The Florida Supreme Court will hear arguments on Sept. 1 on the constitutionality of the state law that allow police to cite drivers who refuse to take a breathalizer or blood-alcohol test when suspected of drunk driving. The case, which originated in Volusia County, is drawing the attention of law enforcement and privacy advocates. Florida is one of just 13 states that make it a crime to refuse such a test.
But the Sept. 1 arguments before the Florida court may be rendered moot by a decision of the United States Supreme Court, expected by the end of June, on the same issue. The high court heard arguments in that case–Birchfield v. North Dakota–in late April. A majority of justices were skeptical about such laws. Three years ago, a majority of the court ruled that police may not draw blood from a suspect without a warrant. (A full treanscript of the arguments before the U.S. Supre,me Court is available here. Complete oral arguments can be heard here.)
“You’re asking for an extraordinary exception here,” Justice Anthony Kennedy told lawyers representing Minnesota and North Dakota, where the cases originated, and the federal government. “You’re asking for us to make it a crime to exercise what many people think of as a constitutional right.”
People arrested on suspicion of drunk driving routinely refuse the test, but are not always cited for the refusal. One such arrest in Flagler County took place over the Memorial Day weekend, when Eugene Powell, a 60-year-old resident of Palm Coast’s F Section, was charged with “operating a vessel while normal faculties impaired,” and booked at the Flagler County jail on the misdemeanor. A cop saw him operating jet ski in the waters off Bings Landing in the Hammock. He fell off the jet ski and was not able to help himself out of the water until a “good Samaritan” helped him out, according to his arrest report. Then came the cop, a Florida Fish and Wildlife Conservation Commission officer. Powell agreed to a field sobriety test, but not a breath test later. He was not cited for the refusal.
The Volusia-based case is an echo of the cases before the U.S. Supreme Court. The night of Oct. 4, 2013, William Williams was arrested in Volusia County for drunk driving and asked to submit to a breathalizer test, which he refused. The arresting officer did not have a warrant. Williams was issued five traffic citations, including one for refusal to submit to a test. (He’d refused a test in a previous arrest.) Williams filed a motion to dismiss the refusal charge, arguing that the state law that promulgates it is unconstitutional.
The Volusia County court denied his motion but posed a question that opened the way to his appeal: “If the implied[-]consent statute provides consent to search as an exception to the Fourth Amendment warrant requirement, then can that consent be withdrawn by refusal to submit to an otherwise lawful test of breath, blood or urine and can the
second such refusal be punishable as a criminal offense?” After Williams served two days in jail, he appealed.
Last June 5, a unanimous three-judge panel of the Fifth Circuit Court opf Appeal, which has jurisdiction in Flagler and Volusia counties, upheld the state law. “In sum,” the court ruled, “balancing Williams’ diminished expectation of privacy and the minimal invasiveness of the search against the State’s legitimate interest in curbing driving under the influence leads us to conclude that a post-arrest warrantless breath-alcohol test would have been permissible under the Fourth Amendment.” (See the decision below.)
As an indication of the interest in the issue, the News Service of Florida reports, the Supreme Court has approved requests by the Florida Police Chiefs Association, the Florida Prosecuting Attorneys Association and the National College for DUI Defense to file friend-of-the-court briefs, according to an online docket.