confusion doctrine, dui, implied consent, Miranda

DUI Refuse Breath Test | Miranda Evidence Suppressed

confusion doctrine, dui, implied consent, Miranda,
Miranda Refusal Breath Test
Driving Under Influence DUI Defense Attorney in Tampa, Florida was researching Refusal to submit to breath test matters and found an interesting issue that has been dubbed “The Confusion Doctrine.” In that case, a breath test operator had read Miranda warnings to the defendant right after reading Florida’s implied consent warnings. defendant invoked right to remain silent, and officer did not clear up confusion by advising defendant that right to remain silent is irrelevant to question of whether defendant is going to submit to breath test, defendant’s verbal refusals of test are suppressed.

The Complete Miranda Refusal Breath Test Opinion is available here.

The Court’s Order is below:


THIS CAUSE came before the Court upon the Defendant’s Motion to Suppress. At the hearing, the Court heard testimony from Officer M. Potter and Officer J. Spills of the Jacksonville Sheriff’s Office and the Defendant himself. The State and Defense stipulated that the Court would receive into evidence the transcripts of Officer Potter’s and Officer Spill’s testimony taken at a previous DHSMV Formal Review hearing. Based upon a review of the transcripts, consideration of the testimony of the officers and Defendant, and after hearing legal argument of counsel, the Court finds the Defendant’s Motion to Suppress is well taken and the Defense’s assertions therein persuasively proven. The Court finds as follows:

On December 19, 2009, the Defendant was arrested by the Jacksonville Sheriff’s Office for the offense of driving under the influence of alcohol. Upon being admitted into the Duval County Pretrial Detention Facility, the Defendant was escorted by Officer Potter, the breath test operator in this case, to the breath testing room. Per standard Jacksonville Sheriff’s Office procedure, Officer Potter introduced himself, requested that the Defendant submit to a breath test, and advised the Defendant of the standard implied consent warnings as contained on the Jacksonville Sheriff’s Office Constitutional Rights and Implied Consent Form. Immediately following the implied consent warnings, Officer Potter continued reading through the form and advised the Defendant of his constitutional Miranda rights. Those warnings included the right to remain silent, the right to the presence of a lawyer before and during any questioning, the right to a Court appointed attorney if he could not afford one, and a warning that any statements can and will be held against him in the subsequent prosecution. Once these warnings were read to the Defendant, he immediately became silent, refusing to answer any questions. The record before this Court shows that Officer Potter believed the Defendant clearly invoked his right to remain silent just after being read his Miranda rights. Should the Defendant not have invoked his right to remain silent, Officer Potter would have continued with interrogation-type questions as contained on the Jacksonville Sheriff’s Office Constitutional Rights and Implied Consent Form.

Once the Defendant fell silent, Officer Potter continued by giving the Defendant the benefit of the entire twenty minute observation period as required before administering a breath test. The Defendant remained steadfastly quiet making no statements for the entire twenty minute observation period. At the conclusion of the twenty minute observation period, Officer Potter pressed the Defendant for a verbal answer. At that time, the Defendant stated, “Well, I guess I’ll hire a driver for the next year.” When asked if the Defendant was refusing, the Defendant replied, “Yes.”

From the testimony and evidence adduced, it is apparent that the Defendant was under arrest, in custody for Miranda purposes, and subject to interrogation. Officer Potter warned the Defendant of his Miranda rights, and immediately thereafter, he invoked his right to remain silent. When these factors are all present, law enforcement officers must immediately stop questioning. Traylor v. State, 596 So.2d 957, 966 (Fla. 1992). Law enforcement did not stop in this case however, and, therefore, violated the Defendant’s right to remain silent.

Whether the Defendant actually had a right to refuse at that moment because of confusion on his part is of no consequence given the specific factual situation presented here. In this case, the officer specifically told the Defendant that he had the right to remain silent and, as a direct result of this warning, the Defendant invoked his right to remain silent. Law enforcement in this case did not clear up any confusion that the Defendant may have had as to whether his right to remain silent applied during the breath testing procedure.

The Court notes that the Fourth District Court of Appeal has recently decided Kurecka v. State, in which the Court discusses what has become known as the “Confusion Doctrine.” 2010 WL 1050008. (Fla. 4th DCA 2010) [35 Fla. L. Weekly D666a] This Court notes that Circuit Court and County Court opinions across the state have reached very mixed results over the years when addressing the “Confusion Doctrine.” Essentially, the doctrine holds that if an arrestee refuses a breath test because of confusion caused by law enforcement in advising a suspect of his or her Miranda rights contemporaneously with a request for a breath test, then the refusal will be suppressed as inadmissible [sic] . The doctrine is underpinned by the notion that it is patently unfair for law enforcement to cause confusion on the part of a suspect regarding certain cherished constitutional rights thereby causing them to believe they have some sort of Constitutional right to refuse the breath test, and then to hold that refusal against the arrestee.

In Kurecka, a consolidated appeal, the two DUI arrestees

In the case at bar, Officer Potter read the Defendant his Miranda warnings immediately after reading the implied consent warnings. This procedure is laden with potential for confusion. This Court finds that since law enforcement did not clear up the Defendant’s confusion by advising him that his right to remain silent is irrelevant to the question of whether he is going to submit to breath testing, the Defendant’s confusion was not his own fault and his resulting refusals should not be held against him.

Therefore, it is ORDERED AND ADJUDGED:

The Defendant’s Motion to Suppress is GRANTED to the extent that the Defendant’s verbal refusals, “Well, I guess hire a driver for the next year” and “Yes” are hereby suppressed and held inadmissable [sic] in further proceedings.
Source: 18 Fla. L. Weekly Supp. 78a

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