Refuse Breath Test | Confused and Refused – Confusion Doctrine

Confused about refusing a Breath test? Refuse Breath Test

Drivers can seek to have an alleged refusal to take a breath test thrown out of court using the  “confusion doctrine,” when the implied consent warnings are given following the administration of the Miranda warnings. If successful, the refusal of a breath test was not willful and is inadmissible. Under Florida law, the driver to make his or her confusion known to law enforcement. Florida law “does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test.”

What happens if you are confused and refused a DUI Breathalyzer test in Florida?

“The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee’s refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel prior to taking the test. See Kurecka v. State, 67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b]. Under this doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Id. at 1056 (internal citations omitted).”

Miranda Warnings Do Not Apply to the Breath Test in Florida

“In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states. Id. at 1057-60. That Court concluded that Florida’s implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test. Id. at 1060-61. “Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id. at 1060.”

Video: Refusal to Take a Breath Test at Hillsborough County Jail in Florida

DUI Video from inside a jail where a cop is administering Florida’s Implied Consent warning given prior to requesting a suspect to take a breath test on an Intoxilyzer breath machine.

“The Fifth District Court of Appeal declined to apply the “confusion doctrine” on facts somewhat similar to the instant case. In Dep’t of Highway Safety & Motor Vehicles v. Marshall, 848 So. 2d 482, 485-86 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1553b], the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall’s self-serving testimony regarding her confusion about her right to counsel. Id. Further, none of the DHSMV documents supported Ms. Marshall’s claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney prior to the breath test. Id.”

“The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003). The Court found that Mr. Bosch’s reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer in order to invoke the doctrine. Id. See also Moore v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).”

Refuse Breath Test

“The Court finds that the hearing officer’s decision to reject the application of the “confusion doctrine” was based upon competent substantial evidence. Petitioner did not make his confusion known to Officer Jacobs, and the Miranda warnings were not given contemporaneously to the implied consent warnings. Other than his own testimony, there is no evidence to support Petitioner’s assertion that he was confused over his right to remain silent and the officer’s request for Petitioner to take the breath test. As the trier of fact, the hearing officer is in the best position to evaluate the evidence and the witnesses. See Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). The hearing officer is not required to believe the testimony of any witness, even if unrebutted. See Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So.2d 371, 372 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c]. Importantly, the hearing officer did not find that the “confusion doctrine” did not exist under Florida law; rather, he rejected the defense because Petitioner’s “testimony was not persuasive.” App. M at 5. This Court, therefore, rejects Petitioner’s reliance on the “confusion doctrine”.”

Sources: 24 Fla. L. Weekly Supp. 412a Online Reference: FLWSUPP 2406CRAW ; 13 Fla. L. Weekly Supp. 932a