Thin line in Florida DUI Refusal Cases- Improper Comments to the Jury by the Prosecutor

A new Florida case from the Fifth District Court of Appeals begs the question in any DUI refusal case – Isn’t the evidence that the Defendant refusal to submit to chemical testing a comment on the Defendant’s constitutional right to remain silent and not be compelled to provide evidence against himself?

New Florida Case on DUI Refusal to Submit to Breath Test

In Morris v. State, 988 So.2d 120 (Fla. 5th DCA 2008), the Defendant was convicted after a jury trial of driving under the influence of alcohol (“DUI”) pursuant to section 316.193(2)(b) within ten years after a prior DUI conviction and driving while license suspended or revoked (DWLS) pursuant to section 322.34(2)(a).

The Defendant appealed the DUI and DWLS conviction and argued that the trial court erred allowing the prosecutor to violate the Defendant’s right to remain silent by commenting upon his failure to protest his innocence in a DUI refusal case.

“Innocent People Don’t Refuse the DUI Breath Test

During closing arguments the prosecutor argued an innocent person would not decline to participate in the breath test or field sobriety exercises. The assistant state attorney argued that an innocent person, if detained for DUI would say, “I haven’t been drinking, why are you arresting me?”

The assistant state attorney then argued that a person not guilty of DUI would volunteer to take the tests to “prove” his innocence, stating, “That [innocent] man is thinking, yes, get me to that, get me to that instrument, let me take that breath test, let me prove this officer wrong.”

Although the Florida DUI defense attorney made an objection to these comments by the prosecutor, the trial court found that the prosecutor was only making an argument based on “a hypothetical” and allowed the comments.

What the Prosecutor Can’t Say

The Fifth District Court of Appeals then went on to summarize Florida law in DUI refusal cases.  The Court sited a long line of cases that provide no protection under the Fifth Amendment to prohibit the Florida prosecutor in a DUI refusal case from telling the jury that the defendant’s refusal to take a breath test or participate in road side sobriety exercises showed “consciousness of guilt.”

But the Court went on to find that the assistant state attorney in the Morris case violated the defendant’s Fifth Amendment right by telling the jury that an person who was not guilty would be pro-active in saying things to indicate that he believed he was innocent.

Furthermore, the prosecutor’s improper arguments effectively shifted the burden of proof improperly by arguing that a not guilty person would volunteer to take a breath test to prove that he was not guilty.

The Court did not buy the prosecutor’s argument that he was only discussing a “hypothetical.” The Court found the prosecutor’s comments “patently impermissible” and harmful which required a reversal of the Florida DUI and suspended license convictions and a new trial.

DUI Exception to the Fifth Amendment

This case demonstrates the thin line between permissible and impermissible comments on the defendant’s refusal to submit to “voluntary” field sobriety exercises or chemical testing.

In this case the Court is effectively telling the prosecutors to make the argument without coming out and stating the argument explicitly. The jury is told that the defendant refused to be proactive in proving his innocence and therefore he had something to hide.

What else would the jury infer from the fact that the refusal to submit to voluntary tests shows “consciousness of guilt” other than the fact that the defendant has a burden to provide proof of his innocence?

The  Court effectively drew a line that can not logically exist.  The “DUI exceptions” to the Fifth Amendment of the United States Constitution can easily been seen in this case in which the Court attempts to rationalize what the prosecutor can and can not say to the jury.

Keep The Prosecutor Away From that Line

The only lesson to be learned from the case is that DUI defense attorneys in Florida must be always on guard for any suggestion by the prosecutor that the Defendant has a burden to establish his innocents in DUI refusal cases.

In those cases in which the prosecutor crosses the line, the DUI defense attorney must carefully preserve any objection for appeal. In many of these case, the Florida DUI attorney should address the issue head on and explain to the jury that the defendant does not have to volunteer any evidence.

The attorney must adequately explain to the jury all of the reasons other than “consciousness of guilt” that would explain the defendant’s reluctance to submit to a chemical test or voluntary roadside exercises.

Fighting DUI Refusal Cases in Tampa

If you need a Florida DUI attorney for any DUI case, including a DUI refusal to submit case in the Tampa Bay area, contact an experienced Tampa DUI attorney at the Sammis Law Firm.

DUI refusal cases require an exhaustive investigation, skilled jury selection, careful cross examination of state witnesses, and a powerful closing argument.  Using recent case law to keep the prosecutor away from topics that unfairly invite the jury to decide the case based on emotion instead of facts are critical.

If you were arrested for DUI in Tampa, Clearwater, St. Petersburg, Dade City, Plant City, New Port Richey, or Bartow, contact an experienced attorney for DUI refusal cases in Tampa to discuss your case. Call 813-250-0500 for a free consultation.

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