It is not often that there is big news in the world of DUI Defense, however, earlier this month a case was decided that changes how DUI Breath cases will be handled in the 6th DCA.  Further, the case has persuasive value in other areas of the State.  The newly formed 6th DCA has jurisdiction in the following Florida counties: Orange, Osceola, Hardee, Highlands, Polk, Charlotte, Collier, Glades, Hendry and Lee.


Breath Test Machines are Generally Located at the County Jail! man taking a breathalyzer test at a traffic stop

When a municipal police officers investigates a DUI in their jurisdiction, they typically conduct the entire investigation at the side of the road where they question the driver and often have them perform field sobriety exercises.  However, most municipal police officers then take the drive to a breath test facility located within the County of arrest, but outside of their municipal jurisdiction.  Previously, other District Courts of Appeal have allowed this extra-jurisdictional assertion of authority because the investigation began in the officer’s jurisdiction.  

The Sixth District Court of Appeals Blazes its own Trail!

In State v. Repple, Case No. 6D23-1448 decided on June 14, 2024, the Sixth DCA wrote, “we disagree with both the premise of the State’s argument and the reasoning of our sister courts that have recognized such extraterritorial police power, not authorized by the Legislature.”

In discussing what occurred, the 6th DCA wrote, “Officer Banos asserted his official power as a police officer when he requested the breath test and gave Defendant the implied consent warning in accordance with section 316.1932. See § 316.1932(1)(a)1.a., Fla. Stat. (“The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” (emphasis added)). What is left to be determined, is whether Officer Banos had the authority to do so outside of his jurisdiction. To determine whether Officer Banos possessed authority, we must answer two fundamental questions not often addressed in our state’s jurisprudence: From where does a municipality’s power to police come and what is the scope and limit of that power? The answer lies in our state’s constitution.”

Police Officers Cannot Request a Breath Test Outside Their Jurisdiction!

In coming to the conclusion that the City of Maitland police officers did not have extra-jurisdictional power, the Court analyzed the state constitution which give the legislature the power to create municipalities and bestow powers upon them.  The Court noted that in 1959 the Florida Legislature created the City of Maitland and bestowed the power to exercise full police powers for the preservation and enforcement of law and order within the city.”  The Court pointed out that nowhere in the special act creating the city and bestowing it with police powers id the Legislature authorize the City of Maitland the power to police outside its territorial limits.

Requests for a Breath Test Outside of Police Officer’s Jurisdiction Still Possible!

There are still two ways in which a police officer can exercise extra-jurisdictional power.  The first is if they follow a suspect “in fresh pursuit” out of their jurisdiction.  The second, which could be used to fix this issue, would require a written mutual aid agreement between the County operating the Breath Test machine and the local municipality specifically allowing the request for a breath test within the county’s jurisdiction.  This would also require the prosecutors to bring the written mutual aid agreement to court with them for every case in which a person is arrested for DUI by a municipal police agency and given a breath test elsewhere in the County.

Call our Board Certified Orange County DUI Defense Experts Today!

If you were arrested for DUI, trust the Board-Certified DUI Defense Experts at Katz & Phillips, P.A. to help you.  Give us a call today to see if this new development can help to keep your breath test results out of evidence in your case.  Our attorneys are happy to discuss the specific facts of your case and explain how we can put out experience and expertise to use in your defense.  Call today. 321-332-6864.

To learn more about our Board Certified DUI Defense Attorneys Click on their names below:

David S. Katz

James D. Phillips


509 W Colonial Dr. Orlando, FL 32804

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