People always ask, should I do the field sobriety exercises, should I take a breath test.

There is no easy answer to these questions. Your life circumstances and immediate circumstances affect the answers to these questions.

However, a situation that does arise is when the officer reads you your Miranda warnings; you know: “You have the right to remain silent; anything you say can be used against you in a court of law; you have the right to have an attorney present prior to and during any questioning; if you cannot afford one, one will be appointed for you;” then the officer ask you will you perform the field sobriety exercises. There are three rational responses: yes, no, or remaining silent as the officer just informed you was your right.

But the truth is that a person usually doesn’t have the rights pursuant to Miranda after being stopped for a traffic violation, when being asked to perform field sobriety exercises, and when being asked to take a breath test. See State v. Burns. Thus, one would be confused at the side of the road, the person is informed they have these rights, but when they get to court they’re informed that they do not have these rights. As a result, the courts have begun to formulate what is known as the confusion doctrine. In Kurecka v. State, the Fourth District Court of Appeals explained this confusion doctrine:

“Under a judicially created exclusionary rule, known as the “confusion 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.” Ringel v. State, 9 Fla. Supp. 678a (Fla. 18th Cir.Ct.2002). The doctrine is usually invoked by drivers as a defense to a license suspension or revocation. In most instances, the drivers assert that, because the police officer contemporaneously advised them of their Miranda rights (right to refuse interrogation and to have an attorney present at all stages of an interrogation) and read them the requirements and sanctions of the implied consent law, they believed that they could consult with counsel before deciding whether to submit to breath testing. They contend that they should not be held strictly accountable for refusing to take a breath test and suffer a license suspension or revocation when the officer confused them about their right to counsel. See, e.g., Calvert v. State, 184 Colo. 214, 519 P.2d 341 (1974).”

Many of the cases analyzing the confusion doctrine require the defendant to make his confusion known to the officer. It is important to note that the cases who uphold the confusion doctrine as law or hold otherwise are County Court and Circuit cases. They are not District Court cases. These means that the interpretations of the confusion doctrine coming from the County Courts and Circuit Courts are not binding on all the courts in the state of Florida. This was explained by the Fourth District Court of Appeals in Kurecka. See also DHSMV v. Marshall.

But, before the District Courts do review whether the confusion doctrine is applicable in the circumstances described above, this author suggests very strongly that the analysis not be done under the confusion doctrine, but under the evidence code as is already done when the State of Florida attempts to admit evidence that a defendant did not cooperate with law enforcement and thus evidences consciousness of guilt.

The theory is that a person who refuses to cooperate with law enforcement does so because they know they are guilty. But as explained by the Florida Supreme Court in Menna v. State, there could be many reasons a person chooses not to do what is asked by them of law enforcement, other than that they are guilty. The Court explained:

“We have held that before such refusal evidence can be introduced the court must make a prima facie determination that the evidence is relevant with regard to the defendant’s consciousness of guilt. This requirement implicitly recognizes that, as articulated by Judge Pearson in Herring, there are potentially many reasons, other than guilt, that a defendant might be motivated to refuse to submit to such a test. Furthermore, under some circumstances, such as those in Herring, a refusal may be so ambiguous as to remove from its invocation any probative value in the refusal as to the issue of the defendant’s alleged consciousness of guilt.”

The Menna Court looked the Third District Court of Appeals opinion in Herring v. State, and explained:

“The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do. In contrast, if a defendant knows that his refusal carries with it adverse consequences, the hypothesis that the refusal was an innocent act is far less plausible.”

In fact, the Florida Supreme Court has already addressed the admissibility of a person’s refusal to perform field sobriety exercises and refusal to take a breath test under the above rationale in State v. Taylor.

The reason it is important to analyze the issues under the later rationale, under the evidence code, and not under the former rationale known as the confusion doctrine is that it follows the evidence code passed by both the Florida Legislature and approved by the Florida Supreme Court. See Florida Statute 90.401. In applying the rationale already provide by the Florida District Courts, the Florida Supreme Court and the Florida Legislature, it puts the burden on the State of Florida to provide some evidence that the person’s refusal to do what is asked by law enforcement is accompanied by adverse consequences and thus evidence of consciousness of guilt. In a situation in which this piece started, where a person is informed they have the right to remain silent, they are not informed of adverse consequences and are provided a safe harbor. Thus, if said person refuses to do as requested, said refusal should not be admissible in court.

Clearly, this is a bit more complicated than saying you should refuse the field sobriety exercises, and the breath test.

If you are arrested for DUI please call 407-865-8888.