Naples DUI Law:  Admissibility of refusals to perform field sobriety exercises.

A common goal of criminal defense attorneys is to prevent the prosecution from admitting incriminating evidence during trial.  In DUI cases, this usually involves attempting to suppress evidence obtained in violation of a defendant’s Constitutional Rights against unreasonable searches and seizures.  For example, in order for law enforcement to lawfully stop a vehicle in Florida, the officer must have probable cause that a traffic offense was committed or reasonable suspicion that either a crime is being committed or that the driver is ill, tired or impaired.  If law enforcement stops a vehicle without a lawful reason, a qualified Naples DUI attorney may file what’s known as a “Motion to Suppress.”  If the officer makes an unlawful stop and a motion to suppress is granted, all subsequent evidence gathered after the stop may be suppressed leaving the State insufficient evidence with which to prove the case.  This would include all observations that the officer made of the driver such as bloodshot eyes or slurred speech, the field sobriety exercises and even the results of the breath test.

What happens when police don’t violate a defendant’s Constitutional Rights?  What happens when the stop is valid?  Does this mean that all evidence is admissible?  Defense attorneys may still rely on the rules of evidence to prevent the use of certain evidence.  For example, many drivers will refuse to perform field sobriety exercises following a DUI stop.  The prosecution will then typically argue that the person refused because they knew they were driving under the influence.  Basically, the argument is that a refusal shows consciousness of guilt.

It’s important to remember that, according to Florida’s rules of evidence, relevant evidence is admissible (which means that one can object to evidence that is irrelevant).  Further, relevant evidence is inadmissible if the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or delay.  Therefore, one could make the argument that a defendant’s refusal to perform field sobriety exercises should be inadmissible if it is not relevant or if its relevance is substantially outweighed by the danger of unfair prejudice.

Interestingly, some of the main cases relied upon by DUI attorneys in making this argument involve murders using firearms.  In Herring v. State, 501 So.2d 19 (Fla. 3^rd DCA 1986) during a police interview following his arrest for murder, the defendant refused to submit to a hand swab test to determine the presence of gunshot residue.   However, the court in Herring ruled that since the defendant “ . . .was not told that his refusal to submit to the hand swab test would have consequences adverse to him, . . . he had no motivation to submit and his refusal, . . . was indeed a safe harbor.  Id. at 21.  The court ruled that the defendant’s refusal lacked probative value and  “prejudiced the defendant’s right to a fair trial.” Id. at 21-22.

Despite the ruling in Herring, the Florida Supreme Court has held that a refusal to perform Field Sobriety Exercises is probative of the issue of consciousness of guilt where an officer asks a person to perform such tests based upon a reasonable suspicion.  State v. Taylor, 648 So.2d 701, 706 (Fla., 1995).    In Taylor, the defendant was neither informed that the tests were compulsory nor of the adverse consequences of refusal and argued that his refusal did not permit an inference of guilt since it may have been motivated by innocent considerations such as the desire to terminate the encounter with the officer.  Id. at 704.  The Court rejected the defendant’s argument for the following reasons:  (1) the officer observed the defendant exhibiting signs of intoxication; (2) the officer asked him twice to take the field sobriety tests;  (3) the officer explained the purpose of the tests; and (4) the officer warned the defendant that if he refused to take the tests he would be forced to make a decision concerning arrest based on his observations up to that point.  Id.  The Court concluded by noting that the defendant had ample incentive to take the tests: (1) he was aware of the circumstances surrounding the officer’s request; (2)  he knew the purpose of the tests;  (3)  he had ample warning of possible adverse consequences attendant to refusal; (4) he has had some experience in this area, having been previously convicted twice of DUI; and  (5) the defendant had expressly discussed with his lawyer the advisability of taking field sobriety tests.  Id.  According to Taylor, “[g]iven the strong incentives to take the tests, [the defendant’s] claim that his refusal was an innocent act loses plausibility[;] . . . he knew that refusal was not a ‘safe harbor’ free of adverse consequences. . . .”  Id.

Fortunately, for the average DUI defendant, the facts in Taylor may not apply.  The defense attorney may be able to successfully argue that his/her defendant: (1) was only asked to perform Field Sobriety Exercises once; and (2)  the officer failed to warn the defendant that if he/she refused to take the tests he would be forced to make a decision concerning arrest based on his observations up to that point, or that immediately upon refusal, the officer placed the defendant under arrest (depending on the facts of the case).  The defense attorney may further be able to distinguish from the facts in Taylor, that the Defendant did not have “ample incentive to take the tests” if the defendant: (1) had no ample warning of possible adverse consequences attendant to refusal; (2) had no experience in this area, having never previously been convicted, let alone charged, of DUI; and  (3) the defendant had never expressly discussed with a lawyer the advisability of taking field sobriety tests.

In Menna v. State, the Florida Supreme Court specifically held that Herring contained sound analysis and was not overruled by Taylor.  846 So.2d 502, 505-508 (Fla., 2003).  In Menna, the defendant’s husband died of a gunshot wound.  Id. at 502.  The defendant arrived at the hospital and was informed of her husband’s passing.  Id.  Thereafter, the defendant was questioned by two separate officers both of which asked the defendant to voluntarily submit to a hand swab examination to test for gunpowder residue which she declined stating that she would decline to submit until she spoke with her attorney.  Id. at 503.  One officer informed her that the test was noninvasive and would only take a few minutes and neither officer could recall informing her that her refusal to take the test could be used against her in court.  Id.  The Court held that “. . . there were viable alternative explanations as to why she refused to take the test, including her desire to seek ‘safe harbor’ or choosing to take the safest path totally devoid of negative consequences.”  Id. at 508.

If applicable, a DUI or criminal defense attorney may argue that his/her defendant’s refusal lacks probative value and any probative value, if any, is substantially outweighed by the danger of unfair prejudice to the Defendant’s right to a fair trial.  If successful, the prosecution is precluded from mentioning any such refusal during the course of the DUI trial.

Juan Escobar

Naples Criminal Defense Attorney