The trial court granted suppression of any evidence that defendant was asked to submit to the breath test or that he refused to submit to the breath test on the sole basis that defendant was entitled to counsel prior to the breath test as a result of the criminalization of his refusal. The trial court misapplied controlling legal principles to the facts. There was no right to counsel prior to deciding to refuse to take the test. Once defendant exercised his privilege to drive, he consented to taking a breath test under § 316.1932, Fla. Stat.Therefore, defendant had already consented, and the officer's question was merely an opportunity for defendant to withdraw that consent, with possible consequences, as opposed to an effort by the officer designed to lead defendant to incriminate himself by refusing. Whether analyzed under Art. I, § 9, Fla. Const., or the Fifth Amendment, under the circumstances of the officer's perfunctory performance of his duty, which required a postarrest statutory explanation of defendant's obligation to take a breath test, neither the yes/no question nor its answer constituted a testimonial interrogation implicating defendant's right to counsel.
State v. Busciglio, 976 So. 2d 15
A trooper responded to the scene of a two-vehicle automobile accident and determined that the vehicle occupied solely by the driver had caused the accident. The trooper noticed that the driver's eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol. After citing the driver for failure to yield, the trooper told him that the investigation had moved on to a criminal investigation. After receiving his Miranda rights, the driver refused to submit to breath tests. As a result of the refusal, his driving privileges were suspended. The appellate court held that the circuit court erred when it reweighed the evidence and ignored evidence that supported the findings of the hearing officer. Once the criminal investigation established that the driver operated the vehicle, his refusal to submit to the breath test constituted a valid reason to suspend his license.
Dep't of Highway Safety & Motor Vehicles v. Bello, 813 So. 2d 1023
The driver sought to demonstrate that his breath test results were invalid and unreliable and challenged the hearing officer's refusal to issue the subpoenas for three employees of the Florida Department of Law Enforcement (FDLE). The appellate court denied the petition as the officers were properly identified in documents in § 322.2615(2), Fla. Stat. (2010), that he did seek to subpoena those witnesses and, in each case, the subpoenas were issued and the witnesses appeared. Further, the hearing officer correctly refused to issue a subpoena for one FDLE employee because the FDLE Inspection Report (FDLE/ATP Form 41) was more akin to a report related to the maintenance of a breath testing instrument, as opposed to the results of a breath testing instrument. Finally, his arguments contending that his breath test results were invalid and unreliable due to his claim that they were obtained through the use of an Intoxilyzer machine that had not been properly approved by the FDLE pursuant toFla. Admin. Code Ann. R. 11D-8.003 were rejected as challenges to the approval process of the Intoxilyzer machine are beyond the scope of a formal driver's license review proceeding.
Klinker v. Dep't of Highway Safety & Motor Vehicles, 118 So. 3d 835
Respondent was stopped by the police for speeding. After he performed certain roadside exercises, he was arrested for DUI. At the police station, he refused to submit to a breath or urine test. An administrative suspension of his driving privileges was imposed for 12 months.
State Dep't of Highway Safety v. Edgell-Gallowhur, 114 So. 3d 1081
This is an important case that deals with the Source Code for the Intoxilyzer 8000. This describes the inner working of the instrument and how it is used to analyze the breath alchohol content. This information was not deemed material as you can subpoena the corporate representative and obtain the needed information. Source Code is still priviliged.
