         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


WILLIAM WILLIAMS,

              Appellant,

 v.                                                    Case No. 5D14-3543

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed February 17, 2017

Appeal from the County Court
for Volusia County,
Belle B. Schumann, Judge.

Eric A. Latinsky and Aaron D. Delgado, of
Damore, Delgado & Romanik, Daytona
Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.

COHEN, C.J.

               ON REMAND FROM THE FLORIDA SUPREME COURT

                                  Factual Background

      William Williams was arrested for driving under the influence, and was

subsequently asked to undergo a breath-alcohol test to determine his blood-alcohol

content, which he refused to do. Williams was then issued five uniform traffic citations,
including a citation for refusal to submit in violation of section 316.1939, Florida Statutes

(2013). That section provides that any person who has previously had his or her license

suspended for refusing to submit to a lawful breath, urine, or blood test, and who refuses

to submit a second time when there is probable cause to suspect the driver is under the

influence, is guilty of a misdemeanor. § 316.1939, Fla. Stat. (2013).

       Williams filed a motion to dismiss the refusal to submit charge, arguing that the

statute is unconstitutional as applied to him. For purposes of the motion, the parties

stipulated that: (1) the police had probable cause to ask Williams to submit to a breath

test; (2) the initial stop of Williams’s vehicle was lawful; (3) Williams refused to take the

breath test; (4) Williams’s driving record reflected a prior refusal to submit to a breath test;

and (5) the motion to dismiss was dispositive as to the refusal to submit charge. The

county court denied the motion to dismiss and certified the following question as one of

great public importance:

              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?[ 1]




       1 Although the certified question tracks the statutory language by including blood
and urine tests as well as breath tests, Williams challenges the statute solely as applied
to his refusal to submit charge. It is undisputed that Williams was only asked to undergo
a breath test, so we need not address the legality of blood and urine tests. We note,
however, that the United States Supreme Court’s decision in Birchfield makes clear that
blood and urine tests raise more substantial privacy concerns and are not subject to the
search-incident-to-arrest exception to the Fourth Amendment’s general warrant
requirement. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016).
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       The court then accepted Williams’s no-contest plea, which specifically reserved

the right to appeal the denial of the motion to dismiss. Williams was sentenced to time

served.


                                    Procedural History

       In Williams v. State, 167 So. 3d 483 (Fla. 5th DCA 2015), this Court answered the

certified question in the affirmative and held that breath-alcohol tests are generally

reasonable. Williams sought review in the Florida Supreme Court, which accepted

jurisdiction. Williams v. State, 2015 WL 9594290 (Fla. Dec. 30, 2015). While this case

was pending, the United States Supreme Court issued its decision in Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016), holding, among other things, that breath-alcohol tests

administered without a warrant are permissible as searches incident to a lawful arrest for

driving under the influence. The Florida Supreme Court then vacated our decision in

Williams and remanded the case to this Court for reconsideration in light of Birchfield.

Williams v. State, 2016 WL 6637817 (Fla. Nov. 9, 2016). We allowed supplemental

briefing and again affirm Williams’s conviction.


                                        Discussion

       Birchfield has made our task significantly easier. Under the Florida Constitution,

our Fourth Amendment jurisprudence is governed by decisions of the United States

Supreme Court. Art. I, § 12, Fla. Const. Thus, we adopt the holding in Birchfield that

breath-alcohol tests are permissible under the search-incident-to-arrest exception to the

Fourth Amendment’s warrant requirement. We once again answer the certified question




                                             3
in the affirmative as applied to Williams and affirm his conviction. See Birchfield, 136 S.

Ct. at 2184–85. 2

       AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.




       2 In his supplemental brief, Williams requests this Court to remand his case so that
he can withdraw his plea. We decline to provide this relief. Williams knowingly entered
into his plea agreement to challenge his conviction on constitutional grounds. Absent
further review in the Florida Supreme Court, that challenge has now run its course.
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