What happens if you submit to a breath test and your BAC is 0.00 and then the officer asks for a urine test? In these cases, your criminal defense attorney may decide to file and litigate a motion to suppress the urine test result so that it can not be considered by the jury at your trial.
Before the officer can request a breath test, the officer must have reasonable suspicion of impairment due to the consumption of alcoholic beverages. If you submit to the breath test, and the reading is 0.00, then the officer was clearly wrong about having any suspicion that you were impaired by alcohol.
What if the officer then says: “Will you now submit to a urine test?”
In these situations, it is unlikely the officer really had a reasonable suspicion that you were impaired by drugs. If the officer had suspected drug impairment only, then the officer should have just requested the urine test by itself. But the fact that the officer illegally requested a breath test, and the reading was 0.00 would not give the officer reasonable suspension that the person was under the influence of a controlled substance.
“[T]he goals of the breath and blood tests are different from the goals of urine testing. Breath and blood tests detect alcohol content, whereas urine tests detect controlled substances.” State v. Bodden, 877 So. 2d 680, 689 (Fla. 2004). Urine tests are only for DUI cases when the police officer has a reason to think the person was under the influence of chemical or controlled substances. See § 316.1932(1)(a)1.b., Florida Statutes (2011).
In-State v. Linaje, 15 Fla.Supp. 373 (Fla. Miami-Dade Cty. Ct. 2007), the court sets out a two-prong test for the officer to be able to lawfully request a urine sample:
- arrested for an offense committed while under the influence of a controlled substance to extent that normal faculties impaired; and
- had reasonable suspicion, based on specific articulable facts, to believe the defendant was under influence of controlled substance to extent normal faculties impaired).
Therefore, unless an officer has “reasonable cause” to believe a person is under the influence of a chemical substance or controlled substance, a request for that person to submit to a urine test is unlawful. See State v. Hills, 16 Fla. Supp. 175 (Fla. 1st Cir. Ct. 2008).
In-State v. Byers, 13 Fla. Supp. 635 (Fla. Broward Cty. Ct. 2006), the defendant filed a motion to suppress evidence of a urine test, and the county court granted the motion. At the motion hearing, a civilian witness testified that he observed the vehicle driving in an unsafe manner. The officers dispatched to the scene testified that they smelled an odor of alcohol on the defendant’s breath and observed a six-pack of Bacardi Silver, an empty pint of vodka, and three airline-sized vodka bottles.
In Byers, the officers believed the defendant was under the influence of alcohol. The defendant provided a breath sample, and the result was .000. Only then was a urine test requested. The court concluded that there was insufficient evidence to establish that the officers had reasonable cause to believe that the defendant was under the influence of a controlled substance.
The Byers case demonstrates that unless the officer has reasonable cause to believe that the defendant was under the influence of a chemical or controlled substance, then the urine results must be suppressed as they were taken in violation of section 316.1932(1)(a)1.b., Fla. Stat. (2013).
So if you blew a 0.00 on a breath test and then are required to submit to a urine test under section 316.1932, Florida Statutes, the officer doesn’t have the requisite reasonable cause to request a urine sample. Since the officer didn’t really suspect the driver of being under the influence of a controlled substance until after the breath test, there is little or no objective evidence to indicate that the defendant was under the influence of any chemical or controlled substance to a degree that the driver’s normal faculties were impaired.
In other words, the illegal request for a breath test that results in a reading that the BAC was 0.00, leads to a good argument that the officer also didn’t have reasonable suspicion that the person was under the influence of any chemical or controlled substance.
In these cases, the criminal defense attorney should file and litigate a Motion to Suppress the results of a Urine Test taken in violation of Florida Statute 316.1932(1)(A)1.B.