Urine tests cannot be automatic when there is low BAC

Under Florida’s implied consent statute, you have given consent to submit to a breath, urine, or blood test in the state of Florida when you get your driver’s license. The police can only ask for one of these tests incident to a lawful arrest. The most common test administered is the breath test. However, when someone gives a sample under the legal limit, the police typically will ask for a urine sample.

 A request for a Urine Sample may not be legal

Under Florida statute316.1392(1)(b) a urine test must be incidental to a lawful arrest and who was in actual physical control of the motor vehicle while under the influence of chemical or controlled substances. In order for law enforcement to ask for a urine sample, there must be some indication a person is under the influence of a chemical or controlled substance. Simply blowing under the legal limit does not indicate that someone is under the influence of the chemical or controlled substance.

 There must be evidence of chemical or controlled substance use

Local courts have held merely blowing under the influence is not enough. In one particular case here in Palm Beach County, a person was arrested for DUI when the officer pulled the defendant over after driving at a high rate of speed. The officer noticed a slight odor of alcohol on the defendant and smelled a stale odor of burnt marijuana. The officer’s report only mention alcohol as a cause of impairment and did not include use of marijuana as an indicator of impairment. However, after the person blew under the legal limit urine test was requested. This defendants attorney successfully argued since there was no suspicion that the impairment was due to a chemical or controlled substance there was no reason to request the urine sample. As such, the sample was suppressed.

 What this means

What this means for you is that even though you may feel there is no defense for a breath or urine sample that put you over the legal limit, there actually may be one.

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