Florida DUI Law by Blake Mevis: Administration of Tests (Field Sobriety, Breath, Urine, and Blood)

"Based on the evidence presented in a pretrial proceeding, a trial judge concluded that field sobriety tests do not tend to prove or disprove anything in issue because they do not deal with normal faculties.If the tests do have any probative value, it is outweighed by the tendency to confuse the jury even if the state is not allowed to refer to them as scientific evidence."

"The court determined that field sobriety tests are not compulsory and an individual's refusal to submit to such test is not necessarily relevant evidence of any consciousness of guilt and that the refusal could not be used against Defendant at trial.
The standard for requesting field sobriety testing is "Reasonable Suspicion."

"Motorists who were charged with driving under the influence (DUI) moved to exclude evidence of results of field sobriety test. The County Court for the Seventeenth Judicial Circuit, Broward County, Zebedee Wright, J., granted motion, certified questions, and state appealed. The District Court of Appeal, Pariente, J., held that: (1) evidence of police officer's observations of results of defendant's performing walk-and-turn test, one-legged stand, balance test and finger-to-nose test, if restricted to lay observations, was not outweighed by danger of unfair prejudice, but (2) horizontal gaze nystagmus (HGN) test was scientific evidence for which there was danger of unfair prejudice if admitted as lay observations of intoxication."

"Defendant was charged with driving under the influence of a controlled substance. The County Court, Dade County, Maxine Cohen Lando, J., admitted into evidence drug recognition expert (DRE) testimony and evidence based upon 12 step drug influence examination protocol. Defendant appealed. The District Court of Appeal, Gersten, J., held that: (1) Frye general acceptance standard was inapplicable to DRE protocol; (2) DRE testimony and evidence is relevant in prosecution for driving under the influence of a controlled substance; and (3) horizontal gaze nystagmus (HGN) test results alone cannot establish blood alcohol content (BAC) of 0.08%."

The court ruled that the officer had more than enough facts to establish reasonable suspicion that the defendant was DUI where the defendant was driving at a high rate of speed and staggered upon exiting his car. In addition, the driver exhibited slurred speech, watery, bloodshot eyes, and a strong odor of alcohol."

"The court ruled, that just the odor of alcohol was insufficient to establish a reasonable suspicion."

Incapable of Providing a Breath Sample
"The defendant was asked to submit to both a breath test and urine test. The Defendant attempted to provide a breath sample, but was unable to provide a sufficient amount of sample due to the limitations from her medical condition. The court reasoned that the events pertaining to the defendant’s ability to perform the breath test are subject to a relevance analysis and that the testimony presented by the defendant’s pulmonary physician, and the testimony given by the breath test operator both support that the defendant was physically incapable of submitting a breath sample and did not willfully refuse to provide a breath sample. The court found that the probative value of allowing the state to argue a consciousness of guilt is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. "

"When a law enforcement officer has probable cause to believe that an accused has committed a driving under the influence (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."

"Department was not allowed to suspend a driver's license under § 322.2615, Fla. Stat. for a refusal to submit to a breath test if the refusal was not incident to a lawful arrest because a suspension was allowable under § 322.2615 only for refusal to submit to a "lawful test," and a lawful test was one requested incident to a lawful arrest."

"a driver's license suspension can be the result of a refusal to take a breath test if the refusal is incident to a lawful arrest; driver was entitled to an opportunity to challenge whether the refusal was incident to a lawful arrest."

"The defendant was asked by the officer to submit to a breath and urine test, and the defendant refused said requests. The officer testified that he did not observe any indicia of impairment by a controlled substance and he suspected the defendant was impaired by alcohol only. The court held that since the Officer had no reasonable cause to believe that defendant was under the influence of a controlled substance, the officer had no legal basis for requesting urine from the defendant, thus evidence of the urine test refusal was excluded."

"the defendant was charged with driving under the influence of alcohol. The officer smelled the odor of alcohol emanating from the defendant’s breath, but there was no evidence at the time of arrest the defendant was under the influence of a controlled substance. The officer requested the defendant provide a breath sample, followed by a urine sample and the defendant refused both requests. The officer testified that he made the request to cover his bases despite having no evidence the defendant was under the influence of controlled substances. The court held that because the officer did not have reasonable cause to believe the defendant was under the influence of a chemical substance or controlled substance, the request to submit to a urine test was unlawful, and evidence of the urine test refusal was excluded. See State v. Kaiser, 14 Fla. L. Weekly Supp. 802a (Orange Cty. Ct. 2007); State v. Stanis, 13 Fla. L. Weekly Supp. 997a (Volusia Cty. Ct. 2006)."

"Refusal to submit to urine test was inadmissible because test was not authorized where defendant had an odor of alcohol, bloodshot, watery, and glassy eyes, and a flushed face; officer believed defendant was impaired by alcohol; defendant did poorly of FSES and had breath alcohol levels of .066 and .067; but no drugs were found nor was there any testimony that the signs of impairment indicated drug use."

"Defendant's refusal to take a blood alcohol test designed to determine whether he was intoxicated was admissible in trial on charge of driving while impaired, despite claim that testing machine did not fully comport with administrative rules; defendant was free to argue that the jury should draw the inference not that he refused because he was guilty but that he refused because he did not trust the test. West's F.S.A. § 316.1932."

The court ruled that refusal was inadmissible where the machine was not in compliance; court said it was misrepresented that the test was approved."