This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0197.CRJ
DATE: 3/3/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 197 Penalties for Refusal to Submit to Breath-alcohol Test
SPONSOR(S): Koster and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee Leshko Hall
2) Infrastructure & Tourism Appropriations
Subcommittee
3) Judiciary Committee
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. Section 316.1939, F.S., requires a law enforcement officer to notify a driver of specified
potential penalties before he or she can be found to have committed a crime for a second or subsequent
refusal to submit to a lawful breath test.
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 license.
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 DHSMV in accordance with s. 316.1938, F.S., at his or her expense, in all vehicles he or
she individually or jointly leases or owns and routinely operates for a period of one year for a first refusal or 18
months for a second or subsequent refusal.
The requirement for a person to install an IID under the bill is in addition to the current requirement that his or
her driving privilege be suspended for a specified time period. The bill amends s. 316.1939, F.S., to require a
person to be informed about the requirement to install an IID for a specified time period if he or she refuses to
submit to a lawful breath test. This information must be provided to the driver before he or she can be found to
have committed a first-degree misdemeanor for a second or subsequent refusal to submit to testing.
The bill may increase state government revenue as the vendor or authorized installer of an IID must collect and
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
cost of installation and leasing and monitoring, which varies by vendor, but can range from $70 to $170 for
installation and $50 to $120 per month for device leasing and monitoring.
The bill provides an effective date of July 1, 2023.
FULL ANALYSIS STORAGE NAME: h0197.CRJ PAGE: 2
DATE: 3/3/2023
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 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, 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
DHSMV, in Florida, the average breath test refusal rate was 35 percent for the past five years.
6
YEAR TOTAL REFUSALS
DUI UNIFORM
TRAFFIC CITATIONS
REFUSAL RATE
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
A person that 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 punishable by up to one-year imprisonment in a county jail and a $1,000 fine.
7
Under s. 316.1939, F.S., before a person can be found to have committed a first-degree misdemeanor
for a second or subsequent refusal to submit to lawful testing he or she must be 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, 1.4 BAC Test Refusal Penalties,
https://www.nhtsa.gov/book/countermeasures/deterrence/14-bac-test-refusal-penalties (last visited Feb. 28, 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).
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. STORAGE NAME: h0197.CRJ PAGE: 3
DATE: 3/3/2023
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 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.
8
Restricted Driving Privilege
A driver may request a review of his or her eligibility for a restricted driving privilege (hardship license)
through the Department of Highway Safety and Motor Vehicles’ (DHSMV) 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.
9
DHSMV must
afford the driver a hearing within 30 days after receiving such request.
10
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.
11
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.
12
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 s.
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.
13
A hardship license may be issued for “business purposes only” or for “employment purposes only.”
14
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.”
15
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.
16
Ignition Interlock Devices (IID)
8
Id.
9
Ss. 322.2615(1)(b)3., (10), and 322.271, F.S.
10
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.
11
S. 322.271(2)(a), F.S.
12
S. 322.271(2), F.S.
13
S. 322.271(2)(a), F.S.
14
S. 322.271(1)(c), F.S.
15
S. 322.271(1)(c)1.-2., F.S.
16
S. 322.271(2)(e), F.S. STORAGE NAME: h0197.CRJ PAGE: 4
DATE: 3/3/2023
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.
17
Sections 316.193 and 322.2715, F.S., require
installation of an IID following a conviction of DUI in the following manner:
18
DUI CONVICTION IID REQUIRED
First conviction
Discretionary placement for at least six
continuous months
First conviction if BAC is ≥ 0.15, or accompanied
by minor
Mandatory placement for at least six continuous
months
Second conviction
Mandatory placement for at least one continuous
year
Second conviction if BAC is ≥ 0.15, or
accompanied by minor
Mandatory placement for at least two continuous
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 license.
19
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.
20
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.
21
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 the 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.
22
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.
23
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.
24
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
17
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. 28, 2023).
18
Ss. 316.193 and 322.2715, F.S.
19
S. 316.193, F.S.
20
S. 316.1937(4), F.S.
21
S. 316.1937(1)(d), F.S.
22
S. 316.1937(7), F.S. This exemption does not apply if the business entity which owns or leases the vehicle is controlled by the person
whose driving privilege has been restricted.
23
S. 322.2715(1), F.S.
24
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. 28, 2023). STORAGE NAME: h0197.CRJ PAGE: 5
DATE: 3/3/2023
the test component of IIDs.
25
An IID model may not be certified unless it meets or exceeds current
NHTSA standards.
26
NHTSA requires all IIDs 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.
27
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.
28
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.
29
Currently, DHSMV contracts with
seven different service providers in the state.
30
Effect of Proposed Changes
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 DHSMV in accordance with s. 316.1938, F.S., at the his or her expense, in
all vehicles he or she individually or jointly leases or owns and routinely operates, for a period of:
One year for a first refusal; or
18 months for a second or subsequent refusal.
The requirement for a person to install an IID under the bill is in addition to the current requirement that
his or her driving privilege be suspended for a specified time period.
The bill amends s. 316.1939, F.S., to require that a person be informed about the requirement to install
an IID if he or she refuses to submit to a lawful breath test. This information must be provided to the
driver before he or she can be found to have committed a first-degree misdemeanor for a second or
subsequent refusal to submit to testing.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
25
S. 316.1938(1), F.S. Manufacturers of IIDs are required to pay any costs of certification.
26
S. 316.1938(2), F.S.
27
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%20 pass,must%20be%20able%20to%20record%2
0and%20transmit%20includes%3A (last visited March 1, 2023); NHTSA, Model Specifications for Breath Alcohol Ignition Interlock
Devices (BAIIDs) (May 8, 2013), https://www.federalregister.gov/documents/2013/05/08/2013-10940/model-specifications-for-breath-
alcohol-ignition-interlock-devices-baiids (last visited March 1, 2023); 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 March 1, 2023).
28
S. 316.1938(3), F.S.
29
S. 316.1938(4)(c) and (j), F.S.
30
FLHSMV, Ignition Interlock Program, https://www.flhsmv.gov/driver-licenses-id-cards/education-courses/dui-and-iid/ignition-interlock-
program/ (last visited Feb. 28, 2023). STORAGE NAME: h0197.CRJ PAGE: 6
DATE: 3/3/2023
Section 1: Amends s. 316.1932, F.S., relating to tests for alcohol, chemical substances, or controlled
substances; implied consent; refusal.
Section 2: Amends s. 316.1939, F.S., relating to refusal to submit to testing; penalties.
Section 3: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may increase state government revenue as the vendor or authorized installer of an IID must
collect and 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.
31
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Individuals required to install an IID are responsible for the costs of installation and leasing and
monitoring, which varies by vendor, but can range from $70 to $170 for installation and $50 to $120 per
month for device leasing and monitoring.
32
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
31
S. 322.2715(5), F.S.
32
LifeSafer Ignition Interlock, Ignition Interlock Costs, https://www.lifesafer.com/ignition-interlock-cost/ (last visited Feb. 28, 2023). STORAGE NAME: h0197.CRJ PAGE: 7
DATE: 3/3/2023
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES