What happens if you are confused and refused a DUI Breathalyzer test in Florida? Refuse Breath Test

Refuse Breath Test | Confused and Refused – Confusion Doctrine

 

Confusion DUI Refusal Refuse Breath Test

Confused about refusing a Breath test? Refuse Breath Test

Drivers can seek to have an alleged refusal to take a breath test thrown out of court using the  “confusion doctrine,” when the implied consent warnings are given following the administration of the Miranda warnings. If successful, the refusal of a breath test was not willful and is inadmissible. Under Florida law, the driver to make his or her confusion known to law enforcement. Florida law “does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test.”

 

What happens if you are confused and refused a DUI Breathalyzer test in Florida?

 

“The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee’s refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel prior to taking the test. See Kurecka v. State67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b]. Under this doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Id. at 1056 (internal citations omitted).”

Miranda Warnings Do Not Apply to the Breath Test in Florida

 

“In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states. Id. at 1057-60. That Court concluded that Florida’s implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test. Id. at 1060-61. “Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id. at 1060.”


Video: Refusal to Take a Breath Test at Hillsborough County Jail in Florida

 

DUI Video from inside a jail where a cop is administering Florida’s Implied Consent warning given prior to requesting a suspect to take a breath test on an Intoxilyzer breath machine.


 

“The Fifth District Court of Appeal declined to apply the “confusion doctrine” on facts somewhat similar to the instant case. In Dep’t of Highway Safety & Motor Vehicles v. Marshall848 So. 2d 482, 485-86 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1553b], the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall’s self-serving testimony regarding her confusion about her right to counsel. Id. Further, none of the DHSMV documents supported Ms. Marshall’s claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney prior to the breath test. Id.”

“The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep’t of Highway Safety & Motor Vehicles10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003). The Court found that Mr. Bosch’s reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer in order to invoke the doctrine. Id. See also Moore v. Dep’t of Highway Safety & Motor Vehicles13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).”

Refuse Breath Test

 

“The Court finds that the hearing officer’s decision to reject the application of the “confusion doctrine” was based upon competent substantial evidence. Petitioner did not make his confusion known to Officer Jacobs, and the Miranda warnings were not given contemporaneously to the implied consent warnings. Other than his own testimony, there is no evidence to support Petitioner’s assertion that he was confused over his right to remain silent and the officer’s request for Petitioner to take the breath test. As the trier of fact, the hearing officer is in the best position to evaluate the evidence and the witnesses. See Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). The hearing officer is not required to believe the testimony of any witness, even if unrebutted. See Dep’t of Highway Safety & Motor Vehicles v. Dean662 So.2d 371, 372 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c]. Importantly, the hearing officer did not find that the “confusion doctrine” did not exist under Florida law; rather, he rejected the defense because Petitioner’s “testimony was not persuasive.” App. M at 5. This Court, therefore, rejects Petitioner’s reliance on the “confusion doctrine”.”

Sources: 24 Fla. L. Weekly Supp. 412a Online Reference: FLWSUPP 2406CRAW ; 13 Fla. L. Weekly Supp. 932a

 

DUI Drug Test Refusal Overturned

bashful kidney, Wolok, § 322.2615(13), refusal,  chemical test, license suspension, competent substantial evidence

Chemical Test § 322.2615(13) Refusal

DUI Drug Test Refusal

“the Court finds that the Petitioner simply lacked the ability to perform the test as requested; consequently, his failure to provide a urine sample cannot constitute willful refusal”


Refusal to Submit to Chemical Test


DUI Defense Attorney Lawyer has previously written about refusal to take a drug urine test under § 322.2615(13) after blowing under .08 on a DUI Breath Test. License suspensions are overturned when there is no “competent substantial evidence” to support a DHSMV Department of Highway Safety & Motor Vehicles Hearing Officer’s ruling. In this recent case, the driver blew a .000, had a medical condition that made urination difficult, tried to give a sample, and the DUI cop classified the failure to give a sample as a refusal. He issued a notice of suspension and it was challenged by a DUI Defense Attorney. The court tossed the suspension, since there was insufficient evidence that the driver willfully refused to take a drug test. Our DUI Searchable Database is here.

Case Excerpts


“Corporal Zeichman transported the Petitioner to the police station and, while recording on camera, asked the Petitioner to submit to a breath test even though he did not believe that the Petitioner was under the influence of alcohol. The Petitioner agreed to take the breath test and was “very cooperative.” The Petitioner performed the breath test which subsequently resulted in scores of .000 and .000. Corporal Zeichman then asked the Petitioner on camera recording to perform a urine test, and the Petitioner agreed to do so. The Petitioner drank numerous glasses of water, repeatedly asked for additional time and water, and never told Corporal Zeichman that he refused to take the urine test. After forty-five minutes, Corporal Zeichman determined that the Petitioner’s failure to urinate was a refusal. Corporal Zeichman then allegedly read the Petitioner Implied Consent Warnings. ” (Citations to Record Omitted).


“In the context of an alleged refusal to submit to a urine test, it must be determined that the driver’s “refusal [was] willful to the extent that if the [driver] is able to submit, he or she is expected to take the test.” 11 Fla. Prac., DUI Handbook § 10:2 (2010-2011 ed.) (emphasis added). In Wolok v. Department of Highway Safety and Motor Vehicles, 1 Fla. L. Weekly Supp. 204 (Fla. 11th Cir. Ct. 1992), the Eleventh Judicial Circuit of Florida held that the failure to perform a urine test is not a refusal when the driver physically cannot provide a urine sample. See also Stack v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322a (Fla. 11th Cir. Ct. 2006) (holding that the driver did not refuse a test because the driver was confused about whether the urine test was required).3 In Wolok, the defendant’s failure to provide a urine sample was the result of the defendant having a ‘bashful kidney’ and because “he was inhibited by the officer who stared at his genitals.” Wolok, 1 Fla. L. Weekly Supp. 204. The Wolok court thereby recognized that “[t]he only evidence before the hearing officer was that the petitioner could not urinate on demand.” Id.” (Citations to Record Omitted).


“In this case, there is evidence that the Petitioner did not willfully refuse to provide a urine sample. Specifically, the record indicates that the Petitioner promptly performed a roadside sobriety test and a breath test when requested by Corporal Zeichman. ” (Citations to Record Omitted).

“Thus, the Court finds that the Petitioner simply lacked the ability to perform the test as requested; consequently, his failure to provide a urine sample cannot constitute willful refusal. Therefore, based on the evidence in the record and the Court’s interpretation of Wolok, this Court finds that the Hearing Officer’s finding of willful refusal is not supported by competent substantial evidence.” (Citations to Record Omitted).

DUI Drug Urine Test Refusal? Call Casey at 813-222-2220.


Ratings and Reviews

Board Certified Criminal Trial Lawyer
Google +
yelp