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The Florida Bar

Refusing Sobriety Exercises

In DUI cases, the accused may refuse to submit to some or all of the tests that officers request. DUI Defense lawyers in Fort Lauderdale must be prepared to deal with this issue as the Broward State Attorney consistently seeks to introduce testimony on refusals as evidence of guilt.

Field Sobriety Test Refusal According to Fort Lauderdale, DUI Lawyer, William Moore:

When it comes to Florida DUI cases involving a clients refusal to participate in field sobriety exercises, DUI attorneys in Fort Lauderdale must consider constitutional arguments that have been made and ruled on in recent years. The Supreme Court considered the constitutional ramifications of introducing a refusal to submit to a chemical alcohol test in DUI prosecutions. Admission into evidence of a refusal to submit to such a test has been argued by Florida DUI attorneys to violate and arrested driver’s privilege against self incrimination. Unfortunately, introduction of a refusal in Florida has been found not to infringe on a driver’s privilege against self-incrimination nor does it violate the due process clause, even though the defendant is not told that the refusal can be used by the Broward State Attorney’s Office at trial. Consequently, Florida DUI attorneys in Broward County must expect that the criminal prosecutor will argue the significance of the refusal in closing argument.

DUI lawyers must keep in mind when preparing a client’s defense that In Morris v. State, the court said:

[W]hen a law enforcement officer has probable cause to believe that an accused has committed a DUI offense, the officer can lawfully compel the person to perform field sobriety exercises and a breath test …. If the accused refuses, the State at trial can elicit testimony regarding that refusal as evidence of the person's consciousness of his or her guilt.)

But in Morris, Florida DUI defense attorneys argue that the prosecutor went beyond simply suggesting to the jury that the refusal was proof of consciousness of guilt. The prosecutor argued: "‘I haven't been drinking, why are you arresting me? 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.’" The court ruled that this argument violated the defendant's Fifth Amendment rights and improperly shifted the burden to the defense. Similarly, Florida DUI lawyers contend that in Concha v. State, the DUI court ruled that the State's inquiry on redirect of the arresting officer into the defendant's failure to demand field sobriety tests and a breath test was fairly susceptible of being interpreted as a comment on the defendant's exercise of his right to remain silent. It was not admissible as impeachment because the defendant did not testify until after the redirect of the officer.

Defending DUI charges in Fort Lauderdale, Florida is complicated. The laws and administrative rules are both voluminous and constantly changing. If you have been arrested in Fort Lauderdale, Florida for the offense of DUI, it is advisable that you contact an experienced DUI lawyer within ten days of your being taken into custody. Visit the National Highway Traffic Saftey Administration or more information on the development & validation of field sobriety tests.

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