or she qualifies for reinstatement of a permanent or restricted driver license, for one continuous
year for a first refusal or 18 continuous months for a second or subsequent refusal.
The bill amends s. 316.1939, F.S., to add placement of an IID as a penalty for refusal to submit to a lawful breath
test. Additionally, 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 refusal, about the
requirement to install an IID for a specified time period if he or she refused to submit to a lawful breath test.
The bill amends s. 322.2615, F.S., to reduce the time period a person must wait before becoming eligible to apply
for a hardship license from 90 to 30 days. The bill amends ss. 322.2615 and 322.2616, F.S., to require certain
information to be contained in a notice of suspension and to waive the IID requirement for a person who refused to
submit to a lawful breath test if his or her driver license suspension is invalidated. The bill also amends section
322.2715, F.S., to direct DHSMV to require placement of a department -approved IID before issuing a permanent or
restricted driver license to any person who refused to submit to a lawful breath test as required under section
316.1932, F.S.
The bill may increase state government revenue as the vendor or authorized installer of an IID must collect an d
remit $12 for each installation to DHSMV to be deposited into the Highway Safety Operating Trust Fund to be used
for the operation of the IID program. Additionally, individuals required to install an IID are responsible for the costs of
installation, leasing, and monitoring, which vary by vendor.
The bill provides an effective date of October 1, 2023.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0197d.JDC
DATE: 4/20/2023
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 section 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, 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 a 2020 National Highway Traffic Safety Administration (NHTSA) report, an average of 24
percent of drivers refuse to submit to lawful breath or blood alcohol tests nationwide. 5 According to the
Department of Highway Safety and Motor Vehicles (DHSMV), in Florida, the average breath test refusal
rate was 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%
*2022 data is preliminary as of Feb. 2023.
Criminal Penalty for Second or Subsequent Refusal
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, 1.4 BAC Test Refusal Penalties,
https://www.nhtsa.gov/book/countermeasures/deterrence/14-bac-test-refusal-penalties (last visited Apr. 19, 2023).
6 Email from Jennifer Langston, Chief of Staff, DHSMV, FW: SB 296 – Breath Test Refusal Rate (Feb. 6, 2023)(on file with the Criminal
Justice Subcommittee).
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A person that 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 section 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 he or she was
notified of the following:
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
Restricted Driving Privilege
A driver, who refused to submit to a lawful test, may request a review of his or her eligibility for a
restricted driving privilege (hardship license) through the DHSMV’s Bureau of Administrative Review 90
days after the expiration of his or her 10-day temporary permit, or if no temporary permit is issued, 90
days after the commencement of his or her driving privilege suspension. 10 DHSMV must afford the
driver a hearing within 30 days after receiving such request. 11 However, a driver whose license has
been suspended two or more times for refusal to submit to a lawful test or who has been convicted of
DUI two or more times is ineligible for the issuance of a hardship license. 12
A person applying for a hardship license may show that the suspension causes a serious hardship and
precludes the person from carrying out his or her normal business occupation, trade, or employment
and that the use of his or her license in the normal course of his or her business is necessary to
support the person or his or her family.13 Additionally, DHSMV requires a person applying for a
hardship license, who has had his or her license suspended for refusal to submit to testing under
section 322.2615, F.S., to provide proof of enrollment in the applicable department-approved driver
training course or licensed DUI program substance abuse education course, including evaluation and
treatment, if referred, and may require letters of recommendation from respected business persons, law
enforcement officers, or judicial officers to determine if the person’s driving privilege should be
reinstated on a restricted basis.14
A hardship license may be issued for “business purposes only” or for “employment purposes only.” 15 A
business purposes only license is limited to “any driving necessary to maintain livelihood, including
driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for
church and for medical purposes.” An employment purposes only license is limited to “driving to and
from work and any necessary on-the-job driving required by an employer or occupation.” 16
After reviewing the licensee’s application for reinstatement, DHSMV may require the use of an ignition
interlock device as a requirement to obtain a hardship license. 17
Ignition Interlock Devices (IID)
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 lawful ly arrested for an alleged violation
of boating under the influence. S. 327.35215, F.S.
8 Ss. 775.082 and 775.083, F.S.
9 Supra note 7.
10 Ss. 322.2615(1)(b)3., (10), and 322.271, F.S.
11 S. 322.271(1)(a), F.S.; The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege
does not affect a criminal action and vice versa. S. 316.1939(2 -3), F.S.
12 S. 322.271(2)(a), F.S.
13 S. 322.271(2), F.S.
14 S. 322.271(2)(a), F.S.
15 S. 322.271(1)(c), F.S.
16 S. 322.271(1)(c)1.-2., F.S.
17 S. 322.271(2)(e), F.S.
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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.18 Sections 316.193 and 322.2715, F.S., require
installation of an IID following a conviction of DUI in the following manner:19
DUI CONVICTION IID REQUIRED
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
Third conviction Mandatory placement for at least two years
Fourth or subsequent conviction Mandatory placement for at least five years
Placement of an IID shall 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.20 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.21 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.22
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.23
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.24
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.25
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.26 An IID model may not be certified unless it meets or exceeds current
18 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 Apr. 19, 2023).
19 Ss. 316.193 and 322.2715, F.S.
20 S. 316.193, F.S.
21 Ss. 316.1937(4) and 322.2715(1), F.S.
22 S. 316.1937(1)(d), F.S.
23 S. 316.1937(7), F.S. This exemption does not apply if the business entity which owns or leases the vehicle is controlled by t he person
whose driving privilege has been restricted.
24 S. 322.2715(1), F.S.
25 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 Apr. 19, 2023).
26 S. 316.1938(1), F.S. Manufacturers of IIDs are required to pay any costs of certification.
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NHTSA standards.27 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.