In my last blog, we discussed how the United States Supreme Court’s recent decision in Salinas v. Texas could affect a person charged with trafficking in Xanax. In today’s blog we will discuss a more esoteric issue; what is the prosecution allowed to introduce into evidence when a person refuses a breath test after being charged with DUI.

The Florida Courts have ultimately ruled that a person’s refusal to take a breath test can be used against them in a trial to show consciousness of guilt. (See Grzelka v. State). However, how a person refuses to take the breath test can affect whether the prosecution can actually use this refusal in a trial for DUI.

People who are alleged to have refused a breath test actually don’t always refuse the breath test. Often they actually say nothing, not a word. They essentially invoke their right to remain silent. Many courts in Florida have ruled that if the person says nothing at the time they are offered a breath test, the prosecution is barred from using that in a DUI trial because it would be a comment on the Defendant’s right to remain silent.

Thus, the question now is what effect will the Salinas v. Texas decision has on DUI trials wherein the Defendant was asked to take a breath test and the defendant remained silent.

If the prosecution attempted to introduce this silence at a DUI trial I would object. The argument I would make to the court is that the facts in Salinas are different from the facts in the DUI trial. A person is only required to submit to a breath test after they have been lawfully arrested for a crime which involves operating a vehicle, vessel or bike while under the influence of alcohol to the extent his/her normal faculties are impaired. (See Florida Statute 316.1932). Thus, the difference in the DUI trial is that the defendant is in the custody (under arrest) of law enforcement and should be entitled to the protections under Miranda. In Salinas, the defendant was not in the custody of law enforcement and the Supreme Court, therefore, ruled the defendant did not have rights under Miranda at this time. Because of this distinguishing fact, the prosecution should be barred from introducing the Defendant’s silence into evidence.

Of course, a court could rule differently, because this issue has yet to be decided by a Florida Court since the Salinas decision.

With that said, if you are asked to take a breath test, and you choose to refuse, you may want to say I am invoking my Fifth Amendment right to remain silent. Call my lawyer Matthews Bark at 407-865-8888.