Implied Consent Implies Implied Extraterritorial Authority for the Arresting Municipal Officer to Request a Breath Test

I. Introduction

State of Florida v. Bryan Allen Repple (Fla. Dec. 30, 2025) resolves a recurring practical problem in DUI enforcement: after a lawful DUI arrest inside a city, an arresting municipal officer often must transport the arrestee to a breath-testing facility located outside municipal boundaries. The question was whether, once outside the city limits, the municipal officer lacks legal authority to perform the implied-consent “request” (including reading the statutory warning) such that the resulting breath-test evidence must be suppressed.

The case arose after a Maitland officer arrested Bryan Allen Repple for DUI in Maitland, transported him to an Orange County breath-test facility outside Maitland, read the implied-consent warning, and obtained a breath test showing an unlawful alcohol level. The trial court suppressed the breath-test results; the Sixth District affirmed in State v. Repple, No. 6D23-1448, 2024 WL 2983786 (Fla. 6th DCA June 14, 2024), expressly certifying conflict with the Fifth District’s contrary decision in State v. Torres, 350 So. 3d 421 (Fla. 5th DCA 2022).

The Florida Supreme Court accepted jurisdiction based on certified conflict (art. V, § 3(b)(4), Fla. Const.) and issued a majority opinion by Justice Canady, joined by a concurrence-in-result-only (Justice Grosshans) and a dissent (Justice Sasso).

II. Summary of the Opinion

The Court held that a municipal officer who makes a lawful DUI arrest within the municipality has authority under Florida’s implied consent law to request a breath test even when the request is made outside the municipality. The Court reasoned that this extraterritorial authority is authorized by “clear and necessary implication” from the implied consent statute’s design: the breath test “must be incidental to a lawful arrest” and is administered “at the request of a law enforcement officer” with reasonable cause. Because the statute contemplates a two-step process (lawful DUI arrest followed by the arresting officer’s request for a test), the authority to complete that process is implied even if completion occurs beyond municipal boundaries.

Accordingly, the Court quashed the Sixth District’s decision in Repple and approved the result in Torres. Importantly, the Court did not adopt (or reject) a broad “continuing investigation exception” to territorial limits; it confined its holding to the implied-consent statutory context.

III. Analysis

A. Precedents Cited

1. “Under color of office” and territorial limits: Phoenix v. State (Phoenix II) and State v. Phoenix (Phoenix I)

The central doctrinal backdrop is the “under color of office” principle, discussed in Phoenix v. State (Phoenix II), 455 So. 2d 1024 (Fla. 1984), which itself addressed extraterritorial arrests in the context of “citizen’s arrest” theory and the limits on officers acting outside their jurisdiction. The opinion recounts Phoenix II as endorsing a common-sense balance: outside their jurisdiction, officers are not less capable than citizens of making certain arrests, but they also should not have greater powers than private citizens absent legal authorization.

Critically for this case, the Court quotes Phoenix II for the majority view that the “under color of office” doctrine prevents officers from using official powers to observe unlawful activity or gain access to evidence not available to private citizens; it does not automatically invalidate conduct merely because the officer identifies as police when making a citizen’s arrest. The Court also references the Fourth District’s decision State v. Phoenix (Phoenix I), 428 So. 2d 262 (Fla. 4th DCA 1982), which described the surveillance and arrest circumstances and whose reasoning the Supreme Court largely approved.

The Court also includes a footnote citing Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA 1985) for the broader point that citizen’s arrest authority can extend to non-felony breach-of-the-peace offenses—reinforcing that extraterritorial authority questions often intersect with citizen’s-arrest principles.

In Repple, the Sixth District had relied on Phoenix II to conclude the officer’s breath-test request outside Maitland was an unauthorized assertion of official authority to obtain evidence unavailable to a private citizen. The Supreme Court distinguishes the present situation not by narrowing Phoenix II, but by finding legislative authorization (by implication) in the implied consent statute—thereby removing the “under color of office” premise.

2. The conflict case: State v. Torres and the rejected framing of a broad “continuing investigation exception”

The Fifth District in State v. Torres, 350 So. 3d 421 (Fla. 5th DCA 2022) upheld breath-test evidence obtained outside municipal limits by applying what it described as an “ongoing investigation exception to the color of office doctrine” when the investigation originated within the city. The Sixth District in Repple criticized this as an unauthorized judicial creation of extraterritorial police power, suggesting a “stand-alone, continuing investigation exception may have inadvertently slid into Florida’s jurisprudence.”

The Supreme Court resolves the conflict without endorsing that broad exception. Instead, it approves the result in Torres on narrower statutory grounds: implied authority under the implied consent law itself.

3. Implied powers / predicate-act canon: the interpretive line of authority

The majority’s decisive move is statutory interpretation through implied powers, anchored in the principle that “whenever a power is given by a statute, everything necessary to making it effectual or requisite to attaining the end is implied.” The Court supports this with a line of Florida cases:

• Mitchell v. Maxwell, 2 Fla. 594 (1849) (early Florida recognition that necessary implementing powers are implied).
• Cassady v. Sholtz, for Use & Benefit of Edwards, 169 So. 487 (Fla. 1936) (statutory implications are as effective as express provisions).
• Coca-Cola Co., Food Div., Polk Cnty. v. State, Dep't of Citrus, 406 So. 2d 1079 (Fla. 1981), quoting City Gas Co. v. Peoples Gas Sys., Inc., 182 So. 2d 429 (Fla. 1965) (agencies have express powers and those given by clear and necessary implication).
• Deltona Corp. v. Fla. Pub. Serv. Comm'n, 220 So. 2d 905 (Fla. 1969) (express grant carries by implication what is necessary to make it effectual).
• Brock v. Bd. of Cnty. Comm'rs of Collier Cnty., 21 So. 3d 844 (Fla. 2d DCA 2009) (implied authority to investigate and recover withheld public funds).
• State ex rel. R.R. Comm'rs v. Louisville & N.R. Co., 49 So. 39 (Fla. 1909) (implied authority must arise by “fair implication,” incident to express authority).

The Court also cites Scalia & Garner’s Reading Law for the implied-powers principle and the caution against overuse (“lest the tail ... wag the dog”).

4. Remedy and suppression: concurrence and dissent authorities

Although the majority resolves the case on authority (not remedy), the separate opinions highlight a significant remedial debate:

• Justice Grosshans’s concurrence-in-result-only relies on Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) and Jenkins v. State, 978 So. 2d 116 (Fla. 2008) to argue suppression is generally inappropriate when the violated rule does not protect criminal-defendant interests or when the statute contains no textual basis for exclusion.
• Justice Sasso’s dissent cites interpretive standards for implied powers (again invoking Scalia & Garner and Singer & Singer), analogizes to implied rights discussion in Luis v. United States, 578 U.S. 5 (2016) (Thomas, J., concurring in the judgment), and stresses appellate burden principles with Bolick v. Sperry, 82 So. 2d 374 (Fla. 1955). The dissent also references municipal extraterritorial limitations through § 166.021, Fla. Stat. (2020), and Op. Att'y Gen. Fla. 82-01 (1982).

B. Legal Reasoning

1. The constitutional baseline: municipalities need legislative authorization to act extraterritorially

The Court begins from the shared premise that municipal extraterritorial power must be “as provided by general or special law” (art. VIII, § 2(c), Fla. Const.). It notes familiar express legislative pathways: fresh pursuit under § 901.25, Fla. Stat. (2020), and interagency cooperation under the Florida Mutual Aid Act, § 23.1225, Fla. Stat. (2020). The Sixth District’s emphasis was that no such express authorization (or proved mutual-aid agreement) applied here.

2. The majority’s pivot: implied authority within the implied consent statute’s two-step design

The majority accepts that no provision “specifically grants” extraterritorial authority to make the implied-consent request. But it holds the absence of express text does not end the analysis because Florida law recognizes implied powers when necessary to make an express statutory design workable and effective.

The Court reads § 316.1932(1)(a)1.a., Fla. Stat. (2020), as creating a structured process:

1. A lawful DUI arrest for conduct committed while driving or in actual physical control while under the influence; and
2. A breath test that “must be incidental to a lawful arrest” and “administered at the request of a law enforcement officer” with reasonable cause.

From this, the Court infers a legislative expectation that the arresting officer ordinarily completes the statutory process by requesting the test—an expectation that would be undermined if municipal boundaries automatically extinguished the officer’s ability to perform the statutory request. The Court emphasizes practical necessity: using an available testing facility outside the officer’s jurisdiction may be required “to make effectual the legislative design in the orderly implementation of the implied consent law.”

3. Why this avoids (rather than expands) “under color of office” doctrine

The Sixth District treated the officer’s request as “under color of office” because it purportedly used official authority outside jurisdiction to obtain evidence a private citizen could not obtain. The Supreme Court responds: once the implied consent statute is read to imply authority to complete the request step extraterritorially, the officer is no longer acting without legal basis. Therefore, the “under color of office” problem dissolves.

4. Deliberate narrowness: no general “continuing investigation exception”

The Court expressly declines to address the broader “continuing investigation exception” discussed below. This is important: the holding is tethered to the particular statutory scheme of implied consent and does not purport to authorize municipal extraterritorial policing generally whenever an investigation began inside the municipality.

5. The fault line in the separate opinions

Two alternative approaches emerge:

• Concurrence (remedy-centered): Even if the conduct were unauthorized, suppression should not follow because the territorial rule protects governmental autonomy, not defendant rights, and neither the constitution nor statutes provide an exclusionary remedy for such a violation.
• Dissent (authority-centered but stricter): Implied powers require a genuine gap and “practical indispensability”; the need to travel is driven by a municipality’s lack of facilities, not by the statute’s grant, and a breath test is not essential to prosecute DUI. Therefore, no implied extraterritorial authority should be inferred. The dissent also would not reach the suppression-remedy argument due to preservation concerns.

C. Impact

1. DUI enforcement and evidence admissibility

The decision substantially reduces suppression risk for breath-test results when municipal officers must use county or regional testing centers outside city limits. It aligns legal authority with commonplace operational realities (centralized breath-test facilities serving multiple jurisdictions).

2. Doctrinal clarification: implied statutory authority as a source of extraterritorial power

The Court’s core contribution is methodological: it confirms that, at least in the implied-consent context, extraterritorial authority can be supplied by “clear and necessary implication” from a general law even when the law does not expressly address municipal boundaries. This offers prosecutors a direct statutory-interpretation route rather than reliance on contested “continuing investigation” theories.

3. Limits preserved: no general license for extraterritorial policing

Because the Court avoids endorsing a broad “ongoing investigation exception,” future extraterritorial acts (searches, interrogations, evidence collection) will still require either express statutory authorization, valid mutual-aid arrangements, fresh pursuit, or some other recognized doctrine. The precedential force is strongest where a statute structures a process that begins with an in-jurisdiction lawful act and contemplates completion steps that may practically occur elsewhere.

4. Future litigation: remedy questions remain live

Justice Grosshans’s concurrence flags a significant unresolved issue: even if extraterritorial action violates a territorial limitation, should suppression ever apply absent a constitutional violation or an explicit statutory exclusionary rule? While not decided by the majority, this argument may reappear in cases where authority is lacking and the State seeks to avoid suppression on remedial grounds.

IV. Complex Concepts Simplified

• Implied consent law (§ 316.1932): By driving in Florida, drivers are deemed to consent to specified alcohol/drug tests after a lawful DUI arrest; refusal triggers statutory consequences.
• “Under color of office”: When an officer purports to use official authority without a legal basis—especially to obtain evidence a private citizen could not lawfully obtain.
• Extraterritorial municipal power (art. VIII, § 2(c)): A city generally cannot exercise its governmental powers outside city limits unless the Legislature authorizes it by general or special law.
• Implied powers / predicate-act canon: When a statute grants a power or establishes a legal process, it also implies the subordinate powers necessary to make the statutory scheme workable—though courts must apply this cautiously.
• Certified conflict jurisdiction: The Florida Supreme Court may review a district court decision that expressly and directly conflicts with another district’s decision on the same point of law.
• Exclusionary rule: A remedy that suppresses evidence; typically associated with constitutional violations (e.g., unlawful searches) and sometimes with statutory violations if the Legislature clearly provides that remedy.

V. Conclusion

State of Florida v. Repple establishes that Florida’s implied consent statute carries, by clear and necessary implication, the authority for the arresting municipal officer to request a breath test even when the request occurs outside municipal boundaries. The Court resolves inter-district conflict by grounding extraterritorial authority not in a broad “continuing investigation” doctrine, but in statutory structure: the implied-consent scheme’s arrest-plus-request sequence would be undermined if municipal lines automatically halted the officer’s ability to complete the statutory process.

The decision strengthens the operational viability of DUI enforcement across jurisdictional lines while preserving the constitutional baseline that extraterritorial municipal power must originate in legislative authorization. It also leaves open—through the concurrence and dissent—continuing debate about (1) the proper limits of implied-powers reasoning and (2) whether suppression is an appropriate remedy for territorial-authority violations in the absence of explicit statutory direction.