NEW DEVELOPMENTS FOR THE 2018-2019 EDITION, 11 Fla. Prac., DUI Handbook...

11 Fla. Prac., DUI Handbook Highlights

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

NEW DEVELOPMENTS FOR THE

2018-2019 EDITION

Chapter 1
• Recent developments in speedy trial where charge is filed before expiration of speedy trial, but
defendant is not advised until after period expires
• Recent cases on intervening causes and causation in DUI Manslaughter cases
Chapter 4
• Decisions dealing with what arresting officer must know under the fellow officer rule
• Stops based on welfare checks
• Florida Supreme Court ruling on requiring passenger to exit and delays in detention
• Authority of auxiliary officers in detentions
• Application of citizen arrest to DUI detentions.
Chapter 5
• Recent cases finding exigent circumstances to justify warrantless blood draw
• Important recent District Court case applying U.S. Supreme Decisions to uphold warrantless blood draw
from unconscious suspect under Florida’s Implied Consent Law.
• Development of law on warrant requirement for securing urine sample
• Cases dealing with the standards that apply under the Implied Consent Law to the extraction of blood
where it is impossible or impractical to get a breath or urine sample
Chapter 6
• The effect of the decision in Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102 (Fla. 2018)
on blood testifying law and protocol
Chapter 7
• Application of Daubert standards to HGN tests
Chapter 8
• Lay opinion testimony as to speed
Chapter 9
• Case law on how Daubert impacts expert testimony on drug use in DUI cases.
Chapter 10
• Impact of U.S. Supreme Court decisions on Florida Refusal Statute
• Limitations on prosecutor’s comments on Defendant’s refusal to submit to a breath test

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 1 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 1 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

Introduction

INTRODUCTION
Driving or actual physical control of a vehicle while impaired by alcoholic beverages, chemicals, or controlled
substances can result in various charges. These offenses vary in severity of punishment, but, except for
commercial vehicle cases,1 require proof that the accused (1) drove or was in actual physical control of a
vehicle;2 (2) was under the influence of an alcoholic beverage, a chemical substance listed in § 877.111, Fla.
Stat., or a controlled substance listed in Florida Statutes, Chapter 893; and (3) was impaired or had a blood or
breath alcohol level of .08 or higher. 3 Such conduct is unlawful even on private property. 4 Also, officers have
the authority to make DUI arrests on private property. As to other traffic enforcement on private property, the
authority of law enforcement is generally dependent upon a written agreement. 5

Generally, the offense involves the operation of vehicles with motors. It may, however, involve the operation of
other vehicles. It may be committed in or on any device used to transport or draw person or property on a
highway, except for those used exclusively on stationary rails or tracks. 6 This includes bicycles.7 On the other
hand, the Implied Consent Law, which establishes procedures for securing and testing samples, applies only to
motor vehicles or boats.8 Thus, one riding a bicycle while impaired may be convicted of DUI, but has not
consented to provide a breath or urine sample and does not face suspension for refusal. 9 However, several
circuit courts have ruled that an impaired bicyclist is subject to the same punishment for DUI as an impaired
driver, including suspension of driving privileges.10

There is little authority as to whether there can be an attempt to commit such offenses; thereby entitling the
accused to an attempt instruction. 11 However, two judges reached different conclusions on this point. In
Morrison v. State,12 a circuit court sitting in its appellate capacity upheld the denial of an instruction on
attempted DUI. The court agreed with the trial judge that such a charge is not a necessarily included offense.
Additionally, the court ruled that the defendant was not entitled to such an instruction because there was no
evidence supporting a finding of guilt on an attempt charge. The defendant was alone and asleep in his vehicle
with the keys in his pocket. In Morrison, the court specifically rejected the suggestion that DUI includes an
intent element.

On the other hand, in State v. Power,13 the trial judge granted a motion for new trial because the defendant was
entitled to an instruction on attempted DUI. The court said that such an offense occurs, “where an intoxicated
person sits behind the wheel (the overt act), or for that matter, merely opens the car door, with the intent to drive
the vehicle.” (emphasis by the court) The court went on to say: “At that point in time the reason the crime of
DUI has not been committed is because the key has not yet been produced. It is only when that intoxicated
person uses the key that the crime of DUI is complete.”

In Mollenberg v. State,14 the court partially resolved this issue. The court concluded that one is not entitled to an

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 1 Introduction (2018-2019 ed.)

instruction on attempted DUI where the evidence is undisputed that the person was driving, but conflicts as to
whether he was impaired. The court clearly rejected the argument that attempt applies to the impairment
element of DUI. The court declined to decide whether the crime of attempt ever applies to DUI in Florida.
However, in McCoskey v. State,15 the court held that intent is not an element of DUI and the defendant is not
entitled to present evidence of lack of intent.

This chapter focuses on proof of the basic elements of DUI. Chapter 2 deals with enhancement by adding
elements. Occasionally, the defendant may raise a defense other than an attack on the sufficiency of proof of the
elements. This chapter also discusses these possible defenses.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
See § 1:8.
2
In Ferris v. State, 743 So. 2d 1187 (Fla. 4th DCA 1999), the court ruled that where there was only
evidence of driving, the trial judge did not commit error by reading both “driving” and “actual physical
control” when reading the charge to the jury, while deleting, “actual physical control” from the jury
instruction. Furthermore, it was not error to permit the state to mention both in closing.
3
§ 316.193(1), Fla. Stat.
4
Zink v. State, 448 So. 2d 1196 (Fla. 1st DCA 1984); Dudley v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 259 (Fla. 20th Cir. Ct. Nov. 19, 2012) Dudley v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 259 (Fla. 20th Cir. Ct. Nov. 19, 2012); Cotta v.
Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 234 (Fla. 9th Cir. Ct. Oct. 5,
2005)Cotta v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 234 (Fla. 9th Cir.
Ct. Oct. 5, 2005); Felts v. Dep’t of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly Supp. 397 (Fla.
7th Cir. Ct. Aug. 2, 1994)Felts v. Dep’t of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly Supp.
397 (Fla. 7th Cir. Ct. Aug. 2, 1994) (defendant at his residence in the driver’s seat with engine running
and car stereo playing); Lanier v. State, 38 Fla. Supp. 2d 46 (Fla. 5th Cir. Ct. 1989) (car driven through a
restaurant and marina parking lot to boat ramp); State v. Cherry, 22 Fla. L. Weekly Supp. 327 (Fla. Palm
Beach Cty. Ct. May 28, 2014)State v. Cherry, 22 Fla. L. Weekly Supp. 327 (Fla. Palm Beach Cty. Ct.
May 28, 2014) (officers had authority to investigate and make a DUI arrest for an accident occurring in
a resort parking lot even though there was no agreement with the resort); State v. Clements, 18 Fla. L.
Weekly Supp. 318 (Fla. Brevard Cty. Ct. Oct. 28, 2010)State v. Clements, 18 Fla. L. Weekly Supp. 318
(Fla. Brevard Cty. Ct. Oct. 28, 2010) (alcohol impaired person asleep in driver’s seat with keys in
ignition on private property could be lawfully arrested).
5
State v. Morgenthal, 20 Fla L.Weekly Supp. 260 (Fla. 20th Cir. Ct. Sept. 13, 2012)State v. Morgenthal,
20 Fla L.Weekly Supp. 260 (Fla. 20th Cir. Ct. Sept. 13, 2012) (deputy had no authority to investigate
and charge individual for leaving the scene of an accident involving a light pole in a private gated
community in the absence of a written agreement; the statute did not include the broad language that
applies to DUI).
6
§§ 316.193(1), 316.003(95), Fla. Stat.; Cooper v. Dep’t of Highway Safety & Motor Vehicles, 15
Fla. L. Weekly Supp. 1068 (Fla. 20th Cir. Ct. Sept. 18, 2008) (golf cart is a motor vehicle for purposes
of the DUI law and implied consent).
7
State v. Howard, 510 So. 2d 612 (Fla. 3d DCA 1987), review denied, 520 So. 2d 584 (Fla. 1988).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 1 Introduction (2018-2019 ed.)

8
§§ 316.1932(1)(a), 327.353, Fla. Stat. For the definition of boats under the BUI law see State v.
Davis, 110 So. 3d 27 (Fla. 2d DCA 2013) (court ruled that the law is not limited to boats that are subject
to a license tax for operation notwithstanding the language of the standard jury instruction).
9
State v. Perez, 14 Fla. L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007)State v. Perez, 14 Fla.
L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007).
10
Decamp v. State, 19 Fla. L. Weekly Supp. 970 (Fla. 11th Cir. Ct. August 3, 2012)Decamp v. State, 19
Fla. L. Weekly Supp. 970 (Fla. 11th Cir. Ct. August 3, 2012); Heikkinen v. State, 15 Fla. L. Weekly
Supp. 1140 (Fla. 6th Cir. Ct. Sept. 2, 2008); Smith v. State, 12 Fla. L. Weekly Supp. 279 (Fla. 6th Cir.
Ct. Jan. 11, 2005)Smith v. State, 12 Fla. L. Weekly Supp. 279 (Fla. 6th Cir. Ct. Jan. 11, 2005). Contra
Otterson v. State, 5 Fla. L. Weekly Supp. 428 (Fla. 15th Cir. Ct. March 17, 1998) Otterson v. State, 5
Fla. L. Weekly Supp. 428 (Fla. 15th Cir. Ct. March 17, 1998).
11
The standard jury instructions on DUI list attempt as a category two lesser. In re Standard Jury
Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016) (Jury instructions can
be found in Appendix H).
12
Morrison v. State, 10 Fla. L. Weekly Supp. 685 (Fla. 17th Cir. Ct. July 28, 2003)Morrison v. State, 10
Fla. L. Weekly Supp. 685 (Fla. 17th Cir. Ct. July 28, 2003).
13
State v. Power, 10 Fla. L. Weekly Supp. 637 (Fla. Volusia Cty. Ct. June 23, 2003)State v. Power, 10 Fla.
L. Weekly Supp. 637 (Fla. Volusia Cty. Ct. June 23, 2003) (the finding that there is an intent element to
DUI seems to be inconsistent with higher court decisions discussed later in this book holding that DUI is
a strict liability offense).
14
Mollenberg v. State, 907 So. 2d 554 (Fla. 5th DCA 2005), review denied, 923 So.2d 1163 (Fla. 2006).
15
McCoskey v. State, 76 So. 3d 1012 (Fla. 1st DCA 2011) (defendant was sitting in a vehicle and wanted
to introduce evidence that he had called for a ride and was waiting in his car with the radio on to show
lack of intent to drive; court ruled that was not an element and had nothing to do with actual physical
control).

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 1:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:1. Charging documents and other preliminary considerations in DUI cases

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1344, 1365 to 1371, 1397 to 1400, 1442 to 1443, 1473, 1486 to 1487,
1496, 1508, 1518, 1526, 1532, 1543 to 1547, 1550

The traffic court rules govern procedures in traffic cases and specifically apply to county court. 1 Those rules
provide that a charging document is “any information, uniform traffic citation, complaint affidavit, or any other
manner of charging a criminal traffic offense under law.” 2 Thus, either a Uniform Traffic Citation (UTC) 3 or an
information can be used to charge DUI.

The citation must be sufficient to inform the accused of the nature of the charge. 4 It need not, however, contain a
notice to appear to vest the court with jurisdiction.5

There has been some uncertainty as to the required specificity. In Robinson v. State, the Court held that the
charging document was insufficient where it alleged reckless driving as follows: “‘unlawfully operat[ing] a
certain motor vehicle on the public highways of Bay County, Florida, in a careless and reckless manner,
contrary to the statute.’”6 Based on Robinson,7 a county judge ruled that a UTC alleging merely that the
defendant committed reckless driving was insufficient. 8 However, in State v. Asbell,9 a three-judge circuit court
appellate panel ruled that a UTC charging merely careless driving with a crash causing $500.00 damages
without injury was sufficient. The court concluded that the seventy year old decision in Robinson came “long
before the present UTC notification procedure” was established in the Uniform Disposition of Traffic
Infractions Act. Additionally, the court observed that the Supreme Court reached a different conclusion about
45 years after Robinson10 in McCreary v. State, where the Court held that an information charging “that the
defendant, on or about June 26, 1977, while operating his vehicle in a reckless manner likely to cause death or
great bodily harm to another, did kill one James Sanders in Bay County, Florida is legally sufficient to inform
the defendant of the nature of the accusation against which he must defend.”11

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

Specificity is certainly important when a judge sitting as a magistrate determines whether there is probable
cause at a first appearance pursuant to Rule 3.133(a)(3). In Gould v. State,12 the court considered whether the
UTC was sufficient to meet the probable cause requirement of the rule. The court said the rule requires that the
magistrate’s finding of probable cause be “supported by circumstances strong enough to warrant a cautious
person to believe that [the defendant] was guilty of DUI.” 13 The officer checked boxes indicating that the
accused had been involved in an accident resulting in no injuries and estimated damage of $2800. The citation
also indicated that the defendant had an alcohol level of .000, “‘URINE SUBMITTED,’” and “‘DRE
COMPLETED.’”14 The court ruled that this citation was insufficient to establish probable cause “because it did
not include any facts indicating that [the defendant’s] normal faculties were impaired and showed that his
breath-alcohol level was 0.00.”15 The court also stressed that in the absence of some “corroborative information
such as the result of a breathalyzer test,” the UTC was just the charging document and not evidence. 16

Although a traffic citation may be inartfully drawn, it may still be sufficient to vest the court with jurisdiction.
In State v. Witcher,17 the court considered the sufficiency of such a poorly drafted citation. The document
suffered from these deficiencies: (a) it cited to a nonexistent subsection of § 316.193; (b) it contained
checked boxes referring to “damage to other property,” “injury to others,” and “serious bodily injury to
another”; and (c) it apparently made reference to no other statutory subsection. Thus, the exact charge was
unclear. Nevertheless, the court found that the citation contained all the necessary elements to charge the
misdemeanor of simple DUI or DUI involving damage to property or person in county court. The fact that it
also alleged a felony only subjected it to dismissal and amendment. This flawed citation was sufficient to
sustain the defendant’s plea to a misdemeanor in county court and to bar a felony prosecution. 18

The defendant also raised subject matter jurisdiction where he was accused of driving without a license. 19 He
argued that the citation was defective because it did not allege he was driving. It simply charged the defendant
with violating § 322.03, the statute requiring a license. On appeal, the court found that the citation was
sufficient based on Deel.20 It put the defendant on notice of the charge.

When an officer issues a traffic citation unrelated to failure to pay a toll, or certain offenses involving traffic
control devices the officer
shall deposit the original traffic citation or, in the case of a traffic enforcement agency that has an
automated citation issuance system, the chief administrative officer shall provide by an electronic
transmission a replica of the citation data to a court having jurisdiction over the alleged offense or
with its traffic violations bureau within 5 days after issuance to the violator. 21

However, this requirement is not jurisdictional. 22 Consequently, the defendant’s failure to raise the defect prior
to or at arraignment constitutes a waiver.23

While the failure to comply with the five-day statutory filing requirement is not jurisdictional, there has been
uncertainty as to when the court’s jurisdiction is actually invoked. In Ivory v. State,24 the court stated:

[S]ervice on the accused of a copy of a properly prepared uniform traffic citation containing a
notice to appear, and the timely filing of the original and one copy of the traffic citation, as
required by section 316.650(3), Florida Statutes in the court having jurisdiction over the
alleged offense, invokes the subject matter jurisdiction of the court and commences prosecution of
the criminal traffic case for purposes of the statute of limitations.25 (emphasis added).

Despite this language, in Bryant v. State,26 a three-judge circuit court panel ruled that for purposes of the statute
of limitations, prosecution began when the citation was issued even though the officer failed to comply with the
five-day requirement. The rationale for the Bryant27 decision was that in Ivory28 the officers apparently complied
with the five-day requirement and the only issue was whether the State had to file some document in addition to

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

the citation to commence prosecution. Thus, the court concluded that the ruling in State v. Hancock29 that the
five-day deadline was not jurisdictional, controlled the outcome.

But in Oliver v. State,30 a three-judge panel from the same circuit as was Bryant31 reached a different conclusion
as to the effect of non-compliance with the statutory filing deadline on speedy trial. The court recognized that
the defendant is taken into custody for purposes of the speedy trial rule when the traffic citation is issued;
however, the jurisdiction of the court is not invoked and prosecution begun until officials actually comply with
the statutory filing requirement.32 The rule is that if the State fails to initiate prosecution until after the expiration
of the speedy trial period, the defendant is entitled to immediate discharge without filing a notice of expiration. 33
In Oliver ninety days from service of the citation for a misdemeanor leaving the scene, the speedy trial period
expired, but the citation had not been filed with the clerk. The circuit court ruled that the defendant was not
required to file a notice of expiration, but was entitled to discharge upon filing a motion. 34

Charging documents may be amended during the trial. 35 Such amendments are impermissible only if the change
“would prejudice the substantial rights of the defendant.” 36 In Taylor v. State,37 the court held that an amendment
during the charge conference eliminating the allegation that the defendant was impaired by chemical and
controlled substances was proper. The court found that the amendment would have actually been helpful to the
defendant. Furthermore, the trial judge erred in not basing the decision on the degree of prejudice to the
defendant.

As made clear in subsequent chapters, these cases are handled both in county and circuit court; however,
juvenile cases pose a special problem. Pursuant to Florida Statutes, § 316.635, the county court has exclusive
jurisdiction over misdemeanor traffic offenses committed by minors. 38 The juvenile division of the circuit court
does not have jurisdiction over these cases. 39 Changes to the juvenile code have not changed that rule. 40
However, if the traffic incident involves a felony and a related misdemeanor DUI, jurisdiction is with the circuit
court.41

Driving can cover several counties; therefore, venue may become an issue. That was the problem in Naveo v.
State.42 There the court ruled where the defendant was driving back and forth across a bridge that was in two
counties, venue was in either county.43

The misdemeanor speedy trial period controls all such cases in county court. As made clear in Chapter 2 of this
book, there are several different kinds of felony DUI charges, including charges based on multiple prior
convictions, and the felony speedy trial period applies to such cases in circuit court. 44 But from time to time the
prosecution drops, moves or changes the charge and that creates different speedy trial issues.

In State v. Jackson,45 where the State filed a nolle prosequi on a misdemeanor DUI in county court before
expiration of the misdemeanor speedy trial period and filed a felony DUI and that same misdemeanor DUI in
circuit court, the district court ruled that the county judge no longer had jurisdiction to grant a motion for
discharge. On the other hand, in Lovelace v. State,46 where the State filed a no information on a misdemeanor
DUI after expiration of speedy trial and filed a felony DUI but did not refile the misdemeanor DUI, the district
court held that the county judge had the power to grant a motion to discharge. In Lovelace,47 the court certified
conflict with Jackson.48 The Florida Supreme Court initially granted review to consider the certified question in
Lovelace,49 but then dismissed the appeal50 for lack of conflict. The Court observed that in Jackson,51 the State
nolle prossed the misdemeanor DUI before the misdemeanor speedy trial period expired and refiled the
misdemeanor along with a felony within the felony speedy trial period; whereas, in Lovelace,52 the State
terminated the misdemeanor DUI prosecution in county court after the misdemeanor speedy trial period expired
and did not refile the misdemeanor in circuit court.53

As suggested by the Supreme Court’s approach in the Jackson/Lovelace matter, if the State seeks to move a
misdemeanor DUI from one court to another, it should do so before the misdemeanor speedy trial period
expires. Other cases support this conclusion. In Brady v. State,54 the State filed a DUI in county court, but
subsequently filed an information charging a related felony and the same misdemeanor DUI in circuit court
after the expiration of the misdemeanor speedy trial period. Neither side filed a motion to consolidate. The

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

Second District held: “the county court was never divested of jurisdiction over the misdemeanor DUI charge,
and the circuit court never properly obtained jurisdiction over that charge.” 55 Subsequently, the court ruled
defendant was not entitled to discharge on the misdemeanor DUI in county court because he waived his right to
a speedy trial when he rejected a circuit judge’s offer to try that charge as an acting county judge during the 15-
day recapture period as authorized by local administrative order.56

The recent case of State v. Borko,57 holds that the same rule applies if the State moves the misdemeanor charge
from circuit court to county court. To avoid discharge the State must file the misdemeanor in county court
before expiration of the misdemeanor speedy trial period. In Woodbury v. State,58 the court held that if a felony
DUI charge is dismissed the trial judge may retain jurisdiction over an amended information charging the
misdemeanor DUI, but the felony speedy trial period applies to the misdemeanor pursuant to Rule 3.191(f). In
Borko, the court recognized that “Woodbury does not address whether the 175-day felony speedy trial time still
applies after the felony is nolle prossed and the case is filed in county court.” 59

It is clear, however, that if the State abandons a misdemeanor in county court and pursues a felony in circuit
court based on the same event, the felony speedy trial rule applies to the enhanced charge. In State v. Mercer,60
the court ruled that where the defendant was initially charged with misdemeanor petit theft and the State
dropped the misdemeanor and filed a felony, the felony speedy trial period applied. The defendant was not
entitled to discharge on the felony without the recapture period because the State filed the felony charge and
noticed the defendant within the felony speedy trial period. But, just to be clear, if speedy trial runs on a
misdemeanor and the defendant files a notice of expiration, the State cannot salvage the prosecution of the
misdemeanor by nolle prossing the misdemeanor and then refiling it as an additional count with a related
felony.61

Obviously, the window of recapture referenced in some of the foregoing cases is extremely important. It gives
the State additional time beyond the allotted speedy trial period to save its case. 62 While the burden is on the
defendant to trigger the recapture period by filing a notice of expiration of the speedy trial period, 63 the State’s
conduct may relieve the defendant of that burden. There is no doubt that is the result when the State fails to file
or refile charges until after the speedy trial period has expired.64 But where the State amended a DUI charge
during the recapture period to allege a .15 bal instead of a .08, the trial judge properly struck the amendment
and allowed the State to proceed on the original charge.65

Some Florida courts have recognized that even though the State files the charging document within the speedy
trial period, the State is not entitled to the recapture period if its conduct creates the impression that the matter is
not being pursued until after the speedy trial period expires. 66 In State v. Devard,67 the court recognized this to be
the majority view and concluded that for the court to deny the State the recapture period the State must have
taken some “affirmative steps to terminate its prosecutorial efforts or lull [the defendant] into believing that it
was unnecessary … to file a notice of expiration.” But the Fourth and Fifth Districts disagree with the position
that the State is not entitled to the recapture period despite the absence of notification to the defendant prior to
expiration of speedy.68

The Florida Supreme Court recently resolved the conflict between the district courts on this speedy trial issue.
In Born-Suniaga v. State,69 the Court held:

the State is not entitled to the recapture period discussed in Florida Rule of Criminal
Procedure 3.191 where the State informed the defendant it had terminated its
prosecutorial efforts but failed to notify the defendant of new and different charges
based on the same conduct or criminal episode that were filed before the speedy trial
period expired.

One recent county court case dealt with the application of constitutional speedy trial to a suspended license
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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

case.70 The court dismissed the charge. The defendant in that case was seen driving. It was later determined that
his license was suspended, but no charge was filed for almost 14 months. The defense established the necessary
elements and the delay, which resulted from negligence, was presumptively prejudicial. The defendant timely
asserted his rights. And even if the delay had not been presumptively prejudicial, the court would have found it
to be actually prejudicial because the defendant did not recall the event and there was no other available
evidence.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Fla. R. Traf. Ct. 6.010(a).
2
Fla. R. Traf. Ct. 6.040(b).
3
See Deel v. State, 750 So. 2d 112 (Fla. 5th DCA 1999), review denied, 767 So. 2d 455 (Fla. 2000);
Hurley v. State, 322 So. 2d 506 (Fla. 1975) (holding DUI can be prosecuted by UTC). See also State v.
Brady, 985 So. 2d 656, 664 n.4 (Fla. 2d DCA 2008); Hepfer v. State, 9 Fla. L. Weekly Supp. 161 (Fla.
10th Cir. Ct. Feb. 6, 2002)Hepfer v. State, 9 Fla. L. Weekly Supp. 161 (Fla. 10th Cir. Ct. Feb. 6, 2002).
4
See Deel v. State, 750 So. 2d 112 (Fla. 5th DCA 1999), review denied, 767 So. 2d 455 (Fla. 2000).
5
See Deel v. State, 750 So. 2d 112 (Fla. 5th DCA 1999), review denied, 767 So. 2d 455 (Fla. 2000).
6
Robinson v. State, 113 Fla. 854, 152 So. 717 (1934).
7
Robinson v. State, 113 Fla. 854, 152 So. 717 (1934).
8
State v. Carella, 15 Fla. L. Weekly Supp. 371 (Fla. Volusia Cty. Ct. Feb. 4, 2008)State v. Carella, 15
Fla. L. Weekly Supp. 371 (Fla. Volusia Cty. Ct. Feb. 4, 2008).
9
State v. Asbell, 15 Fla. L. Weekly Supp. 208 (Fla. 6th Cir. Ct. Oct. 8, 2007)State v. Asbell, 15 Fla. L.
Weekly Supp. 208 (Fla. 6th Cir. Ct. Oct. 8, 2007). See also Tackett v. State, 23 Fla. L. Weekly Supp.
511 (Fla. 7th Cir. Ct. August 25, 2015)Tackett v. State, 23 Fla. L. Weekly Supp. 511 (Fla. 7th Cir. Ct.
August 25, 2015) (citing Asbell). Contra Ascherman v. State, 18 Fla. L. Weekly Supp. 253 (Fla. 7th Cir.
Ct. Dec. 30, 2010)Asbell). Contra Ascherman v. State, 18 Fla. L. Weekly Supp. 253 (Fla. 7th Cir. Ct.
Dec. 30, 2010) (the court found the citation insufficient for lack of specificity; it alleged careless
driving, cited the statute, and set forth in the comments section the date of the fatal crash and referenced
the crash report).
10
Robinson v. State, 113 Fla. 854, 152 So. 717 (1934).
11
McCreary v. State, 371 So. 2d 1024, 1028 (Fla. 1979).
12
Gould v. State, 974 So. 2d 441 (Fla. 2d DCA 2007).
13
Gould v. State, 974 So. 2d 441, 445 (Fla. 2d DCA 2007).
14
Gould v. State, 974 So. 2d 441, 442 (Fla. 2d DCA 2007).
15
Gould v. State, 974 So. 2d 441, 446 (Fla. 2d DCA 2007).
16
Gould v. State, 974 So. 2d 441, 446 (Fla. 2d DCA 2007).
17
State v. Witcher, 737 So. 2d 584 (Fla. 1st DCA 1999).

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

18
In Witcher, the court noted that such a defective citation might raise a question as to what level of DUI
could be the basis of the sentence. This suggestion was based on the ruling in Leone v. State, 590 So. 2d
29 (Fla. 5th DCA 1991).
19
McAnlis v. State, 8 Fla. L. Weekly Supp. 700 (Fla. 15th Cir. Ct. July 26, 2001)McAnlis v. State, 8 Fla.
L. Weekly Supp. 700 (Fla. 15th Cir. Ct. July 26, 2001).
20
Deel v. State, 750 So. 2d 112 (Fla. 5th DCA 1999), review denied, 767 So. 2d 455 (Fla. 2000).
21
§ 316.650(3)(a), Fla. Stat.
22
State v. Hancock, 529 So. 2d 1200 (Fla. 5th DCA 1988). See also Loper v. State, 840 So. 2d 1139
(Fla. 1st DCA 2003).
23
State v. Hancock, 529 So. 2d 1200 (Fla. 5th DCA 1988). See also Loper v. State, 840 So. 2d 1139
(Fla. 1st DCA 2003).
24
Ivory v. State, 588 So.2d 1007 (Fla. 5th DCA 1991).
25
Ivory v. State, 588 So.2d 1007, 1009 (Fla. 5th DCA 1991).
26
Bryant v. State, 10 Fla. L. Weekly Supp. 71 (Fla. 9th Cir. Ct. October 3, 2002)Bryant v. State, 10 Fla. L.
Weekly Supp. 71 (Fla. 9th Cir. Ct. October 3, 2002).
27
Bryant v. State, 10 Fla. L. Weekly Supp. 71 (Fla. 9th Cir. Ct. October 3, 2002)Bryant v. State, 10 Fla. L.
Weekly Supp. 71 (Fla. 9th Cir. Ct. October 3, 2002).
28
Ivory v. State, 588 So.2d 1007 (Fla. 5th DCA 1991).
29
State v. Hancock, 529 So.2d 1200 (Fla. 5th DCA 1988).
30
Oliver v. State, 24 Fla. L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016)Oliver v. State, 24 Fla.
L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016).
31
Bryant v. State, 10 Fla. L. Weekly Supp. 71 (Fla. 9th Cir. Ct. October 3, 2002)Bryant v. State, 10 Fla. L.
Weekly Supp. 71 (Fla. 9th Cir. Ct. October 3, 2002).
32
Oliver v. State, 24 Fla. L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016)Oliver v. State, 24 Fla.
L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016).
33
Oliver v. State, 24 Fla. L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016)Oliver v. State, 24 Fla.
L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016) (citing State v. Williams, 791 So.2d 1088,
1091 (Fla. 2001)).
34
Oliver v. State, 24 Fla. L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016)Oliver v. State, 24 Fla.
L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016). Contra Fielder v. State, 24 Fla. L. Weekly
Supp. 910 (Fla. 6th Cir. Ct. August 26, 2016)Fielder v. State, 24 Fla. L. Weekly Supp. 910 (Fla. 6th Cir.
Ct. August 26, 2016) (citation was filed with the clerk after the expiration of the speedy trial period, but
the court ruled that the issued UTC was a valid charging document; therefore, State was entitled to the
recapture period).
35
Taylor v. State, 15 Fla. L. Weekly Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008)Taylor v. State, 15 Fla. L.
Weekly Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008).
36
Taylor v. State, 15 Fla. L. Weekly Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008)Taylor v. State, 15 Fla. L.
Weekly Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008).

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

37
Taylor v. State, 15 Fla. L. Weekly Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008)Taylor v. State, 15 Fla. L.
Weekly Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008).
38
N.J.G. v. State, 987 So. 2d 101 (Fla. 5th DCA 2008); State v. Jones, 899 So. 2d 1280 (Fla. 4th DCA
2005). See also Gast v. State, 14 Fla. L. Weekly Supp. 433 (Fla. 9th Cir. Ct. Feb. 19, 2007)Gast v. State,
14 Fla. L. Weekly Supp. 433 (Fla. 9th Cir. Ct. Feb. 19, 2007).
39
N.J.G. v. State, 987 So. 2d 101 (Fla. 5th DCA 2008); State v. Jones, 899 So. 2d 1280 (Fla. 4th DCA
2005).
40
N.J.G. v. State, 987 So. 2d 101 (Fla. 5th DCA 2008).
41
State v. W.W., 16 So. 3d 305 (Fla. 5th DCA 2009) (court recognized that § 26.012(2)(d), Fla. Stat.
controls).
42
Naveo v. State, 12 Fla. L. Weekly Supp. 416 (Fla. 6th Cir. Ct. Oct. 19, 2004) Naveo v. State, 12 Fla. L.
Weekly Supp. 416 (Fla. 6th Cir. Ct. Oct. 19, 2004).
43
Naveo v. State, 12 Fla. L. Weekly Supp. 416 (Fla. 6th Cir. Ct. Oct. 19, 2004) Naveo v. State, 12 Fla. L.
Weekly Supp. 416 (Fla. 6th Cir. Ct. Oct. 19, 2004).
44
State v. Meyers, 184 So.3d 1149 (Fla. 2d DCA 2015), review denied, 2016 WL 3272518 (Fla. Opinion
Filed June 15, 2016) (holding that when the defendant is arrested and charged with felony DUI based on
a new DUI and multiple prior convictions, the felony speedy trial period applies).
45
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So.2d 807 (Fla. 2002).
46
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006). See also Bush v. State, 937 So. 2d 1148 (Fla. 5th DCA 2006) (as in Lovelace, defendant was
charged with misdemeanor DUI, speedy trial expired, defense filed a notice of expiration and State nolle
prossed the misdemeanor and filed a felony DUI after the 15-day grace period; county judge discharged
the misdemeanor DUI, and on appeal, the court ruled that the felony DUI should have been dismissed).
47
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
48
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So.2d 807 (Fla. 2002).
49
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
50
State v. Lovelace, 928 So. 2d 1176 (Fla. 2006).
51
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So.2d 807 (Fla. 2002).
52
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
53
State v. Lovelace, 928 So. 2d 1176, 1177 (Fla. 2006).
54
Brady v. State, 934 So. 2d 659 (Fla. 2d DCA 2006). See also Williams v. State, 102 So. 3d 25 (Fla.
5th DCA 2012), review denied, 137 So. 3d 1023 (Fla. 2014) (when the State charges a misdemeanor
after the expiration of the misdemeanor speedy trial period, the misdemeanor cannot be saved by
consolidating it with a felony); Hernandez v. State, 985 So. 2d 1115 (Fla. 3d DCA 2008) (county court
retained jurisdiction and should have dismissed misdemeanor DUI and DWLSR charges after 90-day

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

speedy trial expired where at the State’s request the county judge transferred the causes to circuit court,
but the State never moved to consolidate the misdemeanors with a felony charge).
55
Brady v. State, 934 So. 2d 659, 662 (Fla. 2d DCA 2006).
56
State v. Brady, 985 So. 2d 656 (Fla. 2d DCA 2008) (the DUI was charged as a second count in an
Information alleging a felony drug charge).
57
State v. Borko, 173 So.3d 1086 (Fla. 2d DCA 2015) (State initially filed a felony based on a bicycle
theft; outside of the misdemeanor speedy trial period the State filed a misdemeanor in county court and
subsequently nolle prossed the felony).
58
Woodbury v. State, 110 So. 3d 17 (Fla. 2d DCA 2013), review denied, 132 So. 3d 223 (Fla. 2013)
(court acknowledged that the circuit and county court had concurrent jurisdiction over the surviving
misdemeanor). See also State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000); Davis v. State, 710 So.
2d 116 (Fla. 2d DCA 1998); Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989). But see State v.
Salter, 143 So. 3d 1049 (Fla. 2d DCA 2014) (court makes clear that in this situation the trial judge also
has the discretion to relinquish jurisdiction to the county court).
59
State v. Borko, 173 So.3d 1086, 1088 (Fla. 2d DCA 2015).
60
State v. Mercer, 112 So. 3d 523 (Fla. 2d DCA 2013), review denied, 129 So. 3d 1069 (Fla. 2013). See
also Nesworthy v. State, 648 So.2d 259, 260 (Fla. 5th DCA 1994) (holding that expiration of speedy
trial on a misdemeanor DUI does not foreclose filing a felony DUI (here based on serious bodily injury)
within the felony speedy trial period).
61
State v. Grosser, 24 So. 3d 718 (Fla. 4th DCA 2009) (holding that once the misdemeanor speedy trial
time limit expires and Defendant files a timely notice of expiration, the State cannot file a nolle prosequi
or No Information of the misdemeanors and properly prosecute them as misdemeanor counts in a felony
Information).
62
Fla. R. Crim. P. 3.191(p).
63
Fla. R. Crim. P. 3.191(p).
64
State v. Agee, 622 So. 2d 473 (Fla. 1993) (window of recapture does not apply where State nolle
prosses charges, but refiles after expiration of speedy trial period). See also State v. Williams, 791
So. 2d 1088 (Fla. 2001) (State is not entitled to recapture period where the State files no charge after the
arrest until speedy trial period expires); Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994) (State is not
entitled to recapture period where after arrest, it files a “‘no action’” and then files charges after
expiration of speedy trial period); Walden v. State, 979 So. 2d 1206 (Fla. 4th DCA 2008) (State was not
entitled to recapture period because the information was filed after the expiration of the speedy trial
period); Oliver v. State, 24 Fla. L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016)Oliver v. State,
24 Fla. L. Weekly Supp. 663 (Fla. 9th Cir. Ct. October 25, 2016) (while defendant was in custody for
speedy trial purposes when the citation was issued, when the officer failed to file the citation as required
by § 316.650(3)(a), Fla. Stat. before the expiration of ninety days, defendant was entitled to
immediate discharge and no notice was required); State v. Boyer, 25 Fla. L. Weekly Supp. 391 (Fla.
Broward Cty. Ct. May 15, 2017)State v. Boyer, 25 Fla. L. Weekly Supp. 391 (Fla. Broward Cty. Ct.
May 15, 2017) (State was not entitled to the recapture period and defendant was entitled to discharge
where State tried to file an information electronically as required, but failed until after expiration of
speedy; instead, State deposited a paper copy before expiration of speedy). Contra Fielder v. State, 24
Fla. L. Weekly Supp. 910 (Fla. 6th Cir. Ct. August 26, 2016)Fielder v. State, 24 Fla. L. Weekly Supp.
910 (Fla. 6th Cir. Ct. August 26, 2016) (citation was filed with the clerk after the expiration of the
speedy trial period, but the court ruled that the issued UTC was a valid charging document; therefore,
State was entitled to the recapture period).
65
State v. Palmer, 24 Fla. L. Weekly Supp. 672 (Fla. 20th Cir. Ct. March 29, 2016) State v. Palmer, 24 Fla.

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

L. Weekly Supp. 672 (Fla. 20th Cir. Ct. March 29, 2016).
66
State v. Drake, 209 So.3d 650 (Fla. 2d DCA 2017) (Defendant was entitled to discharge without
notice and State was not entitled to recapture period where the information was filed prior to expiration
of speedy, but the clerk sealed it immediately, the defendant was in custody and his attorney checked the
docket everyday but could not find the charge because it was sealed); Puzio v. State, 969 So. 2d
1197, 1201 (Fla. 1st DCA 2007) (State forfeited the right to recapture period where defendant was
initially given notice to appear on a misdemeanor theft, clerk and prosecutor mistakenly led defendant to
believe that charge had been dropped; State then filed an information within the speedy trial period
charging the misdemeanor theft, but failed to advise the defendant or his attorney until after the speedy
trial period expired); State v. Gantt, 688 So2d 1012 (Fla. 3d DCA 1997) (State was not entitled to
recapture period where defendant was on controlled release when he was arrested on a new charge and
after that arrest his controlled release was revoked and he was imprisoned, the State “‘no actioned’” the
new charge, but then refiled it within speedy, took no action to inform the defendant or to have him
present at arraignment and the judge issued a capias, which was executed after the expiration of speedy);
Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997) (State was not entitled to recapture period
where it “‘no actioned’” the case and released the defendant without restriction, filed an information and
secured an arrest warrant within speedy trial, but made no further effort to notify the defendant until
after speedy expired and the defendant was arrested on the warrant); Dedolchow v. State, 675 So.2d 955
(Fla. 4th DCA 1996) (where State entered a “‘no file’” on a misdemeanor DUI and released defendant
from custody, filed new felony charges within speedy trial period, the fact that the defendant was “not
returned to custody-through no fault of his own-until he was rearrested on the felony DUI charge 8
months later” did not toll running of the speedy trial time); Morris v. State, 662 So.2d 378 (Fla. 4th
DCA 1968) (State not entitled to recapture period where charge was nolle prossed and refiled within
speedy trial period, but defendant, who had been released, was not rearrested or notified).
67
State v. Devard, 178 So.3d 41, 44 (Fla. 2d DCA 2015) (State was entitled to window of recapture
where State did not drop charges; rather, officer arrested defendant, told her she might be charged, and
released her; charges were filed within the speedy trial period, but the State did not have a good address
and defendant was not notified until she was arrested again after the speedy trial period had expired).
See also State v. McCullers, 932 So. 2d 373 (Fla. 2d DCA 2006) (State was entitled to recapture
period where the defendant was released from juvenile facility because he could no longer be lawfully
held, State never terminated prosecution, charges were filed prior to expiration of speedy trial period, the
defendant was on notice that he was still subject to prosecution, and the State did nothing to suggest it
was unnecessary to file notice of expiration).
68
State v. Born-Suniaga, 219 So.3d 74 (Fla. 4th DCA 2017), decision quashed, 2018 WL 5075161
(Fla. Opinion Filed October 15, 2018) (en banc court recedes from previous decisions and holds that
where the State files charge before expiration of speedy, State is entitled to recapture period
notwithstanding failure to notify the defendant until after speedy expires; aligns with Jimenez and
certifies conflict); State v. Jimenez, 44 So. 3d 1230 (Fla. 5th DCA 2010) (State is entitled to the
recapture period when the State files an information within the speedy trial period, even though it does
not notify the defendant of the charges until after speedy trial expires; court certified conflict, but
apparently no petition was filed with the Supreme Court).
69
Born-Suniaga v. State, 2018 WL 5075161 (Fla. 2018) (quashing the decision in State v. Born-
Suniaga, 219 So. 3d 74 (Fla. 4th DCA 2017), and disapproving the decision in State v. Jimenez, 44
So.3d 1230 (Fla. 5th DCA 2010)).
70
State v. Woodall, 25 Fla. L. Weekly Supp. 647 (Fla. Sarasota Cty. Ct. September 25, 2017)State v.
Woodall, 25 Fla. L. Weekly Supp. 647 (Fla. Sarasota Cty. Ct. September 25, 2017).

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§ 1:1.Charging documents and other preliminary..., 11 Fla. Prac., DUI...

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 1:2.Circumstantial evidence, 11 Fla. Prac., DUI Handbook § 1:2 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:2. Circumstantial evidence

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 355(6)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1408 to 1411, 1545

Usually, there is direct evidence of DUI; however, sometimes the State must rely exclusively on circumstantial
evidence to prove that the defendant committed the offense. For instance, where no one witnesses the defendant
driving or in actual physical control, proof of guilt must be circumstantial. State v. Law1 controls this subject.

In Law, the Court held that if the State relies solely on circumstantial evidence, it must meet the threshold
burden of introducing “competent evidence which is inconsistent with the defendant’s theory of events.” 2 Once
the State meets that burden “it is the jury’s duty to determine if the evidence excludes every reasonable
hypothesis of innocence beyond a reasonable doubt.”3

In considering the sufficiency of circumstantial evidence, the trial judge decides only whether the State has met
its initial burden, not whether the defense theory is more credible than the State’s. The judge must acquit the
defendant if there is a reasonable theory of innocence and the State fails to present any evidence that, if believed
by the trier of fact, would make that theory impossible. On the other hand, if the State presents such evidence,
the jury must decide whether to believe it or whether to accept the defense theory. 4

An important consideration in the court’s decision is whether the parties rely on the same circumstances in
support of their hypotheses. If two equally probable theories arise from one set of circumstances, one consistent
with guilt and the other with innocence, the court must acquit the defendant. If, however, the parties rely on
different circumstances and those relied on by the State contradict the defense theories, the jury must resolve the
conflict.5

Where the evidence is entirely circumstantial, the defendant’s testimony is critical. The court must accept the

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§ 1:2.Circumstantial evidence, 11 Fla. Prac., DUI Handbook § 1:2 (2018-2019 ed.)

defendant’s version of the event, unless there is some evidence that it is false. If the defendant establishes a
defense as a matter of law, the judge must grant a motion for judgment of acquittal. 6

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Law, 559 So. 2d 187 (Fla. 1989). See also Knight v. State, 186 So.3d 1005, 1009 (Fla. 2016)
(Court rejected argument to abandon Law and confirmed that test, but clarified that the standard only
applies where the State must rely wholly on circumstantial evidence to prove that the accused committed
the crime).
2
State v. Law, 559 So. 2d 187 (Fla. 1989). See also Troy v. State, 948 So. 2d 635, 646 (Fla. 2006);
Ballard v. State, 923 So. 2d 475 (Fla. 2006); Darling v. State, 808 So. 2d 145 (Fla. 2002); Tucker
v. State, 198 So.3d 1011 (Fla. 2d DCA 2016); Izquierdo v. State, 177 So.3d 1018 (Fla. 3d DCA 2015),
review denied, 192 So.3d 38 (Fla. 2015); Wright v. State, 174 So.3d 558 (Fla. 4th DCA 2015);
Rocker v. State, 122 So. 3d 898 (Fla. 2d DCA 2013), review denied, 2016 WL 5395757 (Fla. Opinion
Filed Sept. 27, 2010); State v. Sims, 110 So. 3d 113 (Fla. 1st DCA 2013); Pennington v. State, 100
So. 3d 193 (Fla. 5th DCA 2012); Miller v. State, 107 So. 3d 498 (Fla. 2d DCA 2013); Leonard v.
State, 731 So. 2d 712 (Fla. 2d DCA 1999) (these cases provide good examples of the application of the
principles set forth in Law, and clearly illustrate the nature of the State’s burden).
3
State v. Law, 559 So. 2d 187 (Fla. 1989). See also Glover v. State, 226 So.3d 795, 804 (Fla. 2017);
Troy v. State, 948 So. 2d 635, 646 (Fla. 2006); Finley v. State, 139 So. 3d 940 (Fla. 4th DCA 2014);
State v. Colligan, 604 So. 2d 547 (Fla. 1st DCA 1992), review denied, 613 So.2d 2 (Fla. 1992).
4
State v. Law, 559 So. 2d 187, 189 (Fla. 1989). See also Grover v. State, 581 So. 2d 1379, 1382 (Fla.
4th DCA 1991).
5
Grover v. State, 581 So. 2d 1379 (Fla. 4th DCA 1991).
6
McArthur v. State, 351 So. 2d 972 (Fla. 1977). See also Crain v. State, 894 So. 2d 59 (Fla. 2004);
Miller v. State, 107 So. 3d 498 (Fla. 2d DCA 2013); Ginn v. State, 26 So. 3d 706, 711 (Fla. 2d DCA
2010); Rager v. State, 587 So. 2d 1366 (Fla. 2d DCA 1991); Cowart v. State, 582 So. 2d 90 (Fla. 2d
DCA 1991).

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§ 1:3.Proof of driving or actual physical control of a vehicle, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 1:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:3. Proof of driving or actual physical control of a vehicle

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332, 355(6)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1382 to 1394, 1408 to 1411, 1545

Typically, an officer or another witness sees the driving or the defendant’s statements prove the driving. 1 When
that is not true, the circumstantial evidence rule applies. Thus, in Davis v. State,2 for example, the court
acquitted the defendant where the evidence failed to overcome his testimony and other proof that he was only a
passenger in the car. The result was the same in Lukas v. State,3 where there was no direct evidence of driving or
actual physical control and the circumstantial evidence failed to exclude every reasonable hypothesis of
innocence. The court came to a contrary conclusion in West v. State,4 a DUI Manslaughter case, based solely on
the State’s expert testimony.

Circumstantial evidence of driving is often necessary where there is an accident involving only one person or
several incapacitated people who are unable to identify the drivers. 5 Proof of actual physical control may be
unavailable in such cases because the defendant was not seen in control of the car, the vehicle was not
reasonably operable, or the offense was one usually requiring proof of driving, such as DUI Manslaughter.

There was such a problem in State v. Boynton,6 where an officer discovered a car in a ditch. The vehicle had
apparently traveled across the road onto the shoulder and partially into the ditch. It had “bottomed out” and the
driver had spun the tires in an unsuccessful attempt to move the car. The defendant, who was incoherent and
intoxicated, was in the driver’s seat. The keys were in the ignition, but the engine was off. There was no
evidence that anyone other than the defendant was near or had driven the vehicle. Since the car was inoperable
at the time the officer saw it, the State could not prove the charge by proof of actual physical control. 7
Nevertheless, the circumstantial evidence of driving to the scene prior to the crash while impaired was sufficient
to submit the case to the jury.8

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§ 1:3.Proof of driving or actual physical control of a vehicle, 11 Fla. Prac., DUI...

Where the State relies on circumstantial evidence to prove driving, it might seem that uncontradicted evidence
someone other than the defendant drove the vehicle would compel an acquittal. However, there appears to be
some conflict on this point. In Chabut v. State,9 where there was uncontroverted evidence that another person
drove the vehicle until it became disabled and then left the defendant in the vehicle, the court held that the trial
judge should have granted a motion for judgment of acquittal. However, in Finney v. State,10 the court ruled
under similar circumstances that the trial judge correctly denied a motion for judgment of acquittal where the
impaired defendant was found in the driver’s seat trying to start a car that had struck a tree. Evidence showed
that earlier in the evening the defendant left a bar with a man driving her car. The defendant testified that the
man drove the car until the crash and ran from the scene, but the trooper said he saw no one running from the
scene and the defendant could not remember the man’s name.

Where the evidence is insufficient to prove that the defendant was driving, the State may still make its case by
proving that the defendant was in actual physical control of the vehicle. This occurs where the accused is sitting
in a motionless vehicle. In such cases, the State must show that the operator was in or on the vehicle and had the
capability to operate it. The operator need not be exercising that capability at the time of the offense. 11 It is
critical to include the requirement that the defendant was “in or on the vehicle,” in jury instructions on actual
physical control. And one court ruled that exclusion of this language constitutes fundamental error because it
permits the jury to conclude that there is no such requirement. 12 However, a recent change in the standard jury
instructions clarifies: “The option of ‘on a vehicle’ pertains to vehicles such as motorcycles and bicycles.” 13

The legislative intent in permitting a conviction based solely on actual physical control is to keep impaired
people from ever getting behind the wheel of a car. 14 Accordingly, the term, “actual physical control,” includes
the ability to keep a vehicle from starting and the authority to manage it. 15 It includes “the present ability to
operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment.” 16
Thus, the accused may have violated the law even if he or she parks the car or never drives it at all.

The Legislature does not violate due process by making it unlawful to be in actual physical control of a vehicle
because such control “generally constitutes an intentional act.” 17 As the court recognized in Lamore:18

Clearly, there is a legitimate governmental interest in addressing the drunk driving

problem by making it a crime to be in actual physical control of a vehicle while
impaired-thereby allowing an intoxicated person to be apprehended before he
“strikes;” deterring those who have been drinking from getting into their vehicles,
except as passengers; and protecting the public from the danger of an impaired
person who places himself behind the wheel and could at any time and with little
difficulty start the car and drive away.

The State has relied on proof of actual physical control under different circumstances in both criminal and
administrative law cases. In State v. Favreau,19 the trial judge concluded that there was sufficient evidence the
defendant had been in the vehicle and exercised actual physical control for the case to go to the jury where the
defendant was standing alone in front of one of two vehicles involved in an accident, and when the officer asked
for the registration and insurance, the defendant proceeded to get documents from the vehicle. In Anderson v.
Dep’t. of Highway Safety & Motor Vehicles,20 the court concluded that there was sufficient evidence of actual
physical control where there were no passengers in either of the two vehicles involved in the accident, and the
defendant’s “forearms were red and bruised apparently from the deployment of the airbag.”

The circumstances of the accident alone may be sufficient proof of actual physical control. Thus, in Department
of Highway Safety and Motor Vehicles v. Silva,21 the court held that the circumstances were sufficient for the
hearing officer to find that the petitioner was driving a motorcycle at the time of a crash when he was
discovered on the ground next to the damaged vehicle. And in Evans v. Dep’t of Highway Safety & Motor
Vehicles,22 the court upheld the hearing officer’s finding of probable cause of actual physical control where
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§ 1:3.Proof of driving or actual physical control of a vehicle, 11 Fla. Prac., DUI...

officers received a report that a white BMW traveling at a high rate of speed, drove off the road through some
bushes near a park, and the officers saw the white car in a grassy area of the park. The two driver’s side tires
were flat and there were skid marks indicating the direction in which the defendant was driving. The vehicle
had plowed through hedges onto the grass and left deep ruts in the sod. The defendant was seated in the driver’s
seat with the door closed. Officers found dirt and grass in the car, and saw that the defendant’s arms, neck, and
face were covered in dirt. No one else was in the car. The court concluded that this circumstantial evidence
excluded any reasonable hypothesis that the defendant was not driving or in actual physical control even though
there was no proof as to the location of the keys or that the vehicle was operable.

As the foregoing cases suggest, evaluation of the sufficiency of the evidence to establish actual physical control
requires consideration of the totality of the circumstances. Various factors may be significant, but the courts
have specifically recognized these three: (1) actual or constructive possession of the key to the vehicle or proof
that it could be operated without the key, (2) the presence of the defendant in the driver’s seat, and (3) proof that
the vehicle was operable to some extent.23 Thus, presence behind the wheel, is a strong indicator of actual
physical control.24

Possession of the keys or proof that the vehicle could be operated without the keys may be of even greater
significance than presence behind the wheel. After all, that has the greatest impact on the ability to control the
vehicle. That has been the focus of several cases.

In one such case, Fieselman v. State,25 an individual was lying down, asleep in the front seat of a car parked in a
parking lot. The engine was off and cold, but some of the lights were on. The gear shift was in the parked
position. These facts were insufficient to create a jury question as to whether there was actual physical control,
but the presence of the key in the ignition switch, even in the off position, cured that defect. 26 The court
observed that the result might have been the same even if the defendant had been in the back seat. The result
was the same in Griffin v. State,27 where the accused was asleep in the driver’s seat of a stopped car facing the
wrong way in a traffic lane. In that case, the engine was off, the lights were on, the defendant had his foot on the
brake pedal, and the keys were in the ignition.

Even if the keys are not observed in the ignition, the State can still establish actual physical control. Thus, the
evidence was sufficient in Baltrus v. State,28 where the defendant was slumped behind the wheel of a parked car
with the keys in his hand. And in State v. Fitzgerald,29 the evidence was sufficient where the defendant was
sitting in the driver’s seat of a car stopped in an intersection with the engine off and a passenger in the vehicle,
but the keys were not in the ignition. The officer saw the keys in the defendant’s hand when he asked her to
produce them.30 While the officer did not know whether the keys were in the defendant’s hand the whole time or
whether someone gave them to her, he never saw the keys any other place and there was no evidence that the
defendant searched for the keys or got them from the passenger.31

However, the suspect does not always have the keys in his or her actual possession or in the ignition. If the
defendant is the only one in the vehicle and the keys are “in the ignition or near enough for [the defendant] to
use them to start the vehicle and drive away” the evidence of actual physical control is sufficient. 32 That was the
situation where the defendant was found in a car stopped in the middle of an interstate exit ramp. The keys were
not in the ignition switch, but they were somewhere in the passenger compartment. The court found that there
was constructive possession of the keys, allowing an inference that the defendant could have started the car and
driven away at any time.33 The court took a different position where the defendant was asleep behind the wheel
of a car with the engine off, and a thoughtful citizen had left the key on the hood. 34 The court said, “No case has
stretched the concept of physical control to encompass a situation where the vehicle is not running and the keys
are not even inside the vehicle.”35

As the foregoing authorities suggest, constructive possession may be an element in DUI cases. A person is in
constructive possession of an object if he or she has knowledge of its presence and nature and the ability to
maintain dominion and control over the object. 36 These elements may be inferred from exclusive possession of a
car containing the object.37 If, however, the vehicle is jointly occupied, the State can prove constructive
possession only through evidence of actual knowledge or incriminating statements or facts. 38 Under such

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circumstances, mere proximity to the object is insufficient to establish dominion and control. 39

The application of these principles to possession of the key in a DUI case suggests that, regardless of the key’s
location in or around the car, it will usually be for the jury to decide whether the accused had the ability to
control the vehicle. That decision might be aided by the standard jury instructions on constructive possession.

In dealing with this first element in DUI cases, the parties must be concerned primarily with four questions.
First, is the case based exclusively on driving? Second, if so, are there any problems of identification or issues
involving circumstantial evidence? Third, is the case based on actual physical control? Fourth, if so, is there
adequate evidence of actual or constructive possession of the means of controlling the vehicle?

There is a final question that the parties must also consider: was the vehicle operable at the time of the offense?
The law on this point warrants special attention.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Davis v. State, 6 Fla. L. Weekly Supp. 482 (Fla. 13th Cir. Ct.)Davis v. State, 6 Fla. L. Weekly Supp. 482
(Fla. 13th Cir. Ct.) (Defendant’s statement, “so what I didn’t kill anyone” tended to prove driving).
2
Davis v. State, 485 So. 2d 490 (Fla. 3d DCA 1986).
3
Lukas v. State, 627 So. 2d 123 (Fla. 5th DCA 1993).
4
West v. State, 745 So. 2d 414 (Fla. 5th DCA 1999).
5
See additional authorities dealing with corpus delicti in Ch. 12, Admissibility of Statements.
6
State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989). Cf. Ross v. State, 40 Fla. Supp. 2d 64 (Fla. 4th
Cir. Ct. 1990).
7
State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989). See also Sarmiento v. Dep’t of Highway Safety
& Motor Vehicles, 15 Fla. L. Weekly Supp. 328 (Fla. 15th Cir. Ct. Feb. 14, 2008)Sarmiento v. Dep’t of
Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 328 (Fla. 15th Cir. Ct. Feb. 14, 2008) ,
decision approved, State, Dept. of Highway Safety and Motor Vehicles v. Sarmiento, 989 So. 2d 692
(Fla. 4th DCA 2008) (court upheld circuit court decision reversing license suspension for failure to take
breath test where circuit court ruled it was undisputed that vehicle was inoperable and the record
supported the conclusion that the vehicle was legally parked in a parking lot with two left tires blown,
axle hanging out, and despite the fact that engine was running, automotive service advisor testified it
couldn’t have been moved and no one could explain when or how vehicle got there); Bonett v. State, 6
Fla. L. Weekly Supp. 547 (Fla. 18th Cir. Ct. June 7, 1999)Bonett v. State, 6 Fla. L. Weekly Supp. 547
(Fla. 18th Cir. Ct. June 7, 1999) (court relied on Law and Lucas to reverse convictions based on actual
physical control where intoxicated defendant was next to car in a ditch and his pants legs were wet).
8
State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989). See also State v. Jaume, 25 Fla. L. Weekly Supp.
140 (Fla. 17th Cir. Ct. June 24, 2016)State v. Jaume, 25 Fla. L. Weekly Supp. 140 (Fla. 17th Cir. Ct.
June 24, 2016) (where a witness saw a car stopped at the scene of an accident and no one identified
defendant as the driver at the dismissal hearing, evidence was sufficient that defendant was the driver
where the witness identified him as the driver by pointing at him for two officers; explained that he had
seen the defendant exit the driver’s side of the car and saw no one else exit; defendant admitted to
witness that he had been the driver; and the witness identified the defendant by specific articles of
clothing); Moore v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 918 (Fla. 9th
Cir. Ct. Dec. 27, 2016)Moore v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp.
918 (Fla. 9th Cir. Ct. Dec. 27, 2016) (circumstantial evidence excluded any reasonable hypothesis
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defendant was not driving and/or in actual physical control where officer saw defendant “sitting in the
driver’s seat of a running vehicle which was obviously operable prior to the time it ended up on a [two-
foot construction] barrier and no other individuals were found at the scene or in the immediate area who
could have been driving the vehicle at the time of the crash.”); Alfons v. Dep’t of Highway Safety &
Motor Vehicles, 21 Fla. L. Weekly Supp. 550 (Fla. 7th Cir. Ct. Feb. 3, 2014)Alfons v. Dep’t of Highway
Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 550 (Fla. 7th Cir. Ct. Feb. 3, 2014) (there was
probable cause to believe petitioner was in APC where deputy saw defendant standing next to the open
driver’s side door of a vehicle in a closed gas station where he had not been moments before when the
deputy drove around the building and deputy saw the vehicle keys on the driver’s side floorboard);
Feliciano v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 726 (Fla. 4th Cir. Ct.
Feb. 14, 2014)Feliciano v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 726
(Fla. 4th Cir. Ct. Feb. 14, 2014) (there was sufficient evidence defendant drove vehicle to its location
where officer saw it with one tire off and another flat, there was a gouge in the road, defendant was
behind wheel, and a witness told officer defendant had driven half a mile; presence of a passenger did
not require a different result); State v. Velez, 21 Fla. L. Weekly Supp. 506 (Fla. 17th Cir. Ct. March 12,
2013)State v. Velez, 21 Fla. L. Weekly Supp. 506 (Fla. 17th Cir. Ct. March 12, 2013) (deputy had
probable cause for driving under the influence of alcohol based on his observations of defendant alone in
car, behind the wheel with car in bushes; defendant’s breath smelled of alcohol, and defendant said she
was coming from a party and was lost; defendant was bracing herself on car and swaying); Spears v.
Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 744 (Fla. 4th Cir. Ct. March 4,
2013)Spears v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 744 (Fla. 4th Cir.
Ct. March 4, 2013) (there was competent substantial evidence of APC where no one other than
petitioner was at scene, petitioner never told officers that another person was in vehicle; petitioner had
bleeding cuts on his legs which the officer connected to the broken blood stained driver’s side window
and the window appeared to have been kicked out from the inside); Morefield v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 25 (Fla. 9th Cir. Ct. August 31, 2012) Morefield v.
Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 25 (Fla. 9th Cir. Ct. August 31,
2012) (there was sufficient circumstantial evidence that Petitioner was driving at time of crash where
she was in the driver’s seat immediately after crash, vehicle belonged to her and contained her personal
effects, and no one else was seen in or near the vehicle); Nicholas v. State, 19 Fla. L. Weekly Supp. 984
(Fla. 17th Cir. Ct. July 31, 2012)Nicholas v. State, 19 Fla. L. Weekly Supp. 984 (Fla. 17th Cir. Ct. July
31, 2012) (the evidence that defendant drove was sufficient to go to jury where officers saw vehicle in
right travel lane of roadway, with flashers on, a flat tire, and damage; defendant said he was driving
when tire blew out); Carlo v. State, 15 Fla. L. Weekly Supp. 892 (Fla. 17th Cir. Ct. June 27, 2008) Carlo
v. State, 15 Fla. L. Weekly Supp. 892 (Fla. 17th Cir. Ct. June 27, 2008) (in a DWLS case there was
sufficient evidence that defendant had operated inoperable motorcycle before it became inoperable
where officer observed defendant sitting on it and officer said motorcycle was still hot); Rodriguez-
Havlovic v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 536 (Fla. 9th Cir. Ct.
March 9, 2006)Rodriguez-Havlovic v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 536 (Fla. 9th Cir. Ct. March 9, 2006) (the court upheld hearing officer’s finding that arrest was
lawful where trooper found Petitioner in driver’s seat trying to start damaged vehicle; trooper had
probable cause to believe the Petitioner had been driving before vehicle became inoperable); Fox v.
Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir. Ct. Sept. 27,
2002)Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir. Ct.
Sept. 27, 2002) (although keys were not in the truck, officer had ample evidence of DUI, where the truck
was blocking a parking lot driveway, defendant was behind the wheel, the officer and others saw
obvious signs of intoxication, there was an open container of alcohol, and defendant admitted driving.
“Indeed, since the truck did not drive to [the] parking lot by itself, and it did not park itself
inappropriately in the middle of [the] driveway, the only reasonable inference under the circumstances is
that Petitioner drove drunk.”); State v. Holder, 6 Fla. L. Weekly Supp. 626 (Fla. 20th Cir. Ct. May 28,
1999)State v. Holder, 6 Fla. L. Weekly Supp. 626 (Fla. 20th Cir. Ct. May 28, 1999) (evidence sufficient
where two motor vehicles crashed, victim described general appearance of driver, and officer, who was
at scene, testified defendant admitted he was driving); State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla.
Volusia Cty Ct. August 28, 2013)State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty Ct.
August 28, 2013) (evidence was sufficient that defendant was driving or in actual physical control where
he was the only one at accident scene, was registered owner of vehicle, and was standing in driver’s
doorway; keys were within reach).
9
Chabut v. State, 2 Fla. L. Weekly Supp. 247 (Fla. 17th Cir. Ct. April 6, 1994) Chabut v. State, 2 Fla. L.
Weekly Supp. 247 (Fla. 17th Cir. Ct. April 6, 1994).

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10
Finney v. State, 10 Fla. L. Weekly Supp. 472 (Fla. 10th Cir. Ct. April 28, 2003) Finney v. State, 10 Fla.
L. Weekly Supp. 472 (Fla. 10th Cir. Ct. April 28, 2003). See also Rodriguez–Havlovic v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 536 (Fla. 9th Cir. Ct. March 9,
2006)Rodriguez–Havlovic v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 536
(Fla. 9th Cir. Ct. March 9, 2006) (court upheld hearing officer’s decision that there was probable cause
to find that defendant was driving, where deputy discovered defendant trying to start a car having three
flat tires and damage to the undercarriage in the median, and defendant and another witness claimed that
an unknown man drove her vehicle away from a place where she was drinking).
11
Fla. Std. Jury Instr (Crim.) 28.1. See appendix for standard instructions. “Capability means ‘practical
ability.’” State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011) (quoting Webster’s New World
College Dictionary 216 (4th ed. 2002)).
12
Centeno v. State, 11 Fla. L. Weekly Supp. 196 (Fla. 11th Cir. Ct. Jan. 13, 2004)Centeno v. State, 11 Fla.
L. Weekly Supp. 196 (Fla. 11th Cir. Ct. Jan. 13, 2004).
13
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
14
Griffin v. State, 457 So. 2d 1070, 1071 (Fla. 2d DCA 1984). See also State v. Fitzgerald, 63 So. 3d
75 (Fla. 2d DCA 2011); State v. Poix, 8 Fla. L. Weekly Supp. 654 (Fla. Palm Beach Cty. Ct. June 28,
2001)State v. Poix, 8 Fla. L. Weekly Supp. 654 (Fla. Palm Beach Cty. Ct. June 28, 2001) (court relied
on Griffin to rule that a jury could find defendant guilty of DUI where he was sitting behind the wheel of
the vehicle, with the motor running, another person in the passenger seat, in the driveway of a private
residence).
15
Griffin v. State, 457 So. 2d 1070, 1071 (Fla. 2d DCA 1984).
16
Cloyd v. State, 943 So. 2d 149, 169 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007);
Hughes v. State, 943 So. 2d 176, 194 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
17
Lamore v. State, 983 So. 2d 665, 669 (Fla. 5th DCA 2008).
18
Lamore v. State, 983 So. 2d 665, 669 n.5 (Fla. 5th DCA 2008).
19
State v. Favreau, 10 Fla. L. Weekly Supp. 639 (Fla. Dade Cty. Ct. June 12, 2003) State v. Favreau, 10
Fla. L. Weekly Supp. 639 (Fla. Dade Cty. Ct. June 12, 2003) (trial judge concluded that “[b]y standing
near the vehicle and having the ability to enter the vehicle and retrieve documents from the vehicle, the
Defendant was in position to control the movement or lack of movement of the vehicle.”). See also
DeLuce v. Dep’t of Highway Safety & Motor vehicles, 22 Fla. L. Weekly Supp. 890 (Fla. 15th Cir. Ct.
Feb. 26, 2015)DeLuce v. Dep’t of Highway Safety & Motor vehicles, 22 Fla. L. Weekly Supp. 890 (Fla.
15th Cir. Ct. Feb. 26, 2015) (in a two to one opinion, court ruled arrest unlawful where petitioner was
leaning against vehicle when officer arrived and the evidence was insufficient to show petitioner had
keys or that engine was running; but the court make it clear, it would have upheld the arrest even though
petitioner was outside vehicle, if engine had been running or petitioner had keys in his pocket or in the
ignition); State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013) State v.
Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013) (evidence was sufficient to
establish driving or actual physical control where defendant was standing in driver’s doorway at an
accident scene, the keys were within ready reach, and defendant was the registered owner). But see
Green v. State, 20 Fla. L. Weekly Supp. 745 (Fla. 4th Cir. Ct. March 14, 2013)Green v. State, 20 Fla. L.
Weekly Supp. 745 (Fla. 4th Cir. Ct. March 14, 2013) (officer could not lawfully make an arrest based on
actual physical control in the officer’s presence where there was no accident and defendant was standing
next to and leaning against his parked vehicle); State v. Alfson, 21 Fla. L. Weekly Supp. 343 (Fla.
Volusia Cty. Ct. Oct. 24, 2013)State v. Alfson, 21 Fla. L. Weekly Supp. 343 (Fla. Volusia Cty. Ct. Oct.
24, 2013) (same result as in Green where there was no accident and the officer observed the defendant
in the door frame of the open door and walking to the rear of the car to pump gas).
20
Anderson v. Dep’t. of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 467 (Fla. 2d Cir. Ct.
May 21, 2003)Anderson v. Dep’t. of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 467
(Fla. 2d Cir. Ct. May 21, 2003). But see State v. Higgerson, 19 Fla. L. Weekly Supp. 146 (Fla. Duval
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Cty. Ct. Nov. 1, 2011)State v. Higgerson, 19 Fla. L. Weekly Supp. 146 (Fla. Duval Cty. Ct. Nov. 1,
2011) (detention and arrest was unlawful where trooper was investigating an accident and the only
evidence trooper had of APC was defendant’s privileged admission that he was driving).
21
Department of Highway Safety & Motor Vehicles v. Silva, 806 So.2d 551 (Fla. 2d DCA 2002). See also
Stroud v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 591 (Fla. 6th Cir. Ct.
Aug. 8, 2016)Stroud v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 591 (Fla.
6th Cir. Ct. Aug. 8, 2016) (officer had sufficient evidence petitioner was driving or in actual physical
control of one of the two vehicles on the shoulder after an accident where he identified her by a driver’s
license, one of the cars was registered to her, and she was accompanied only by two dogs—no people).
22
Evans v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 425 (Fla. 9th Cir. Ct.
Jan. 7, 2005)Evans v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 425 (Fla.
9th Cir. Ct. Jan. 7, 2005). See also Morley v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 1011 (Fla. 9th Cir. Ct. August 16, 2005) (the court upheld the hearing officer’s finding
that the trooper had probable case to believe that the defendant was in actual physical control where the
trooper was dispatched to an accident scene and found the impaired defendant behind the wheel of a
damaged car).
23
Jones v. State, 510 So. 2d 1147 (Fla. 1st DCA 1987). See also State v. Fitzgerald, 63 So. 3d 75 (Fla.
2d DCA 2011); State v. Boynton, 556 So. 2d 428 (Fla. 4th DCA 1989).
24
Baltrus v. State, 571 So. 2d 75, 76 (Fla. 4th DCA 1990). See also State v. Fitzgerald, 63 So. 3d 75, 78
(Fla. 2d DCA 2011); Kiely v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 573
(Fla. 20th Cir. Ct. April 2, 2011)Kiely v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly
Supp. 573 (Fla. 20th Cir. Ct. April 2, 2011) (there was sufficient evidence of actual physical control
where defendant was upright behind wheel and car keys were next to his right leg on top of the center
console); Carothers v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 127 (Fla.
13th Cir. Ct. Nov. 26, 2007)Carothers v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly
Supp. 127 (Fla. 13th Cir. Ct. Nov. 26, 2007) (deputy had probable cause for actual physical control
where he observed that defendant was upright behind the wheel, listening to the radio, and was sole
occupant of vehicle); Eister v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 302
(Fla. 5th Cir. Ct. Jan. 9, 2006)Eister v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 302 (Fla. 5th Cir. Ct. Jan. 9, 2006) (hearing officer correctly found that police officer had
probable cause to believe defendant was in actual physical control where EMS worker reported that an
unresponsive individual was slumped over steering wheel; when officer arrived defendant was the only
one in the car, his buttocks was in the driver’s seat, he was slumped over center console, and when
officer woke him, the defendant sat up in the driver’s seat and put his hand on the steering wheel; and
there was no evidence that anyone else had been in the vehicle); Krivanek v. Dep’t. of Highway Safety
& Motor Vehicles, 10 Fla. L. Weekly Supp. 702 (Fla. 6th Cir. Ct. Sept. 27, 2002) Krivanek v. Dep’t. of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 702 (Fla. 6th Cir. Ct. Sept. 27, 2002)
(argument that there was insufficient evidence that keys in console were to the car defendant was sitting
in, was rejected because there was ample evidence permitting an inference that those were the keys to
the car, and the defendant was alone behind the wheel of the car).
25
Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988), decision approved, 566 So. 2d 768 (Fla.
1990).
26
Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988), decision approved, 566 So. 2d 768 (Fla.
1990). See also Hill v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 810 (Fla.
9th Cir. Ct. Nov. 14, 2008)Hill v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp.
810 (Fla. 9th Cir. Ct. Nov. 14, 2008) (insufficient evidence of actual physical control where Petitioner
was seated in driver’s seat with another person in the car but no indication that the engine was running
or the location of the keys); Heath v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 1058 (Fla. 9th Cir. Ct. July 20, 2006) (insufficient evidence of actual physical control where
Petitioner was seated in driver’s seat parked in a closed city park with another person in the vehicle, and
there was no indication whether the engine was running or where the keys were); Ben–Asher v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 630 (Fla. 11th Cir. Ct. April 5, 2005) Ben–
Asher v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 630 (Fla. 11th Cir. Ct.

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April 5, 2005) (absence of evidence as to key was critical in finding proof of actual physical control
insufficient where the State relied exclusively on the presence of the defendant in the driver’s seat of a
car parked on the side of the road to establish actual physical control); Edmonds v. Dep’t of Highway
Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 27 (Fla. 18th Cir. Ct. July 31, 2000)Edmonds v. Dep’t
of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 27 (Fla. 18th Cir. Ct. July 31, 2000)
(evidence of actual physical control was insufficient where the defendant, who had a head injury, was in
the driver’s seat and there was a passenger in the vehicle, but there was no evidence as to the location of
the key).
27
Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984). See also State v. Davis, 13 Fla. L. Weekly
Supp. 17 (Fla. 9th Cir. Ct. Aug. 26, 2005)State v. Davis, 13 Fla. L. Weekly Supp. 17 (Fla. 9th Cir. Ct.
Aug. 26, 2005).
28
Baltrus v. State, 571 So. 2d 75 (Fla. 4th DCA 1990). See also Mitchell v. State, 538 So. 2d 106 (Fla.
4th DCA 1989); Harris v. State, 18 Fla. L. Weekly Supp. 713 (Fla. 19th Cir. Ct. March 18, 2011)Harris
v. State, 18 Fla. L. Weekly Supp. 713 (Fla. 19th Cir. Ct. March 18, 2011) (two to one decision affirming
conviction based either on driving or actual physical control where there was strong evidence that the
defendant had driven the car and the defendant was found in the back seat of the car with the key); Joynt
v. State, 17 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. Feb. 9, 2010)Joynt v. State, 17 Fla. L. Weekly
Supp. 438 (Fla. 17th Cir. Ct. Feb. 9, 2010) (evidence of actual physical control was sufficient where
witnesses saw tracks from the roadway to the embankment where the car hit a palm tree and the
defendant sitting in driver’s seat of crashed car); Brantley v. State, 8 Fla. L. Weekly Supp. 168 (Fla. 17th
Cir. Ct. Nov. 8, 2000)Brantley v. State, 8 Fla. L. Weekly Supp. 168 (Fla. 17th Cir. Ct. Nov. 8, 2000)
(circumstantial evidence of actual physical control was sufficient where defendant’s car stopped in lane
of traffic at 3:00 a.m., headlights on, sleeping and intoxicated defendant slumped over, leaning from
driver’s side to passenger’s side with his feet a little under steering wheel, keys in ignition, doors locked,
and hood hot).
29
State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011).
30
State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011). See also Bober v. Dep’t of Highway Safety &
Motor Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12, 2015)Bober v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12, 2015) (even
though deputy did not know where keys were, deputy developed probable cause for APC and a valid
arrest where deputy had sufficient facts to establish reasonable suspicion to detain petitioner for
investigation and ordered her to exit driver’s seat of car at which time keys fell from under her leg onto
the floorboard before the arrest).
31
State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011).
32
State, Dept. of Highway Safety and Motor Vehicles v. Prue, 701 So. 2d 637, 638 (Fla. 2d DCA 1997).
See also State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011); McCoskey v. State, 76 So. 3d 1012 (Fla.
1st DCA 2011) (defendant was sitting in a vehicle and wanted to introduce evidence that he had called
for a ride and was waiting in his car with the radio on to show lack of intent to drive; court ruled that
was not an element and had nothing to do with actual physical control); Weigel v. Dep’t of Highway
Safety & Motor vehicles, 23 Fla. L. Weekly Supp. 528 (Fla. 20th Cir. Ct. August 14, 2015)Weigel v.
Dep’t of Highway Safety & Motor vehicles, 23 Fla. L. Weekly Supp. 528 (Fla. 20th Cir. Ct. August 14,
2015) (petitioner properly found in APC where his keys were in the front console and his seat reclined;
he could have taken the keys, fixed his seat, started the vehicle and driven away); Durham v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 993 (Fla. 14th Cir. Ct. March 2,
2007)Durham v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 993 (Fla. 14th
Cir. Ct. March 2, 2007) (officer had probable cause for DUI arrest where defendant, sole occupant of the
vehicle, was passed out behind the wheel, driver’s door was open into traffic and keys were in the
vehicle, but not in the ignition; defendant smelled of alcohol, had bloodshot and glassy eyes, flushed
face, slurred speech, and failed FSEs; the fact that there was no evidence that the keys were for the
defendant’s vehicle did not change the result); Schmidt v. Dep’t of Highway Safety & Motor Vehicles,
15 Fla. L. Weekly Supp. 439 (Fla. 12th Cir. Ct. March 20, 2008)Schmidt v. Dep’t of Highway Safety &
Motor Vehicles, 15 Fla. L. Weekly Supp. 439 (Fla. 12th Cir. Ct. March 20, 2008) (hearing officer
correctly concluded that it was “‘more probable than not’” defendant was in actual physical control of a
truck found in the water at about 2:15 a.m. where defendant was only one in the water near the truck,
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§ 1:3.Proof of driving or actual physical control of a vehicle, 11 Fla. Prac., DUI...

keys were in ignition, and truck was in gear); Ben-Asher v. Dep’t of Highway Safety & Motor Vehicles,
12 Fla. L. Weekly Supp. 630 (Fla. 11th Cir. Ct. April 5, 2005)Ben-Asher v. Dep’t of Highway Safety &
Motor Vehicles, 12 Fla. L. Weekly Supp. 630 (Fla. 11th Cir. Ct. April 5, 2005); Morrison v. State, 10
Fla. L. Weekly Supp. 685 (Fla. 17th Cir. Ct. July 28, 2003)Morrison v. State, 10 Fla. L. Weekly Supp.
685 (Fla. 17th Cir. Ct. July 28, 2003) (defendant argued that he could not be found guilty based on
actual physical control because the keys were in his pocket showing that he had no intent to drive. The
court rejected this position based on Prue, and said, “The element of control was established when it
was found that the Appellant was the only person in the vehicle and the keys were near enough for him
to use.”).
33
Mack v. State, 33 Fla. Supp. 2d 153 (Fla. 17th Cir.1989).
34
Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla. 7th Cir. Ct.
Nov. 18, 2005)Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla.
7th Cir. Ct. Nov. 18, 2005). See also Jones v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L.
Weekly Supp. 535 (Fla. 18th Cir. Ct. Nov. 25, 2014)Jones v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 535 (Fla. 18th Cir. Ct. Nov. 25, 2014) (officers did not have probable
cause for actual physical control in their presence where petitioner was in car in a Publix parking lot, but
the manager had the car keys when officers arrived).
35
Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla. 7th Cir. Ct.
Nov. 18, 2005)Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla.
7th Cir. Ct. Nov. 18, 2005). See also State v. Perez, 24 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct.
July 8, 2016)State v. Perez, 24 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct. July 8, 2016) (officers were
not investigating an accident; they did not have probable cause for APC where defendant was on
driver’s side of vehicle, stuck in a ditch without the engine running, keys later found 6 to 12 inches
outside of the closed driver’s door and there was no evidence defendant threw the keys there or
attempted to retrieve them).
36
Session v. State, 187 So.3d 379 (Fla. 5th DCA 2016); R.C.R. v. State, 174 So.3d 460 (Fla. 4th DCA
2015); Sinclair v. State, 50 So. 3d 1223 (Fla. 4th DCA 2011); M.D. v. State, 30 So. 3d 650 (Fla. 4th
DCA 2010); Ubiles v. State, 23 So. 3d 1288 (Fla. 4th DCA 2010), review denied, 66 So. 3d 304 (Fla.
2011); Brickley v. State, 12 So. 3d 311 (Fla. 4th DCA 2009); Brown v. State, 8 So. 3d 1187 (Fla. 4th
DCA 2009); Martoral v. State, 946 So. 2d 1240 (Fla. 4th DCA 2007); Harris v. State, 647 So. 2d 206
(Fla. 1st DCA 1994).
37
Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015), review denied, 2016 WL 1082720 (Fla. Opinion
Filed March 18, 2016); R.C.R. v. State, 174 So.3d 460 (Fla. 4th DCA 2015); Sinclair v. State, 50 So. 3d
1223, 1225-26 (Fla. 4th DCA 2011); State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003); Cummings
v. State, 633 So. 2d 559 (Fla. 3d DCA 1994) (holding that where the defendant was hiding six inches
from a short-barreled shotgun, which was in plain view, he was in constructive possession of the gun).
See also Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012), review denied, 163 So. 3d 509 (Fla.
2015) (since defendant was the only person in the car when it was stopped, he had exclusive possession
of car even if it was a rental car leased by a friend, and knowledge and ability to control firearm found in
car was inferred; therefore, it was for the jury to decide).
38
Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015), review denied, 2016 WL 1082720 (Fla. Opinion
Filed March 18, 2016); R.C.R. v. State, 174 So.3d 460 (Fla. 4th DCA 2015); McKinley v. State, 114 So.
3d 951 (Fla. 4th DCA 2013); Blanchard v. State, 67 So. 3d 309 (Fla. 4th DCA 2011); Brown v.
State, 8 So. 3d 1187 (Fla. 4th DCA 2009); Ogle v. State, 820 So. 2d 1054, 1056 (Fla. 4th DCA 2002);
Moffatt v. State, 583 So. 2d 779, 781 (Fla. 1st DCA 1991).
39
D.V. v. State, 2018 WL 2031072 (Fla. 3d DCA Opinion Filed May 2, 2018); Session v. State, 187 So.3d
379 (Fla. 5th DCA 2016); Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015), review denied, 2016 WL
1082720 (Fla. Opinion Filed March 18, 2016); R.C.R. v. State, 174 So.3d 460 (Fla. 4th DCA 2015);
Ogle v. State, 820 So. 2d 1054, 1056 (Fla. 4th DCA 2002); Moffatt v. State, 583 So. 2d 779, 781
(Fla. 1st DCA 1991).

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§ 1:4.Operable vehicle, 11 Fla. Prac., DUI Handbook § 1:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:4. Operable vehicle

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332, 355(6)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1382 to 1394, 1408 to 1411, 1545

As noted in Jones v. State,1 a factor to be considered in determining whether there is sufficient evidence of
actual physical control, is whether there is proof that the vehicle is operable to some extent. 2 But this means
only that the vehicle is “reasonably capable of being rendered operable.” 3 In Cloyd v. State4 and Hughes v.
State,5 cases dealing with impaired operation of an airplane, the court described the legislative intent in
maintaining such a relatively low standard in DUI cases. The court said:

The rationale for applying the “reasonably capable of being rendered operable standard” is due to
the recognition that the law in this area is preventive in nature. Its purpose is to deter intoxicated
individuals from getting into their vehicles, except as passengers, and enables law enforcement
officers to apprehend an intoxicated driver before he strikes.6

This frequently comes into play in accident cases where there is insufficient evidence that the accused drove to
the scene while impaired, but there is sufficient evidence that the accused is in physical control of the vehicle
while impaired, and that vehicle is inoperable at the time the accused is observed to be in actual physical
control. This raises the question, can one be in actual physical control of a car that is inoperable? The answer
depends largely on the extent of the inoperability.

It is clear that in DUI cases the State need not prove that the vehicle was capable of immediate self-powered
mobility. Yet, if the vehicle was not “reasonably operable,” a defense arises which must usually be resolved by
the trier of fact.7

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§ 1:4.Operable vehicle, 11 Fla. Prac., DUI Handbook § 1:4 (2018-2019 ed.)

The court should grant a motion to dismiss only if the undisputed facts affirmatively establish a defense as a
matter of law.8 Thus, where there was no question that the vehicle couldn’t be operated without the aid of an
outside agency, one court ruled that the defendant couldn’t be in actual physical control as a matter of law, and
it was proper to grant dismissal, pursuant to Fla. R. Crim. P. 3.190(c)(4).9 On the other hand, where the
defendant unsuccessfully attempted to move a car, which was stuck on a wall, the court ruled that the evidence
was sufficient to go to the jury.10 The car was running and the lights were on. Although these decisions may be
difficult to reconcile, they support the rule that inoperability is a matter of defense.

It can be logically argued that if the evidence establishes that no action of the defendant would have influenced
the movement of the car, the State has failed to prove the charge and it may be dismissed. Otherwise, one could
be convicted for sitting in a car without a motor or wheels. That is inconsistent with the legislative intent. In
such situations the defendant is exercising no control over the vehicle.

There have been many examples of the application of this defense. In Cloyd v. State11 and Hughes v. State,12 the
court collected some of these examples. The court described several cases where evidence of operability was
found legally sufficient despite temporary problems with the motor vehicle. These included vehicles disabled by
a lack of fuel, a dead battery, a flat tire, or a snow-filled ditch. 13 In contrast, the court described two cases where
evidence of operability was found legally insufficient. The first was Jones v. State,14 where the court reversed
the DUI conviction because the evidence showed the car had electrical problems, would not run, and had to be
pushed to a repair shop. In the second case, the vehicle couldn’t be operated without substantial mechanical
repairs, and a mechanic characterized the car as “dead,” unable to be jump started, and in need of a carburetor
replacement or reworking.15

The Florida Supreme Court has squarely addressed this matter in a standard jury instruction. 16

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Jones v. State, 510 So. 2d 1147 (Fla. 1st DCA 1987).
2
Jones v. State, 510 So. 2d 1147 (Fla. 1st DCA 1987).
3
Cloyd v. State, 943 So. 2d 149, 169 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007);
Hughes v. State, 943 So. 2d 176, 195 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
4
Cloyd v. State, 943 So. 2d 149, 169 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007).
5
Hughes v. State, 943 So. 2d 176, 195 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
See also State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011).
6
Cloyd v. State, 943 So. 2d 149, 169 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007);
Hughes v. State, 943 So. 2d 176, 195 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
See also State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011).
7
Jones v. State, 510 So. 2d 1147 (Fla. 1st DCA 1987). See also State v. Boynton, 556 So. 2d 428 (Fla.
4th DCA 1989); Brantley v. State, 8 Fla. L. Weekly Supp. 168 (Fla. 17th Cir. Ct. Nov. 8, 2000)Brantley
v. State, 8 Fla. L. Weekly Supp. 168 (Fla. 17th Cir. Ct. Nov. 8, 2000) (“A defendant may be found to
have been in actual physical control of a vehicle that was inoperable at the time it was found by the
police, if there is sufficient circumstantial evidence for the jury to find the defendant was driving under
the influence when the vehicle became inoperable.”).

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§ 1:4.Operable vehicle, 11 Fla. Prac., DUI Handbook § 1:4 (2018-2019 ed.)

8
State v. Williams, 873 So. 2d 602, 604 (Fla. 5th DCA 2004).
9
State v. Conley, 35 Fla. Supp. 2d 26 (Fla. 19th Cir. 1989).
10
Ditch v. State, 43 Fla. Supp. 2d 44 (Fla. 19th Cir. 1990).
11
Cloyd v. State, 943 So. 2d 149, 169 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007).
12
Hughes v. State, 943 So. 2d 176, 195 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
13
Cloyd v. State, 943 So. 2d 149, 169 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007);
Hughes v. State, 943 So. 2d 176, 195 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
See also Feliciano v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 726 (Fla. 4th
Cir. Ct. Feb. 14, 2014)Feliciano v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp.
726 (Fla. 4th Cir. Ct. Feb. 14, 2014) (record did not require conclusion that vehicle could only be moved
“by an outside agency” where one tire was missing and another was flat, but there was a gouge in the
road indicating that it had been driven); Quinones v. Dep’t of Highway Safety & Motor Vehicles, 20
Fla. L. Weekly Supp. 838 (Fla. 4th Cir. Ct. May 20, 2013)Quinones v. Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 838 (Fla. 4th Cir. Ct. May 20, 2013) (fact that vehicle had a
blown tire did not mean it was inoperable).
14
Jones v. State, 510 So. 2d 1147 (Fla. 1st DCA 1987).
15
Cloyd v. State, 943 So. 2d 149 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007); Hughes
v. State, 943 So. 2d 176 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007). See also
Brown v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 699 (Fla. 6th Cir. Ct.
May 14, 2012)Brown v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 699 (Fla.
6th Cir. Ct. May 14, 2012) (court reversed suspension because there was no probable cause of driving or
actual physical control while under the influence, where the evidence showed that Petitioner consumed
alcohol after accident and motorcycle was mostly submerged in water filled ditch and could not be
operated).
16

It is a defense to the charge of Driving under the Influence if at the time

of the alleged offense, the vehicle was inoperable. However, it is not a
defense if the defendant was driving under the influence before the
vehicle became inoperable. Therefore, if you are not convinced beyond a
reasonable doubt that the vehicle was operable at the time of the alleged
offense, you should find the defendant not guilty. However, if you are
convinced that the vehicle was operable at the time of the alleged offense,
then you should find the defendant guilty, if all the other elements of the
charge have been proved beyond a reasonable doubt.

Fla. Std. Jury Instr (Crim.) 28.1. See appendix for standard instructions.

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§ 1:5.Under the influence of alcohol or controlled substances, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 1:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:5. Under the influence of alcohol or controlled substances

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332, 355(6)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1382 to 1394, 1408 to 1411, 1545

It is insufficient for the State to prove that the defendant was under the influence of sleep deprivation,
depression, sickness, or other natural conditions. The State must prove that the defendant was under the
influence of alcoholic beverages, a chemical substance defined in § 877.111, Fla. Stat., or a controlled substance
described in Florida Statutes, Chapter 893.1 Thus, the trial court properly granted a renewed motion for
judgment of acquittal where the jury found the defendant guilty of driving under the influence of a controlled
substance where the defendant was clearly impaired, but had a breath alcohol reading of .000, refused to give a
urine sample, and there was no other evidence that the defendant was under the influence of a controlled
substance.2 On appeal, the court observed that the state failed to present sufficient evidence to exclude every
reasonable hypothesis of innocence because disease, mental illness, or other permissible factors could have
explained the defendant’s condition. On the other hand, the court upheld the denial of a motion for judgment of
acquittal where the accused had a breath alcohol reading of .000, had been driving, was observed to be impaired
after the stop, and provided a urine sample revealing controlled substances. 3 The court reached this conclusion
despite the defendant’s argument that fatigue reasonably accounted for his impairment.

Alcoholic beverages “are considered to be substances of any kind and description which contain alcohol.” 4
Neither the statute nor current jury instructions mention medications not containing controlled substances, but
containing alcohol. It is important, however, to remember that this is a criminal statute subject to strict
construction. Thus, an argument can be made that the statute does not include such medications.

This argument is also suggested by the Florida Legislature’s use of the word “alcohol,” rather than “alcoholic
beverages,” in the statutes on commercial vehicles, to describe the offense. 5 “Alcohol” is defined as “any
substance containing any form of alcohol including, but not limited to, ethanol, methanol, propanol, and

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§ 1:5.Under the influence of alcohol or controlled substances, 11 Fla. Prac., DUI...

isopropanol.”6 Thus, this section of the statutes seems to include medications. Arguably, if the Legislature
intended to include the same substances in the general DUI law, it would have used the broader definition of
alcohol as it did in the commercial vehicle section. That is not to suggest, however, that one cannot be convicted
based on the mixing of alcoholic beverages with other substances that have a synergistic effect. 7

The chemical substances provision includes only items set forth in § 877.111, Fla. Stat. The items include a
variety of materials such as glue, fingernail polish remover, certain spray paints, or other readily available
materials that people might sniff. 8 While these substances may have a legitimate purpose, 9 it is still unlawful to
drive or be in actual physical control of a vehicle when impaired by any of them.

The controlled substances provision includes anything named or described in Schedules I through V of §
893.03, Fla. Stat.10 This includes a plethora of drugs and other substances which are consumed and abused. It is
simple to determine whether a substance is governed by this provision by checking the ingredients and
comparing them to the schedules; however, a word of caution is in order. One administrative procedure allows
the Attorney General to add and subtract substances from the schedules. 11 Thus, in a case involving controlled
substances the parties should check the appropriate administrative rules and regulations.

As with chemical substances, many of the controlled substances have lawful purposes. Medical professionals
dispense the drugs and some are in over-the-counter medications. 12 The legitimate use of these materials may
result in an argument that the defendant was accidentally affected by them or lacked knowledge of their effects.
The State might oppose such claims on two grounds. First, the State might argue that nothing in the DUI
statutes requires an intent to become impaired or knowledge that the involved substance might cause
impairment. This contention must be evaluated in light of the holding in Carter v. State.13

In Carter, the court ruled that an involuntary intoxication defense was available in a DUI where the defendant
mistakenly took an impairing drug believing it to be a different non-impairing substance. On the other hand, in
another case, the court upheld a finding that the defendant violated community control were there was no proof
he consumed alcohol, but there was a urine test that showed he had consumed an unknown amount of three
prescription drugs (i.e. Prozac, Soma, and Xanax) for which he had a prescription; and there was expert
testimony that excessive use of those substances could explain the impaired behavior that officers observed. 14
The defendant was also aware of the warning not to operate a motor vehicle while using the medications.

The second argument the State might make is that the statute uses the term “controlled substances,” both in the
provision authorizing medical disbursements and the provision making it a crime to drive while impaired by
“controlled substances.” Thus, the Legislature may have contemplated that one driving while impaired by
“controlled substances” violates the law whether or not the substance is medically disbursed.

Consumption of drugs as the basis for conviction creates special concerns as to jury instructions. Sabree v.
State15 was a DUI case involving death and serious bodily injury. The trial judge instructed the jury that the state
had to prove beyond a reasonable doubt that “[w]hile driving or while in actual physical control of the vehicle,
[the defendant] had a blood alcohol level of 0.08 or higher and/or a controlled substance to-wit: cocaine.” 16 The
jury found the defendant guilty, but did not specify whether its decision was based on the blood alcohol level or
the consumption of cocaine. The defense did not object to the instruction. But on appeal, the court concluded
that giving such an instruction constituted fundamental error because having cocaine in the system is not a
crime unless the State proves beyond a reasonable that the accused was impaired by the substance. 17
Accordingly, in Whynot v. State,18 a case similar to Sabree,19 the court found no error in instructing the jury that
the State had to prove beyond a reasonable doubt that “While driving or while in actual physical control of the
vehicle, [the defendant] was under the influence of alcoholic beverages or a control substance to the extent that
his normal faculties were impaired or had a blood or breath alcohol level of 0.08 or higher” (emphasis by
court).20

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§ 1:5.Under the influence of alcohol or controlled substances, 11 Fla. Prac., DUI...

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.193(1)(a), Fla. Stat. See also Beller v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L.
Weekly Supp. 653 (Fla. 4th Cir. Ct. Dec. 22, 2016)Beller v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 653 (Fla. 4th Cir. Ct. Dec. 22, 2016) (where defendant refused both a
breath test for alcohol and a urine test for drugs, court invalidated refusal suspension because use of
Zoloft was only substance supported by the evidence and that is not a controlled or chemical substance).
2
State v. Annis, 8 Fla. L. Weekly Supp. 421 (Fla. 13th Cir. Ct. April 19, 2001)State v. Annis, 8 Fla. L.
Weekly Supp. 421 (Fla. 13th Cir. Ct. April 19, 2001). See also Baker v. State, 9 Fla. L. Weekly Supp.
168 (Fla. 11th Cir. Ct. Jan. 15, 2002)Baker v. State, 9 Fla. L. Weekly Supp. 168 (Fla. 11th Cir. Ct. Jan.
15, 2002) (three judge appellate panel relied on Annis to justify reversal because the State did not
exclude reasonable possibility that appellant’s impaired condition was due to factors other than alcohol
or controlled substances).
3
Broco v. State, 13 Fla. L. Weekly Supp. 226 (Fla. 6th Cir. Ct. Oct. 31, 2005)Broco v. State, 13 Fla. L.
Weekly Supp. 226 (Fla. 6th Cir. Ct. Oct. 31, 2005). See also Carter v. State, 17 Fla. L. Weekly Supp.
1159 (Fla. 6th Cir. Ct. Sept. 29, 2010) (where defendant engaged in conduct evidencing impairment that
resulted from methadone use, the fact that there was circumstantial evidence that it may have resulted
from low blood sugar did not require a JOA; where there is both direct and circumstantial evidence, the
standards on circumstantial evidence requiring acquittal do not apply).
4
Fla. Std. Jury Instr (Crim.) 28.1. See appendix for standard instructions.
5
§§ 322.61 to 322.64, Fla. Stat.
6
§ 322.01(2), Fla. Stat.
7
Cf. Gagen v. State, 7 Fla. L. Weekly Supp. 82 (Fla. 9th Cir. Ct. Oct. 26, 1999)Gagen v. State, 7 Fla. L.
Weekly Supp. 82 (Fla. 9th Cir. Ct. Oct. 26, 1999) (Defendant claimed that he was taking medicine that
caused him to be impaired. A doctor testified about Defendant’s condition and the medicine, and that, “it
was possible that Defendant’s medication had interacted with the alcohol in his system, but that without
blood tests, there was no way to determine the actual cause of Defendant’s impairment.” There was also
a paramedic that testified as to observations at the scene that were consistent with impairment by
alcohol. A three judge panel ruled that the trial judge properly denied a motion for judgment of acquittal
because the jury was not required to accept the expert’s opinion. The expert’s opinion could cause the
jury to conclude that Defendant’s intoxication explained his conduct, and the expert’s testimony along
with the paramedic’s was sufficient to support the verdict.) See discussion relating to this matter under §
1:14.
8
This includes “any compound, liquid, or chemical containing toluol, hexane, trichloroethylene, acetone,
toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone,
ethylene glycol monomethyl ether acetate, cyclohexanone, nitrous oxide, diethyl ether, alkyl nitrates
(butyl nitrite), or any similar substance for the purpose of inducing a condition of intoxication or which
distorts or disturbs the auditory, visual, or mental processes.” § 877.111(1), Fla. Stat.
9
§ 877.111(1), Fla. Stat.
10
§ 893.02(4), Fla. Stat.
11
§ 893.035, Fla. Stat.
12
§§ 893.04 to 893.05, Fla. Stat.
13
Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998). For more details see § 1:14.

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§ 1:5.Under the influence of alcohol or controlled substances, 11 Fla. Prac., DUI...

14
Hoffman v. State, 743 So. 2d 130 (Fla. 4th DCA 1999).
15
Sabree v. State, 978 So. 2d 840 (Fla. 4th DCA 2008).
16
Sabree v. State, 978 So. 2d 840, 841 (Fla. 4th DCA 2008).
17
Sabree v. State, 978 So. 2d 840 (Fla. 4th DCA 2008). See also Taylor v. State, 15 Fla. L. Weekly
Supp. 234 (Fla. 17th Cir. Ct. Jan. 15, 2008)Taylor v. State, 15 Fla. L. Weekly Supp. 234 (Fla. 17th Cir.
Ct. Jan. 15, 2008) (court reversed DUI conviction where judge refused to permit amendment of
information and change in verdict to eliminate reference to chemical and control substances, where there
was no evidence of such usage).
18
Whynot v. State, 987 So. 2d 739 (Fla. 5th DCA 2008).
19
Sabree v. State, 978 So. 2d 840 (Fla. 4th DCA 2008).
20
Whynot v. State, 987 So. 2d 739 (Fla. 5th DCA 2008).

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§ 1:6.Impairment of normal faculties or the presence of a..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 1:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:6. Impairment of normal faculties or the presence of a blood or breath alcohol level over .08

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332, 355(6), 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1382 to 1405, 1407 to 1421, 1545

In almost every contested DUI case the most litigated element is impairment of normal faculties or the presence
of a blood or breath alcohol level of .08 or higher. There aren’t two separate offenses (i.e., DUI and Driving
with an Unlawful Blood Alcohol Level (DUBAL)), but only one offense that may be proven in two different
ways.1 The State may meet its burden by proving beyond a reasonable doubt that the defendant’s normal
faculties were impaired or that the defendant had a blood or breath alcohol level of .08 or higher. 2 In other
words, the Legislature has established more than one method of proving the offense. 3 Either alternative can be
established without evidence of the other. The jury need not specify which alternative formed the basis for the
verdict.4 In fact, in Euceda v. State,5 the court ruled that it was proper for the prosecutors to tell the jury that they
did not have to be unanimous as to which alternative applied as long as they were unanimous as to guilt.

Excess blood and breath alcohol readings have dual significance under Florida law. Not only is a blood or
breath alcohol level of .08 or higher unlawful independent of any impairment, it is also prima facie evidence of
impairment.6 That may be somewhat confusing and unnecessary, but it is, nevertheless, the law.

While the statute7 maintains these two different approaches to unlawful alcohol levels, the Florida Supreme
Court recently modified the standard jury instructions to eliminate the language that an excess blood or breath
alcohol level is sufficient to establish that the accused was driving while under the influence of alcoholic
beverages to the extent that his/her normal faculties were impaired.8 The Court advises:
It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c),
Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level
of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or
breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So.2d 862 (Fla. 2d DCA

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2001).9

As the foregoing discussion suggests, if an alcohol test result is available, the simple thing for the State to do is
to rely on the strict liability approach. In fact, it may be that there is little or no evidence of impairment; just test
results of .08 or higher. The State may choose to allege and prove those test results as the basis for the charge.
Logically, in such cases, the State would seek to keep out any defense evidence suggesting that the accused was
not impaired. That was precisely the issue in State v. Lee.10 The court ruled that evidence indicating no
impairment was relevant to discredit the reliability of the test results.

There has been some confusion as to the legal relationship between blood alcohol level and breath alcohol
level. Thus, in one case, the defendant was charged with having an unlawful blood alcohol level, but not an
unlawful breath alcohol level.11 The State never introduced any evidence of an unlawful blood alcohol level, but
only introduced evidence of an unlawful breath alcohol level. The instructions advised the jury that the State
can prove the charge by proof that “the defendant had an unlawful or breath alcohol level of .08 or more grams
of alcohol per 210 liters of breath.” The defendant did not object to the instruction. The defendant was
convicted. Subsequently, the trial judge granted a motion for new trial because the defendant was charged with
having an unlawful blood alcohol level, but the State proved only that the defendant had an unlawful breath
alcohol level. On appeal, the court reversed. 12 The court concluded that the instruction was a correct statement
of the law and did not constitute fundamental error. 13 The defendant was not convicted of an uncharged crime.
“Breathalyzer test results establish blood alcohol level. (Citations omitted.) Therefore, even if the jury found
that Defendant had a breath alcohol level of .08% or more grams of alcohol per 210 liters of breath, they could
properly find him guilty of having an unlawful blood alcohol content.”14

One circuit judge ruling on a petition for writ of prohibition saw a more significant difference between breath
and blood.15 In that case, the traffic citation charged the defendant with driving or actual physical control while
impaired or with an unlawful blood alcohol level. After the statute of limitations expired the State filed a direct
information charging the defendant with driving or actual physical control while impaired or with an unlawful
breath alcohol level. The judge found “that the change from the original charge of unlawful blood alcohol to
unlawful breath alcohol constitutes a change in an element of the offense.” And the State was barred by the
expiration of the statute of limitations from proceeding on a charge of driving or actual physical control with an
unlawful breath alcohol level. However, the court rejected the argument that the State was also barred from
proceeding on the portion of the information alleging impairment, which was included in the original citation. 16

This confusion over blood alcohol readings versus breath alcohol readings has also been considered in
administrative license suspension proceedings. The courts that have considered it have concluded that the
legislative intent was that breath alcohol readings are sufficient to establish blood alcohol levels. 17 The
Legislature subsequently clarified that a suspension applied to both unlawful breath and blood alcohol levels. 18

The blood or breath alcohol level may also be useful to the defense or simply one piece of evidence to be
considered along with all the other evidence. If the level was .05 or lower, it is presumed that the defendant is
not guilty.19 If the level was between .05 and .08, there is no statutory presumption one way or the other, but that
fact may be considered along with other competent evidence of impairment. 20 The statute provides that if the
test is administered in accordance with Florida Statutes, §§ 316.1932 and 316.1933, the statutory
presumptions apply.21

Case law establishes that even if the State fails to show compliance with these sections, the test results are still
admissible upon proof of a proper scientific predicate. 22 However, in Robertson v. State,23 the Supreme Court
ruled that if the State must rely on such a scientific predicate, the statutory presumptions are unavailable. In
State v. Miles,24 the Court confirmed that holding. The same rule applies to boating while under the influence. 25
However, these rulings on the statutory presumption in DUI and BUI cases are not retroactive. 26 That means the
rulings do not apply to judgments that were final and not subject to review on direct appeal at the time the
rulings were entered.27

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If it cannot be established that the substance was consumed before or during driving or actual physical control,
the State cannot prove its case. Thus, where the defendant was out of the presence of officers after driving, and
testified that he consumed beer during that period, the court granted a judgment of acquittal. It was a reasonable
hypothesis that the defendant was not impaired by alcohol until after driving.28

A more common timing issue is whether delay in securing a test sample influences the admissibility of the
results and the sufficiency of the evidence. This deals with the need to relate a blood or breath alcohol level
back to the time of the stop through retrograde extrapolation. 29 In Miller v. State,30 the Court ruled that there is
no such requirement for test results to be admissible. It is only necessary that the sample be secured a
reasonable time after the stop. Delay and any testimony based on retrograde extrapolation 31 goes only to the
weight of the evidence and is for the jury to consider.

The defense may introduce such evidence to establish a reasonable doubt as to whether the defendant was
impaired. In State v. Clements,32 the court affirmed the circuit court’s reversal of a misdemeanor DUI conviction
on the grounds that the trial judge erred in excluding expert testimony applying “the Widmark formula” 33 to
conclude that the defendant had an alcohol content between .02 to .05 and would not have been significantly
impaired. The defendant had refused the alcohol test and the trial judge concluded that such testimony would
have been irrelevant without the statutory presumptions. The court rejected that rationale. 34

What then, is “a reasonable time” after the stop for purposes of admissibility? The courts have found some
specific time periods reasonable. 35 If the delay does not fall into any of these approved periods, Miller requires
application of two principles. First, test results are secured within a reasonable time after the stop if they are
relevant. Evidence is relevant if it tends to prove or disprove a material fact. 36 Second, even if the results are
relevant, the court may exclude them if their probative value is substantially outweighed by the danger of unfair
prejudice, confusion, or the tendency to mislead the jury. 37 These determinations must be based on the totality of
the circumstances.38 A sample may be secured so long after the offense that the trial court should exercise its
discretion to exclude the test results though the results may tend to prove something at issue.

State v. Banoub39 illustrates the application of these principles. A blood sample was taken three hours and 55
minutes after the initial stop. The court found that the results were admissible pursuant to Miller,40 Haas,41 and §
90.403, Fla. Stat. The expert testified that the blood alcohol level reached its peak between 45 minutes and three
hours after ingestion, depending upon the amount of food the driver had consumed. Thus, four hours after the
stop, the driver’s blood alcohol level should have already peaked and be no higher than it was at the time of
driving. Based on the totality of the circumstances in this case, the test results from a sample taken four hours
after driving were probative of the blood alcohol level at the time of driving even though the results could not
be extrapolated back to the time of driving.

If the test sample was secured a reasonable time after driving, it is not only admissible, but it may also be
sufficient, standing alone, to prove the third element of the charge. In the landmark case of Haas v. State,42 the
Florida Supreme Court concluded that such test results, if properly secured, constitute prima facie evidence that
the accused had the same blood or breath alcohol level at the time of driving or actual physical control. 43 If the
levels are above the statutory limit, they are sufficient circumstantial evidence to permit, but not require, the
trier of fact to find the defendant guilty based either on impairment or an unlawful blood or breath alcohol level.
However, such results are not conclusive. Through cross-examination and the introduction of evidence, the
accused may argue that the results are not an accurate reflection of the blood or breath alcohol level at the time
of the offense.44 Furthermore, it is improper for the State to deal with this defense by arguing that the State does
not have to prove the unlawful alcohol level at the time of driving.45

Blood or breath alcohol levels may be unavailable because the defendant refused to submit to a test or there was
a flaw in the testing procedure. When this happens the State can only prove the charge by testimony as to
behavior or characteristics justifying the inference that the defendant was not functioning normally.
“Impairment may be established by describing a person’s demeanor and conduct.” 46 Opinion testimony is
admissible, but it need not be from an expert. A lay witness may testify to physical appearance or observable

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intoxication.47 The State must show that such opinions are based on the personal knowledge of the witness. 48
Thus, an officer may opine that the defendant’s normal faculties were impaired where the officer describes the
defendant’s acts, conduct, appearance, and statements.49

One trial judge explored the limits of such testimony. 50 The judge ruled that as in drug cases, an officer’s
opinion cannot compare the DUI defendant’s behavior to the behavior of others. For instance, the officer could
not testify that he has frequently observed other impaired drivers act like the defendant. Similarly, an officer
could generally describe his or her training, but the officer could not testify that he or she was trained to look for
specific conduct indicating impairment and that the defendant displayed such conduct. Such testimony would
effectively suggest how other offenders behave and that the defendant behaved the same way; therefore, the
defendant must have been impaired. “[W]ith respect to particular indicators, factors, or observations, the officer
should be allowed only to recite his observations of the defendant, from which he may also give an opinion
regarding the defendant’s impairment.”51

The statute provides guidance to aid the trier of fact in deciding whether the accused was functioning
abnormally. It states that “[N]ormal faculties include, but are not limited to, the ability to see, hear, walk, talk,
judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform
the many mental and physical acts of daily life.” 52 The law does not require proof of bad driving or inability to
operate a vehicle safely. As this provision indicates, those are only some of the factors to be considered. In two
cases dealing with impaired operation of an airplane, the court recognized that the amount of alcohol the
accused consumed is another legitimate factor. 53 Thus, the court ruled that the trial judge properly allowed the
State to use fourteen beer mugs as demonstrative evidence of the number and size of beers shown on the
defendants’ bar tabs.54 The court rejected the argument that the evidence was inadmissible because no one saw
them drinking the beer, concluding that this fact went to the weight of the evidence rather than its
admissibility.55

The focus is on the totality of the circumstances. Some of those circumstances, however, may be of
questionable value. For instance, where there was a fatal accident, the court ruled that testimony as to the
defendant’s lack of emotions immediately after the accident was irrelevant to intoxication and ability to make
proper judgments. The defendant conceded that he was intoxicated and there was an abundance of testimony
proving he was not totally in control of his faculties and bodily functions. 56 Similarly, a three-judge panel ruled
that where the defendant stipulated that he was intoxicated, it was reversible error to allow a passenger in
another car to testify that she only felt the impact because she was in the back of the car taking care of her child,
she lost consciousness, and she went through the glass. 57 Since the passenger had not seen who was driving the
other vehicle, her testimony was irrelevant and highly inflammatory. On the other hand, a trial judge ruled that
the defendant’s use of racial slurs during his arrest was relevant because it went to “his ability to make clear
judgments.”58 However, the trial court in another case improperly concluded that the probative value of the fact
that the defendant was driving on a suspended license outweighed any prejudice in a DUI. 59

Where the State relies on proof of impairment, there may be confusion as to the degree of impairment it must
prove. The defense may refer to being “under the influence” as synonymous with “drunk” or “intoxicated.” This
construction is wrong.60 Being “under the influence” is a lesser degree of impairment than “intoxication.” 61
However, in dictum the Florida Supreme Court said: “Intoxication, that is being under the influence of
alcoholic beverages to the extent the normal faculties are impaired, is certainly an essential element of the
offense of DWI Manslaughter as set forth in § 316.1931” (emphasis added).62 This language is inconsistent
with prior opinions and was probably included because the meaning of being “under the influence” was not the
63

issue before the Court. Any material departure from the norm caused by any of the listed substances should
suffice under the statute.

In State v. Brown,64 the court makes this clear. Although the opinion focuses on the meaning of “under the
influence of alcoholic beverages” as used in § 316.1933(1), Fla. Stat., the analysis should arguably be the
same for the use of that term in § 316.193. The court relied on this definition:
“Under the influence,” as used by statutes or ordinances, covers not only all well-known and

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easily recognized conditions and degrees of intoxication, but any abnormal mental or physical
condition which is the result of indulging in any degree in intoxicating liquors, and which tends to
deprive one of that clearness of intellect and control of himself which he would otherwise possess.
Any condition where intoxicating liquor has so far affected the nervous system, brain or muscles
of the driver so as to impair, to an applicable degree, his ability to operate his automobile in the
manner that an ordinary, prudent and cautious man, in full possession of his faculties, using
reasonable care, would operate or drive under like conditions. (emphasis supplied). 65

Quoting from Black’s Law Dictionary 1369 (5th ed.1979).

However, the same district court that made the ruling in Brown subsequently clarified the meaning of the word
“impaired” as it is used in the statute. In Shaw v. State,66 the court ruled that it was reversible error for the trial
judge to allow the State to argue that it had met its burden “by proving that the defendant’s faculties were
weakened rather than impaired.”67 The court said: “Impair denotes a worsening or diminishment in some
material respect. Weaken means to reduce in intensity or effectiveness. See Webster’s New Collegiate
Dictionary, pp. 569, 1316. One can be weakened without being impaired since impairment requires a
diminishment in some material respect.”68 Based on Shaw,69 the Florida Supreme recently clarified the meaning
of “impaired” in the standard jury instructions. It “means diminished in some material respect.” 70

In proving impairment of normal faculties, the parties should be concerned about the need for evidence of the
defendant’s usual capabilities. What are the person’s normal faculties? Essentially, the same question arises
when sanity is an issue. Everyone is presumed to be sane (i.e. “normal”), but, where the defendant introduces
sufficient evidence to raise a reasonable doubt as to sanity, the presumption disappears. The State must then
prove beyond a reasonable doubt that the defendant was sane. 71 Similarly, a person is presumed to have normal
faculties and it is an improper defense argument that the State failed to prove the defendant’s normal faculties. 72
If, however, evidence to the contrary exists, the presumption disappears and the State must prove beyond a
reasonable doubt that the accused has normal faculties. 73 This is important primarily where there is an affliction
or disability affecting the defendant’s normal faculties.

In addition to questions as to whether the accused has abnormal faculties, there may be questions as to whether
the accused has an abnormal tolerance for alcohol or medication. The trial judge addressed this issue in State v.
Knopp.74 In that case, the defendant argued that the defendant’s high blood alcohol level couldn’t be right
because the defendant’s condition was so good. The trial judge ruled that the State was entitled to introduce
expert testimony that the defendant could appear to be in good condition and still have a high blood alcohol
level, because he had a high tolerance for alcohol. The court concluded that such testimony was relevant and not
unfairly prejudicial.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Dejerez v. State, 580 So. 2d 656 (Fla. 4th DCA 1991). See also Cardenas v. State, 867 So. 2d
384, 391 (Fla. 2004); State v. Rolle, 560 So. 2d 1154 (Fla. 1990); Cloyd v. State, 943 So. 2d 149,
175 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007); Hughes v. State, 943 So. 2d 176,
198 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007); State v. Schreiber, 835 So. 2d 344
(Fla. 4th DCA 2003); Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001), review denied, 817 So. 2d
852 (Fla. 2002); State v. Condemi, 9 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 15,
2001)State v. Condemi, 9 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 15, 2001).
2
But see Department of Highway Safety and Motor Vehicles v. Colling, 178 So.3d 2 (Fla. 5th DCA

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2014), review denied, 148 So. 3d 770 (Fla. 2014) (court concluded that where there were two readings,
one below legal limit and one above, the inference that petitioner was below legal limit was equally
plausible, and since the burden was on the Department, it did not meet that burden).
3
Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002). See also
State v. Schreiber, 835 So. 2d 344, 346 (Fla. 4th DCA 2003).
4
Killeen v. State, 572 So. 2d 1015 (Fla. 2d DCA 1991).
5
Euceda v. State, 711 So. 2d 122 (Fla. 3d DCA 1998), review denied, 728 So. 2d 201 (Fla. 1998). See
also Cloyd v. State, 943 So. 2d 149, 175 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla.
2007); Hughes v. State, 943 So. 2d 176, 198 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla.
2007).
6
§ 316.1934, Fla. Stat.
7
§ 316.1934, Fla. Stat.
8
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
9
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
10
State v. Lee, 14 Fla. L. Weekly Supp. 1073 (Fla. 1st Cir. Ct. Sept. 27, 2007). See also State v. Borrero-
Rodriquez, 19 Fla. L. Weekly Supp. 852 (Fla. Alachua Cty. Ct. May 23, 2012)Cir. Ct. Sept. 27, 2007).
See also State v. Borrero-Rodriquez, 19 Fla. L. Weekly Supp. 852 (Fla. Alachua Cty. Ct. May 23, 2012)
(even though State was proceeding exclusively on DUBAL theory, defense was allowed to present
expert opinion and video of FSES).
11
State v. Sylvester, 11 Fla. L. Weekly Supp 522 (Fla. 9th Cir. Ct. Jan. 12, 2004) State v. Sylvester, 11 Fla.
L. Weekly Supp 522 (Fla. 9th Cir. Ct. Jan. 12, 2004).
12
State v. Sylvester, 11 Fla. L. Weekly Supp. 522 (Fla. 9th Cir. Ct. Jan. 12, 2004)State v. Sylvester, 11
Fla. L. Weekly Supp. 522 (Fla. 9th Cir. Ct. Jan. 12, 2004).
13
State v. Sylvester, 11 Fla. L. Weekly Supp. 522 (Fla. 9th Cir. Ct. Jan. 12, 2004)State v. Sylvester, 11
Fla. L. Weekly Supp. 522 (Fla. 9th Cir. Ct. Jan. 12, 2004).
14
State v. Sylvester, 11 Fla. L. Weekly Supp. 522 (Fla. 9th Cir. Ct. Jan. 12, 2004)State v. Sylvester, 11
Fla. L. Weekly Supp. 522 (Fla. 9th Cir. Ct. Jan. 12, 2004).
15
Gonzalez-Hernandez v. State, 15 Fla. L. Weekly Supp. 985 (Fla. 11th Cir. Ct. July 31, 2008)Gonzalez-
Hernandez v. State, 15 Fla. L. Weekly Supp. 985 (Fla. 11th Cir. Ct. July 31, 2008).
16
The judge did not address whether the breath alcohol reading could be used as proof of impairment
rather than as proof of an unlawful breath alcohol level.
17
Green v. Department of Highway Safety and Motor Vehicles, 905 So. 2d 922 (Fla. 1st DCA 2005) ;
Department of Highway Safety and Motor Vehicles v. Patrick, 895 So. 2d 1131 (Fla. 5th DCA 2005);
Douglass v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 3 (Fla. 4th Cir. Ct.
Oct 14, 2005)Douglass v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 3 (Fla.
4th Cir. Ct. Oct 14, 2005); Boston v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly
Supp. 909 (Fla. 9th Cir. Ct. April 27, 2005)Boston v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 909 (Fla. 9th Cir. Ct. April 27, 2005); Morgan v. Dep’t of Highway Safety &
Motor Vehicles, 11 Fla. L. Weekly Supp. 765 (Fla. 4th Cir. Ct. June 11, 2004) Morgan v. Dep’t of
Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 765 (Fla. 4th Cir. Ct. June 11, 2004)
(where citation charged only an unlawful blood alcohol level, the court rejected argument that license
could not be suspended based on unlawful breath alcohol level).
18
Ch. 2005-164, § 85, Laws of Florida (Amending § 322.2615, Fla. Stat.).

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19
§ 316.1934(2)(a), Fla. Stat.
20
§ 316.1934(2)(b), Fla. Stat.
21
§ 316.1934(2), Fla. Stat.
22
Goodman v. Department of Law Enforcement, 238 So.3d 102, 109 (Fla. 2018); Cardenas v. State,
867 So. 2d 384, 390 (Fla. 2004); Mehl v. State, 632 So. 2d 593 (Fla. 1993); Robertson v. State, 604
So. 2d 783 (Fla. 1992); State v. Bender, 382 So. 2d 697 (Fla. 1980); State v. Cameron, 837 So. 2d
1111 (Fla. 4th DCA 2003); Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA 1994). The nature of the
scientific predicate is explained in §§ 6:1 et seq.
23
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also Goodman v. Department of Law
Enforcement, 238 So.3d 102, 109 (Fla. 2018); Cardenas v. State, 867 So. 2d 384, 391 (Fla. 2004);
State v. Bender, 382 So. 2d 697 (Fla. 1980); Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA
1994).
24
State v. Miles, 775 So. 2d 950 (Fla. 2000). See also Townsend v. State, 774 So. 2d 693 (Fla. 2000);
State v. Sandt, 774 So. 2d 692 (Fla. 2000); Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002),
decision vacated on other grounds, 896 So. 2d 704 (Fla. 2005); State v. Condemi, 9 Fla. L. Weekly
Supp. 61 (Fla. Broward Cty. Ct. Nov. 15, 2001)State v. Condemi, 9 Fla. L. Weekly Supp. 61 (Fla.
Broward Cty. Ct. Nov. 15, 2001); State v. Eisenbrey, 8 Fla. L. Weekly Supp. 799 (Fla. Broward Cty. Ct.
Sept. 4, 2001)State v. Eisenbrey, 8 Fla. L. Weekly Supp. 799 (Fla. Broward Cty. Ct. Sept. 4, 2001).
25
Cardenas v. State, 867 So. 2d 384, 391 (Fla. 2004); Cameron v. State, 804 So. 2d 338 (Fla. 4th
DCA 2001), review denied, 832 So. 2d 103 (Fla. 2002).
26
Wilson v. State, 812 So. 2d 452 (Fla. 5th DCA 2002), dismissed, 833 So. 2d 775 (Fla. 2002); Curtis v.
State, 805 So. 2d 995 (Fla. 1st DCA 2001), review denied, 821 So. 2d 294 (Fla. 2002).
27
Wilson v. State, 812 So. 2d 452 (Fla. 5th DCA 2002), dismissed, 833 So. 2d 775 (Fla. 2002). See also
Leveritt v. State, 817 So. 2d 891, 896 (Fla. 1st DCA 2002), decision vacated on other grounds, 896
So. 2d 704 (Fla. 2005).
28
State v. De Pasque, 13 Fla. Supp. 2d 128 (Fla. Monroe Cty. Ct. 1985).
29
This is a process by which an expert can utilize information on weight, consumption of food, time of
drinking, and number of drinks to determine the blood or breath alcohol level at the time of driving or
actual physical control based on a subsequent sample, through the application of certain formulas.
30
Miller v. State, 597 So. 2d 767 (Fla. 1991).
31
In the event that the State does retrograde extrapolation, one decision holds that the court may take
judicial notice of the formula for determining the rate of absorption and elimination of alcohol. Knight v.
State, 16 Fla. Supp. 2d 121 (Fla. 7th Cir. Ct. 1986).
32
State v. Clements, 968 So. 2d 59 (Fla. 1st DCA 2007).
33
“The formula used to calculate a person’s probable BAC based on the person’s weight, time of drinking,
amount of alcohol consumed, etc., is known as the Widmark Formula.” Richard E. Erwin, Defense of
Drunk Driving Cases, § 1:05[3][e]. For more details on this procedure see Richard E. Erwin, Defense of
Drunk Driving Cases, §§ 15.06 & 15.10.

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34
State v. Clements, 968 So. 2d 59 (Fla. 1st DCA 2007).
35
In Miller v. State, 597 So. 2d 767 (Fla. 1991), the Court found an hour and 20 minutes reasonable. See
also Tracton v. City of Miami Beach, 616 So. 2d 457 (Fla. 3d DCA 1992), review denied, 626 So.2d 207
(Fla. 1993) (civil case in which the court found two-hour delay reasonable); Gallagher v. State, 606 So.
2d 1236 (Fla. 3d DCA 1992) (delays of 46, 90, and 142 minutes after an accident were reasonable);
State v. Wilson, 19 Fla. L. Weekly Supp. 1028 (Fla. Palm Beach Cty. Ct. August 1, 2012) (breath test
two hours after accident would have been reasonable); State v. Bice, 19 Fla. L. Weekly Supp. 661 (Fla.
Palm Beach Cty. Ct. April 25, 2012)State v. Bice, 19 Fla. L. Weekly Supp. 661 (Fla. Palm Beach Cty.
Ct. April 25, 2012), affirmed, 21 Fla. L. Weekly Supp. 139 (Fla. 15th Cir. Ct. Oct. 22, 2013)21 Fla. L.
Weekly Supp. 139 (Fla. 15th Cir. Ct. Oct. 22, 2013) (breath test a little more than three hours after crash
was practical); State v. Hakes, 3 Fla. L. Weekly Supp. 245 (Fla. Hillsborough Cty. Ct. May 3,
1995)State v. Hakes, 3 Fla. L. Weekly Supp. 245 (Fla. Hillsborough Cty. Ct. May 3, 1995) (2½-hour
delay went to weight rather than admissibility); State v. Harding, 3 Fla. L. Weekly Supp. 242 (Fla.
Hillsborough Cty. Ct. Feb. 28, 1995)State v. Harding, 3 Fla. L. Weekly Supp. 242 (Fla. Hillsborough
Cty. Ct. Feb. 28, 1995) (three-hour delay went to weight rather than admissibility). On the other hand, in
State v. Morrick, 11 Fla. L. Weekly Supp. 237 (Fla. Taylor Cty Ct. Jan. 20, 2004)State v. Morrick, 11
Fla. L. Weekly Supp. 237 (Fla. Taylor Cty Ct. Jan. 20, 2004), the trial judge found five hours
unreasonable based on the facts of the case.
36
§ 90.401, Fla. Stat.
37
§ 90.403, Fla. Stat.
38
Miller v. State, 597 So. 2d 767 (Fla. 1991).
39
State v. Banoub, 700 So. 2d 44 (Fla. 2d DCA 1997). See also Stewart v. State, 20 Fla. L. Weekly Supp.
970 (Fla. 19th Cir. Ct. April 24, 2013)Stewart v. State, 20 Fla. L. Weekly Supp. 970 (Fla. 19th Cir. Ct.
April 24, 2013) (delay of four hours 39 minutes after arrest was reasonable).
40
Miller v. State, 597 So. 2d 767 (Fla. 1991).
41
Haas v. State, 597 So. 2d 770 (Fla. 1992).
42
Haas v. State, 597 So. 2d 770 (Fla. 1992).
43
Haas v. State, 597 So. 2d 770, 774 (Fla. 1992). See also Goodwin v. State, 610 So. 2d 31, 32 (Fla.
4th DCA 1992), decision quashed in part, 634 So. 2d 157 (Fla. 1994).
44
In Haas, the defendant had a blood alcohol level of 0.11% one hour and twenty minutes after driving
and the expert testified that she could not say whether the reading was above .10% at the time of driving.
A jury found the defendant guilty of DUI Manslaughter based solely on the blood alcohol level. The
Florida Supreme Court upheld the conviction.
45
Servis v. State, 855 So. 2d 1190, 1195–96 (Fla. 5th DCA 2003).
46
Hoffman v. State, 743 So. 2d 130, 131 (Fla. 4th DCA 1999). See also Meus v. State, 968 So. 2d 706
(Fla. 2d DCA 2007), reh’g denied and opinion modified, 16 So. 3d 140 (Fla. 2d DCA 2009) (defendant
entitled to evidentiary hearing on claim of ineffective assistance of counsel based on failure to interview
witness to fatal accident, because witness could have testified to demeanor of the defendant after the
accident in a way that was inconsistent with the State’s theory that defendant fell asleep at the wheel);
State v. Hankins, 21 Fla. L. Weekly Supp. 1010 (Fla. 17th Cir Ct. April 14, 2014) (trial judge did not
abuse discretion by allowing evidence defendant was properly instructed in use of intoxilyzer but gave
insufficient sample three times, indicating defendant was unable or unwilling to follow instructions; thus
showing impairment); Joynt v. State, 17 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. Feb. 9, 2010)Joynt
v. State, 17 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. Feb. 9, 2010) (evidence of impairment of
normal faculties was sufficient where witnesses testified that defendant had an odor of alcohol, fidgeted,
didn’t make sense, behaved irrationally, tried to get a date with a nurse, was moody, changed behavior
and topics, cursed at nurses and doctors, was incoherent, had flailing and twitching arms, bloodshot and

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§ 1:6.Impairment of normal faculties or the presence of a..., 11 Fla. Prac., DUI...

glassy eyes, flushed face and slurred speech); State v. Rupp, 16 Fla. L. Weekly Supp. 148 (Fla. 17th Cir.
Ct. Nov. 13, 2008)State v. Rupp, 16 Fla. L. Weekly Supp. 148 (Fla. 17th Cir. Ct. Nov. 13, 2008)
(evidence of impairment sufficient where there was evidence defendant performed poorly on FSEs and
officer testified defendant smelled of alcohol, had blood shot and watery eyes, slurred speech, and
mumbled; while officer’s opinion that defendant was impaired by alcohol was admissible, it was not
required); Beloff v. State, 16 Fla. L. Weekly Supp. 148 (Fla. 17th Cir. Ct. Oct. 20, 2008)Beloff v. State,
16 Fla. L. Weekly Supp. 148 (Fla. 17th Cir. Ct. Oct. 20, 2008) (evidence of impairment was sufficient
where defendant was driving without headlights on, hit and went up on the curb when stopped; had odor
of alcohol, flushed face, bloodshot eyes, and failed to adequately perform the field sobriety exercises);
Mejia-Vasquez, 15 Fla. L. Weekly Supp. 1062 (Fla. 15th Cir. Ct. Aug. 28, 2008) (defendant should have
been allowed to introduce his request to the officer to be allowed to call his brother so he could pick up
the car; it was not hearsay and it was relevant to the defendant’s state of mind).
47
Occhicone v. State, 570 So.2d 902, 906 (Fla. 1990); Cannon v. State, 91 Fla. 214, 220, 107 So. 360,
363 (1926); State v. Meador, 674 So. 2d 826, 831 (Fla. 4th DCA 1996), review denied, 686 So. 2d
580 (Fla. 1996); Eberhardt v. State, 550 So. 2d 102, 105 (Fla. 1st DCA 1989), review denied, 560
So. 2d 234 (Fla. 1990); Via v. State, 567 So. 2d 543 (Fla. 2d DCA 1990); Armbrister v. State, 17 Fla. L.
Weekly Supp. 339 (Fla. 17th Cir. Ct. Jan. 12, 2010)Armbrister v. State, 17 Fla. L. Weekly Supp. 339
(Fla. 17th Cir. Ct. Jan. 12, 2010); Armstrong v. State, 17 Fla. L. Weekly Supp. 1 (Fla. 6th Cir. Ct. Sept.
4, 2009)Armstrong v. State, 17 Fla. L. Weekly Supp. 1 (Fla. 6th Cir. Ct. Sept. 4, 2009); State v. Decuba,
17 Fla. L. Weekly Supp. 482 (Fla. Brevard Cty. Ct. March 14, 2010)State v. Decuba, 17 Fla. L. Weekly
Supp. 482 (Fla. Brevard Cty. Ct. March 14, 2010); State v. Gerencser, 17 Fla. L. Weekly Supp. 116 (Fla.
Santa Rosa Cty. Ct. Nov. 19, 2009)State v. Gerencser, 17 Fla. L. Weekly Supp. 116 (Fla. Santa Rosa
Cty. Ct. Nov. 19, 2009).
48
Fino v. Nodine, 646 So. 2d 746 (Fla. 4th DCA 1994). See also Sajuin v. Hernandez, 226 So.3d 875, 880
(Fla. 4th DCA2017).
49
City of Orlando v. Newell, 232 So. 2d 413 (Fla. 4th DCA 1970). See also Williams v. State, 710 So.
2d 24, 28 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998); Armbrister v. State, 17 Fla.
L. Weekly Supp. 339 (Fla. 17th Cir. Ct. Jan. 12, 2010)Armbrister v. State, 17 Fla. L. Weekly Supp. 339
(Fla. 17th Cir. Ct. Jan. 12, 2010); Armstrong v. State, 17 Fla. L. Weekly Supp. 1 (Fla. 6th Cir. Ct. Sept.
4, 2009)Armstrong v. State, 17 Fla. L. Weekly Supp. 1 (Fla. 6th Cir. Ct. Sept. 4, 2009); Corichi v. State,
15 Fla. L. Weekly Supp. 673 (Fla. 17th Cir. Ct. April 9, 2008)Corichi v. State, 15 Fla. L. Weekly Supp.
673 (Fla. 17th Cir. Ct. April 9, 2008); Baker v. State, 15 Fla. L. Weekly Supp. 672 (Fla. 17th Cir. Ct.
April 9, 2008)Baker v. State, 15 Fla. L. Weekly Supp. 672 (Fla. 17th Cir. Ct. April 9, 2008); Thomas v.
State, 15 Fla. L. Weekly Supp. 334 (Fla. 17th Cir. Ct. Jan. 25, 2008)Thomas v. State, 15 Fla. L. Weekly
Supp. 334 (Fla. 17th Cir. Ct. Jan. 25, 2008); Milla v. State, 8 Fla. L. Weekly Supp. 756 (Fla. 11th Cir.
Ct. Sept. 4, 2001)Milla v. State, 8 Fla. L. Weekly Supp. 756 (Fla. 11th Cir. Ct. Sept. 4, 2001); Vickers v.
State, 1 Fla. L. Weekly Supp. 554 (Fla. 10th Cir. Ct. Sept. 8, 1993)Vickers v. State, 1 Fla. L. Weekly
Supp. 554 (Fla. 10th Cir. Ct. Sept. 8, 1993); State v. Ellison, 20 Fla. L. Weekly Supp. 590 (Fla. Brevard
Cty. Ct. Feb. 26, 2013)State v. Ellison, 20 Fla. L. Weekly Supp. 590 (Fla. Brevard Cty. Ct. Feb. 26,
2013); State v. Decuba, 17 Fla. L. Weekly Supp. 482 (Fla. Brevard Cty. Ct. March 14, 2010) State v.
Decuba, 17 Fla. L. Weekly Supp. 482 (Fla. Brevard Cty. Ct. March 14, 2010); State v. Gerencser, 17
Fla. L. Weekly Supp. 116 (Fla. Santa Rosa Cty. Ct. Nov. 19, 2009)State v. Gerencser, 17 Fla. L. Weekly
Supp. 116 (Fla. Santa Rosa Cty. Ct. Nov. 19, 2009); State v. Higgins, 12 Fla. L. Weekly Supp. 381 (Fla.
Bay Cty. Ct. Jan. 12, 2005)State v. Higgins, 12 Fla. L. Weekly Supp. 381 (Fla. Bay Cty. Ct. Jan. 12,
2005); State v. Brown, 11 Fla. L. Weekly Supp. 1090 (Fla. Bay Cty Ct. Aug. 31, 2004); State v. Tuggle,
4 Fla. L. Weekly Supp. 791 (Fla. Hillsborough Cty Ct. Feb. 5, 1997)State v. Tuggle, 4 Fla. L. Weekly
Supp. 791 (Fla. Hillsborough Cty Ct. Feb. 5, 1997).
50
State v. Brown, 11 Fla. L. Weekly Supp. 1090 (Fla. Bay Cty Ct. Aug. 31, 2004).
51
State v. Brown, 11 Fla. L. Weekly Supp. 1090 (Fla. Bay Cty Ct. Aug. 31, 2004).
52
§ 316.1934(1), Fla. Stat.
53
Williams v. State, 710 So. 2d 24, 28 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.

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§ 1:6.Impairment of normal faculties or the presence of a..., 11 Fla. Prac., DUI...

1998); Hughes v. State, 943 So. 2d 176 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
54
Cloyd v. State, 943 So. 2d 149 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007); Hughes
v. State, 943 So. 2d 176 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
55
Cloyd v. State, 943 So. 2d 149 (Fla. 3d DCA 2006), review denied, 959 So. 2d 715 (Fla. 2007); Hughes
v. State, 943 So. 2d 176 (Fla. 3d DCA 2006), review denied, 959 So. 2d 716 (Fla. 2007).
56
Bouchard v. State, 556 So. 2d 1215 (Fla. 2d DCA 1990). Although the court spoke in terms of
relevancy, it seems more likely that the probative value of the evidence was outweighed by the risk of
unfair prejudice. Thus, § 90.403, Fla. Stat., would have supported exclusion.
57
Gongora v. State, 8 Fla. L. Weekly Supp. 149 (Fla. 11th Cir. Ct. Nov. 14, 2000) Gongora v. State, 8 Fla.
L. Weekly Supp. 149 (Fla. 11th Cir. Ct. Nov. 14, 2000).
58
State v. Carlson, 6 Fla. L. Weekly Supp. 513 (Fla. Broward Cty. Ct. April 18, 1999)State v. Carlson, 6
Fla. L. Weekly Supp. 513 (Fla. Broward Cty. Ct. April 18, 1999) (court also ruled that it was relevant to
consciousness of guilt because it tended to show an effort to curry favor with the officers). See also
Gonzalez-Oliva v. State, 17 Fla. L. Weekly Supp. 615 (Fla. 11th Cir. Ct. April 19, 2010) Gonzalez-Oliva
v. State, 17 Fla. L. Weekly Supp. 615 (Fla. 11th Cir. Ct. April 19, 2010) (in cruiser, defendant said,
“‘You know, I can have you killed. You don’t know who you fuck with;’” and over a 403 objection, the
trial judge admitted statements because they showed impairment and no one would think of them as
serious; but the officer’s testimony made it clear he thought his life was in danger and State made
reference to statements that way; nevertheless, on appeal, the court found that the statements helped
establish intoxication and any error from the State’s abuse was harmless); Berbusse v. State, 9 Fla. L.
Weekly Supp. 522 (Fla. 15th Cir. Ct. June 25, 2002)Berbusse v. State, 9 Fla. L. Weekly Supp. 522 (Fla.
15th Cir. Ct. June 25, 2002) (three judge panel ruled trial judge properly allowed introduction of racial
slurs as evidence of impairment); State v. Milhorn, 22 Fla. L. Weekly 381 (Fla. Sarasota Cty. Ct. Feb. 4,
2014)22 Fla. L. Weekly 381 (Fla. Sarasota Cty. Ct. Feb. 4, 2014) (State could introduce the fact that in a
DUI the defendant used the words “‘fuck off’”—“while foul, the use (of the phrase) is relevant to the
charge and the prejudice is minimal and does not outweigh its probative value.”); State v. Cornejo, 15
Fla. L. Weekly Supp. 1216 (Fla. Palm Beach Cty. Ct. Sept. 29, 2009) (defendant’s statements, “‘do you
know who I am,’” “‘you don’t know who I am,’” and about knowing several officers were admissible as
proof of impairment). Contra Hamilton v. State, 22 Fla. L. Weekly Supp. 49 (Fla. 11th Cir. Ct. July 15,
2014)Hamilton v. State, 22 Fla. L. Weekly Supp. 49 (Fla. 11th Cir. Ct. July 15, 2014) (defendant found
not guilty of DUI, but guilty of RAWOV; court reversed conviction; officer was allowed to testify
defendant said “ ‘take my license cracker. Aint’ meaning blow fuck it.’” And when he asked defendant
to sign implied consent form, Appellant replied, “‘I did cracker. I told you cracker you are fucking with
the wrong nigga bitch.’” Court ruled that where such evidence is admitted the cases usually involve
specific intent and DUI is a general intent crime and “Impairment can be established by describing the
demeanor and conduct of the person. Circumstantial evidence of impairment may consist of an alcoholic
odor emanating from the driver, evidence of the driver’s physical impairment, or evidence of an erratic
driving pattern and other related and relevant evidence. Thus, it was error for the trial court to have
admitted the racial slurs to show the intent of the Appellee when specific intent was not an element of
the charge of driving under the influence.”; State v. Milhorn, 22 Fla. L. Weekly 381 (Fla. Sarasota Cty.
Ct. Feb. 4, 2014)22 Fla. L. Weekly 381 (Fla. Sarasota Cty. Ct. Feb. 4, 2014) (In a DUI, defendant called
the officers “‘faggots’”; the trial judge ruled the word was “tantamount to a racial epithet and will be
excluded.”).
59
Ochacher v. State, 987 So. 2d 1241 (Fla. 4th DCA 2008) (based on overwhelming evidence the court
found the error to be harmless).
60
Wright v. State, 478 So. 2d 825, 827 (Fla. 5th DCA 1985), review denied, 486 So. 2d 598 (Fla. 1986).
61
Kurtz v. State, 564 So. 2d 519, 522 (Fla. 2d DCA 1990) (disapproved of on other grounds by,
Novaton v. State, 634 So. 2d 607 (Fla. 1994)).
62
Wilhelm v. State, 568 So. 2d 1, 2 (Fla. 1990). See also Register v. State, 582 So. 2d 762 (Fla. 1st
DCA 1991).

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§ 1:6.Impairment of normal faculties or the presence of a..., 11 Fla. Prac., DUI...

63
Ingram v. Pettit, 340 So. 2d 922, 924 (Fla. 1976); Taylor v. State, 46 So. 2d 725 (Fla. 1950);
Cannon v. State, 91 Fla. 214, 107 So. 360 (1926).
64
State v. Brown, 725 So. 2d 441 (Fla. 5th DCA 1999). See also State v. O’Neil, 11 Fla. L. Weekly Supp.
103 (Fla. Broward Cty. Ct. Nov. 12, 2003)State v. O’Neil, 11 Fla. L. Weekly Supp. 103 (Fla. Broward
Cty. Ct. Nov. 12, 2003); State v. Tuinen, 7 Fla. L. Weekly Supp. 221 (Fla. Boward Cty. Ct. Nov. 30,
1999)State v. Tuinen, 7 Fla. L. Weekly Supp. 221 (Fla. Boward Cty. Ct. Nov. 30, 1999) ; State v.
Shapiro, 7 Fla. L. Weekly Supp. 149 (Fla. Broward Cty. Ct. Nov. 22, 1999)State v. Shapiro, 7 Fla. L.
Weekly Supp. 149 (Fla. Broward Cty. Ct. Nov. 22, 1999).
65
State v. Brown, 725 So. 2d 441, 443 (Fla. 5th DCA 1999).
66
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
67
Shaw v. State, 783 So. 2d 1097, 1098 (Fla. 5th DCA 2001).
68
Shaw v. State, 783 So. 2d 1097, 1098-99 (Fla. 5th DCA 2001).
69
Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001).
70
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
71
Viovenel v. State, 581 So. 2d 930 (Fla. 3d DCA 1991).
72
City of Orlando v. Ford, 220 So. 2d 661 (Fla. 4th DCA 1969); State v. Vitulli, 19 Fla. L. Weekly Supp.
248 (Fla. 17th Cir Dec. 13, 2011)State v. Vitulli, 19 Fla. L. Weekly Supp. 248 (Fla. 17th Cir Dec. 13,
2011); Braman v. State, 16 Fla. L. Weekly Supp. 611 (Fla. 9th Cir. Ct.)Braman v. State, 16 Fla. L.
Weekly Supp. 611 (Fla. 9th Cir. Ct.).
73
City of Orlando v. Ford, 220 So. 2d 661 (Fla. 4th DCA 1969); State v. Vitulli, 19 Fla. L. Weekly Supp.
248 (Fla. 17th Cir Dec. 13, 2011)State v. Vitulli, 19 Fla. L. Weekly Supp. 248 (Fla. 17th Cir Dec. 13,
2011); Braman v. State, 16 Fla. L. Weekly Supp. 611 (Fla. 9th Cir. Ct.)Braman v. State, 16 Fla. L.
Weekly Supp. 611 (Fla. 9th Cir. Ct.).
74
State v. Knopp, 11 Fla. L. Weekly Supp. 367 (Fla. Brevard Cty. Ct. Jan. 9, 2004)State v. Knopp, 11 Fla.
L. Weekly Supp. 367 (Fla. Brevard Cty. Ct. Jan. 9, 2004) (The court said, “[c]ommon sense suggests
that one’s tolerance for alcohol is a fair consideration in determining whether the person is under the
influence to the extent that his or her normal faculties are impaired.”).

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Works.

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§ 1:7.Jury instructions on blood or breath alcohol levels, 11 Fla. Prac., DUI Handbook...

11 Fla. Prac., DUI Handbook § 1:7 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:7. Jury instructions on blood or breath alcohol levels

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 357, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1350, 1377 to 1378, 1395 to 1405, 1407 to 1421, 1442, 1449, 1479 to
1482, 1486 to 1487, 1501, 1509, 1522, 1526, 1537, 1543 to 1544, 1546 to 1547, 1550

Despite the rulings in Miller and Haas, the impact of blood and breath alcohol evidence is limited by
restrictions on the wording of jury instructions. The limitations arise from the prohibition against mandatory
presumptions. Several district courts ruled that the statutory provision that proof of a blood alcohol level above
the legal limit is prima facie evidence of guilt, creates an unconstitutional mandatory irrebuttable presumption
of impairment.1 These decisions were reversed or modified in State v. Rolle2 and Frazier v. State.3

In State v. Rolle, the trial judge instructed the jury:

If you find from the evidence that the Defendant had a blood alcohol level of.10 percent or more,
that would be sufficient by itself to establish that the Defendant was under the influence of alcohol
to the extent that his normal faculties were impaired. However, such evidence may be contradicted
or rebutted by other evidence.4

The Court noted that this instruction was derived from Florida Statutes, Section 316.1934(2). The Court
upheld the instruction because: (1) it correctly stated the law since, independent of whether a blood alcohol
level above the legal limit constitutes proof of impairment, it is an alternative method of proving the crime of
DUI and a substitute for proof of impairment; (2) as to proof of impairment, the statute is valid because it
creates a permissive inference rather than a presumption of impairment.

After Rolle, the Florida Supreme Court reviewed the decision in Wilhelm v. State.5 In Wilhelm, the trial judge

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§ 1:7.Jury instructions on blood or breath alcohol levels, 11 Fla. Prac., DUI Handbook...

instructed the jury: “[I]f you find from the evidence … that the defendant had point one zero percent or more by
weight of alcohol in his blood, it is a prima facie case that the defendant was under the influence of alcoholic
beverages to the extent his normal faculties were impaired.” The Florida Supreme Court agreed with the district
court that this instruction denied due process by creating a mandatory presumption even though the instruction
followed the statute.6

Although the Court found the instruction invalid, it upheld the statute because it was construed in Rolle as
creating a permissive inference. Without further explanation, the instruction here results in a “… ‘reasonable
likelihood that the jury has applied the challenged instruction in a way’ that shifts to the defendant the burden of
persuasion on an element of the offense charged.” 7 In contrast to the instruction in Rolle, the instruction in
Wilhelm used the term “prima facie” without a definition. The Supreme Court concluded that this would force
jurors to guess at its meaning from the context in which it was used. That context was an explanation of what
the jury could and could not presume. 8 A three-judge panel of circuit judges sitting in their appellate capacity
reached the same conclusion where the blood test was performed 3½ hours after an accident and the trial judge
instructed the jury: “The test results should be prima facie evidence that the accused had the same blood alcohol
level, at the time of the operation of his vehicle.”9

In Wilhelm, the Court concluded that the problem with the instruction could not be cured by advising the jury
that evidence of blood alcohol content could be rebutted. However, the absence of this qualification created the
possibility that the jury would construe the instruction as creating not only a mandatory presumption, but an
irrebuttable presumption. The Florida Supreme Court concluded that the instruction in Rolle was sufficiently
different “ ‘that a reasonable juror would have understood the challenged instruction as allowing proof of a
blood-alcohol level of .10 percent or higher to be evidence of impairment, not as requiring a finding of
impairment.’ ”10

The ruling in Wilhelm may have been influenced by the fact that the defendant was charged under the statute
before it was changed. The Wilhelm opinion applied the statute when the excess blood alcohol level was only
proof of impairment. Subsequently, the statute was changed to provide that an excess blood alcohol level is not
only proof of impairment, but it is also sufficient, in and of itself, to establish an element of the charge. In Rolle,
the defendant was charged under the modified statute. Indeed, this difference proved to be critical in a decision
of the First District Court of Appeal distinguishing Wilhelm.11

There the trial judge instructed the jury that if it found the defendant had a .10% or more by weight of alcohol in
his blood, it was prima facie evidence that he was under the influence of alcohol to the extent that his normal
faculties were impaired, but it could be contradicted or rebutted by other evidence. Although this instruction is
much like the one rejected in Wilhelm, the court upheld it. The court ruled that, unlike the situation in Wilhelm,
where the defendant could only be convicted by proof of intoxication, in this case he could be convicted by
proof of impairment or of a .10% blood alcohol level or above. Thus, to the extent that the instruction advised
the jury of alternative methods of proof it was valid and created only “a permissive inference.” Similarly, where
the trial judge gave a definition of prima facie, the appellate court upheld the instruction.12

The absence of “undefined terms” was critical in these jury instructions. In Lamontague v. State,13 the court
found an instruction like the one in Rolle14 valid. The instruction provided: “These presumptions may be
considered along with any other evidence presented in deciding whether the defendant was under the influence
of alcoholic beverages to the extent her normal faculties were impaired.” 15 The court upheld this instruction
because, like the instruction in Rolle, it contained no undefined terms.

In Euceda v. State,16 the court upheld an instruction that advised the jury that the defendant was guilty of a DUI
Manslaughter if he had a blood alcohol level of .08, and did not advise the jury that any presumption was
rebuttable. The court noted that the State charged the defendant under both subdivisions of the statute (i.e. guilt
by excess alcohol level and guilt by impairment). The court ruled that the trial judge was not required to advise
the jury that the presumption was rebuttable as to the charge based on guilt by excess reading. “[U]nder this
particular charge, the driver commits the offense of DUI if he drives with a blood alcohol level of .08 or more.
That is itself the offense. Under this subdivision of the statute, it is not a rebuttable presumption.” 17

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§ 1:7.Jury instructions on blood or breath alcohol levels, 11 Fla. Prac., DUI Handbook...

Euceda might be called into question by rulings that where the administrative regulations are defective or the
State is unable to show compliance with the regulations, the State is not entitled to an instruction on the
statutory presumption of impairment based on an excess breath or blood alcohol reading admitted through the
traditional scientific predicate.18 However, the ruling in Euceda remains valid because those decisions do not bar
an instruction that if one drives or is in actual physical control of a vehicle in Florida and has a breath or blood
alcohol level of .08 or more, that person is guilty of DUI. In Tyner v. State19 and Dodge v. State,20 the courts
ruled that such an instruction does not violate the proscription against instructions on the statutory presumption
because this is not a matter of presumption; driving or actual physical control of a vehicle in Florida with an
excess breath or blood alcohol level is itself a crime.

Florida courts have considered three important related points since the rulings precluding an instruction on the
statutory presumption of impairment. The first point is whether giving such an instruction is subject to harmless
error analysis. The district courts were split on this issue. The Second District held that it was subject to
harmless error analysis.21 The Fifth District held that it was not. 22 In Cardenas v. State,23 the Court resolved the
conflict. The Court said:
As to improper instructions that are preserved by a timely objection, we hold that error under
Miles is harmless under a general verdict when the State charges and the jury is also correctly
instructed on DUBAL. However, if no DUBAL instruction is given and the jury must rely on
impairment as the sole theory of guilt of DUI, then any preserved error in giving an improper
instruction on the statutory presumption of impairment should be assessed under the harmless
error test of DiGuilio.24

The second point is whether giving such an instruction constitutes fundamental error, so that no objection is
required to preserve the error for appeal. In Cardenas v. State,25 the Court ruled that giving such an instruction is
not fundamental error if the State charged the defendant with having an unlawful blood alcohol level and the
jury was properly instructed as to the law on unlawful blood alcohol levels or on actual impairment.

In Leveritt v. State,26 the court applied the ruling in Cardenas.27 In Leveritt,28 the court ruled that the trial judge
committed fundamental error by instructing the jury on the statutory presumptions. The court reached that
conclusion because the State could not have introduced the blood evidence pursuant to the normal
administrative scheme due to the ruling in State v. Miles,29 and the State failed to establish the three prong
predicate for introduction of the blood evidence pursuant to the traditional scientific predicate. 30 Therefore, the
decision in Cardenas31 compelled the holding “that the jury instruction on presumption of impairment was
fundamental error.”32 The court said: “We read the Cardenas opinion as creating a requirement that, where the
statutory presumption of impairment is not available pursuant to Miles, to rely on the DUBAL provision for a
DUI conviction, the State must introduce blood alcohol evidence under the Bender test.”33

The third point is whether the ruling prohibiting instruction on the statutory presumptions applied retroactively,
so that convicted offenders could successfully seek postconviction relief. 34 Three district courts rejected that
argument.35

The decisions of the Florida Supreme Court dealing with the admissibility of chemical test results, the meaning
of these results, and proper instructions, leave little doubt that the parties and the court must be particularly
sensitive to the phraseology of instructions on this subject. 36 However, the Florida Supreme Court has addressed
these problems by promulgation of standard jury instructions.37 As mentioned in the preceding section, the Court
recently altered the instructions by eliminating the instruction on the excess blood and breath alcohol reading as
prima facie evidence.38 This applies when the State relies on strict liability based on the reading, but it is unclear
as to whether this bars the State from relying on the reading as proof of impairment.

Another issue concerning jury instructions on blood or breath readings is whether an instruction on the readings
is appropriate where the defendant refuses the tests. Under such circumstances, it is proper for the court to

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§ 1:7.Jury instructions on blood or breath alcohol levels, 11 Fla. Prac., DUI Handbook...

instruct the jury that one can be convicted of DUI with a BAL reading of .08 or higher. 39 This is necessary for
the jury to understand the significance of the refusal. 40 However, the court should also explain to the jury that
because there was no BAL evidence, it should base its determination solely on the first factor: “whether the
state sufficiently showed that the appellant, while driving, was under the influence of alcohol to the extent that
his normal faculties were impaired.”41

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Busch v. State, 547 So. 2d 245 (Fla. 4th DCA 1989); Yost v. State, 542 So. 2d 419 (Fla. 4th DCA 1989);
Frazier v. State, 530 So. 2d 986 (Fla. 1st DCA 1988), decision approved in part, quashed in part, 559
So. 2d 1121 (Fla. 1990); Rolle v. State, 528 So. 2d 1208 (Fla. 4th DCA 1988), decision quashed,
560 So. 2d 1154 (Fla. 1990).
2
State v. Rolle, 560 So. 2d 1154 (Fla. 1990).
3
Frazier v. State, 559 So. 2d 1121 (Fla. 1990).
4
State v. Rolle, 560 So. 2d 1154, 1155 (Fla. 1990).
5
Wilhelm v. State, 544 So. 2d 1144 (Fla. 2d DCA 1989), decision quashed, 568 So. 2d 1 (Fla.
1990).
6
Wilhelm v. State, 568 So. 2d 1 (Fla. 1990).
7
Wilhelm v. State, 568 So. 2d 1, 3 (Fla. 1990).
8
Brooks v. State, 577 So. 2d 680 (Fla. 4th DCA 1991).
9
Harrington v. State, 6 Fla. L. Weekly Supp. 752 (Fla. 11th Cir. Ct. Sept. 21, 1999)Harrington v. State, 6
Fla. L. Weekly Supp. 752 (Fla. 11th Cir. Ct. Sept. 21, 1999).
10
Wilhelm v. State, 568 So. 2d 1, 3 (Fla. 1990).
11
Register v. State, 582 So. 2d 762 (Fla. 1st DCA 1991). See also Cruz v. State, 7 Fla. L. Weekly Supp.
703 (Fla. 8th Cir. Ct. August 16, 2000)Cruz v. State, 7 Fla. L. Weekly Supp. 703 (Fla. 8th Cir. Ct.
August 16, 2000) (court ruled that the jury instruction the trial judge gave was proper where the
defendant argued that there was delay between driving and administration of the test. The instruction
was similar to the one the court upheld in Register. The instruction was: “If you find that the Defendant
operated a motor vehicle and submitted a valid breath sample, then the results shall be prima facie
evidence of the Defendant having the same breath alcohol level at the time of his operating—at the time
of his operation of the vehicle. Prima facie evidence is evidence that is sufficient on its face. However,
this evidence may be rebutted by other evidence.”).
12
Killeen v. State, 572 So. 2d 1015 (Fla. 2d DCA 1991).
13
Lamontague v. State, 728 So. 2d 1181 (Fla. 5th DCA 1999).
14
State v. Rolle, 560 So. 2d 1154 (Fla. 1990).
15
Lamontague v. State, 728 So. 2d 1181, 1182 (Fla. 5th DCA 1999).

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§ 1:7.Jury instructions on blood or breath alcohol levels, 11 Fla. Prac., DUI Handbook...

16
Euceda v. State, 711 So. 2d 122 (Fla. 3d DCA 1998), review denied, 728 So. 2d 201 (Fla. 1998).
17
Euceda v. State, 711 So. 2d 122 (Fla. 3d DCA 1998), review denied, 728 So. 2d 201 (Fla. 1998). But
see Murray v. State, 20 Fla. L. Weekly Supp. 650 (Fla. 15th Cir. Ct. April 22, 2013) Murray v. State, 20
Fla. L. Weekly Supp. 650 (Fla. 15th Cir. Ct. April 22, 2013) (even though State announced reliance
solely on DUBAL, the court reversed conviction for failure to give presumptions instruction because the
State and the trial court put it in issue by explaining in voir dire the two ways to prove the charge;
defense presented evidence she was not impaired).
18
Cardenas v. State, 867 So. 2d 384, 390 (Fla. 2004); State v. Miles, 775 So. 2d 950 (Fla. 2000);
Townsend v. State, 774 So. 2d 693 (Fla. 2000); State v. Sandt, 774 So. 2d 692 (Fla. 2000);
Robertson v. State, 604 So. 2d 783 (Fla. 1992); Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA
2002), decision vacated, 896 So. 2d 704 (Fla. 2005); Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th
783 (Fla. 2d DCA 2001); State v. Eisenbrey, 8 Fla. L. Weekly Supp. 799 (Fla. 17th Cir. Ct. Sept. 4,
2001)State v. Eisenbrey, 8 Fla. L. Weekly Supp. 799 (Fla. 17th Cir. Ct. Sept. 4, 2001); State v.
Condemi, 9 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 15, 2001)State v. Condemi, 9 Fla. L.
Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 15, 2001).
19
Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002). See also
Cardenas v. State, 867 So. 2d 384 (Fla. 2004); State v. Cameron, 837 So. 2d 1111 (Fla. 4th DCA
2003); State v. Schreiber, 835 So. 2d 344 (Fla. 4th DCA 2003); State v. Condemi, 9 Fla. L. Weekly
Supp. 61 (Fla. Broward Cty. Ct. Nov. 15, 2001)State v. Condemi, 9 Fla. L. Weekly Supp. 61 (Fla.
Broward Cty. Ct. Nov. 15, 2001).
20
Dodge v. State, 805 So. 2d 990 (Fla. 4th DCA 2001).
21
Searles v. State, 816 So. 2d 793 (Fla. 2d DCA 2002), decision quashed, 885 So. 2d 338 (Fla. 2004);
McBride v. State, 816 So. 2d 656 (Fla. 2d DCA 2002), decision quashed, 885 So. 2d 337 (Fla. 2004).
22
Bonine v. State, 811 So. 2d 863 (Fla. 5th DCA 2002), decision quashed, 867 So. 2d 384 (Fla.
2004); Servis v. State, 802 So. 2d 359 (Fla. 5th DCA 2001).
23
Cardenas v. State, 867 So. 2d 384 (Fla. 2004).
24
Cardenas v. State, 867 So. 2d 384, 397 (Fla. 2004).
25
Cardenas v. State, 867 So. 2d 384, 397 (Fla. 2004). See also State v. Cameron, 837 So. 2d 1111 (Fla.
4th DCA 2003); Rodriguez v. State, 837 So. 2d 478 (Fla. 5th DCA 2002).
26
Leveritt v. State, 924 So. 2d 42 (Fla. 1st DCA 2006), review denied, 934 So.2d 450 (Fla. 2006).
27
Cardenas v. State, 867 So. 2d 384 (Fla. 2004).
28
Leveritt v. State, 924 So. 2d 42 (Fla. 1st DCA 2006), review denied, 934 So.2d 450 (Fla. 2006).
29
State v. Miles, 775 So. 2d 950 (Fla. 2000).
30
Leveritt v. State, 924 So. 2d 42, 48 (Fla. 1st DCA 2006), review denied, 934 So.2d 450 (Fla. 2006).
31
Cardenas v. State, 867 So. 2d 384 (Fla. 2004).
32
Leveritt v. State, 924 So. 2d 42, 48 (Fla. 1st DCA 2006), review denied, 934 So.2d 450 (Fla. 2006).

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§ 1:7.Jury instructions on blood or breath alcohol levels, 11 Fla. Prac., DUI Handbook...

33
Leveritt v. State, 924 So. 2d 42, 47 (Fla. 1st DCA 2006), review denied, 934 So.2d 450 (Fla. 2006).
34
Due to the passage of time, this is primarily of historical significance.
35
Gilreath v. State, 842 So. 2d 189 (Fla. 2d DCA 2003); Wilson v. State, 812 So. 2d 452 (Fla. 5th DCA
2002), dismissed, 833 So. 2d 775 (Fla. 2002); Curtis v. State, 805 So. 2d 995 (Fla. 1st DCA 2001),
review denied, 821 So. 2d 294 (Fla. 2002).
36
The Federal Courts have taken a different position. In Santiago Sanchez Defuentes v. Dugger, 923 F.2d
801 (11th Cir.1991), the trial judge in a DUI Manslaughter included, without explanation, the term
“prima facie” in the instructions as in Wilhelm. Unlike the Court in Wilhelm, the Federal Court
concluded that, although the use of those words was imprudent, when they were considered in the
context of all the standard jury instructions, they did not create a mandatory burden-shifting presumption
in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).
37
Fla. Std. Jury Instr (Crim.) 28.1. See appendix for Standard Instructions.
38
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
See also In re Standard Jury Instructions in Criminal Cases-Report No. 2016-08, 211 So.3d 995 (Fla.
2017) (amended DUI Manslaughter jury instruction to conform to earlier changes in DUI instructions).
39
Cunningham v. State, 739 So. 2d 1200 (Fla. 5th DCA 1999). See also Warren v. State, 7 Fla. L. Weekly
Supp. 179 (Fla. Palm Beach Cty. Ct. Dec. 16, 1999)Warren v. State, 7 Fla. L. Weekly Supp. 179 (Fla.
Palm Beach Cty. Ct. Dec. 16, 1999).
40
Cunningham v. State, 739 So. 2d 1200 (Fla. 5th DCA 1999). See also Warren v. State, 7 Fla. L. Weekly
Supp. 179 (Fla. Palm Beach Cty. Ct. Dec. 16, 1999)Warren v. State, 7 Fla. L. Weekly Supp. 179 (Fla.
Palm Beach Cty. Ct. Dec. 16, 1999).
41
Cunningham v. State, 739 So.2d at 1201.

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§ 1:8.Commercial vehicles, 11 Fla. Prac., DUI Handbook § 1:8 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:8 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:8. Commercial vehicles

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 76, 332

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 5, 105 to 113, 1382 to 1394

Commercial motor vehicles are treated differently from others. These include any motor vehicle or combination
used on the streets or highways which: (a) has a gross vehicle weight rating 1 of more than 26,000 pounds; (b) is
designed to transport more than 15 people, including the driver; or (c) is transporting hazardous materials and
must be placarded pursuant to Title 49 C.F.R., part 172, subpart F.2

While the DUI laws apply to the operation of commercial motor vehicles, there are some provisions that apply
solely to such vehicles. Driving or actual physical control of a commercial motor vehicle with any alcohol in the
body constitutes a traffic infraction, punishable as set forth in § 318.18, Fla. Stat.3 If the accused has an
alcohol concentration of .04 or higher, it is a greater offense, resulting in a more severe penalty. 4 A DUI
prosecution under § 316.193, Fla. Stat., does not bar charges for these commercial vehicle alcohol offenses
under § 322.62, Fla. Stat., but the statutory presumptions arising from excess breath or blood alcohol readings
do not apply to prosecution for the commercial motor vehicle alcohol offenses. 5 On the other hand, prosecution
under § 322.62, Fla. Stat. does not bar a DUI prosecution under § 316.193, Fla. Stat.6

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 1:8.Commercial vehicles, 11 Fla. Prac., DUI Handbook § 1:8 (2018-2019 ed.)

1
“‘Gross vehicle weight rating’ means the value specified by the manufacturer as the maximum loaded
weight of a single, combination, or articulated vehicle.” § 322.01(23), Fla. Stat.
2
§ 322.01(8), Fla. Stat.
3
§ 322.62(1), Fla. Stat.
4
§ 322.62(2)(b), Fla. Stat.
5
§ 316.1934(6), Fla. Stat.
6
§ 322.62(3), Fla. Stat.

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§ 1:9.Defenses, 11 Fla. Prac., DUI Handbook § 1:9 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:9 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:9. Defenses

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1364, 1441, 1495, 1506

There are several possible defenses that the defendant may raise. These rarely appear, but counsel and the court
should understand the basic law that applies to these rare occasions. These defenses include entrapment, duress,
necessity, voluntary intoxication and insanity, involuntary intoxication, and intervening causes.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 1:10.Entrapment, 11 Fla. Prac., DUI Handbook § 1:10 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:10 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:10. Entrapment

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320, 355(6), 357

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1350, 1364, 1377 to 1378, 1408 to 1411, 1413, 1441 to
1442, 1449, 1479 to 1482, 1486 to 1487, 1495, 1501, 1506, 1509, 1522, 1526, 1537, 1543 to 1547,
1550

Occasionally, a police officer orders an impaired individual to get into his or her own vehicle or to move a
vehicle. For instance, an officer may direct a defendant to get into his or her own vehicle to “sleep it off.” The
officer may also order that an impaired individual move a vehicle because it is blocking another vehicle or a
driveway. If an officer arrests the person under these circumstances, the defendant may raise an entrapment
defense.

Section 777.201, Fla. Stat. establishes the rules that apply to the subjective test for entrapment. In Munoz v.
State,1 the Court interpreted this statute. “[T]he subjective test set forth in section 777.201 is the test to be
applied on the issue of entrapment in the absence of egregious law enforcement conduct.” 2 The term “egregious
law enforcement conduct,” refers to conduct that violates the Due Process Clause by offending one’s sense of
justice.3 Where the police have engaged in such conduct the court must dismiss the charge. 4 The elements of
entrapment are also set forth in the jury instructions.

The statute, Munoz,5 and instructions define the rules regarding burdens under the subjective test which apply to
all entrapment defenses. These rules are as follows: (1) the defendant must establish by a preponderance of the
evidence that a government agent induced commission of the offense; (2) if the defendant meets that burden,
then the defendant must produce some evidence that he or she was not predisposed to commit the offense; and
(3) if the defendant produces this evidence, then the State must prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime, both prior to and independent of the government acts.

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§ 1:10.Entrapment, 11 Fla. Prac., DUI Handbook § 1:10 (2018-2019 ed.)

The subjective test should generally be submitted to the jury. The defendant need not convince the trial judge of
the merits of the defense to be entitled to an entrapment instruction. 6 It is sufficient if the evidence suggests the
defense.7 If, however, the undisputed facts establish that the government induced the commission of the crime
and there is insufficient evidence of predisposition, then the trial judge may rule on the issue of predisposition
as a matter of law.8

There are no Florida appellate cases on the entrapment defense in a DUI case. Some out-of-state courts have
recognized its availability in such cases. 9 Others, however, have rejected the defense. 10 In the cases rejecting the
defense, there have been strong dissenting opinions. 11 In Fogarty,12 Justice Stein and two others argue that the
State should be estopped by the fact that the defendant was responding to a lawful order of a police officer. In
Albaugh v. State,13 the Indiana Supreme Court distinguished Fogarty. The court found that the defendant was
entrapped as a matter of law. The defendant’s truck was parked on the side of the road a short distance from his
house. He decided not to move it until the next morning. A deputy came to the defendant’s house, and told him
that it had to be moved. When the defendant moved the vehicle, the deputy observed that he was driving
erratically and arrested him for DUI. On appeal, the court placed great weight on the fact that a law enforcement
officer played a direct role in getting the defendant to leave his home in the middle of the night to move his
vehicle.14

A Florida trial judge applied the entrapment defense in an unusual DUI case. 15 The defendant had been drinking
and was obviously drunk. He was staying at a motel. A motel employee had trouble with a woman who used the
phone in the defendant’s room. The police were called to the motel, and got into an argument with the
defendant, and ordered him to leave. The officers made no arrangement for the defendant’s transportation nor
did they make any inquiry as to how he would leave the premises. The defendant was willing to pay the motel
and had caused no trouble with the motel employee. Minutes after the defendant drove away, an officer arrested
him for DUI two blocks from the motel. In a nonjury trial the judge found the defendant not guilty based on the
entrapment defense. The judge found that the police conduct, “created a substantial risk that the offense of DUI
would be committed by someone who was not ready to commit it.” 16 The court also concluded that the quick
arrest after the defendant had been ordered to leave the premises led to the conclusion that the officers’ purpose
was to get evidence of a crime that the defendant was not ready to commit.

Another Florida trial judge rejected entrapment as grounds for dismissal in a DUI case. 17 The case illustrates
some of the important aspects of this defense. Deputies were called to an alleged domestic violence. They were
arresting the mother of a minor child who was present. She was allowed to call her sister to take the child. The
sister was the defendant in this case because she drove up in an impaired state. The defendant argued that the
case should be dismissed because she was entrapped. The court rejected this contention because the issue was
for the jury and there was no evidence that law enforcement induced the defendant to drive and to be under the
influence. The defendant’s sister chose to ask the defendant to come and nothing suggested that the sister
cooperated with law enforcement and knew that the defendant was impaired.

A trial judge dealt in a different way with what seemed to be entrapment. 18 The vehicle was stopped at a
roadblock and officers directed the driver to exit, but they left the keys in the ignition despite the fact that the
passenger was observably intoxicated. While officers were dealing with the driver the passenger attempted to
drive away. Officers stopped the passenger and arrested him for DUI. The trial judge found the arrest to be
illegal and granted a motion to suppress because “law enforcement essentially facilitated the driving or actual
physical control element” of the offense.19

While a case can obviously be made for entrapment in some instances, the defendant should proceed with
caution. If the defendant has prior DUI convictions, there are serious evidentiary consequences resulting from
reliance on the entrapment defense. For instance, in meeting its burden to show predisposition, the State “may
make ‘an appropriate and searching inquiry’ into the conduct of the accused and present evidence of the
accused’s prior criminal history, even though such evidence is normally inadmissible.” 20 This does not generally
permit the State to present evidence of similar crimes committed after the charged offense.21 The subsequent
crimes may, however, be sufficiently close in time and place for the trial court to properly admit such evidence.
Thus, in Kent v. State,22 the court ruled that the trial judge did not abuse his discretion by admitting evidence

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§ 1:10.Entrapment, 11 Fla. Prac., DUI Handbook § 1:10 (2018-2019 ed.)

that the defendant had sold narcotics at the same location five days after the charged crime. This evidence
tended to prove predisposition. On the other hand, in Rivera v. State,23 the court held that “[w]ith respect to
predisposition, the lack of a prior criminal record is relevant, and evidence of lack of a criminal record is
admissible to support an entrapment defense.”

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Munoz v. State, 629 So. 2d 90 (Fla. 1993).
2
Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993).
3
This principle is discussed in more detail in State v. Williams, 623 So. 2d 462 (Fla. 1993), as revised
on denial of reh’g, (Sept. 16, 1993) and State v. Glosson, 462 So. 2d 1082 (Fla. 1985). See also
Hernandez v. State, 17 So. 3d 748 (Fla. 5th DCA 2009); Rosales v. State, 878 So. 2d 497 (Fla. 3d DCA
2004); State v. Myers, 814 So. 2d 1200 (Fla. 1st DCA 2002) (use of probationer as a confidential
informant in a sting operation did not violate due process); Dial v. State, 799 So. 2d 407 (Fla. 4th
DCA 2001) (informant’s conduct in targeting innocent person she supervised, and exploiting her
weaknesses without law enforcement effort to avoid entrapment or monitor the informant, offended due
process and constituted entrapment as a matter of law).
4
Munoz v. State, 629 So. 2d 90 (Fla. 1993).
5
Munoz v. State, 629 So. 2d 90 (Fla. 1993). See also Senger v. State, 200 So.3d 137 (Fla. 5th DCA
2016), review dismissed, 2016 WL 4548027 (Fla., Opinion Filed Aug. 31, 2016); State v. Laing, 182
So.3d 812 (Fla. 4th DCA 2016); Rivera v. State, 180 So.3d 1195 (Fla. 2d DCA 2015); Jimenez v.
State, 993 So. 2d 553 (Fla. 2d DCA 2008); State v. Henderson, 955 So. 2d 1193 (Fla. 4th DCA 2007);
Davis v. State, 937 So. 2d 300 (Fla. 4th DCA 2006).
6
Terwilliger v. State, 535 So. 2d 346 (Fla. 1st DCA 1988). See also Morgan v. State, 112 So. 3d 122
(Fla. 5th DCA 2013).
7
Terwilliger v. State, 535 So. 2d 346 (Fla. 1st DCA 1988). See also Morgan v. State, 112 So. 3d 122
(Fla. 5th DCA 2013).
8
Munoz v. State, 629 So. 2d 90 (Fla. 1993). See also Gennette v. State, 124 So. 3d 273 (Fla. 1st
DCA 2013); Morgan v. State, 112 So. 3d 122 (Fla. 5th DCA 2013); Davis v. State, 937 So. 2d
300 (Fla. 4th DCA 2006).
9
State v. Peterson, 2009 WI App 128, 321 Wis. 2d 242, 773 N.W.2d 227 (Ct. App. 2009) (entrapment
defense available where defendant was drunk and asleep in his vehicle in the parking lot of a concert
facility, and claimed that officer woke him up and ordered him to drive vehicle off premises despite
defendant’s objection that he was too drunk and another officer then arrested him for DUI); State v.
Bisson, 491 A.2d 544 (Me. 1985) (entrapment defense available where defendant was asleep in car and
officer ordered him to drive despite his protestations that he was in no condition to drive); State v.
Vanderlas, 145 Vt. 135, 483 A.2d 263 (1984) (entrapment defense available where officer drove
impaired passenger of car driven by arrestee to her car, which was in a dark and deserted parking lot and
left her); Johnson, Sara L., Entrapment to Commit Traffic Offense, 34 A.L.R.4th 1167 (1984).

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 1:10.Entrapment, 11 Fla. Prac., DUI Handbook § 1:10 (2018-2019 ed.)

were attempting to control a crowd, told defendant to get in his vehicle and leave, and the officers did
not know defendant was under the influence); Adams v. State, 585 So. 2d 161 (Ala. 1991)
(entrapment defense unavailable where defendant found lying in the car and trooper told defendant to
move along, but trooper did not know defendant was intoxicated until after he started driving. The Court
stated that if trooper had a reasonable suspicion that defendant was intoxicated, trooper should not have
told him to drive. The Court also noted that the defendant was in actual physical control before trooper
told him to drive); People v. Kolaski, 147 Mich. App. 636, 382 N.W.2d 833 (1985) (no entrapment
where police left intoxicated passenger in car and they did not know whether or not he had the key to the
car); Noles v. State, 164 Ga. App. 191, 296 S.E.2d 768 (1982) (no entrapment where officers made
extraordinary efforts to discourage defendant from driving).
11
See State v. Fogarty, 128 N.J. 59, 607 A.2d 624 (1992) and People v. Kolaski, 147 Mich. App. 636,
382 N.W.2d 833 (1985).
12
State v. Fogarty, 128 N.J. 59, 607 A.2d 624 (1992).
13
Albaugh v. State, 721 N.E.2d 1233 (Ind. 1999).
14
Albaugh v. State, 721 N.E.2d 1233, 1237 (Ind. 1999).
15
State v. Moore, 35 Fla. Supp. 2d 180 (Fla. Dade Cty. Ct. 1989).
16
State v. Moore, 35 Fla. Supp. 2d 180 (Fla. Dade Cty. Ct. 1989).
17
State v. Brown, 14 Fla. L. Weekly Supp. 1133 (Fla. Santa Rosa Cty. Ct. Oct. 2, 2007).
18
State v. Honeysuckle, 16 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct. March 27, 2008)State v.
Honeysuckle, 16 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct. March 27, 2008).
19
State v. Honeysuckle, 16 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct. March 27, 2008)State v.
Honeysuckle, 16 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct. March 27, 2008).
20
Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993). See also Perez v. State, 856 So. 2d 1074, 1077 (Fla.
5th DCA 2003); Sampson v. State, 645 So. 2d 1005 (Fla. 2d DCA 1994).
21
State v. Drolet, 549 So. 2d 1172 (Fla. 2d DCA 1989) (evidence of acts about six months after the
charged crimes was not relevant to prove predisposition).
22
Kent v. State, 704 So. 2d 121, 124 (Fla. 1st DCA 1997). See also Jones v. State, 114 So. 3d 1123
(Fla. 1st DCA 2013).
23
Rivera v. State, 180 So.3d 1195, 1197 (Fla. 2d DCA 2015).

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§ 1:11.Duress, 11 Fla. Prac., DUI Handbook § 1:11 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:11 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:11. Duress

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320, 355(6), 357

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1350, 1364, 1377 to 1378, 1408 to 1411, 1413, 1441 to
1442, 1449, 1479 to 1482, 1486 to 1487, 1495, 1501, 1506, 1509, 1522, 1526, 1537, 1543 to 1547,
1550

Occasionally, someone forces an impaired person to drive. That person may then attempt to raise the defense of
duress.

This defense is generally available where there is evidence that the defendant committed the crime involuntarily
because of circumstances which constituted a real, imminent, and impending danger to the defendant or a loved
one.1 It is available where the evidence shows that the defendant believed and had reasonable grounds to believe
that the danger was real, imminent, and impending and committed the crime for that reason. 2 The Florida
Supreme Court has approved one standard jury instruction for both duress and necessity.3

There are no Florida cases directly on point, but Morrison v. State4 supports the availability of such a defense in
a DUI case. In Morrison, the defendant was accused of driving the get-away car in a robbery. In that case, there
was evidence that the co-defendant threatened physical harm to the defendant if she did not drive. There was
also evidence that the co-defendant continued to curse and direct her while she was driving and that the
defendant was hysterical and crying. The court ruled that the trial judge erred in denying an instruction on
duress.

Courts of other states have considered the availability of a duress defense. In People v. Pena,5 the court
approved the defense where the defendant claimed that he drove because a deputy took the defendant’s
girlfriend away under peculiar circumstances that caused him to fear for her safety. In State v. Fogarty,6 the
court rejected the defense because, while officers ordered the defendant to leave the scene of a disturbance, they

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§ 1:11.Duress, 11 Fla. Prac., DUI Handbook § 1:11 (2018-2019 ed.)

did not order him to get drunk or drive drunk. These officers did not know the defendant was intoxicated and
the defendant did not tell them. Furthermore, fear of a lawful arrest cannot be the foundation for a duress
defense. Finally, in State v. Riedl,7 the court rejected the defense claim that a duress instruction was appropriate
because the defendant feared that some men at a bar would harm him. The court pointed out that the defendant
drove for about five miles and there was no showing that the threatening men were continually in pursuit.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Stannard v. State, 113 So. 3d 929 (Fla. 5th DCA 2013); Turner v. State, 29 So. 3d 361 (Fla. 4th DCA
2010); Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA 2005); Reese v. State, 869 So. 2d 1225 (Fla. 2d
DCA 2004); Stevens v. State, 397 So. 2d 324 (Fla. 5th DCA 1981); Cawthon v. State, 382 So. 2d 796
(Fla. 1st DCA 1980), review denied, 388 So. 2d 1110 (Fla. 1980); Koontz v. State, 204 So. 2d 224
(Fla. 2d DCA 1967).
2
Stannard v. State, 113 So. 3d 929 (Fla. 5th DCA 2013); Turner v. State, 29 So. 3d 361 (Fla. 4th DCA
2010); Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA 2005); Reese v. State, 869 So. 2d 1225 (Fla. 2d
DCA 2004); Stevens v. State, 397 So. 2d 324 (Fla. 5th DCA 1981); Cawthon v. State, 382 So. 2d 796
(Fla. 1st DCA 1980), review denied, 388 So. 2d 1110 (Fla. 1980); Koontz v. State, 204 So. 2d 224
(Fla. 2d DCA 1967).
3
Fla. Std. Jury Instr (Crim.) 3.6(k). See appendix for Standard Jury Instructions.
4
Morrison v. State, 546 So. 2d 102 (Fla. 4th DCA 1989).
5
People v. Pena, 149 Cal. App. 3d Supp. 14, 197 Cal. Rptr. 264 (App. Dep’t Super. Ct. 1983) . This
decision was questioned in Foster v. Snyder, 76 Cal. App. 4th 264, 90 Cal. Rptr. 2d 207 (4th Dist. 1999),
and cases cited therein. Foster holds that the duress defense does not apply to administrative suspension
proceedings, but it also refers to decisions characterizing the discussion of duress in Pena as “expansive
and muddled.” 90 Cal. Rptr. 2d at 212.
6
State v. Fogarty, 128 N.J. 59, 607 A.2d 624 (1992).
7
State v. Riedl, 15 Kan. App. 2d 326, 807 P.2d 697 (1991). See also State v. Ortiz, 412 P.3d 1132
(N.M. App. 2017), cert. granted, Feb. 19, 2018 (based on Rios, where defendant testified she drove away
because she was being attacked, the court held that she was not entitled to a modified duress instruction
applicable to strict liability DUI; while she presented sufficient evidence to meet the subjective test of
immediate fear of great bodily harm, that evidence failed to meet the objective standard that she had no
legal reasonable alternative to driving away); State v. Wyatt, 359 P.3d 165 (N.M.App. 2015), cert.
denied, 369 P.3d 372 (N.M. 2015) (16 year old defendant was not entitled to duress instruction because
he didn’t present evidence that he “‘feared immediate great bodily harm’” where man testified he
“‘forced’” defendant to drive him to the store, raised his voice and told defendant to “‘hurry’” before the
defendant’s parents got home; but he never made physical contact with or threatened the defendant with
physical force or a weapon); State v. Rios, 127 N.M. 334, 980 P.2d 1068 (N.M. 1999) (duress is
available in DWI case, but the evidence supported the conclusion that Defendant did not act reasonably
where Defendant claimed he and his brother were threatened with violence by an angry mob, sought
refuge in Defendant’s truck, and as the alleged attack continued Defendant started the vehicle and began
to drive “slowly” out of the parking lot). But see State v. Leprowse, 353 Mont. 312, 221 P.3d 648 (2009)
(in a DUI, trial court erred in not allowing evidence on the defense of compulsion where there was
evidence that the defendant may have been in danger of serious bodily injury at a bar and drove 14 miles
for safety reasons; question of fact as to whether that was reasonable).

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§ 1:11.Duress, 11 Fla. Prac., DUI Handbook § 1:11 (2018-2019 ed.)

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Works.

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§ 1:12.Necessity, 11 Fla. Prac., DUI Handbook § 1:12 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:12 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:12. Necessity

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320, 355(6), 357

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1350, 1364, 1377 to 1378, 1408 to 1411, 1413, 1441 to
1442, 1449, 1479 to 1482, 1486 to 1487, 1495, 1501, 1506, 1509, 1522, 1526, 1537, 1543 to 1547,
1550

Occasionally, a defendant may feel that there are compelling circumstances that require driving. For instance,
the defendant may be faced with a medical emergency without access to help or time to secure it. The defendant
may raise a necessity defense. Such a defense is available in Florida.1

The elements of the necessity defense are:

(1) that the defendant reasonably believed that his action was necessary to avoid an imminent
threat of death or serious bodily injury to himself or others, (2) that the defendant did not
intentionally or recklessly place himself in a situation in which it would be probable that he would
be forced to choose the criminal conduct, (3) that there existed no other adequate means to avoid
the threatened harm except the criminal conduct, (4) that the harm sought to be avoided was more
egregious than the criminal conduct perpetrated to avoid it, and (5) that the defendant ceased the
criminal conduct as soon as the necessity or apparent necessity for it ended. 2

There is a standard jury instruction on the necessity defense.3

A Florida circuit court reversed a trial judge’s refusal to give a necessity instruction in a DUI case. 4 The
defendant was passed out behind the wheel at an intersection. The defendant presented evidence that his
girlfriend had been driving and had abandoned him at the intersection, and that he was only trying to move the
car out of the roadway, when he fell asleep. Thus, the defendant argued that it was an emergency situation
because of the possibility of a rear-end collision. In fact, the arresting officer testified that the road was heavily
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§ 1:12.Necessity, 11 Fla. Prac., DUI Handbook § 1:12 (2018-2019 ed.)

traveled and the defendant’s vehicle was dangerously situated.

Another circuit court reached a different conclusion where, after a DUI stop, the defendant told the trooper he
was being car-jacked.5 There was one passenger in the vehicle. The trooper looked into the claim. All of the
information the trooper gathered and all of the trooper’s observations, including observations of the defendant’s
demeanor, were inconsistent with the defendant’s claim. A three-judge panel ruled that the trial judge did not
abuse his discretion in refusing to give an instruction on the necessity defense. 6 Another three-judge panel
refused to extend this defense to the protection of property.7

The timing of the instruction was an issue in Umana v State.8 In that DUI case, the trial judge refused to instruct
the jury as to the necessity defense after the State rested. Officers testified that the passenger was intoxicated,
but gave no other testimony to support a necessity defense. The defendant argued that he was entitled to the
instruction so that he would not have to testify. However, the same judge granted the defense request after the
defendant testified that originally the passenger was driving, but the passenger was too drunk to drive, so the
defendant took over. The appellate court affirmed based on Bozeman v. State.9

Recently, in Brooks v. State,10 the Second District addressed this issue. In that case, the impaired driver claimed
that he had to drive to get a very sick cat to an all-night veterinary clinic. While holding that the necessity
defense applies to DUI cases, the court rejected the defense in this instance, finding that it is only available
where the necessity is protection of a human being.

Several out-of-state courts have dealt with this issue. 11 In Toops v. State,12 there was evidence that the driver of
the car dove into the back seat, which required that the impaired passenger take control of the vehicle. The court
ruled that the defendant, who was the passenger, was entitled to an instruction on the necessity defense. In State
v. Shotton,13 the court held that a medical emergency justified the necessity defense. In State v. Romano,14 the
court relied on the opinion in Shotton15 to support its ruling that the necessity defense applied where the
evidence showed that the defendant had been attacked by several men, was bleeding, and had to drive to avoid
further injury. However, where the evidence established that there were alternatives to driving to resolve the
problem, necessity was not a defense. 16 Also, in Hoagland v. State,17 while finding that necessity is a defense in
a DUI, the court concluded it did not apply because the defendant was ordered to remove his vehicle from a
prohibited parking space, but he created the necessity by parking in the space. In People v. Slack,18 the court
ruled that necessity was not a defense where the danger had ended, but the defendant continued to drive and
presented no evidence of a good faith belief that there was still a need to drive.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), review denied, 589 So. 2d 292 (Fla. 1991).
2
Bozeman v. State, 714 So. 2d 570, 572 (Fla. 1st DCA 1998) (necessity instruction should have been
given on driving on a suspended license charge where defendant said he realized his former wife was
too intoxicated to drive safely, while the two of them were looking for their teen-age daughter). See also
McCoy v. State, 928 So. 2d 503 (Fla. 4th DCA 2006) (necessity instruction should have been given
where defendant was charged with kicking cruiser window out and testified that he had a health
condition that caused shortness of breath and made him feel like he was suffocating); Giles v. State, 20
Fla. L. Weekly Supp. 107 (Fla. 6th Cir. Ct. Oct. 25, 2012)Giles v. State, 20 Fla. L. Weekly Supp. 107
(Fla. 6th Cir. Ct. Oct. 25, 2012) (necessity instruction should have been given on DWLS where the
defendant presented some evidence that child was injured; it is up to the jury to weigh the evidence);
Clements v. State, 18 Fla. L. Weekly Supp. 50 (Fla. 18th Cir. Ct. July 13, 2010)Clements v. State, 18
Fla. L. Weekly Supp. 50 (Fla. 18th Cir. Ct. July 13, 2010) (necessity instruction should have been given
in a DUI where defendant, who lived on a boat, came ashore due to tropical storm and worked to secure

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§ 1:12.Necessity, 11 Fla. Prac., DUI Handbook § 1:12 (2018-2019 ed.)

property, including marina office; but defendant, who became intoxicated, slept in his car because a
cottage he used became flooded, marina office was locked, and the boat was dangerous; the
reasonableness of alternatives and whether he acted recklessly by drinking were jury questions). But see
Mickell v. State, 41 So. 3d 960 (Fla. 4th DCA 2010) (in DWLS case, where defendant claimed he had to
drive because one of his three passengers had an asthma attack and needed medical attention, one had
been drinking, and the other had a suspended license; trial judge did not err in allowing evidence that the
defendant gave a false name three times, thereby extending the traffic stop for 20 minutes, which tended
to disprove that defendant believed there was a medical emergency); Butler v. State, 14 So. 3d 269 (Fla.
1st DCA 2009) (in a burglary case where defendant claimed he was being chased by men intending to
harm him, necessity instruction was not required because no evidence was presented establishing a
reasonable belief that there was an immediate threat of serious bodily injury to defendant); Ulloa v.
State, 22 Fla. L. Weekly Supp. 906 (Fla. 17th Cir. Ct. Feb. 25, 2015)Ulloa v. State, 22 Fla. L. Weekly
Supp. 906 (Fla. 17th Cir. Ct. Feb. 25, 2015) (trial judge properly refused necessity instruction where
defendant was DWLS because the person he was with was intoxicated; defendant failed to produce any
evidence anyone would have been harmed by staying with the car or that he had made a sufficient effort
to get a ride or checked to see if a bus was available).
3
Fla. Std. Jury Instr (Crim.) 3.6(k). See appendix for Standard Jury Instructions.
4
Newsome v. State, 1 Fla. L. Weekly Supp. 6 (Fla. 15th Cir. Ct. July 10, 1992) Newsome v. State, 1 Fla.
L. Weekly Supp. 6 (Fla. 15th Cir. Ct. July 10, 1992).
5
Hilton v. State, 6 Fla. L. Weekly Supp. 191 (Fla. 9th Cir. Ct. Jan. 29, 1999)Hilton v. State, 6 Fla. L.
Weekly Supp. 191 (Fla. 9th Cir. Ct. Jan. 29, 1999).
6
Hilton v. State, 6 Fla. L. Weekly Supp. 191 (Fla. 9th Cir. Ct. Jan. 29, 1999)Hilton v. State, 6 Fla. L.
Weekly Supp. 191 (Fla. 9th Cir. Ct. Jan. 29, 1999). See also Welsh v. State, 15 Fla. L. Weekly Supp.
580 (Fla. 15th Cir. Ct. March 27, 2008)Welsh v. State, 15 Fla. L. Weekly Supp. 580 (Fla. 15th Cir. Ct.
March 27, 2008) (trial judge properly denied necessity instruction in driving on suspended license case
where evidence showed that the defendant had other alternatives to driving, like taking a taxi).
7
Franco v. State, 7 Fla. L. Weekly Supp. 169 (Fla. 11th Cir. Ct. Dec. 29, 1999) Franco v. State, 7 Fla. L.
Weekly Supp. 169 (Fla. 11th Cir. Ct. Dec. 29, 1999) (the court rejected defense that the defendant was
driving on a suspended license because he needed to catch auto burglar and purse snatcher).
8
Umana v State, 11 Fla. L. Weekly Supp. 875 (Fla. 11th Cir. Ct. July 20, 2004) Umana v State, 11 Fla. L.
Weekly Supp. 875 (Fla. 11th Cir. Ct. July 20, 2004).
9
Bozeman v. State, 714 So. 2d 570 (Fla. 1st DCA 1998).
10
Brooks v. State, 122 So. 3d 418 (Fla. 2d DCA 2013).
11
Yaworsky, Michael J., “Driving While Intoxicated: ‘Choice of Evils’ Defense that Driving was
Necessary to Protect Life or Property,” 64 A.L.R.4th 298 (1989).
12
Toops v. State, 643 N.E.2d 387 (Ind. Ct. App. 1994).
13
State v. Shotton, 142 Vt. 558, 458 A.2d 1105 (1983). See also State v. Squires, 147 Vt. 430, 519
A.2d 1154 (1986) (necessity defense not available where the defendant created the emergency).
14
State v. Romano, 355 N.J. Super. 21, 809 A.2d 158 (App. Div. 2002). See also State v. Russo, 2018
WL 2306748 (N.J. App. May 22, 2018) (defendant raised a necessity defense to DUI based on claim she
drove to police station because she had mistakenly taken her boyfriend’s medication and feared getting
sick; the court concluded that even if her claim were true, she was not entitled to the defense because she
created the situation by taking the meds; if she expected to get sick she would have gone to the ER; and
there was no emergency because the effects of the meds did not appear until after she got to the police
stations); Belton v. State, 6 N.E. 3d 1043 (Ind. Ct. App. 2014) (court reversed conviction for DWLS
based on necessity defense where defendant presented evidence she had to drive to escape her violent
boyfriend; trial judge rejected defense because danger abated before police stopped defendant; on

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§ 1:12.Necessity, 11 Fla. Prac., DUI Handbook § 1:12 (2018-2019 ed.)

appeal, the court agreed danger would abate at some point, but no evidence supported conclusion that
the point had been reached and it was based solely on speculation).
15
State v. Shotton, 142 Vt. 558, 458 A.2d 1105 (1983).
16
State v. Farris, 778 S.W.2d 11 (Mo. Ct. App. E.D. 1989). See also State v. Kuykendall, 348 Wis. 2d 763,
833 N.W. 2d 873 (Ct. App. 2013); Com. v. Kendall, 451 Mass. 10, 883 N.E.2d 269 (2008); Stodghill v.
State, 892 So. 2d 236 (Miss. 2005); State v. Nelson, 2001 MT 236, 307 Mont. 34, 36 P.3d 405
(2001); State v. Karr, 968 S.W.2d 712 (Mo. Ct. App. W.D. 1998).
17
Hoagland v. State, 240 P.3d 1043, 126 Nev. Adv. Op. No. 37 (Nev. 2010).
18
People v. Slack, 210 Cal. App. 3d 937, 258 Cal. Rptr. 702 (4th Dist. 1989). But see People v. Pena,
149 Cal. App. 3d Supp. 14, 197 Cal. Rptr. 264 (App. Dep’t Super. Ct. 1983) (duress and necessity
defense applied where the defendant claimed that he drove because an officer took his girlfriend away
under peculiar circumstances and he feared for her safety).

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§ 1:13.Voluntary intoxication and insanity, 11 Fla. Prac., DUI Handbook § 1:13...

11 Fla. Prac., DUI Handbook § 1:13 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:13. Voluntary intoxication and insanity

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320, 355(6)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1364, 1408 to 1411, 1441, 1495, 1506, 1545

Some time ago the courts ruled that voluntary intoxication is not a defense to DUI. 1 Subsequently, the
Legislature eliminated voluntary intoxication as a defense to any charge. 2 The courts did, however, permit an
insanity defense in such cases, if alcoholism caused a “ ‘fixed and settled frenzy or insanity either permanent or
intermittent.’ ”3

In Tollefson v. State,4 the court ruled that the defendant was entitled to a jury instruction on insanity in a DUI
Manslaughter and DUI Property Damage. In Tollefson,5 the trial judge allowed the State to introduce evidence
of the defendant’s prior DUI. The court permitted this because the defendant behaved in a hostile way to the
officer during the prior DUI arrest, just as he did on the more recent occasion. He also had an excess blood
alcohol level on both occasions. The State argued that these similarities justified the conclusion that the
defendant was sane at the time of the more recent arrest, since the defendant made no claim of insanity on the
prior occasion. On appeal, the court rejected this contention for two reasons. First, the differences between the
two offenses outweighed the similarities. Second, the evidence of statements made during the prior DUI did not
tend to rebut the insanity defense because the defendant argued that his insanity was fleeting.

The Legislature has also reduced the availability of even the insanity defense in such cases. Now, evidence of
voluntary intoxication is admissible to show that the defendant was insane, only where the involved substance
was controlled under Chapter 893 and the defendant had a lawful prescription for the drug. 6 In these limited
circumstances, the insanity defense based on voluntary intoxication is available. Obviously, in such cases the
ruling in Tollefson would be relevant. One court characterized such a defense as being an involuntary
intoxication defense,7 which is the subject of the next section.

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§ 1:13.Voluntary intoxication and insanity, 11 Fla. Prac., DUI Handbook § 1:13...

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State By and Through Office of State Attorney for Twentieth Judicial Circuit v. McNally, 336 So. 2d
713 (Fla. 2d DCA 1976) (involving DUI manslaughter). See also Hopkins v. State, 721 So. 2d 1201
(Fla. 4th DCA 1998), review denied, 732 So. 2d 327 (Fla. 1999).
2
§ 775.051, Fla. Stat.
3
State By and Through Office of State Attorney for Twentieth Judicial Circuit v. McNally, 336 So. 2d
713, 714 (Fla. 2d DCA 1976).
4
Tollefson v. State, 525 So. 2d 957 (Fla. 1st DCA 1988). See also People v. Chapman, 165 Mich.
App. 215, 418 N.W.2d 658 (1987) (insanity defense applied to simple DUI based on long term effects of
alcoholism and neurological damage caused by head injury).
5
Tollefson v. State, 525 So. 2d 957 (Fla. 1st DCA 1988).
6
§ 775.051, Fla. Stat.
7
Jacobson v. State, 171 So.3d 188 (Fla. 4th DCA 2015).

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Works.

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§ 1:14.Involuntary intoxication, 11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:14. Involuntary intoxication

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320, 357

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1350, 1364, 1377 to 1378, 1413, 1441 to 1442, 1449, 1479
to 1482, 1486 to 1487, 1495, 1501, 1506, 1509, 1522, 1526, 1537, 1543 to 1544, 1546 to 1547, 1550

Under some circumstances, the accused might argue that he or she was unknowingly impaired by a substance
and should be entitled to an instruction on involuntary intoxication. Foreign courts have gone both ways on this
issue.

One court ruled that involuntary intoxication resulting from the use of medication at the time of the offense may
be a defense, where the defendant did not know and would not be expected to know, that the medication would
affect normal faculties.1 That same court refused to extend the application of the involuntary intoxication
defense to a situation where the evidence was that the defendant’s consumption of both alcohol and prescription
medications impaired her faculties, but she did not know nor have reason to know that together the substances
would have that effect.2 The court ruled that the government need only prove that the intoxicating liquor
contributed to impairment.3

On the other hand, in State v. Hammond,4 the court ruled that involuntary intoxication is not a defense to DUI
because it is an absolute liability offense, and it is irrelevant how the defendant became intoxicated. However,
in Carter v. State,5 Florida joined those courts holding that involuntary intoxication is a defense to DUI.

In Carter,6 the defendant’s friend gave him an anti-depressant drug, which she thought was ibuprofen, and told
the defendant that it was ibuprofen. The anti-depressant caused the defendant to become impaired and he was
charged with DUI. During his trial, the defendant requested an instruction on involuntary intoxication. The trial
judge denied the request on the grounds that there is no intent element for DUI; therefore, the statute imposes
strict liability. On appeal, the court ruled that the right to due process bars a conviction of a serious crime

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§ 1:14.Involuntary intoxication, 11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

without fault. The court noted that only minor offenses that involve relatively small penalties and no grave
damage to the offender’s reputation may be the subject of strict liability. DUI charges are not minor offenses.
Thus, involuntary intoxication applies and was a defense in this case. 7 However in McCoskey v. State,8 the court
held that intent is not an element of DUI and the defendant is not entitled to present evidence of lack of intent.

In Carter,9 the court only briefly commented on the rule that under the DUI law one can be found guilty of DUI
based on a blood alcohol reading of .08, without any proof of impairment. The court noted that in Robertson v.
State,10 the Florida Supreme Court observed that if an offender had such a reading “the statute provides a strict
liability theory, because impairment need not be proven.” 11 The Carter court found that allowing the instruction
on involuntary intoxication was not inconsistent with this provision because the issue is not whether the
defendant was impaired, but rather, what caused that impairment. This ruling doesn’t speak to the strict liability
language involving just the blood or breath alcohol level reading.

The court reiterated its ruling in Carter in Devers–Lopez v. State.12 In that case, the defendant testified that she
thought she had taken her Valium, when she had mistakenly taken her husband’s sleeping medication, Halcion.
The defendant was impaired and was prosecuted for DUI. The State’s evidence established that the defendant
did not have any significant alcohol in her system. A urinalysis showed that she had traces of opiate, cocaine,
and THC. The State’s expert said these trace amounts would not have affected the defendant’s ability to drive,
and further, that Valium would not have impaired her driving ability. The State only charged the defendant with
driving under the influence of alcohol or Halcion. “Since the evidence raised the issue as to whether she had
unknowingly ingested a drug which caused her to become impaired once she was already driving,” 13 she was
entitled to a jury instruction on involuntary intoxication.

In the foregoing cases, there was some evidence other than the accused’s speculation that a debilitating
substance had been administered. And in each case, the court was responsive to the defense claim that a jury
instruction on involuntary intoxication was required. The circuit court appellate panel was not so responsive in
Rouse v. State14 when the defendant’s speculation was the only evidence of the unknowing ingestion of the
substances. In that case, the defendant was arrested for DUI after driving and exhibiting significant indicators of
alcohol impairment. She testified that she believed someone had placed a date rape drug in her drink, which
accounted for her behavior. She was familiar with such drugs because she was a mental health counselor for
drug and alcohol abuse, but she was not an expert. The court upheld the denial of an instruction on involuntary
intoxication because there was “no affirmative evidence [defendant] had ingested anything other than alcohol.”

The scope of the involuntary intoxication defense in DUI cases remains to be developed. For instance, would
this defense apply to a defendant who claimed that he or she did not realize that the substance contained
alcohol?15 Would it apply to one who maintained that he or she did not realize how intoxicating a particular
drink was? As suggested in the Massachusetts case of Com. v. Bishop,16 discussed earlier in this section, another
question is whether the involuntary intoxication defense would apply to a defendant’s claim that he or she took
prescription medication and alcohol, but did not know, or have reason to know, that they would act together to
cause impairment of normal faculties? These and similar questions remain unanswered, but some opinions
provide insight into how these issues might be handled by Florida courts.

In State By and Through Office of State Attorney for Twentieth Judicial Circuit v. McNally,17 the court stated
that one cannot defend a DUI on the theory that his alcoholism made his intoxication involuntary. Similarly, in
Spry v. State,18 the court rejected a probationer’s argument that he did not willfully violate probation by drinking
alcohol because he suffered from alcoholism and could not help himself. Finally, in Hoffman v. State,19 the court
upheld a finding that the defendant violated community control by committing DUI where there was no proof
he consumed alcohol, but there was a urine test that showed he had consumed an unknown amount of three
prescription drugs (i.e. Prozac, Soma, and Xanax) for which he had a prescription. There was expert testimony
that excessive use of those substances could explain the impaired behavior that officers observed. The evidence
also established that the defendant was aware of the warning not to operate a motor vehicle while using the
medications.

A circuit judge sitting in her appellate capacity in Cendan v. State20 considered whether the defense applies to a

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§ 1:14.Involuntary intoxication, 11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

defendant’s claim that he or she did not know, nor have reason to know, that mixing of a prescription drug with
alcohol would cause impairment. In Cendan,21 the DUI defendant claimed that consumption of two prescription
tablets of Darvocet and two or three beers accounted for his condition. The defendant requested an instruction
on involuntary intoxication because he was unaware of the effect of combining Darvocet and alcohol. The trial
judge would not give such an instruction. On appeal, the court affirmed, because such an instruction
is limited to those circumstances where the defendant unknowingly ingests a substance that makes
him intoxicated, not where the defendant knowingly ingests a substance that he does not realize
will make him intoxicated. Defendant knew he was taking Darvocet and knew he was drinking
beer. He did not take the Darvocet thinking it was ibuprofen, and he did not drink the beer
thinking it was Diet Coke. His argument that he was unaware that combining the alcohol and
Darvocet would make him intoxicated is comparable to the argument, “I had no idea that four
beers would make me intoxicated.” (Emphasis by the court.)22

As the foregoing discussion clearly indicates, Florida courts have allowed an involuntary intoxication
instruction in DUI cases only where there is evidence that the defendant unknowingly consumed the substance
leading to impairment.23 In other words, the evidence permitted the argument that the defendant thought he or
she was consuming a certain substance that would not cause impairment, when it was actually a different
substance that would cause impairment.24 None of these cases permitted such a defense where the defendant
knew what was being consumed, but denied any knowledge that the substance could lead to impairment. 25

Treatment of the involuntary intoxication defense in other cases, suggests that the defense is available where the
defendant knowingly and properly consumes a lawful prescription drug in accord with instructions, but has no
reason to know the effect of the drug. 26 Generally, in such cases, the defense focuses on whether the defendant
has consumed some substance that would prevent the formation of a specific criminal intent. 27 There does not
appear to be any case in Florida that has permitted this application of the involuntary intoxication defense in a
DUI case. However, that argument was made in one case, but the trial judge declined to rule on it because the
evidence did not support the application of the defense.28

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Com. v. Wallace, 14 Mass. App. Ct. 358, 439 N.E.2d 848 (1982). See also Whisler v. State, 121
Nev. 401, 116 P.3d 59, 63 (2005) (court approved involuntary intoxication under like circumstances, but
allowed evidence of defendant’s prior felony DUI conviction to show knowledge of impairment,
absence of mistake, and lack of credibility).
2
Com. v. Bishop, 78 Mass. App. Ct. 70, 935 N.E.2d 361 (2010), review denied, 458 Mass. 1110, 939
N.E.2d 785 (2010). But see Com. v. Darch, 54 Mass. App. Ct. 713, 767 N.E.2d 1096 (2002)
(Massachusetts court appeared to approve an involuntary intoxication defense where the evidence was
that the defendant’s consumption of both alcohol and prescription medications impaired her faculties,
but she did not know nor have reason to know that together the substances would have that effect; in
Bishop the court rejected that interpretation and distinguished Darch on the facts.).
3
Com. v. Bishop, 78 Mass. App. Ct. 70, 935 N.E.2d 361 (2010), review denied, 458 Mass. 1110, 939
N.E.2d 785 (2010).
4
State v. Hammond, 118 N.J. 306, 571 A.2d 942 (1990). See also State v. Gurule, 149 N.M. 599,
2011-NMCA-042, 252 P.3d 823 (Ct. App. 2011) (involuntary intoxication defense cannot apply to DWI
because it is a strict liability offense); State v. Borrelli, 94 Conn. App. 849, 895 A.2d 257 (2006) (court
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§ 1:14.Involuntary intoxication, 11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

rejected the defense of involuntary intoxication based on the use of drugs the effect of which the
defendant claimed to be unfamiliar with, but the evidence showed she had the general intent to operate a
motor vehicle after she became impaired).
5
Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998).
6
Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998).
7
The court approved this instruction:

A defense asserted in this case is that of involuntary intoxication. If you

find that the defendant was driving a motor vehicle to the extent that his
normal faculties were impaired, you must then consider the issue of
whether the defendant unknowingly ingested a substance which caused
him to become impaired. If you find that the defendant unknowingly
ingested a substance which caused him to become impaired, and that he
drove a motor vehicle without the knowledge that he would become
impaired while driving due [to] the consumption of such a substance, then
you should find the defendant not guilty of DUI.

Carter v. State, 710 So. 2d 110, 111 (Fla. 4th DCA 1998).
8
McCoskey v. State, 76 So. 3d 1012 (Fla. 1st DCA 2011) (defendant was sitting in a vehicle and wanted
to introduce evidence that he had called for a ride and was waiting in his car with the radio on to show
lack of intent to drive; court ruled that was not an element and had nothing to do with actual physical
control).
9
Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998).
10
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
11
Carter v. State, 710 So. 2d 110, 113 (Fla. 4th DCA 1998).
12
Devers–Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998).
13
Devers–Lopez v. State, 710 So. 2d 720, 721 (Fla. 4th DCA 1998).
14
Rouse v. State, 15 Fla. L. Weekly Supp. 448 (Fla. 18th Cir. Ct. Feb. 20, 2008)Rouse v. State, 15 Fla. L.
Weekly Supp. 448 (Fla. 18th Cir. Ct. Feb. 20, 2008). See also City of Missoula v. Paffhausen, 367 Mont.
80, 289 P. 3d 141, 148 (2012) (court held date rape drugs could be a defense to a DUI, but the defendant
had the burden of presenting sufficient evidence to raise a reasonable doubt; court called this an
“Automatism” defense meaning that the accused is conscious or semi-conscious caused by things like
“epilepsy, stroke, concussion, or involuntary intoxication.”)
15
Solomon v. State, 227 P.3d 461 (Alaska Ct. App. 2010) (court rejected the defense of unwitting
intoxication, which required an absence of negligence, in a DUI where the defendant consumed a quart
of NyQuil with a label stating that it contained 10% alcohol, but the defendant said he did not read the
label and claimed he was unaware of the substance’s effect). But see Wagner v. State, 390 P.3d 1179
(Alaska Ct. App. 2017) (defendant would have a valid defense to DUI if he took a prescription dose of
zolpidem (i.e. sedative), became unconscious, engaged in sleep-driving, and neither knew nor had
reason to know the drug w-ould have that effect).
16
Com. v. Bishop, 78 Mass. App. Ct. 70, 935 N.E.2d 361 (2010), review denied, 458 Mass. 1110, 939
N.E.2d 785 (2010).
17
State By and Through Office of State Attorney for Twentieth Judicial Circuit v. McNally, 336 So. 2d

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§ 1:14.Involuntary intoxication, 11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

713 (Fla. 2d DCA 1976).

18
Spry v. State, 750 So. 2d 123 (Fla. 2d DCA 2000).
19
Hoffman v. State, 743 So. 2d 130 (Fla. 4th DCA 1999).
20
Cendan v. State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002)Cendan v. State, 9 Fla.
L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002).
21
Cendan v. State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002)Cendan v. State, 9 Fla.
L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002).
22
Cendan v. State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002)Cendan v. State, 9 Fla.
L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002). See also Langbaum v. State, 12 Fla. L.
Weekly Supp. 46 (Fla. 17th Cir. Ct. Oct. 13, 2004)Langbaum v. State, 12 Fla. L. Weekly Supp. 46 (Fla.
17th Cir. Ct. Oct. 13, 2004) (defendant not entitled to involuntary intoxication instruction where he
knowingly took Xanax for anxiety, even if he did not know that it would cause impairment; although
evidence indicated defendant did know).
23
Devers-Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998); Carter v. State, 710 So. 2d 110 (Fla. 4th
DCA 1998); Cendan v. State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002)Cendan v.
State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002).
24
Devers-Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998); Carter v. State, 710 So. 2d 110 (Fla. 4th
DCA 1998); Cendan v. State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002)Cendan v.
State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002).
25
Devers-Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998); Carter v. State, 710 So. 2d 110 (Fla. 4th
DCA 1998); Cendan v. State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002)Cendan v.
State, 9 Fla. L. Weekly Supp. 587 (Fla. 17th Cir. Ct. March 22, 2002).
26
Sluyter v. State, 941 So. 2d 1178 (Fla. 2d DCA 2006) (in a sexual battery, defendant was entitled to
present evidence on involuntary intoxication allegedly causing legal insanity where expert testified that
use of a prescribed dosage of Halotestin, caused the condition resulting in the crime); Lucherini v. State,
932 So. 2d 521 (Fla. 4th DCA 2006) (defendant was entitled to present evidence that he committed
murder due to involuntary intoxication arising from the lawful use of prescribed antidepressants
Remerol and Clonopin); Miller v. State, 805 So. 2d 885 (Fla. 2d DCA 2001)(defendant taking drugs in
treatment program was entitled to involuntary intoxication defense as it related to his ability to form the
necessary specific intent for conviction of burglary with a firearm and shooting into a building);
Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997), review denied, 705 So. 2d 10 (Fla. 1997)
(defendant who took prescribed amount of Zoloft was entitled to instruction on involuntary intoxication
as part of insanity instruction in first degree murder case where there was evidence that offense resulted
from drug usage); Boswell v. State, 610 So. 2d 670 (Fla. 4th DCA 1992) (defendant was entitled to
involuntary intoxication instruction in murder case where there was some evidence that the defendant’s
conduct resulted from the use of prescribed drugs, Prozac and Xanax). Compare Stimus v. State, 995 So.
2d 1149 (Fla. 5th DCA 2008) (involuntary intoxication was not a defense in a murder where undisputed
evidence was that defendant took at least four times amount of Oxycontin prescribed); Cobb v. State,
884 So. 2d 437 (Fla. 1st DCA 2004) (defendant in attempted murder and aggravated battery case was
not entitled to an instruction on involuntary intoxication where she knowingly used amounts of Xanax
and Paxil that exceeded the prescription).
27
See citations for authorities in immediately preceding footnote.
28
Langbaum v. State, 12 Fla. L. Weekly Supp. 46 (Fla. 17th Cir. Ct. Oct. 13, 2004)Langbaum v. State, 12
Fla. L. Weekly Supp. 46 (Fla. 17th Cir. Ct. Oct. 13, 2004) (defendant not entitled to involuntary
intoxication instruction where he knowingly took Xanax for anxiety, even if he did not know that it
would cause impairment; although evidence indicated defendant did know).

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§ 1:14.Involuntary intoxication, 11 Fla. Prac., DUI Handbook § 1:14 (2018-2019 ed.)

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§ 1:15.Intervening cause, 11 Fla. Prac., DUI Handbook § 1:15 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 1:15 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 1. Pleading, Proof of Basic Elements, and Defenses

§ 1:15. Intervening cause

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 320, 355(6), 357

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1314 to 1317, 1350, 1364, 1377 to 1378, 1408 to 1411, 1413, 1441 to
1442, 1449, 1479 to 1482, 1486 to 1487, 1495, 1501, 1506, 1509, 1522, 1526, 1537, 1543 to 1547,
1550

Some DUI charges involve accidents that cause damage or loss. These include DUI Manslaughter, DUI
involving an accident resulting in bodily injury, and DUI involving an accident resulting in property damage. In
these types of cases, the State must prove causation. 1 In such instances, the defendant may claim that something
intervened between the defendant’s driving and the damage or loss that actually caused the damage or loss. This
contention is generally unsuccessful.

In some cases, the defendant looks to the lack of proper medical care as a defense. But lack of proper medical
care is not an intervening cause barring a guilty verdict where the defendant’s conduct caused the initial injury. 2
However, in Fecske v. State,3 the court makes it clear that it constitutes an improper comment on the evidence to
instruct the jury that lack of proper medical care is not a defense. And the defendant may present evidence and
properly argue that pneumonia brought on by improper medical care was the real cause of death, not the
defendant’s negligence.4 The court also clearly acknowledges, however, that deficient medical care is not a
defense.5 In Donohue v. State,6 the court concluded that Supreme Court decisions holding that lack of proper
medical care is not a defense unless the deficient care is the sole cause of death, do not preclude admissibility of
such evidence. If such evidence were excluded, “then this type of evidence would never be admissible, because
in every case there would be no medical treatment but for the crime. In a case in which a victim’s jaw was
fractured in a battery, but the victim died as a result of subsequent negligent administration of anesthesia, the
defendant could be charged with a homicide and would be precluded from proving that he did not cause the
death.”7

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§ 1:15.Intervening cause, 11 Fla. Prac., DUI Handbook § 1:15 (2018-2019 ed.)

In some cases, the defendant may argue that death, injury, or property damage was actually caused by the
negligence of the victim. Such a defense is unavailable unless the victim’s “conduct was the sole proximate
cause of the homicide, or unless there is some reason why it would be unjust or unfair to impose criminal
liability.”8 Thus, the trial judge did not err in a vehicular homicide case in not allowing the defendant to cross-
examine the pathologist as to whether any of the decedents would have survived if they had been wearing seat
belts.9 Further, the same judge did not err in instructing the jury that the victim’s failure to wear seat belts is not
a defense to vehicular homicide.10 Similarly, the trial judge properly excluded evidence in a DUI Manslaughter
that the victim’s death may have been caused by the failure to use a child restraint. 11 Even where significant
evidence indicated that the victim’s refusal of a blood transfusion caused his death, the defendant could not
escape criminal liability for causing life-threatening injuries to the victim in a DUI Manslaughter case. 12

The court took the same position where the victim of a vehicular homicide was a pedestrian. 13 The court ruled
that it was not error for the trial judge to refuse to instruct the jury concerning the statutory duty of a pedestrian
when crossing a road, because there was no view of the evidence from which a jury could reasonably conclude
that the victim’s failure to yield the right of way was the sole proximate cause of the accident.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
See authorities cited in § 2:4.
2
Johnson v. State, 64 Fla. 321, 59 So. 894 (1912). See also Barnes v. State, 528 So. 2d 69 (Fla. 4th
DCA 1988).
3
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000). See
also Weir v. State, 777 So. 2d 1073 (Fla. 4th DCA 2001), review denied, 796 So. 2d 539 (Fla. 2001)
(court found the instruction acceptable because it left open the possibility that a preexisting condition
along with other factors could constitute a defense).
4
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000).
5
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000). See
also Weir v. State, 777 So. 2d 1073 (Fla. 4th DCA 2001), review denied, 796 So. 2d 539 (Fla. 2001).
6
Donohue v. State, 801 So. 2d 124 (Fla. 4th DCA 2001).
7
Donohue v. State, 801 So. 2d 124, 125 (Fla. 4th DCA 2001).
8
Union v. State, 642 So. 2d 91, 92 (Fla. 1st DCA 1994). See also Miller v. State, 250 So.3d 144 (Fla. 1st
DCA 2018) (in a DUI manslaughter, where defendant had a BAC of .08 and was excessively speeding,
trial judge did not err in excluding evidence that victim lacked a motorcycle endorsement because no
reasonable jury could conclude that the absence of the endorsement was the sole proximate cause of the
accident); Knowles v. State, 29 So.3d 466 (Fla. 4th DCA 2019), review denied, 74 So.3d 1083 (Fla.
2011) (in a vehicular homicide, the decedent’s driving could not be the basis for a defense because it
alone did not cause the accident; the defendant’s conduct in “angling his car between Markel (the
decedent and Willover together with Markel’s response thereto, caused the accident)”); Reaves v. State,
979 So. 2d 1066 (Fla. 1st DCA 2008) (defendant was drag racing when the other driver tried
unsuccessfully to pass, resulting in a crash that killed the other driver and his passenger; the other
driver’s conduct was not the sole cause of his own death or the passenger’s; therefore, the defendant was
properly convicted); State v. Gensler, 929 So.2d 27 (Fla. 3d DCA 2006), review denied, 945 So.2d
1289 (Fla. 2006) (defendant was not entitled to dismissal of a manslaughter based on striking a

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§ 1:15.Intervening cause, 11 Fla. Prac., DUI Handbook § 1:15 (2018-2019 ed.)

pedestrian, where defendant drove 90 mph at night where there were no street lights through an
intersection with a flashing yellow light; it could not be said that the fact that the decedent was four or
five feet into the traffic lane north of the cross walk with alcohol and cocaine in her system was the sole
proximate cause); Nunez v. State, 721 So.2d 346 (Fla. 2d DCA 1998) (the negligence of the decedent,
who was riding in back of a pick up truck when the defendant ran a red light, was not a defense because
it was not the sole proximate cause of the accident that caused the death).
9
Union v. State, 642 So. 2d 91, 92 (Fla. 1st DCA 1994).
10
Union v. State, 642 So. 2d 91, 92 (Fla. 1st DCA 1994).
11
Bowman v. State, 618 So. 2d 763 (Fla. 4th DCA 1993).
12
Klinger v. State, 816 So. 2d 697 (Fla. 2d DCA 2002), review denied, 837 So.2d 410 (Fla. 2003) (doctor
testified that if the victim had received the transfusion he would have had an 85 to 90 percent chance of
survival).
13
Brimmer v. State, 541 So. 2d 1307 (Fla. 4th DCA 1989).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 2 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 2 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

Introduction

INTRODUCTION
DUI offenses not charged as felonies are treated as misdemeanors for most purposes under Florida law. 1
However, the seriousness of the offense and possible sentence depends on various circumstances. This chapter
focuses on those circumstances and the enhancement procedure. Sentences for all offenses are considered in §§
13:1 et seq.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 322.28, Fla. Stat. provides: “(e) Convictions that occur on the same date resulting from separate
offense dates shall be treated as separate convictions, and the offense that occurred earlier will be
deemed a prior conviction for the purposes of this section” (emphasis added).
Gonse v. State, 952 So. 2d 555 (Fla. 2d DCA 2007) (court pointed out that felony DUI based on prior
convictions “is a separate offense from misdemeanor DUI”); Leone v. State, 590 So. 2d 29 (Fla. 5th
DCA 1991) (court characterized an unenhanced DUI as a simple DUI and a second degree
misdemeanor, and a DUI involving property damage as a first degree misdemeanor); State v. Eldridge,
565 So. 2d 787 (Fla. 2d DCA 1990); State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987); Miller v.
State, 442 So. 2d 419 (Fla. 4th DCA 1983); Thompson v. Office of Public Defender of Ninth Judicial
Circuit In and For Orange County., 387 So. 2d 541 (Fla. 5th DCA 1980).

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

11 Fla. Prac., DUI Handbook § 2:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:1. Prior offenses and enhancing factors

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1352, 1365 to 1371, 1380, 1397 to 1400, 1414 to 1419, 1442
to 1443, 1451 to 1452, 1473, 1484, 1486 to 1487, 1496, 1503, 1508, 1510, 1518, 1523, 1526, 1532,
1539, 1543 to 1547, 1550

As the number of prior convictions rises, the minimum and maximum sentences increase in ways explained in
Chapter 13.1 This increase in penalties applies to both driving and boating offenses. 2 The age of the prior
convictions does not affect their availability as sources of enhancement. 3 According to the Supreme Court in
State v. Finelli,4 even a conviction being reviewed on direct appeal can be the basis for a subsequent felony
conviction. If the predicate conviction is reversed on appeal, the defendant can file a motion for postconviction
relief attacking the subsequent felony conviction. 5 The ruling in Finelli was in response to a certified question
dealing exclusively with a felony DUI. It is unclear whether the ruling would also apply to enhanced
misdemeanor charges.

The third conviction for an offense that occurs within 10 years after a prior conviction, 6 and a fourth or
subsequent conviction, regardless of when the prior convictions occurred, is a third degree felony. 7 All of the
previously mentioned rules apply, but the decision to file a charge as a felony, which is within the circuit court’s
jurisdiction, is entirely for the prosecuting authority. 8 The prosecutor may properly choose to file such a charge
as a misdemeanor in county court.9 A misdemeanor DUI may, however, end up in circuit court. This can happen
when the misdemeanor is a companion charge to a felony, like a third driving on a suspended license. 10
Furthermore, if the charging document alleges a felony DUI (i.e. third or fourth DUI), but the felony is
dismissed because the record establishes that there are insufficient predicate convictions, the circuit court still
has jurisdiction over the surviving misdemeanor DUI conviction.11

As already made clear in this chapter, the focus here is on prior convictions as grounds for enhancement of the
sentence. But the term “enhancement” needs to be applied with caution to felony charges. The Legislature did

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

not intend to permit consecutive sentences where the defendant is being treated as a habitual offender on each of
two charges arising out of the same criminal episode. 12 However, in Gonse v. State,13 the court ruled that this
principle did not apply to consecutive sentences on felony DUI based on prior DUI convictions and felony
DWLR based on a permanently revoked license, because this was not an enhancement of the sentence. Rather,
the prior DUI convictions and the permanent revocation were essential elements of the felonies; therefore, they
were necessary for a conviction. 14 In other words, as to felonies, the prior convictions result in an
“enhancement” of the offense not the sentence.15

In addition to prior convictions, other factors can lead to even greater penalty increases. If at the time of the
offense the offender had a blood or breath alcohol level of .15 or greater, the minimum and maximum fine and
maximum possible jail term is subject to additional increases. 16 However, where the State seeks enhancement
based on prior convictions and the presence of a blood or breath alcohol level of .15 or greater, the prior
offenses need not have included the increased alcohol level.17

Similarly, if at the time of the offense the offender had a person under 18 years of age in the car, the minimum
and maximum fine and maximum jail term is also subject to an additional increase. 18 Unlike the provision for
enhancement based on a .15 blood or breath alcohol level, however, the provision on enhancement based on the
presence of a minor, does not provide that the enhancement element need not be present in the earlier
convictions.19 This may have been a legislative oversight. It could, however, lead to an argument that, since the
Legislature included only the excess alcohol level in the exemption, it intended to require proof that the prior
offense involved the presence of a child, where the State relies on that factor for enhancement. In other words,
the canon, “expressio unius est exclusio alterius” (the mention of one thing implies the exclusion of another),
might apply.20

There have been two constitutional arguments attacking enhancement based on elevated test results. First, in
State v. McInnis,21 the defendant argued that enhancement based on elevated test results denies equal protection
because one who refuses the test might have an undisclosed blood alcohol level of .20 or higher and not suffer
the increased penalty; while one who takes the test and produces the higher test reading suffers the increased
penalty. Second, the defendant in McInnis argued that the law results in cruel and unusual punishment. 22 The
court rejected both contentions.

These increases in penalties may also be based on out-of-state convictions for driving under the influence,
driving while intoxicated, driving with an unlawful blood alcohol level, or any similar alcohol or drug related
traffic offense.23 The law once required that the out-of-state conviction be for a charge that was “substantially
similar” to the Florida offense. The elimination of the word “substantially” suggests a legislative intent to
permit more liberal enhancement.

“[I]t is clear that the Legislature intends this statute to include a wide range of foreign offenses as previous
offenses.”24 Based on this conclusion, in McAdam v. State,25 the court found that a foreign conviction which
consisted of driving when “affected ‘to the slightest degree so that [the offender] is less able than he ordinarily
would have been … to exercise due care in the operation of a vehicle,’ ” constituted a prior offense for purposes
of enhancement under the Florida Statutes.26 There was a greater offense in that state which more closely
paralleled the Florida law, but the court did not find that to be a bar to reliance upon the lesser offense as a prior
conviction. Relying on McAdam,27 in DiPietro v. State28 the court reached the same conclusion as to convictions
for violating a New York statute providing: “ ‘No person shall operate a motor vehicle while the person’s ability
to operate such motor vehicle is impaired by the consumption of alcohol.’ ” 29 The court concluded that this
offense qualified as “ ‘any other alcohol-related traffic offense’ similar to the offenses listed in section
316.193(6); the listed offenses all involve operating a motor vehicle while impaired by alcohol to some
degree.”30

The consequences of DUI convictions vary with the number of priors. They include maximum and mandatory
minimum jail terms and fines, mandatory periods of vehicle impoundment, installation of an ignition interlock
device, and mandatory terms of license revocations. In dealing with the impact of prior conduct, it is important
to highlight the significance of the new offenses versus the new convictions.
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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

The maximum jail sentence and maximum and minimum fine increase, and use of an ignition interlock device is
imposed for a second DUI regardless of the time between the prior conviction and the second offense or
conviction.31 The mandatory minimum jail term, impoundment, and license revocation also increase for a
second conviction, but only for an offense committed within five years after a prior conviction. 32

The time between prior convictions and a new offense is extremely important as to third convictions. The third
offense becomes more serious depending on the time between a prior conviction and the third offense. 33 If the
offense is within 10 years after the prior conviction, the defendant can be charged with a felony. 34 That means
the defendant will suffer consequences that don’t apply if the offense is outside of the 10 year threshold. A
felony conviction has a more severe impact than a misdemeanor, including longer terms of incarceration and/or
probation and collateral consequences. The maximum term of incarceration if a felony is charged is five years; 35
whereas, if the third offense is more than 10 years after the prior conviction, the maximum jail term is 12
months.36 The statutes also provide that for third offenses within 10 years after a prior conviction there must be
vehicle impoundment,37 a mandatory minimum jail term,38 and an increased license revocation. 39 There are no
such provisions if the third offense is outside of the 10 year threshold. 40 It should also be noted that there is a
minimum fine for third offenses outside the 10 year period, but not for those within the period and the
maximum fines and interlock requirements are the same.41

The reliance on offenses rather than convictions as the trigger for multiple offender treatment is important
because it means that the accused cannot avoid mandatory consequences by delaying the case. 42 Clearly, if it
were otherwise, an offender could benefit from delay.

Sentencing may be more complicated if convictions stem from unrelated offenses pending at the same time. If
there are two pending unrelated DUI offenses and no priors, regardless of the order of conviction, the court can
impose the maximum jail and fine, the minimum fine, and the mandatory use of an interlock device for a second
conviction. That is true because there is no requirement that there be a conviction before the second offense for
there to be second time treatment in these categories. The requirement is only that there be two convictions. At
one time, the statute provided for enhanced revocations based solely on the fact of a second conviction. In
Dep’t of Public Safety Driver’s License Division v. Mitchell,43 the court concluded that where there are two
pending charges the order of conviction doesn’t matter. The same is not true now of enhanced revocations, 44
mandatory minimum jail terms,45 and mandatory impoundment periods46 because there must be a conviction
before the offense that leads to the second conviction for there to be second time treatment in these categories.
In other words, the State can never rely on a conviction on two pending unrelated charges to justify enhanced
revocations, mandatory minimum jail terms, and mandatory impoundment periods for a second conviction
where there was no prior conviction.

The situation may be different where two unrelated DUI charges are pending and there is a prior conviction. If
at least one of the offenses leading to the pending charges was within five years after the prior conviction, then
the enhanced revocations, mandatory minimum jail terms, and mandatory impoundment periods for a second
conviction would apply.

The situation becomes more complicated if the State seeks third conviction treatment based on two pending
unrelated charges and a prior conviction. Under certain circumstances, the State could rely on a conviction on
both charges to justify imposition of the enhanced revocation, mandatory minimum jail, and the mandatory
period of impoundment. There are three possible scenarios.

First, there could be two pending unrelated charges on offenses that were both committed within 10 years after
the prior conviction. Under those circumstances the enhanced revocation, the mandatory minimum jail, and the
mandatory period of impoundment would be required for the third conviction regardless of the order of
convictions on the two pending charges. This is so because the time between a prior conviction and the third
offense, not the third conviction, is what triggers the mandatory sanctions and both of the offenses were within
10 years after a prior conviction.

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

Second, there could be two pending unrelated charges with the first offense within 10 years after a prior
conviction and a second older offense outside of the 10-year period. It would seem that if there was a conviction
on the second offense, followed by a conviction on the first offense, the enhanced revocation, the mandatory
minimum jail term, and the mandatory period of impoundment for a third offense would apply to the conviction
on the first offense. There would be a third conviction for an offense occurring within 10 years after a prior
conviction. If the order were reversed, the third conviction would be for an offense occurring more than 10
years after a prior conviction.47

Third, there could be pending charges on two offenses committed outside of the 10-year period. Clearly, under
these circumstances, imposition of the mandatory revocation, the mandatory minimum jail term, and the
mandatory period of impoundment would not be required because there could not be a conviction for an offense
occurring within 10 years after a prior conviction.

Another issue dealing with convictions on unrelated pending DUIs is whether the outcome changes when the
court simultaneously takes a plea and convicts the offender of both charges. The plain language of the statute
requires a mandatory five year revocation where the second offense occurs within five years after the first DUI
conviction;48 nevertheless, in Bernsee v. Dep’t of Highway Safety & Motor Vehicles,49 a three-judge circuit court
panel rejected the argument that the revocation is not required where the convictions occur simultaneously. In
that case, the defendant committed two offenses and was convicted of both of them on the same day. The
Department revoked his license for five years. The court acknowledged that on its face the statute would not
require the five year revocation because neither offense occurred within five years of a prior conviction.
However, the court drew a distinction between license revocation and criminal sanctions and recognized that the
revocation is an administrative action intended to protect the public. “Under the facts of this case, the plain and
ordinary meaning of Florida Statutes, section 322.28(2)(a) 2 leads to an unreasonable result and a result
clearly contrary to legislative intent.” 50 This problem has now apparently be resolved by amendment to
Florida Statutes § 322.28, which provides: “Convictions that occur on the same date resulting from separate
offense dates shall be treated as separate convictions, and the offense that occurred earlier will be deemed a
prior conviction for the purposes of this section.”

In Test v State,51 the court also considered the effect of simultaneous convictions. The defendant was involved in
two crashes on the same evening, resulting in multiple charges, including two DUI charges. The State filed one
multiple count information. The defendant was convicted of all counts, and the State sought permanent license
revocation based on two prior DUI convictions plus the two in the Test case. The trial judge agreed with the
State. On appeal, the court reversed because the convictions were simultaneous rather than sequential. Test52 is
from the same circuit as Bernsee v. Dep’t of Highway Safety & Motor Vehicles,53 but the decisions were
rendered by two different three judge panels in different counties. The language of the statutes were also
different. § 322.28(2), Fla. Stat., dealing with permanent revocation, provides: “The court shall permanently
revoke the driver’s license or driving privilege of a person who has been convicted four times for violation of
s. 316.193 or former s. 316.1931 or a combination of such sections.” Unlike the provision considered in
Bernsee,54 this provision makes no reference to the time of the offense and that was not the issue in Test.55

As illustrated by the Test case, occasionally several DUI offenses arise from one incident. For instance, one
accident may result in many dead or injured people and several items of damaged property. At one time, there
was a controversy as to whether one could be convicted of such multiple offenses and be subject to
enhancement. The Florida Supreme Court has made it clear that convictions and sentences on each offense are
proper.56 The Court has not, however, resolved the issue of whether it is proper to enhance sentences based on
multiple offenses arising out of one episode.

Two district courts have dealt with this question differently. In Pulaski v. State,57 the defendant was convicted of
two DUI counts involving serious bodily injury based on one accident. The court upheld an enhanced
suspension of five years based on the second conviction. The court ruled that such enhancement of sentences is
proper. In contrast, in Jackson v. State,58 another district court rejected the ruling in Pulaski, and ruled that the
Legislature intended for license suspensions and revocations to be based on the number of DUI episodes, not

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

the number of offenses in one episode. In State v. Lainez,59 the court relied on Jackson60 to justify the conclusion
that a defendant cannot be convicted of a felony DUI based on three or more prior convictions where the prior
offenses all arise out of a single traffic accident (i.e. four counts of DUI serious bodily injury and one count of
simple DUI). Subsequently, the Legislature clearly suggested that the Jackson understanding of legislative
intent was correct.61

However, the facts in Jackson62 and Lainez63 may be distinguished based on the passage of time and space. Thus,
in Test v State,64 the court found Jackson65 to be inapplicable because in Test, “two distinct incidents occurred at
least five minutes apart in time and at least one mile apart in distance. Although this may all have happened
during one episode of drunkenness, it is clearly two different criminal acts separated by time and space.”

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§§ 316.193(2)(a) and (2)(b), 316.193(4)(a) and (b), 316.193(6), and 322.28(2)(a), Fla. Stat.
2
§ 327.35, Fla. Stat.
3
State v. Swartz, 734 So. 2d 448 (Fla. 4th DCA 1999) (nothing in statute precludes the use of 1974 and
1976 convictions as basis for enhancement). See also State v. Jettinghoff, 743 So. 2d 601 (Fla. 4th DCA
1999); State v. Wilson, 740 So. 2d 601 (Fla. 4th DCA 1999); State v. Mohlman, 740 So. 2d 602 (Fla. 4th
DCA 1999).
4
State v. Finelli, 780 So. 2d 31 (Fla. 2001).
5
State v. Finelli, 780 So. 2d 31 (Fla. 2001).
6
§ 316.193(2)(b) 1., Fla. Stat. See Fla. Std. Jury Instr. (Crim.) 28.1. The Florida Supreme Court has
adopted instructions covering a third or fourth time DUI charged as a felony. In re Standard Jury
Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
7
§ 316.193(2)(b) 3., Fla. Stat.
8
Toledo v. State, 580 So. 2d 335 (Fla. 3d DCA 1991).
9
Toledo v. State, 580 So. 2d 335 (Fla. 3d DCA 1991).
10
Ledlow v. State, 743 So. 2d 165 (Fla. 4th DCA 1999). See also State v. W.W., 16 So. 3d 305 (Fla. 5th
DCA 2009).
11
Woodbury v. State, 110 So. 3d 17 (Fla. 2d DCA 2013), review denied, 132 So. 3d 223 (Fla. 2013)
(court acknowledged that the circuit and county court had concurrent jurisdiction over the surviving
misdemeanor). See also State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000); Davis v. State, 710 So.
2d 116 (Fla. 2d DCA 1998); Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989). But see State v.
Salter, 143 So. 3d 1049 (Fla. 2d DCA 2014) (court makes clear that in this situation the trial judge also
has the discretion to relinquish jurisdiction to the county court).
12
Hale v. State, 630 So. 2d 521 (Fla. 1993). See also Cotto v. State, 89 So. 3d 1025 (Fla. 3d DCA
2012), decision approved, 139 So. 3d 283 (Fla. 2014).
13
Gonse v. State, 952 So. 2d 555 (Fla. 2d DCA 2007).

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

14
Gonse v. State, 952 So. 2d 555 (Fla. 2d DCA 2007). See also State v. Kelly, 999 So. 2d 1029, 1037
(Fla. 2008); Johnson v. State, 994 So. 2d 960, 963 (Fla. 2008); Davis v. State, 31 So. 3d 887 (Fla. 4th
DCA 2010).
15
In Patterson v. State, 938 So. 2d 625, 627 (Fla. 2d DCA 2006), the court drew the distinction as follows:
“We refer generally to the ‘enhancement’ of a sentence when the prior offense is used solely for
sentencing purposes, but to the ‘reclassification’ of the offense when the prior offense is used to charge
the defendant with an offense that is greater in degree.”
16
§ 316.193(4), Fla. Stat. (for details see §§ 13:1 et seq.). But, if there is one reading below .15 reading
and one above, the State may have failed to meet the burden of proof. See Department of Highway
Safety and Motor Vehicles v. Colling, 178 So. 3d 2 (Fla. 5th DCA 2014), review denied, 148 So. 3d 770
(Fla. 2014) (court concluded that where there were two readings, one below legal limit and one above,
the inference that petitioner was below legal limit was equally plausible, and since the burden was on the
Department, it did not meet that burden).
17
§ 316.193(4), Fla. Stat. (for details see §§ 13:1 et seq.).
18
§ 316.193(4), Fla. Stat. (for details see §§ 13:1 et seq.).
19
§ 316.193(4), Fla. Stat. (for details see §§ 13:1 et seq.).
20
State v. Parsons, 569 So. 2d 437, 438 (Fla. 1990); Ideal Farms Drainage Dist. v. Certain Lands, 154
Fla. 554, 19 So. 2d 234 (1944).
21
State v. McInnis, 581 So. 2d 1370 (Fla. 5th DCA 1991), cause dismissed, 584 So. 2d 998 (Fla. 1991).
22
State v. McInnis, 581 So. 2d 1370 (Fla. 5th DCA 1991), cause dismissed, 584 So. 2d 998 (Fla. 1991).
23
§§ 316.193(6) and 322.28(2)(a), Fla. Stat.
24
McAdam v. State, 648 So. 2d 1244, 1245 (Fla. 2d DCA 1995).
25
McAdam v. State, 648 So. 2d 1244 (Fla. 2d DCA 1995). See also Honis v. Dep’t of Highway Safety &
Motor Vehicles, 17 Fla. L. Weekly Supp. 324 (Fla. 9th Cir. Ct. Feb. 12, 2010) Honis v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 324 (Fla. 9th Cir. Ct. Feb. 12, 2010)
(differing levels of impairment and evidentiary blood-alcohol level presumptions did not bar reliance on
prior out of state DUI conviction for sentence enhancement).
26
McAdam v. State, 648 So. 2d 1244 (Fla. 2d DCA 1995). See also Perdomo v. State, 19 Fla. L. Weekly
Supp. 786 (Fla. 17th Cir. Ct. June 11, 2012)Perdomo v. State, 19 Fla. L. Weekly Supp. 786 (Fla. 17th
Cir. Ct. June 11, 2012) (documents admitted at sentencing indicating that defendant was convicted of
three prior DUIs in Michigan were sufficient for enhancement; it was proper for court to give defendant
a chance to dispute accuracy of record); Sadowski v. Dep’t of Highway Safety & Motor Vehicles, 19
Fla. L. Weekly Supp. 703 (Fla. 9th Cir. Ct. April 5, 2012)Sadowski v. Dep’t of Highway Safety &
Motor Vehicles, 19 Fla. L. Weekly Supp. 703 (Fla. 9th Cir. Ct. April 5, 2012) (Michigan conviction of
Operating While Impaired, a lesser included offense, was a qualifying offense for suspension under §
322.28, Fla. Stat.).
27
McAdam v. State, 648 So. 2d 1244 (Fla. 2d DCA 1995).
28
DiPietro v. State, 992 So. 2d 880 (Fla. 4th DCA 2008). See also Dawson v. Dep’t. of Highway Safety
and Motor Vehicles, 19 So.3d 1001 (Fla. 4th DCA 2009), review denied, 33 So.3d 35 (Fla. 2010)
(holding revocation based on prior conviction under same N.Y. statute as was considered in DiPietro
was proper); Haughey v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 854 (Fla.
6th Cir. Nov. 6, 2017)Haughey v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp.
854 (Fla. 6th Cir. Nov. 6, 2017) (same ruling as in Dawson); Wunderlich v. Dep’t of Highway Safety &
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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

Motor Vehicles, 12 Fla. L. Weekly Supp. 277 (Fla. 6th Cir. Ct. Jan. 10, 2005) (five year suspension
proper where defendant had a prior N.Y. conviction for violating the same N.Y. statute); DeLand v.
Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1024 (Fla. 12th Cir. Ct. July 29,
2005) (court reached same decision as in Wunderlich concerning the N.Y. statute, and specially
concluded that Defendant’s prior conviction, which was for violating a section of the statute which made
having more than.02 b.a.l. but less than.08 b.a.l. a noncriminal traffic offense, was sufficiently similar to
warrant a driver’s license suspension).
29
DiPietro v. State, 992 So. 2d 880, 882 (Fla. 4th DCA 2008).
30
DiPietro v. State, 992 So. 2d 880, 882–83 (Fla. 4th DCA 2008).
31
§ 316.193(2)(a), Fla. Stat.
32
§§ 316.193(6)(b), 322.28(2)(a) 2., Fla. Stat.
33
In Drigotas v. State, 531 So. 2d 421 (Fla. 4th DCA 1988), the court construed a similar earlier version of
the statute as meaning that the time period is measured from the second conviction rather than the first.
34
§ 316.193(2)(b) 1., Fla. Stat.
35
§ 775.082, Fla. Stat.
36
§ 316.193(2)(b) 2., Fla. Stat.
37
§ 316.193(6)(c), Fla. Stat.
38
§ 316.193(6)(c), Fla. Stat.
39
§ 322.28(2)(a), Fla. Stat.
40
As to vehicle impoundment, mandatory minimum jail terms, and license revocations for third offenses
that are more than 10 years after a prior conviction, the statutes are unclear. It may be that the legislative
intent is that in these categories the courts look to the rules for second convictions.
41
§ 316.193(2)(b) 2., Fla. Stat.
42
Cf Trombley v. State, 754 So. 2d 121 (Fla. 5th DCA 2000) (Under the old law the defendant recognized
this opportunity by pleading guilty to a second offense before the five year deadline, but delayed
sentencing until after the deadline; he failed to benefit because the court ruled that the conviction took
place at the time of the plea regardless of when he was adjudicated).
43
Department of Public Safety Driver’s License Division v. Mitchell, 152 So. 2d 764 (Fla. 3d DCA 1963)
(“The fact that the offender was convicted of the second offense first would not alter the duty of the
court, under § 322.28(2), Fla.Stat., F.S.A., relating to successive convictions.”)
44
§ 322.28(2)(a) 2., Fla. Stat.
45
§ 316.193(6)(b), Fla. Stat.
46
§ 316.193(6)(b), Fla. Stat.
47
As pointed out earlier in Drigotas v. State, 531 So. 2d 421 (Fla. 4th DCA 1988), the court concluded that
as to a similar earlier version of the statute the legislative intent was that the time period be measured
from the second conviction rather than the first. However, the court did not rule on whether that bars

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

making the calculation from the first conviction under certain circumstances, but it may be that the rule
of strict construction would preclude this approach.
48
§ 322.28(2)(a) 2., Fla. Stat.
49
Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla. 6th Cir. Ct.
July 11, 2007)Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla.
6th Cir. Ct. July 11, 2007). See also Fitzgerald v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L.
Weekly Supp. 326 (Fla. 12th Cir Ct. Feb. 13, 2014)Fitzgerald v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 326 (Fla. 12th Cir Ct. Feb. 13, 2014).
50
Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla. 6th Cir. Ct.
July 11, 2007)Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla.
6th Cir. Ct. July 11, 2007). But see discussion of Test v. State, 11 Fla. L. Weekly Supp. 80 (Fla. 6th Cir.
Ct. June 19, 2003)Test v. State, 11 Fla. L. Weekly Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003) in this
section.
51
Test v State, 11 Fla. L. Weekly Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003)Test v State, 11 Fla. L. Weekly
Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003).
52
Test v State, 11 Fla. L. Weekly Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003)Test v State, 11 Fla. L. Weekly
Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003).
53
Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla. 6th Cir. Ct.
July 11, 2007)Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla.
6th Cir. Ct. July 11, 2007).
54
Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla. 6th Cir. Ct.
July 11, 2007)Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla.
6th Cir. Ct. July 11, 2007).
55
Test v State, 11 Fla. L. Weekly Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003)Test v State, 11 Fla. L. Weekly
Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003).
56
Melbourne v. State, 679 So. 2d 759 (Fla. 1996); Lamoureux v. State, 679 So. 2d 1184 (Fla. 1996);
State v. Salazar, 679 So. 2d 1183 (Fla. 1996). See also Wood v. State, 771 So. 2d 612 (Fla. 4th DCA
2000); Colon v. State, 738 So. 2d 1023 (Fla. 4th DCA 1999); State v. Miller, 700 So. 2d 1253 (Fla. 1st
DCA 1997); Hertzschuch v. State, 687 So. 2d 52 (Fla. 3d DCA 1997); Duckett v. State, 686 So. 2d 662
(Fla. 2d DCA 1996); Hosford v. State, 682 So. 2d 218 (Fla. 5th DCA 1996).
57
Pulaski v. State, 540 So. 2d 193 (Fla. 2d DCA 1989), review denied, 547 So.2d 1210 (Fla. 1989).
58
Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994). See also Acosta v. State, 7 Fla. L. Weekly
Supp. 3 (Fla. 5th Cir. Ct. Sept. 21, 1999)Acosta v. State, 7 Fla. L. Weekly Supp. 3 (Fla. 5th Cir. Ct. Sept.
21, 1999).
59
State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000). See also Byrd v. State, 789 So. 2d 1147 (Fla. 4th
DCA 2001), review denied, 805 So.2d 809 (Fla. 2001) (court ruled that the principle set forth in Lainez
can be raised in a postconviction motion).
60
Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994).
61
§ 322.28, Fla. Stat. provides: “(e) Convictions that occur on the same date resulting from separate
offense dates shall be treated as separate convictions, and the offense that occurred earlier will be
deemed a prior conviction for the purposes of this section” (emphasis added).
62
Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994).

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§ 2:1.Prior offenses and enhancing factors, 11 Fla. Prac., DUI Handbook § 2:1...

63
State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000).
64
Test v State, 11 Fla. L. Weekly Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003)Test v State, 11 Fla. L. Weekly
Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003).
65
Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994).

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§ 2:2.Driving while impaired resulting in damage or..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 2:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:2. Driving while impaired resulting in damage or nonserious injury

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1352, 1365 to 1371, 1380, 1397 to 1400, 1414 to 1419, 1442
to 1443, 1451 to 1452, 1473, 1484, 1486 to 1487, 1496, 1503, 1508, 1510, 1518, 1523, 1526, 1532,
1539, 1543 to 1547, 1550

This chapter has focused thus far on enhancement based on prior record. There are, however, several grounds
for increasing the penalty based on the harm caused by the unlawful conduct.

The offense may be increased to a first degree misdemeanor if there is an accident resulting in damage or
nonserious injury. This requires proof of the three elements of DUI plus the additional element of operation of a
vehicle causing or contributing to damage to property or nonserious injury 1 to another person. Simple DUI is a
necessarily lesser-included offense of this charge and the jury must be instructed as to its elements. 2

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.193(3), Fla. Stat. See also In re Standard Jury Instructions in Criminal Cases—Report No.
2015-07, 192 So.3d 1190 (Fla. 2016) (Jury instructions can be found in Appendix H).
2
Cox v. State, 618 So. 2d 291 (Fla. 2d DCA 1993); Deviney v. State, 579 So. 2d 373 (Fla. 4th DCA
1991). See also In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d
1190 (Fla. 2016) (Jury instructions can be found in Appendix H).

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§ 2:2.Driving while impaired resulting in damage or..., 11 Fla. Prac., DUI...

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Works.

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§ 2:3.Driving while impaired resulting in serious injury, 11 Fla. Prac., DUI Handbook §...

11 Fla. Prac., DUI Handbook § 2:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:3. Driving while impaired resulting in serious injury

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1352, 1365 to 1371, 1380, 1397 to 1400, 1414 to 1419, 1442
to 1443, 1451 to 1452, 1473, 1484, 1486 to 1487, 1496, 1503, 1508, 1510, 1518, 1523, 1526, 1532,
1539, 1543 to 1547, 1550

The charge may be further raised based on the seriousness of the injury. The offense increases to a third degree
felony if the defendant’s operation of a vehicle causes or contributes to an accident resulting in serious bodily
injury. This requires proof of the three elements of DUI plus the additional element of operation of a vehicle
resulting in serious bodily injury to another.1 “Serious bodily injury” is defined as “a physical condition that
creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.”2

Simple DUI and DUI with nonserious injury is a necessarily lesser-included offense of this charge and the jury
must be instructed as to its elements.3

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.193(3), Fla. Stat. See also In re Standard Jury Instructions in Criminal Cases—Report No.
2015-07, 192 So.3d 1190 (Fla. 2016) (Jury instructions can be found in Appendix H); Bribiesca-Tafolla
v. State, 93 So. 3d 364 (Fla. 4th DCA 2012); Esler v. State, 915 So. 2d 637 (Fla. 2d DCA 2005).

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§ 2:3.Driving while impaired resulting in serious injury, 11 Fla. Prac., DUI Handbook §...

2
§ 316.1933(1), Fla. Stat. See also In re Standard Jury Instructions in Criminal Cases—Report No.
2015-07, 192 So.3d 1190 (Fla. 2016) (Jury instructions can be found in Appendix H).
3
Cox v. State, 618 So. 2d 291 (Fla. 2d DCA 1993); Deviney v. State, 579 So. 2d 373 (Fla. 4th DCA
1991); Collins v. State, 578 So. 2d 30 (Fla. 4th DCA 1991), receded from on other grounds,
Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994). See also In re Standard Jury Instructions in
Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016) (Jury instructions can be found in
Appendix H).

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Works.

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§ 2:4.Driving while impaired resulting in death, 11 Fla. Prac., DUI Handbook § 2:4...

11 Fla. Prac., DUI Handbook § 2:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:4. Driving while impaired resulting in death

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 355(6), 357, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1350, 1352, 1365 to 1371, 1377 to 1378, 1380, 1397 to 1400,
1408 to 1411, 1413 to 1419, 1442 to 1443, 1449, 1451 to 1452, 1473, 1479 to 1482, 1484, 1486 to
1487, 1496, 1501, 1503, 1508 to 1510, 1518, 1522 to 1523, 1526, 1532, 1537, 1539, 1543 to 1547,
1550

The most serious DUI arises from a fatal accident. The offense increases to a second degree felony. 1 If the
accused knew or should have known, that there was an accident, but failed to give information and render aid as
required by § 316.062, Fla. Stat., the offense is a first degree felony. 2 This requires proof of the three
elements of DUI plus the additional element of operation of a vehicle causing or contributing to the death of
another person.3

Proof of causation is an essential element. 4 At one time, the law did not require a causal connection between the
operation of the vehicle and the death of the victim. 5 The statute was changed and the courts have interpreted it
as requiring such a connection; however, a word of caution is in order. There is no requirement that the
defendant’s operation of the vehicle be the sole cause of the fatal accident nor that the defendant’s drinking be
the cause of the accident.6

In Magaw v. State, the Court said that “any deviation or lack of care on the part of a driver under the influence
to which the fatal accident can be attributed will suffice.” 7 This statement has been misinterpreted in ways
explained hereafter, but in State v. Hubbard,8 the Court clarified this comment. While the Court described it as
dicta, it also said that Magaw defined “the concept of causation.” 9 Furthermore, in Hubbard,10 the Court held
that the jury instructions on causation reflect the Court’s analysis of Magaw.11

Several opinions interpreted the Supreme Court’s comment on “deviation or lack of care,” as requiring proof of
negligence in DUI Manslaughter cases. 12 Others have concluded that the language justifies telling the jury that
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§ 2:4.Driving while impaired resulting in death, 11 Fla. Prac., DUI Handbook § 2:4...

the State must prove some deviation or lack of care. 13 One court concluded, however, that no such instruction is
necessary. The standard instruction on causation is sufficient. 14 The court said the State must prove that the
defendant’s operation of the vehicle “caused or contributed to the cause of death of the victim.” 15 Additionally,
“the term ‘cause’ encompasses a cause which contributes to an injury.” 16 On the other hand, the law does not
permit the prosecutor to argue to the jury in a DUI Manslaughter case that to find the defendant not guilty the
jury must “find him totally blameless.”17

In State v. Hubbard,18 the Supreme Court discussed the conflicts in some of the decisions and resolved the
matter. The Court ruled that the standard jury instructions on DUI Manslaughter are sufficient and that there is
no requirement that the State prove that the defendant was negligent. 19 The State need only prove that the
defendant’s operation of a vehicle while violating the DUI statute, caused or contributed to a human death. 20 The
requirement that the defendant’s act merely “contribute” to the death has been set forth in the statute. 21

The question that should not be overlooked is, given the development of the law on causation in DUI
Manslaughter cases, should evidence of possible causes other than the defendant’s operation of the vehicle be
allowed. Clearly, if the crash occurs at a controlled intersection and the evidence shows that the defendant had a
green light and the victim ran a red light, the law bars conviction. 22 However, the courts have also considered
more difficult cases. In Bowman v. State,23 a DUI Manslaughter case, the court affirmed exclusion of evidence
that the victim’s death may have been caused by the failure to use a child restraint seat. Similarly, in Barnes v.
State,24 the court did not permit the argument that improper medical care caused the victim’s death. Even the
victim’s rejection of life-saving medical treatment is not a defense. In Klinger v. State,25 the court ruled that the
victim’s refusal of a life saving transfusion did not relieve the defendant from criminal liability for life
threatening injuries caused by the accident. In Klinger, one of the doctors who treated the victim testified that
there was an 85-90% chance that the victim would have survived if he had accepted the transfusion.

On the other hand, in Fecske v. State,26 the court took a little different approach. The court confirmed that lack
of affirmative medical treatment is not an intervening cause relieving the defendant of responsibility for the
victim’s death in a DUI Manslaughter case, but the defendant had a right to argue to the jury that the victim’s
pneumonia, rather than the defendant’s negligence, caused the death. Furthermore, it was error for the court to
instruct the jury on the intervening cause, because it constituted improper comment on the evidence and
effectively directed a verdict.

In Weir v. State,27 the court distinguished its decision in Fecske.28 As in Fecske,29 the trial judge in Weir
instructed the jury on intervening cause; however, the court ruled that it was not error to give the instruction
because the trial judge in Weir instructed the jury that a pre-existing injury alone was not a defense. Thus, the
court left room for the jury to find that the pre-existing injury along with other factors could relieve the
defendant from responsibility. The court observed that in Fecske30 the instruction was absolute and left room for
no finding other than guilty.

While evidence of factors other than the defendant’s conduct, leading to a fatality, may not require an acquittal,
it may have a significant impact on the jury. For instance, it may lead the jury to exercise its pardon power. On
that basis, in Naumowicz v. State,31 the court upheld a verdict finding the defendant guilty of killing the
passenger in a car, although the jury found the defendant not guilty of killing the driver of the same car. The
evidence showed that the deceased driver may have been impaired and contributed to the accident. Thus, the
court suggested that the jury may have exercised its pardon power.

Simple DUI is a necessarily lesser-included offense of this charge and the jury must be instructed as to its
elements.32 And while it seems logical that DUI causing serious bodily injury, a felony, and DUI causing
damage to person, a misdemeanor, would be Category One necessarily lesser included offenses, the standard
jury instructions list them as Category Two lessers. 33 DUI causing damage to property is also a Category Two
lesser.34 Vehicular homicide is a lesser-included offense of DUI Manslaughter only if the information alleges
that the defendant operated the vehicle in a reckless manner likely to cause death or great bodily harm to
another.35

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§ 2:4.Driving while impaired resulting in death, 11 Fla. Prac., DUI Handbook § 2:4...

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.193(3), Fla. Stat. This provision includes the death of an “unborn child.” The definition of
“unborn child” is set forth in § 775.021(5)(e), Fla. Stat. It “means a member of the species Homo
sapiens at any stage of development who is carried in the womb.” Proof of knowledge of pregnancy or
intent to harm the child is not required. § 775.021(5)(b), Fla. Stat.
2
§ 316.193(3), Fla. Stat.
3
In re Standard Jury Instructions in Criminal Cases-Report No. 2016-08, 211 So.3d 995 (Fla. 2017) (Jury
instructions can be found in Appendix H).
4
For an example of the State’s failure to meet this critical burden see Pennington v. State, 100 So. 3d 193
(Fla. 5th DCA 2012) (defendant in a DUI Manslaughter was entitled to acquittal where the unrebutted
theory was that the deceased motorcycle rider must have been doing a wheelie at night in front of the
defendant’s car at the time of impact so that the light on the motorcycle was pointing up making it
impossible for the defendant to see the motorcycle).
5
Armenia v. State, 497 So. 2d 638 (Fla. 1986); Baker v. State, 377 So. 2d 17 (Fla. 1979).
6
Magaw v. State, 537 So. 2d 564 (Fla. 1989). See also State v. Hubbard, 751 So. 2d 552 (Fla. 1999);
Pryear v. State, 243 So.3d 479, 486 (Fla. 1st DCA 2018).
7
Magaw v. State, 537 So. 2d 564, 567 (Fla. 1989). See also Pryear v. State, 243 So.3d 479, 486 (Fla.
1st DCA 2018); O’Hara v. State, 554 So. 2d 26 (Fla. 1st DCA 1989); Satterfield v. State, 553 So. 2d 793
(Fla. 1st DCA 1989); State v. Kearney, 535 So. 2d 711 (Fla. 2d DCA 1988); State v. Naumowicz, 535
So. 2d 702 (Fla. 1st DCA 1988); State v. Bowen, 533 So. 2d 851 (Fla. 5th DCA 1988), review denied,
542 So. 2d 988 (Fla. 1999).
8
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
9
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
10
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
11
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
12
State v. Smith, 638 So. 2d 509 (Fla. 1994), cert denied, 513 U.S. 975, 115 S. Ct. 450, 130 L. Ed.2d 359
(1994); Ackerman v. State, 737 So. 2d 1145 (Fla. 1st DCA 1999), review denied, 751 So.2d 50 (Fla.
1999); State v. May, 670 So. 2d 1002 (Fla. 2d DCA 1996), review denied, 676 So.2d 1368 (Fla. 1996);
Collins v. State, 605 So. 2d 568 (Fla. 5th DCA 1992); Foster v. State, 603 So. 2d 1312 (Fla. 1st DCA
1992), review denied, 613 So.2d 4 (Fla. 1993); Parker v. State, 590 So. 2d 1027 (Fla. 1st DCA 1991),
review denied, 599 So.2d 1279 (Fla. 1992).
13
Jones v. State, 698 So. 2d 1280 (Fla. 5th DCA 1997), review denied, 703 So.2d 476 (Fla.1997); Van
Hubbard v. State, 748 So. 2d 288 (Fla. 1st DCA 1998), approved in part, quashed in part, 751 So. 2d 552
(Fla. 1999) (court reversed denial of instruction requiring proof of “deviation or lack of care,” despite
approval of standard jury instruction to the contrary).
14
Melvin v. State, 677 So. 2d 1317 (Fla. 4th DCA 1996).
15
Melvin v. State, 677 So. 2d 1317 (Fla. 4th DCA 1996).

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16
Smallridge v. State, 904 So. 2d 601, 603 (Fla. 1st DCA 2005), review denied, 918 So.2d 293 (Fla.
2005), cert. denied, 547 U.S. 1193, 126 S. Ct. 2871, 165 L. Ed. 2d 897 (2006).
17
Stires v. State, 824 So. 2d 943, 946 (Fla. 5th DCA 2002).
18
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
19
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
20
State v. Hubbard, 751 So. 2d 552 (Fla. 1999).
21
§ 316.193(3)(c), Fla. Stat.
22
Stires v. State, 824 So. 2d 943 (Fla. 5th DCA 2002). See also Edwards v. State, 39 So. 3d 447 (Fla.
4th DCA 2010) (trial judge did not abuse her discretion in excluding evidence of other driver’s
intoxication because it was irrelevant or harmless error since there was extensive evidence that
defendant had the red light; court indicated that such evidence might be relevant if it was one driver’s
word against the other).
23
Bowman v. State, 618 So. 2d 763 (Fla. 4th DCA 1993) (This is a per curiam opinion; therefore, it is not
precedent. The description of the case comes from a lengthy dissent. The opinion is mentioned merely to
point out a relevant situation that might arise.).
24
Barnes v. State, 528 So. 2d 69 (Fla. 4th DCA 1988).
25
Klinger v. State, 816 So. 2d 697 (Fla. 2d DCA 2002), review denied, 837 So. 2d 410 (Fla. 2003).
26
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000).
27
Weir v. State, 777 So. 2d 1073 (Fla. 4th DCA 2001), review denied, 796 So. 2d 539 (Fla. 2001).
28
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000).
29
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000).
30
Fecske v. State, 757 So. 2d 548 (Fla. 4th DCA 2000), review denied, 776 So. 2d 276 (Fla. 2000).
31
Naumowicz v. State, 562 So. 2d 710 (Fla. 1st DCA 1990), review denied, 576 So.2d 289 (Fla.1991).
32
Cox v. State, 618 So. 2d 291 (Fla. 2d DCA 1993); Collins v. State, 578 So. 2d 30 (Fla. 4th DCA
1991), receded from on other grounds by Jackson v. State, 634 So. 2d 1103 (Fla. 4th DCA 1994).
See also In re Standard Jury Instructions in Criminal Cases-Report No. 2016-08, 211 So.3d 995, 999
(Fla. 2017).
33
In re Standard Jury Instructions in Criminal Cases-Report No. 2016-08, 211 So.3d 995, 999 (Fla. 2017).
34
In re Standard Jury Instructions in Criminal Cases-Report No. 2016-08, 211 So.3d 995, 999 (Fla. 2017).
35
Apple v. State, 746 So. 2d 1259 (Fla. 5th DCA 2000); Wilson v. State, 749 So. 2d 516 (Fla. 5th DCA
1999).

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§ 2:5.Allegations of charging document as to enhancement, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 2:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:5. Allegations of charging document as to enhancement

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1352, 1365 to 1371, 1380, 1397 to 1400, 1414 to 1419, 1442
to 1443, 1451 to 1452, 1473, 1484, 1486 to 1487, 1496, 1503, 1508, 1510, 1518, 1523, 1526, 1532,
1539, 1543 to 1547, 1550

In State v. Rodriguez,1 the Court ruled that the basis for enhancement of the charge must be alleged in the
charging document. In Rodriguez, the defendant was convicted of a felony based on three prior DUI
convictions. One issue was whether the information was sufficient to invoke the jurisdiction of the circuit court
where it alleged that the defendant had committed DUI in violation of § 316.193(1) and (2)(b), Fla. Stat., but
failed to allege the prior convictions. The Court held that, since section 316.193(2)(b) deals solely with a
felony charge, the information was sufficient to invoke the jurisdiction of the circuit court. 2

In the same case,3 however, the Court held that the information was insufficient to comply with due process
requirements. The Court stated: (1) the combined existence of three or more prior DUI convictions is an
essential element of the substantive offense of felony-DUI, which the charging document must allege and the
State must prove beyond a reasonable doubt; and (2) to comply with the notice requirement, the State must
allege the specific prior convictions in the charging document.

The consequences of the failure to allege the specific prior convictions is dependent on whether there was
sufficient evidence of the priors in the record. In Rodriguez,4 the Court held that on remand the defendant could
only be convicted of a first offense DUI because there was sufficient evidence that the defendant had committed
DUI, but insufficient evidence of the prior convictions. In contrast, in Shafer v. State,5 where the information
suffered from the same defect in notice recognized in Rodriguez,6 the court remanded for a new trial because the
record contained sufficient evidence of the prior DUIs.

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§ 2:5.Allegations of charging document as to enhancement, 11 Fla. Prac., DUI...

But, in Hope v. State,7 the court considered entry of a nolo contendere plea to an information charging a felony
DUI, but not alleging the specific prior convictions. The information alleged: “‘Felony Driving Under the
Influence of Alcoholic Beverage or Controlled Substance, in violation of F.S. 316.193, a Third Degree
Felony.’”8 The prior convictions had been attached to a motion to transfer the matter to circuit court filed in
county court.9 The court10 found that the information was sufficient to establish jurisdiction in the circuit court in
accord with Rodriguez.11 As to the due process issue, the court stated that pleading to a charge acknowledging
unpled essential elements “implicitly amends the information to include them.” 12

Rodriguez and the other cases dealt exclusively with felonies. The rule for misdemeanors differs, depending on
the basis for enhancement. If the basis for increasing the penalty on a misdemeanor is one or two prior
convictions, the charging document need not allege them to comply with due process requirements. 13 Rodriguez
does not apply to misdemeanors. The rule is different, however, if the basis for the enhancement is a high blood
or breath alcohol level,14 the presence of a minor in the vehicle, 15 property damage,16 or bodily injury.17 These
matters are considered elements of the misdemeanor charge and must be alleged or the sentence cannot be
increased. Furthermore, the State cannot rely on the other counts of the information to cure the defect in the
DUI count.18

When the State seeks enhancement based on an alcohol reading of .15 or above, the processing of the case is
impacted in another important way. Florida Statutes, section 316.656(2)(a) bars a trial judge from accepting
a plea to a lesser offense where the accused has been given a blood or breath test producing a result of .15 or
greater. And the trial judge should be circumspect in responding to attempts by counsel to resolve cases in a
way that violates the statute. The judge can reject the plea, but it constitutes an abuse of discretion to dismiss the
case just because the parties want the court to accept an improper plea arrangement. 19

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by State v. Harbaugh, 754 So.
2d 691 (Fla. 2000).
2
State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (holding modified by, State v. Harbaugh,
754 So. 2d 691 (Fla. 2000)). See also Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991), review
denied, 599 So. 2d 656 (Fla. 1992).
3
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by State v. Harbaugh, 754 So.
2d 691 (Fla. 2000).
4
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by State v. Harbaugh, 754 So.
2d 691 (Fla. 2000). See also Davis v. State, 31 So. 3d 887 (Fla. 4th DCA 2010) (the defendant did not
validly waive his right to a jury trial as to prior convictions, but even if he had, double jeopardy would
have barred retrial because there was no record evidence of the prior convictions; defendant could only
be adjudicated of the instant DUI); Hauss v. State, 574 So. 2d 1141 (Fla. 4th DCA 1991) (based on
Rodriguez, court ordered that the trial court treat the defendant as a first time DUI offender because of
the lack of notice, but the court did not comment on the sufficiency of the evidence).
5
Shafer v. State, 583 So. 2d 417 (Fla. 5th DCA 1991).
6
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by State v. Harbaugh, 754 So.
2d 691 (Fla. 2000).

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§ 2:5.Allegations of charging document as to enhancement, 11 Fla. Prac., DUI...

7
Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991), review denied, 599 So. 2d 656 (Fla. 1992).
8
Hope v. State, 588 So. 2d 255, 256 (Fla. 5th DCA 1991), review denied, 599 So. 2d 656 (Fla. 1992).
9
Based on this fact, Judge Griffin concluded in a concurring opinion that this case may not suffer from
the due process problem that was present in Rodriguez. Hope v. State, 588 So. 2d 255, 256 (Fla. 5th
DCA 1991).
10
Hope v. State, 588 So. 2d 255, 256 (Fla. 5th DCA 1991), review denied, 599 So. 2d 656 (Fla. 1992).
11
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by State v. Harbaugh, 754 So.
2d 691 (Fla. 2000).
12
Hope v. State, 588 So. 2d 255, 258 (Fla. 5th DCA 1991), review denied, 599 So. 2d 656 (Fla. 1992)
(relying on Brlecic v. State, 456 So. 2d 503 (Fla. 2d DCA 1984)).
13
Salas-Triana v. State, 669 So. 2d 306 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996);
State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996), review denied, 679 So. 2d 773 (Fla. 1996).
14
State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996), review denied, 679 So. 2d 773 (Fla. 1996); Reed
v. State, 579 So. 2d 198 (Fla. 2d DCA 1991).
15
State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996), review denied, 679 So. 2d 773 (Fla. 1996).
16
Leone v. State, 590 So. 2d 29 (Fla. 5th DCA 1991).
17
Reed v. State, 579 So. 2d 198 (Fla. 2d DCA 1991).
18
Leone v. State, 590 So. 2d 29 (Fla. 5th DCA 1991). See also Pea v. State, 737 So. 2d 1162 (Fla. 5th
DCA 1999) (Count 1 in a battery case could not be enhanced based on the allegations in Count 2).
19
State v. Smith, 12 Fla. L. Weekly Supp. 944 (Fla. 20th Cir. Ct. May 4, 2005)State v. Smith, 12 Fla. L.
Weekly Supp. 944 (Fla. 20th Cir. Ct. May 4, 2005).

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§ 2:6.Enhancement procedures, 11 Fla. Prac., DUI Handbook § 2:6 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 2:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:6. Enhancement procedures

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1352, 1365 to 1371, 1380, 1397 to 1400, 1414 to 1419, 1442
to 1443, 1451 to 1452, 1473, 1484, 1486 to 1487, 1496, 1503, 1508, 1510, 1518, 1523, 1526, 1532,
1539, 1543 to 1547, 1550

Where the presence of prior convictions is the basis for enhancement, special procedures must be followed.
Rodriguez sets forth these procedures for felonies. 1 Extreme care is required in presenting the matter to the jury.
The court must withhold any part of the information or evidence concerning the prior convictions from the jury.
Thus, when a copy of the charging document is provided to the jury during deliberations, all references to the
prior convictions must be redacted.

In Rodriguez,2 the Court ruled that the trial judge must resolve the matter of the prior convictions in a separate
proceeding without a jury. The trial judge must “determine the historical fact of prior convictions and questions
regarding identity in accord with general principles of law, and by following the procedure now employed
under Section 775.084.”3 The State must provide affirmative proof of identity in addition to proof that the
defendant’s name is similar to the one on the prior convictions. 4 In other words, the State must prove that the
convicted defendant is the same person named in the certified documents of prior convictions. 5 That burden has
become less onerous over the years due to statutory change and judicial interpretation as explained in the next
section on proof of prior convictions. All evidence of the prior convictions must be presented, “in open court
with full rights of confrontation, cross-examination, and representation by counsel.” 6 The trial judge must be
satisfied beyond a reasonable doubt that the defendant has the prior convictions. 7

Subsequent to Rodriguez,8 the Supreme Court changed the enhancement procedure. In State v. Harbaugh,9 the
Court held that the enhancement procedure must take place before the jury unless the defendant waives it. In
other words, there must be a bifurcated jury trial, with the jury first deciding whether the defendant has
committed DUI, and then deciding in a separate proceeding whether the defendant has prior DUIs in accord
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§ 2:6.Enhancement procedures, 11 Fla. Prac., DUI Handbook § 2:6 (2018-2019 ed.)

with the Rodriguez10 procedure. Furthermore, “the state may only submit a certified copy of each judgment in
order to evidence a defendant’s prior DUI convictions and shall not develop the facts underlying any such
offense unless the defendant contests the validity thereof at trial.”11

In Johnson v. State,12 the court recognized that the second jury phase during which the jury determines whether
the accused has three prior convictions can only be waived two ways. First, the defendant can personally sign a
written waiver. Alternatively, the defendant can orally waive the right to the jury trial and agree to a bench trial,
but the judge must conduct a proper colloquy, which “focuses on the value of a jury trial and provides a full
explanation of the consequences of a waiver.”13 Silence during the bench trial does not constitute a waiver.

As previously indicated, detailed procedures have been established for felony DUI cases where the prior
convictions are elements of the crime. There are less detailed procedures in misdemeanor DUI cases where the
prior convictions are not elements of the crime, but only grounds for increasing the sentence. It is clear that the
notice requirements for felonies do not apply to misdemeanors. 14 The methods for proving prior convictions
both as elements of felonies and enhancements of misdemeanors are covered in the next section.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (holding modified by, State v. Harbaugh,
754 So. 2d 691 (Fla. 2000)).
2
State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (holding modified by, State v. Harbaugh,
754 So. 2d 691 (Fla. 2000)).
3
State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (holding modified by, State v. Harbaugh,
754 So. 2d 691 (Fla. 2000)).
4
Miller v. State, 573 So. 2d 405 (Fla. 2d DCA 1991). See also Gosling v. State, 205 So.3d 860 (Fla.
4th DCA 2016); Moncus v. State, 69 So. 3d 341, 343 (Fla. 4th DCA 2011); Cox v. State, 816 So.
2d 160 (Fla. 2d DCA 2002).
5
Louis v. State, 647 So. 2d 324 (Fla. 2d DCA 1994); Pridgeon v. State, 605 So. 2d 1004 (Fla. 1st
DCA 1992).
6
State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (holding modified by, State v. Harbaugh,
754 So. 2d 691 (Fla. 2000)).
7
State v. Rodriguez, 575 So. 2d 1262, 1266 (Fla. 1991) (holding modified by, State v. Harbaugh,
754 So. 2d 691 (Fla. 2000)). See also Davis v. State, 31 So. 3d 887 (Fla. 4th DCA 2010).
8
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by State v. Harbaugh, 754 So.
2d 691 (Fla. 2000).
9
State v. Harbaugh, 754 So. 2d 691 (Fla. 2000). See also Coyne v. State, 755 So. 2d 108 (Fla. 2000);
Davis v. State, 31 So. 3d 887 (Fla. 4th DCA 2010) (since the defendant has the right to have the same
jury that decided guilt as to the instant DUI decide sufficiency of proof as to the prior convictions,
failure to secure a valid waiver will bar retrial after appeal and defendant can only be convicted of the
instant DUI on remand).

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§ 2:6.Enhancement procedures, 11 Fla. Prac., DUI Handbook § 2:6 (2018-2019 ed.)

10
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), holding modified by, State v. Harbaugh, 754 So.
2d 691 (Fla. 2000). The Florida Supreme Court has adopted instructions covering a third or fourth time
DUI charged as a felony. In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192
So.3d 1190 (Fla. 2016) (Jury instructions can be found in Appendix H).
11
State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000).
12
Johnson v. State, 994 So. 2d 960 (Fla. 2008). See also Walker v. State, 149 So. 3d 170 (Fla. 4th DCA
2014); Torres v. State, 43 So. 3d 831 (Fla. 1st DCA 2010); Davis v. State, 31 So. 3d 887 (Fla. 4th
DCA 2010); Racine v. State, 16 So. 3d 955 (Fla. 5th DCA 2009); Smith v. State, 9 So. 3d 702 (Fla. 2d
DCA 2009).
13
Johnson v. State, 994 So. 2d 960, 965-66 (Fla. 2008) (having found that there was no valid waiver,
the court concluded that the error was harmless because defendant’s admissible driving record clearly
established the necessary prior convictions). See also Davis v. State, 31 So. 3d 887 (Fla. 4th DCA 2010)
(where a proper waiver of the second jury trial was not secured and there was no evidence of prior
convictions, court held that it was not harmless error and double jeopardy barred trial on the prior
convictions on remand). See Westberry v. State, 239 So.3d 186 (Fla. 3d DCA 2018), review denied,
2018 WL 1737054 (Fla. Opinion Filed April 11, 2018) for examples of proper waiver colloquies.
14
State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996), review denied, 679 So. 2d 773 (Fla. 1996).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:7. Proof of prior convictions

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 352, 353, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1345 to 1346, 1352, 1372 to 1373, 1380, 1401 to 1405, 1414 to
1419, 1442, 1444 to 1445, 1451 to 1452, 1474 to 1475, 1484, 1486 to 1487, 1496 to 1497, 1503, 1509
to 1510, 1518 to 1519, 1523, 1526, 1532 to 1533, 1539, 1543 to 1547, 1550

The court cannot order the defendant to reveal prior convictions. 1 The offender has a right to remain silent, but
voluntary admissions of prior convictions are sufficient proof. 2 When the defendant invokes the right to remain
silent, the State is entitled to a reasonable time to determine if there are prior convictions. 3 If the State cannot
meet its burden, the court must treat the charge as if there were no priors, but the Department of Highway
Safety and Motor Vehicles may still impose a suspension for multiple convictions.4

The State may rely on a variety of sources to meet its burden. A computerized record is admissible pursuant to
Florida Statutes, § 322.201.5 However, in State v. Pelicane,6 the court ruled that “the computerized driving
record is too unreliable”7 to prove the prior DUI convictions beyond a reasonable doubt as Rodriguez requires.
The court noted that in cases permitting reliance on computerized driving records the burden was proof by a
preponderance of the evidence. Furthermore, the court held that “electronic docket information does not cure
this unreliability.”8 The Pelicane9 court concluded that the docket information is useful only to prove prior
convictions, but not to link the defendant to the convictions.

Admissibility of driving records pursuant to § 322.201, Fla. Stat. and 90.803(8), which sets forth a public
records exception to the hearsay rule, was considered in light of the decision in Crawford v. Washington.10 In
Crawford, the Court held that the Sixth Amendment to the U.S. Constitution requires exclusion of out of court
statements constituting testimonial evidence unless the declarant is unavailable and there has been a prior
opportunity for cross-examination. This restriction doesn’t apply to nontestimonial evidence. In Sproule v.
State,11 the court ruled that the driving record allowed into evidence by § 322.201, Fla. Stat. and 90.803(8) is not
testimonial; therefore, Crawford12 does not require its exclusion.

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§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

Subsequent to State v. Pelicane,13 in Harbaugh,14 the Court said that in a jury trial the State is limited to
introducing a certified copy of the judgment of the prior conviction and cannot go into any details, unless the
defendant contests its validity. The court relied upon that position in Garcia v. State15 to reverse a felony driving
on a suspended license charge. In Garcia, the court said: “When prior convictions constitute an element of a
charged crime, the prior convictions must be proven beyond a reasonable doubt by introduction of certified
copies of each judgment.”16

However, in Arthur v. State,17 the court noted that in Harbaugh the Court was dealing with whether a bifurcated
process should be established for felony DUI cases based on prior convictions, if the defendant opts for a jury
trial. The Court in Harbaugh was not dealing with the quantum of proof required to prove the prior convictions.
In Arthur, the court also observed that the Harbaugh Court discussed introduction of certified copies of
judgments to prove prior convictions, but did not mention the effect of Florida Statutes, Section 322.201, which
makes driving records admissible. The court suggested: “There would be no reason to make these records
admissible unless the records constituted some evidence of the truth of their contents.” 18

In Ward v. State,19 the court concluded that the evidence met the reasonable doubt standard despite the State’s
failure to prove all three of the prior convictions with certified judgments. Instead, the State produced certified
judgments of two convictions and supporting fingerprint evidence, and a driving record showing the third
conviction. The trial court took judicial notice of the entire court file for the third conviction. The file contained
the following items: (1) a booking photograph resembling the defendant; (2) a probable cause affidavit
reflecting that the subject of the arrest had the same physical description and birth date as the defendant; (3)
documents showing that the defendant in the earlier case had the same employer and address as the defendant;
(4) a plea sheet with a signature matching the defendant’s signature; and (5) proof that the suspension on the
earlier conviction was for five years, which could only have occurred for a second DUI conviction. On appeal,
the court found the evidence sufficient to permit the fact-finder to conclude beyond a reasonable doubt that this
was the second of three DUIs.

In Williams v. State,20 which was a DWLS case in which the State was required to prove prior convictions, the
court distinguished Ward.21 As in Ward, the State did not produce all the necessary certified judgments of prior
convictions and sought instead to rely on the DMV driving record. Unlike Ward, the State did not produce any
other reliable evidence to corroborate the driving record. While the court acknowledged that such evidence
would have been sufficient, it also stressed, “that the safest course is for the state to adduce certified copies of
the prior qualifying convictions.”22

However, any debate as to the source and adequacy of proof of prior convictions in DUI cases was largely
resolved by the passage of § 316.193(12), Fla. Stat.23 It was clearly designed to relieve the State from the
burden of producing certified judgments of prior convictions and fingerprint evidence. The statute provides:

If the records of the Department of Highway Safety and Motor Vehicles show that
the defendant has been previously convicted of the offense of driving under the
influence, that evidence is sufficient by itself to establish that prior conviction for
driving under the influence. However, such evidence may be contradicted or
rebutted by other evidence. This presumption may be considered along with any
other evidence presented in deciding whether the defendant has been previously
convicted of the offense of driving under the influence.

This provision suffered from some significant problems, including the contention that it created invalid
mandatory presumptions, impinged on the accused’s privilege against self incrimination by compelling the
defendant to testify to disprove the prior convictions, and maintained the unreliability recognized by the court. 24

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

However, the courts have considered these problems and upheld the validity of the statute.

In Fender v. State,25 the court rejected the ruling in Pelicane26 based on this statutory change. In Fender, the
State was required to establish three prior DUI convictions to prove felony DUI. The court concluded that the
State met this burden. The court found that the State proved two priors by introducing a certified copy of the
defendant’s criminal history report from the clerk, fingerprints, and a report from a fingerprint analyst
connecting the defendant to two of the prior bookings for DUI. Pursuant to § 316.193(12), Fla. Stat., the
State established a rebuttable presumption of the third conviction by introducing a certified copy of the
defendant’s driving record showing the third conviction.

This issue was also considered in Ibarrondo v. State.27 There the court engaged in an extensive analysis of the
presumptions and inferences generated by the statute. The court concluded that the provision does not create an
improper mandatory presumption nor shift the burden of proof, but rather it creates only a permissive
inference.28 The defendant is generally required to demonstrate that the inference is invalid as applied to him or
her to avoid the application of the inference. 29 The courts have usually applied the “rational connection test” to
make this determination, meaning that “a permissive inference is valid if, under the facts of the particular case,
the presumed fact ‘more likely than not’ flows from the basic fact, and the inference is not the sole basis for a
finding of guilt.”30 Based on the opinion in Sylvester v. State,31 the defendant argued that the driving record did
not meet this test and “the fact of his convictions more likely than not do not follow from the fact that they are
listed on his driving record.”32 In Ibarrondo, the court acknowledged that it receded from the Sylvester opinion
in Arthur v. State33 where the court “determined that convictions listed in the driving records of the sort in
question are sufficiently tied to the defendant to constitute prima facie evidence of the prior conviction
element.”34 Thus, the statute satisfied the rational connection test, was constitutional as applied to the defendant,
and the driving record was sufficient to prove the prior conviction element beyond a reasonable doubt. 35

The validity of the statute is further established by the standard instructions. On a third or fourth DUI charged as
a felony, they include this language to be given in the second phase of the proceedings, if applicable:
If the records of the Department of Highway Safety and Motor Vehicles show that the defendant
has been previously convicted of Driving under the Influence, you may conclude that the State has
established that prior Driving under the Influence conviction. However, such evidence may be
contradicted or rebutted by other evidence. Accordingly, this inference may be considered along
with any other evidence in deciding whether the defendant has a prior Driving under the Influence
conviction.36

While it seems fairly clear that the driving record is sufficient to prove the prior conviction element, one case
suggests a doubt in the Second District as to the sufficiency of the record to establish the historical fact that the
defendant is the person who is linked to the driving record. In Cox v. State,37 the court considered whether the
transcript of a driving record was sufficient to prove by a preponderance of the evidence that the defendant had
violated his probation by driving recklessly. The court relied on the decision in Sylvester v. State38 for the
proposition that the mere identity of personal information was insufficient to affirmatively establish the identity
of the defendant as the person who was convicted of the reckless driving charge reflected in the driving record. 39
The court ruled that the mere identity of the name of the defendant and the name on the driving record was
insufficient to make the required link.40 Further, the court concluded that the additional factors of identity of
address and race were insufficient.41

As stated above, the Fifth District partially receded from Sylvester in a driving while license was suspended
case42 and a DUI case. 43 The court “determined that convictions listed in the driving records of the sort in
question are sufficiently tied to the defendant to constitute prima facie evidence of the prior conviction
element.”44 Whether this change impacts the position of the Second District in Cox45 is unknown. Additionally,
the way that the Second District would rule in a DUI case where § 316.193(12), Fla. Stat. applies is also
unknown.

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§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

In Francis v. State,46 a revoked license case, the court distinguished Cox47 and found that the evidence was
sufficient to link the certified driving record to the defendant. The court observed that in Cox 48 no one testified
that they saw the defendant commit an offense and the only evidence was the probation officer’s testimony that
the name and date of birth on the record matched the defendant’s; whereas, in Francis, 49 the arresting officer
testified that she saw the defendant driving a truck, upon checking his license she found that it was revoked, and
the name and date of birth on a certified driving record matched the defendant’s name and date of birth. The
court in Francis50 also noted that in Cox51 the driving record was admitted through the probation officer, while in
Francis52 it was admitted through the arresting officer.

If identification is an issue notwithstanding the availability of the driving record, it can be dealt with in different
ways. It can be established through direct testimony. 53 Unobjected to hearsay may be considered as substantive
evidence and may be sufficient to establish identity. 54 The defendant’s prior convictions can also be proven by a
combination of his sworn motion to dismiss and the copy of his driver’s license record.55

All of the foregoing cases dealt with felonies, but Florida Statutes, § 316.193(12), is not limited to felonies.
It is clear on its face that it also applies to misdemeanors. If the driving record is sufficient to prove up the prior
conviction element in a felony DUI, it is certainly sufficient to establish the foundation for enhancement of the
sentence in second and third misdemeanor DUI cases. 56 Further, in the recent case of Dolan v. State,57 the court
recognized that the standards applying to prior convictions for sentencing rather than as elements of a charge
are “simply different.” In administrative suspension proceedings, it is well established that prior convictions
need only be established by a preponderance of the evidence and that standard is met by introduction of a
certified copy of the driving record.58

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Meehan v. State, 397 So. 2d 1214 (Fla. 2d DCA 1981); Fla. R. Traf. Ct. 6.180.
2
State v. Vitulli, 19 Fla. L. Weekly Supp. 248 (Fla. 17th Cir. Ct. Dec. 13, 2011)State v. Vitulli, 19 Fla. L.
Weekly Supp. 248 (Fla. 17th Cir. Ct. Dec. 13, 2011) (parent’s admission that defendant had a prior DUI
in Virginia within the past five years was sufficient evidence of prior DUI).
3
Fla. R. Traf. Ct. 6.180.
4
Fla. R. Traf. Ct. 6.180(c).
5
Arino v. State, 944 So. 2d 1120 (Fla. 5th DCA 2006); Arthur v. State, 818 So. 2d 589, 591 (Fla. 5th
DCA 2002), review denied, 839 So. 2d 697 (Fla. 2003) (§ 322.201, Fla. Stat. makes certified driving
records admissible without authentication, and it is admissible over a hearsay objection as a public
record pursuant to § 90.803(8), Fla. Stat.); Rodgers v. State, 804 So. 2d 480 (Fla. 4th DCA 2001),
review denied, 828 So. 2d 388 (Fla. 2002). In State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996),
review denied, 679 So. 2d 773 (Fla. 1996), the court upheld enhancement based on judicial notice of the
defendant’s out-of-state driving record.
6
State v. Pelicane, 729 So. 2d 534 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla. 1999).
See also Jackson v. State, 788 So. 2d 373 (Fla. 4th DCA 2001) (driving record not sufficient, but
defendant waived issue by failing to make proper objection or motion); Coyne v. State, 775 So. 2d 969
(Fla. 4th DCA 2000); Sylvester v. State, 770 So. 2d 249 (Fla. 5th DCA 2000) (fact that the date of
birth, address, and physical description on uniform traffic citation matches that information on the
driving record, is not sufficient to establish the historical fact that the defendant is the person on the

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

driving record). In Arthur v. State, 818 So. 2d 589, 592 (Fla. 5th DCA 2002), review denied, 839 So.
2d 697 (Fla. 2003), the court partially receded from Sylvester.
7
State v. Pelicane, 729 So. 2d 534, 535 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.
1999).
8
State v. Pelicane, 729 So. 2d 534, 535 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.
1999).
9
State v. Pelicane, 729 So. 2d 534, 535 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.
1999).
10
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
11
Sproule v. State, 927 So. 2d 46 (Fla. 4th DCA 2006), review denied, 935 So. 2d 2 (Fla. 2006). See also
Pflieger v. State, 952 So. 2d 1251 (Fla. 4th DCA 2007); Hardin v. State, 938 So. 2d 578 (Fla. 1st
DCA 2006); Washington v. State, 936 So. 2d 31 (Fla. 2d DCA 2006); Card v. State, 927 So. 2d 200
(Fla. 5th DCA 2006).
12
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
13
State v. Pelicane, 729 So. 2d 534, 535 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.
1999).
14
State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000).
15
Garcia v. State, 800 So. 2d 725 (Fla. 2d DCA 2001). See also State v. Fields, 809 So. 2d 99 (Fla. 2d
DCA 2002) (the court confirmed its view that the prior convictions had to be proven by certified copies
of judgment, but stressed that on driving on suspended license charges, unlike DUI charges, the need to
actually prove the prior convictions depends on the section of the statute under which the defendant was
charged).
16
Garcia v. State, 800 So. 2d 725, 726 (Fla. 2d DCA 2001).
17
Arthur v. State, 818 So. 2d 589, 592 (Fla. 5th DCA 2002), review denied, 839 So.2d 697 (Fla.2003).
18
Arthur v. State, 818 So. 2d 589, 592 (Fla. 5th DCA 2002), review denied, 839 So.2d 697 (Fla. 2003).
19
Ward v. State, 807 So. 2d 808 (Fla. 4th DCA 2002).
20
Williams v. State, 865 So. 2d 5 (Fla. 4th DCA 2003), as clarified, (Jan. 21, 2004).
21
Ward v. State, 807 So. 2d 808 (Fla. 4th DCA 2002).
22
Williams v. State, 865 So. 2d 5, 6 (Fla. 4th DCA 2003), as clarified, (Jan. 21, 2004).
23
Ch. 2004-379, Laws of Florida.
24
Fla. Senate, Criminal Justice Committee, CS for SB2762, Staff Analysis and Economic Impact
Statement, 4–5 (April 20, 2004).
25
Fender v. State, 980 So. 2d 516 (Fla. 4th DCA 2007), review denied, 980 So. 2d 489 (Fla. 4th DCA
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

2008).
26
State v. Pelicane, 729 So. 2d 534 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla. 1999).
27
Ibarrondo v. State, 1 So. 3d 226 (Fla. 5th DCA 2008), review denied, 19 So. 3d 985 (Fla. 2009).
28
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 19 So. 3d 985 (Fla. 2009).
See also State v. Taylor, 12 Fla. L. Weekly Supp. 1163 (Fla. 17th Cir. Ct. Oct. 5, 2005) (trial judge
found § 316.193(12), Fla. Stat., constitutional because it created only a permissive rebuttal
inference).
29
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 19 So. 3d 985 (Fla. 2009).
30
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 19 So. 3d 985 (Fla. 2009).
31
Sylvester v. State, 770 So. 2d 249 (Fla. 5th DCA 2000).
32
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 19 So. 3d 985 (Fla. 2009).
33
Arthur v. State, 818 So. 2d 589 (Fla. 5th DCA 2002), review denied, 839 So.2d 697 (Fla. 2003).
34
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 19 So. 3d 985 (Fla. 2009).
35
Ibarrondo v. State, 1 So. 3d 226, 234-35 (Fla. 5th DCA 2008), review denied, 839 So.2d 697 (Fla.
2003). See also Johnson v. State, 994 So. 2d 960, 965 (Fla. 2008).
36
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016)
(Jury instructions can be found in Appendix H).
37
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
38
Sylvester v. State, 770 So. 2d 249 (Fla. 5th DCA 2000).
39
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
40
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
41
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
42
Arthur v. State, 818 So. 2d 589 (Fla. 5th DCA 2002), review denied, 839 So.2d 697 (Fla. 2003).
43
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 839 So.2d 697 (Fla. 2003).
44
Ibarrondo v. State, 1 So. 3d 226, 234 (Fla. 5th DCA 2008), review denied, 839 So.2d 697 (Fla. 2003).
45
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
46
Francis v. State, 47 So. 3d 366 (Fla. 4th DCA 2010).
47
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
48
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
49
Francis v. State, 47 So. 3d 366 (Fla. 4th DCA 2010).

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§ 2:7.Proof of prior convictions, 11 Fla. Prac., DUI Handbook § 2:7 (2018-2019 ed.)

50
Francis v. State, 47 So. 3d 366 (Fla. 4th DCA 2010).
51
Cox v. State, 816 So. 2d 160 (Fla. 2d DCA 2002).
52
Francis v. State, 47 So. 3d 366 (Fla. 4th DCA 2010).
53
Pridgeon v. State, 605 So. 2d 1004 (Fla. 1st DCA 1992).
54
Pridgeon v. State, 605 So. 2d 1004 (Fla. 1st DCA 1992).
55
Angel v. State, 769 So. 2d 494 (Fla. 4th DCA 2000).
56
Giffing v. State, 12 Fla. L. Weekly Supp. 54 (Fla. 18th Cir. Ct. Sept. 29, 2004)Giffing v. State, 12 Fla.
L. Weekly Supp. 54 (Fla. 18th Cir. Ct. Sept. 29, 2004) (a three-judge panel ruled that a certified driving
record was sufficient to prove prior convictions in county court). Before the passage of §
316.193(12), Fla. Stat., this book included material suggesting that the burden of proof as to prior
convictions in misdemeanor DUI cases might only be preponderance of the evidence, and therefore, the
driving record might be sufficient to establish prior convictions in misdemeanor DUI cases. The
statutory change and case law makes this discussion unnecessary; therefore, it is only available in prior
editions.
57
Dolan v. State, 187 So.3d 262, 267 (Fla. 2d DCA 2016) (court considered the sufficiency of the
evidence to prove a prior misdemeanor battery conviction as an element of a felony battery charge).
58
Littman v. State, Dep’t. of Highway Safety and Motor Vehicles, Div. of Driver Licenses, Bureau of
Driver Improvement, 869 So. 2d 711 (Fla. 1st DCA 2004) (Department relied on a foreign driving
record in a suspension proceeding); Gomez v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L.
Weekly Supp. 471 (Fla. 2d Cir. Ct. August 9, 2016)Gomez v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 471 (Fla. 2d Cir. Ct. August 9, 2016) (court invalidated suspension
because the State presented only an uncertified copy of the driving record and no copy of the disputed
citation; court also concluded that even if State had established prima facie evidence of prior conviction,
defendant met burden of disproving conviction by unrebutted testimony that he did not have such a
conviction); Tolley v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 1122 (Fla.
20th Cir. Ct. Sept. 27, 2011); Ennis v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly
Supp. 513 (Fla. 10th Cir. Ct. April 12, 2011)Ennis v. Dep’t of Highway Safety & Motor Vehicles, 18
Fla. L. Weekly Supp. 513 (Fla. 10th Cir. Ct. April 12, 2011); Gatlin v. Dep’t of Highway Safety &
Motor Vehicles, 15 Fla. L. Weekly Supp. 556 (Fla. 9th Cir. Ct. March 27, 2008)Gatlin v. Dep’t of
Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 556 (Fla. 9th Cir. Ct. March 27, 2008).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 2. Enhancement

§ 2:8. Uncounseled prior convictions

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 351.1, 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1344, 1352, 1365 to 1371, 1380, 1397 to 1400, 1414 to 1419, 1442
to 1443, 1451 to 1452, 1473, 1484, 1486 to 1487, 1496, 1503, 1508, 1510, 1518, 1523, 1526, 1532,
1539, 1543 to 1547, 1550

The State may have a problem when it relies on uncounseled convictions for enhancement. It has been well
established for some time that neither a charge nor a sentence can be increased based on an uncounseled
conviction for which the defendant had an unwaived right to appointed counsel. 1 In fact, in a felony DUI, failure
of counsel to ascertain whether prior DUIs were uncounseled constitutes grounds for postconviction relief. 2 In
the past, if there was no right to counsel for the offense resulting in the conviction or if the defendant had
voluntarily waived that right, the State could rely on the prior conviction for all purposes. 3 As explained in this
section, that has changed.4 However, it has long been the case that restrictions on use of uncounseled priors do
not apply to license suspensions because they are administrative sanctions 5 and not punishment.6

The defendant may raise this issue for the first time in the court where the State seeks to enhance. 7 The
defendant need not get the earlier convictions vacated in the forum where they were imposed. 8

Obviously, a right to appointed counsel is critical. That is so in two ways. First, it goes to the validity of any
conviction and jail sentence on pending charges. Second, it impacts future convictions and the severity of future
sentences.9 Also, as explained in this section, it is possible for a conviction on a pending charge to be valid, but
nevertheless, not form the basis for increasing the charge from a misdemeanor to a felony or imposing increased
incarceration in future prosecutions.10

Since Gideon, there has been no doubt that an insolvent accused felon is entitled to appointed counsel. 11
Similarly, it has been well established that an insolvent accused misdemeanant is entitled to appointed counsel
if even a day of imprisonment is imposed. 12 Additionally, the United States Supreme Court expanded this right

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

to include cases where the trial court imposes a suspended sentence. 13 Otherwise, there is no such federal
constitutional right.14

In Florida, judges hearing misdemeanors and ordinance violations have been able to avoid the necessity of
appointing counsel by simply signing an order certifying no incarceration pending trial or after trial and by not
suspending a jail sentence.15 The form for the order is set forth in Fla. R. Crim. P. 3.994. That order must be
filed at least 15 days prior to trial, but the defendant or defense attorney can waive the time requirement. 16 The
effect of failure to waive the time requirement and to give up the right to counsel, is that the defendant could
still be subject to a jail sentence upon conviction.

It is important that the rule and form clearly mandate that the defendant not be incarcerated pending trial. 17
However, practically everyone charged with DUI spends at least some time in jail as a result of the arrest. Does
that mean most insolvent people must be appointed counsel even if the court signs an order of no incarceration?
The answer has been unclear. In Hardy v. State,18 the court held that the written order certifying no incarceration
doesn’t eliminate the requirement for appointment of counsel, if the defendant has been jailed prior to trial due
to inability to post bond. Similarly, in Baker v. State,19 the court found such an order ineffective if the defendant
is sentenced to time served. The appointment of counsel would still be required notwithstanding the execution
of the order of no jail.

In Comeaux v. State,20 the court took a little different approach. The court ruled that it was proper to enhance a
DUI to a felony based in part on a prior conviction on an uncounseled plea to DUI, where the defendant was
sentenced to one year of probation with credit for one day spent in jail between arrest and entry of the
uncounseled plea. In Comeaux, the court concluded that the prior DUI conviction did not result in one day of
incarceration because the trial judge only imposed probation. Instead, the “arrest resulted in her temporary
confinement.”21 Also, the credit was against the term of probation. “[S]imply crediting Comeaux with the day
she spent in jail prior to her plea, against an imposed probationary sentence, did not transform a day of her
probationary sentence into an incarcerative sentence.”22

The signed court order of no incarceration is critical for the validity of any conviction even if the trial judge
does not impose a jail sentence. In Case v. State,23 the defendant was charged with a first time DUI carrying a
possible sentence of six months jail. The trial judge accepted the defendant’s plea without signing an order of
no incarceration and imposed a term of probation. Subsequently, the defendant argued he was entitled to
withdraw his plea, because the trial judge did not secure a waiver of the right to counsel. In reviewing the trial
court’s denial of the motion to withdraw, the circuit court held that there was no need to establish a waiver,
because the defendant had no right to counsel since he was not sentenced to an actual jail term. On appeal, the
district court reversed and held: “A defendant who is charged with a misdemeanor punishable by possible
imprisonment is entitled to counsel unless the judge timely issues a written order guaranteeing that the
defendant will never be incarcerated as a result of the conviction.” 24

Occasionally, the trial court appoints counsel in a misdemeanor case because the judge is considering a jail
sentence, and then removes counsel because the judge subsequently decides against jail. Under those
circumstances, the defendant should not be placed in any worse position than if counsel had never been
appointed.25 In short, while the court may remove appointed counsel if it certifies that no jail will be imposed
and the defendant is not incarcerated, the defendant must still be given sufficient time to adjust and prepare. 26 If
the defendant shows that he or she would be “substantially disadvantaged” 27 if counsel were removed, the
defendant has a right to have appointed counsel remain on the case. 28 Alternatively, the court may “discharge
appointed counsel and allow the defendant a reasonable time to obtain private counsel, or if the defendant elects
to represent himself or herself, a reasonable time to prepare for trial.” 29

Clearly, the focus of the rule is on the necessity of a commitment not to impose any actual jail term. However,
in Hlad v. State,30 the Florida Supreme Court expanded the right to appointed counsel to include any offense
where the sentence could be over six months in jail 31 despite the fact that at that time Fla. R. Crim. P.
3.111(b)(1), provided that counsel need not be provided to indigents in misdemeanor cases if the court signed
the certification of no jail time. This was obviously important since all misdemeanor DUI offenses, except for
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

first offenses with no enhancing factors, have a potential sentence of over six months in jail.

Years after the decision in Hlad,32 in Nichols v. United States,33 the United States Supreme Court held that there
is no right to appointed counsel where the penalty cannot exceed one year in prison (i.e. all Florida
misdemeanors), and no jail time is imposed. The Court noted that a state may decide, based on its own
constitution or public policy, to require appointed counsel for all insolvent defendants. 34 Additionally, despite
the decision in Nichols,35 Florida district courts continued to follow Hlad.36

In the recent case of United States v. Bryant,37 the Court specifically refused to create a “ ‘hybrid’ category of …
convictions, ‘good for the punishment actually imposed but not available for sentence enhancement in a later
prosecution.’”38 Thus, Under the federal constitution, if the defendant has no right to counsel for an uncounseled
misdemeanor and the conviction is otherwise lawful, the conviction is valid and can be used to justify
enhancement and incarceration for subsequent convictions. 39 However, it appears that the Florida Supreme
opted for that hybrid category of convictions in State v. Kelly.40 Under the Florida constitution, if the defendant
has no right to counsel for an uncounseled misdemeanor conviction, it is valid, but can only be used to increase
nonincarcerative portions of future sentences.41

The Kelly decision may also relegate some of the previously described Florida district court decisions to mere
historical significance. It constitutes a major change in Florida law. In that case, the Court accepted jurisdiction
over a certified question. The question was: “Can an uncounseled prior misdemeanor conviction, in which the
defendant could have been incarcerated for more than six months, but was not incarcerated for any period, be
used to enhance a current charge from a misdemeanor to a felony?” 42 But the Supreme Court declined to answer
that question, and chose instead to answer this question: “What is the scope of a criminal defendant’s right to
counsel under Article I, Section 16 of the florida constitution concerning the state’s use of prior uncounseled
misdemeanor convictions to enhance a later charge from a misdemeanor to a felony?” 43

The majority opinion in State v. Kelly44 was 4-3 and the opinion is extremely complex. The reader would be well
advised to spend some time studying the opinion. In Kelly,45 the Florida Supreme Court reached multiple
conclusions and holdings, including the following: (1) under Florida’s constitution a prospective-incarceration
test applies, not an actual incarceration test as under the Federal constitution; (2) if the trial judge hearing a
misdemeanor signs the order provided for by the rule certifying no jail, counsel need not be appointed and the
conviction is valid;46 (3) while such a conviction is valid, it can never be the source of deprivation of liberty,
which means it cannot be used as a basis for increasing jail sentences in future cases, such as DUI charges based
on multiple prior convictions; (4) if the trial judge does not sign such an order, then an insolvent misdemeanant
is entitled to court appointed counsel unless he or she knowingly, intelligently, and voluntarily waives that right;
(5) where the trial judge has not signed a certification of no jail, a written plea form which gives the impression
that the accused has no “right to counsel so long as the trial judge is not currently considering jail time as an
appropriate sentence” is defective;47 (6) a written plea agreement cannot substitute for a personal record inquiry
of the defendant by the judge pursuant to Rule 3.172(c) during which the defendant expresses an understanding
of the rights set forth in the rule; (7) “Article I, section 16 of the Florida Constitution, as influenced by Florida’s
prospective-imprisonment standard, prevents the State from using uncounseled misdemeanor convictions to
increase or enhance a defendant’s later misdemeanor to a felony, unless the defendant validly waived his or her
right to counsel with regard to those prior convictions;” 48 (8) “However, the State may constitutionally seek the
increased penalties and fines short of incarceration associated with the defendant’s relevant number of DUI
offenses.”49

The decision in Kelly50 makes it clear that an uncounseled misdemeanor conviction where the insolvent
defendant did not waive his or her right to counsel cannot be used in future cases as a means to secure
incarceration or elevate a misdemeanor to a felony. Furthermore, if probation was imposed on such a
conviction, a jail or prison sentence cannot be imposed on a violation because the rule is that if the court cannot
impose jail on the original conviction, it cannot impose a jail sentence on a violation. 51

The procedure for attacking improper reliance on uncounseled convictions is well established. There are two
steps to this process.52 First, the defendant must show entitlement to counsel in the prior cases. The accused may

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

meet that burden by asserting under oath that: (a) the prior conviction was for an offense punishable by
imprisonment; (b) he or she was indigent; (c) counsel was not appointed; and (d) the right to counsel was not
waived.53

The defendant’s failure to comply with each part of this requirement will result in denial of relief. Thus, the
defendant failed to meet his burden where as to the first prior conviction, he failed to allege that the offense was
punishable by more than six months imprisonment, the prior statute did not in fact provide for more than six
months incarceration, and the defendant did not swear that he had actually been imprisoned. 54 The defendant
also failed to meet the burden as to the second conviction even though at the time the offense carried a
minimum 10 days in jail, because the defendant failed to swear that he was indigent at the time or that he had
waived his right to counsel. He merely swore that he did not recall whether he had waived his right to counsel. 55

The second step in dealing with an attack on the availability of prior convictions for enhancement, shifts the
burden to the State. When the defendant meets the initial burden, the State must then show either that the
defendant was provided with counsel or waived that right. 56 The waiver cannot be presumed from a silent
record.57

Such a silent record proved fatal to a felony conviction in Hyden v. State.58 In that case, the defendant
maintained that the State could not rely on one of his prior misdemeanor DUI convictions because it was based
on a plea entered when he was indigent and without an offer or waiver of appointed counsel. Because the
records had been destroyed, the State produced only a form from its own file entitled, “‘Plea of Not Guilty and
Request for Trial’” dated six weeks before the defendant changed his plea and was convicted. That not guilty
plea included a checked box that read, “‘[w]aived my right to a lawyer.’” The court concluded that this
document was insufficient to show an offer and waiver of appointed counsel at the time of the change of plea
and conviction. That was a critical stage of the proceedings and the court had to renew the offer of counsel.
Also, the State could not rely on a silent record to meet its burden.

“The sparse record failed to carry the state’s burden of persuasion under Kelly and Beach” and was also a
problem in Yacoub v. State.59 In that case, the State sought a felony conviction based on a third offense within
10 years of two misdemeanor convictions. The parties agreed that the defendant pleaded guilty to the two prior
DUIs on the same day before the same judge, the public defender handled one DUI, and the second was
punishable by imprisonment. However, there was nothing else in the record of the second plea to show that the
public defender represented the defendant on the second charge or that she waived counsel. The court rejected
the State’s argument, “that the temporal proximity of the two pleas circumstantially established that both pleas
were entered on the advice of counsel” 60 because that did not meet the requirement of “‘evidence in the
record.’”61 Thus, the court remanded for the defendant to be resentenced for a misdemeanor DUI.

One important issue that was not squarely before the Court in Kelly62 is what impact does the passage of time
have on the availability of this remedy. In Solano v. State,63 the court held that a misdemeanor conviction
secured without benefit of counsel or waiver of the right to counsel is not void and is subject to the two year
limitation on collateral attack set forth in Rule of Criminal Procedure 3.850(b).64 Solano65 involved an attack on
a 30-year-old conviction independent from any enhancement proceedings.

The doctrine of laches also relates to the passage of time, but it requires more than proof of delay. The doctrine
bars relief if the defendant failed to proceed with due diligence and the delay resulted in prejudice to the State. 66
The State must show that the delay prevented it from determining the validity of the defendant’s assertions and
defending against them.67 There have been many examples of the application of these principles. Laches barred
relief where there was a nine-year delay in attacking the convictions and the court files had been destroyed. 68 It
barred relief where the court reporter’s notes had been destroyed on a 10-year-old conviction 69 and where court
transcripts were routinely destroyed on a conviction of the same age. 70 Delays of 16 and 20 years, combined
with the State’s inability to reconstruct the destroyed records, were sufficient to bar relief where the defendant
was attempting to vacate two prior DUI convictions. 71 There are several other good examples of the application
of this doctrine.72

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

Despite the extensive authority indicating that the defense of laches is available in enhancement situations,
language in Kelly73 raises a question about the viability of the defense in felony DUI cases based on prior
convictions. The Court said:
This indisputable legal proposition supplies the rationale that explains and justifies why instances
of Hlad error are not addressed through postconviction motions and are, instead, subject to our
Beach framework. As in any criminal case, the defendant possesses the right and ability to contest
elements of the charged offense. Further, uncounseled misdemeanors- for which no imprisonment
is, or was, imposed-are VALID convictions; however, they remain INVALID for purposes of
depriving the defendant of his or her liberty. Therefore, when the State files an information
charging felony DUI (which is inherently based on a defendant’s prior misdemeanor convictions),
and the defendant knows that he or she did not validly waive the right to counsel in those prior
cases, the defendant may then directly contest that element of the current felony offense in the
instant felony prosecution.74

Thus, as a matter of due process in felony cases, the court may find laches inapplicable. 75

If reliance for enhancement on the prior convictions is barred, it will probably result in reduction to a
misdemeanor. In a felony case, however, the court need not transfer the cause to county court. The circuit court
retains jurisdiction to proceed on the misdemeanor DUI. 76 However, this is clearly a matter of discretion. The
circuit court may divest itself of jurisdiction since the county court has concurrent jurisdiction. 77

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Rock, 605 So. 2d 456 (Fla. 1992); State v. Beach, 592 So. 2d 237 (Fla. 1992); Hlad v.
State, 585 So. 2d 928 (Fla. 1991); Johnson v. State, 952 So. 2d 1254 (Fla. 4th DCA 2007); Montoya v.
State, 943 So. 2d 253 (Fla. 3d DCA 2006), review denied, 978 So.2d 160 (Fla. 2008); Patterson v. State,
938 So. 2d 625 (Fla. 2d DCA 2006); Riggins v. State, 789 So. 2d 509 (Fla. 1st DCA 2001); Davis v.
State, 710 So. 2d 116 (Fla. 2d DCA 1998).
2
McNulty v. State, 16 So. 3d 879 (Fla. 4th DCA 2009); Rafine v. State, 1 So. 3d 1251 (Fla. 4th DCA
2009); Hutto v. State, 981 So. 2d 1236 (Fla. 1st DCA 2008); Davis v. State, 710 So. 2d 116 (Fla. 2d
DCA 1998). See also Riley v. State, 8 So. 3d 1285 (Fla. 4th DCA 2009) (same ruling as to failure to
investigate prior convictions used in guidelines calculation).
3
Nichols v. U.S., 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994); State v. Rock, 605 So. 2d
456 (Fla. 1992); Hlad v. State, 585 So. 2d 928 (Fla. 1991); State v. Hanney, 571 So. 2d 5 (Fla. 2d
DCA 1990); State v. Drury, 9 Fla. L. Weekly Supp. 128 (Fla. Palm Beach Cty. Ct. Nov. 26, 2001)State
v. Drury, 9 Fla. L. Weekly Supp. 128 (Fla. Palm Beach Cty. Ct. Nov. 26, 2001).
4
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
5
Smith v. City of Gainesville, 93 So. 2d 105 (Fla. 1957); State v. Walters, 567 So. 2d 49 (Fla. 2d
DCA 1990).
6
Bolware v. State, 995 So. 2d 268 (Fla. 2008).
7
State v. Kelly, 999 So. 2d 1029 (Fla. 2008); Register v. State, 619 So. 2d 498 (Fla. 2d DCA

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

1993). See also Yacoub v. State, 85 So. 3d 1179 (Fla. 4th DCA 2012), review denied, 104 So. 3d 1087
(Fla. 2012); Davis v. State, 710 So. 2d 116 (Fla. 2d DCA 1998) (attorney’s failure to ask about
whether there was counsel on prior convictions was grounds for postconviction attack on plea).
8
Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993). Yacoub v. State, 85 So. 3d 1179 (Fla. 4th
DCA 2012), review denied, 104 So. 3d 1087 (Fla. 2012).
9
State v. Kelly, 999 So. 2d 1029 (Fla. 2008); Hyden v. State, 117 So. 3d 1 (Fla. 2d DCA 2011).
10
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
11
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963).
12
Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).
13
Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002).
14
Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979).
15
Fla. R. Crim. P. 3.111(b)(1); State v. Ull, 642 So. 2d 721 (Fla. 1994).
16
Fla. R. Crim. P. 3.111(b)(1).
17
Fla. R. Crim. P. 3.111(b)(1), 3.994.
18
Hardy v. State, 776 So. 2d 962 (Fla. 3d DCA 2000).
19
Baker v. State, 9 Fla. L. Weekly Supp. 168 (Fla. 11th Cir Ct. Jan. 15, 2002)Baker v. State, 9 Fla. L.
Weekly Supp. 168 (Fla. 11th Cir Ct. Jan. 15, 2002).
20
Comeaux v. State, 988 So. 2d 101 (Fla. 5th DCA 2008). See also State v. Dunning, 995 So. 2d 1162
(Fla. 2d DCA 2008); State v. Brown, 995 So. 2d 1034 (Fla. 4th DCA 2008), review dismissed, 7 So. 3d
535 (Fla. 2009).
21
Comeaux v. State, 988 So. 2d 101 (Fla. 5th DCA 2008). See also State v. Dunning, 995 So. 2d 1162
(Fla. 2d DCA 2008); State v. Brown, 995 So. 2d 1034 (Fla. 4th DCA 2008), review dismissed, 7 So. 3d
535 (Fla. 2009).
22
Comeaux v. State, 988 So. 2d 101 (Fla. 5th DCA 2008). See also State v. Dunning, 995 So. 2d 1162
(Fla. 2d DCA 2008); State v. Brown, 995 So. 2d 1034 (Fla. 4th DCA 2008).
23
Case v. State, 865 So. 2d 557 (Fla. 1st DCA 2003).
24
Case v. State, 865 So. 2d 557, 558 (Fla. 1st DCA 2003).
25
State v. Ull, 642 So. 2d 721 (Fla. 1994).
26
Fla. R. Crim. P. 3.111; State v. Ull, 642 So. 2d 721 (Fla. 1994).
27
The committee notes to Rule 3.111, sets forth specific factors to be considered in determining
whether the defendant would be “substantially disadvantaged.” They include:

1. The stage of the proceedings at which the order of no incarceration is

© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

entered. 2. The extent of any investigation and pretrial preparation by the

public defender. 3. Any prejudice that might result if the public defender
is discharged. 4. The nature of the case and the complexity of the issues.
5. The relationship between the defendant and the public defender.

28
Fla. R. Crim. P. 3.111.
29
Fla. R. Crim. P. 3.111(b)(1)(B)(ii).
30
Hlad v. State, 585 So. 2d 928 (Fla. 1991).
31
See also State v. Rock, 605 So. 2d 456 (Fla. 1992); State v. Beach, 592 So. 2d 237 (Fla. 1992); State
v. Hanney, 571 So. 2d 5 (Fla. 2d DCA 1990).
32
Hlad v. State, 585 So. 2d 928 (Fla. 1991).
33
Nichols v. U.S., 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).
34
Nichols v. U.S., 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).
35
Nichols v. U.S., 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).
36
Johnson v. State, 952 So. 2d 1254 (Fla. 4th DCA 2007) (convictions based on uncounseled pleas to
offenses punishable by more than six months imprisonment cannot be the sole basis for revocation of
probation); Patterson v. State, 938 So. 2d 625 (Fla. 2d DCA 2006); Riggins v. State, 789 So. 2d 509
(Fla. 1st DCA 2001); Kirby v. State, 765 So. 2d 723 (Fla. 1st DCA 1999); Davis v. State, 710 So.
2d 116 (Fla. 2d DCA 1998).
37
United States v. Bryant, 136 S.Ct. 1954, 195 L. Ed 2d 317 (2016) (court ruled that uncounseled tribal
conviction could be used for subsequent enhancement because there was no right to counsel on such
tribal charges).
38
United States v. Bryant, 136 S.Ct. 1954, 1966, 195 L. Ed 2d 317 (2016) (quoting Nichols v.
United States, 511 U.S. 738, 744 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)).
39
Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). See also United
States v. Bryant, 136 S.Ct. 1954, 195 L. Ed 2d 317 (2016).
40
State v. Kelly, 999 So.2d 1029 (Fla. 2008).
41
State v. Kelly, 999 So.2d 1029 (Fla. 2008) (as explained hereafter, an insolvent accused has a right to
counsel in all misdemeanors unless the court signs an order that no jail will be imposed).
42
State v. Kelly, 946 So. 2d 1152, 1154 (Fla. 4th DCA 2006), aff’d on other grounds, 999 So. 2d 1029
(Fla. 2008).
43
State v. Kelly, 999 So. 2d 1029, 1032 (Fla. 2008).
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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

44
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
45
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
46
See also Finney v. State, 9 So. 3d 741 (Fla. 2d DCA 2009).
47
State v. Kelly, 999 So. 2d 1029, 1037 (Fla. 2008). See also Finney v. State, 9 So. 3d 741 (Fla. 2d
DCA 2009) (court found written plea form defective for the same reason and concluded that the mass
plea colloquy made the defendant’s rights even less clear and created the impression that he would only
be entitled to appointed counsel if he pled not guilty).
48
State v. Kelly, 999 So. 2d 1029, 1053 (Fla. 2008). See also Riley v. State, 145 So. 3d 886 (Fla. 4th
DCA 2014), review denied, 163 So.3d 513 (Fla. 2015); Hyden v. State, 117 So. 3d 1 (Fla. 2d DCA
2011).
49
State v. Kelly, 999 So. 2d 1029, 1053 (Fla. 2008). In fact, the Court specifically concluded:
“[D]uring any resulting DUI prosecution, the State may use each of Kelly’s prior uncounseled
misdemeanor DUI offenses to seek the enhanced penalties and fines short of incarceration that apply to a
fourth DUI offense. Here, these penalties and fines could include, inter alia, a fine between $1,000 and
$5,000; probation, including the completion of a substance-abuse course and a psychosocial evaluation;
the impoundment and immobilization of all vehicles that Mr. Kelly owns for 90 days; and the permanent
revocation of Kelly’s driver’s license or driving privilege.” State v. Kelly, 999 So.2d at 1052–53.
50
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
51
Finney v. State, 9 So. 3d 741 (Fla. 2d DCA 2009); Tur v. State, 797 So. 2d 4 (Fla. 3d DCA 2001); Harris
v. State, 773 So. 2d 627 (Fla. 4th DCA 2000).
52
State v. Kelly, 999 So. 2d 1029 (Fla. 2008); State v. Rock, 605 So. 2d 456 (Fla. 1992); State v.
Beach, 592 So. 2d 237 (Fla. 1992). See also Johnson v. State, 952 So. 2d 1254 (Fla. 4th DCA 2007);
Patterson v. State, 938 So. 2d 625 (Fla. 2d DCA 2006); Andres v. State, 898 So. 2d 256 (Fla. 4th DCA
2005); Angel v. State, 769 So. 2d 494 (Fla. 4th DCA 2000).
53
State v. Kelly, 999 So. 2d 1029, 1053 (Fla. 2008); State v. Rock, 605 So. 2d 456 (Fla. 1992);
State v. Beach, 592 So. 2d 237 (Fla. 1992). See also Riley v. State, 145 So. 3d 886 (Fla. 4th DCA 2014),
review denied, 163 So.3d 513 (Fla. 2015); McNulty v. State, 16 So. 3d 879 (Fla. 4th DCA 2009);
Johnson v. State, 952 So. 2d 1254 (Fla. 4th DCA 2007); Patterson v. State, 938 So. 2d 625 (Fla. 2d DCA
2006); Andres v. State, 898 So. 2d 256 (Fla. 4th DCA 2005); Angel v. State, 769 So. 2d 494 (Fla. 4th
DCA 2000).
54
Angel v. State, 769 So. 2d 494 (Fla. 4th DCA 2000).
55
Angel v. State, 769 So. 2d 494 (Fla. 4th DCA 2000).
56
State v. Kelly, 999 So. 2d 1029 (Fla. 2008); State v. Beach, 592 So. 2d 237 (Fla. 1992); Riley v.
State, 145 So. 3d 886 (Fla. 4th DCA 2014), review denied, 163 So.3d 513 (Fla. 2015); Andres v. State,
898 So. 2d 256 (Fla. 4th DCA 2005); Angel v. State, 769 So. 2d 494 (Fla. 4th DCA 2000).
57
State v. Kelly, 999 So. 2d 1029, 1037 (Fla. 2008); State v. Beach, 592 So. 2d 237, 239 (Fla.
1992).
58
Hyden v. State, 117 So. 3d 1 (Fla. 2d DCA 2011). See also Goins v. State, 152 So. 3d 864 (Fla. 5th
DCA 2014) (trial court erred in summarily denying motion for postconviction relief where defendant
pled guilty to a felony DUI based on an alleged prior uncounseled misdemeanor; court remanded for a
documentary showing defendant waived the right to counsel or had counsel or for an evidentiary

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

hearing).
59
Yacoub v. State, 85 So. 3d 1179, 1180 (Fla. 4th DCA 2012), review denied, 104 So. 3d 1087 (Fla.
2012).
60
Yacoub v. State, 85 So. 3d 1179, 1180 (Fla. 4th DCA 2012), review denied, 104 So. 3d 1087 (Fla.
2012).
61
Yacoub v. State, 85 So. 3d 1179, 1180 (Fla. 4th DCA 2012), review denied, 104 So. 3d 1087 (Fla. 2012)
(quoting from Beach and Kelly).
62
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
63
Solano v. State, 32 So. 3d 648 (Fla. 1st DCA 2010), review denied, 44 So. 3d 582 (Fla. 2010). See also
O’Brien v. State, 80 So. 3d 459 (Fla. 1st DCA 2012) (same ruling where almost 28 years earlier the
defendant had refused a breath test but pled to DUBAL and the defendant attacked the conviction on the
grounds that there was no such crime).
64
Fla. R. Crim. P. 3.850(b).
65
Solano v. State, 32 So. 3d 648 (Fla. 1st DCA 2010), review denied, 44 So. 3d 582 (Fla. 2010).
66
McCray v. State, 699 So.2d 1366, 1368 (Fla. 1997); Francis v. State, 31 So. 3d 285 (Fla. 4th DCA
2010); Bain v. State, 9 So. 3d 723 (Fla. 2d DCA 2009); Bean v. State, 949 So. 2d 1207 (Fla. 4th DCA
2007); Bowers v. State, 845 So. 2d 243 (Fla. 2d DCA 2003); Felder v. State, 842 So. 2d 979 (Fla. 2d
DCA 2003).
67
Gregersen v. State, 714 So. 2d 1195 (Fla. 4th DCA 1998), decision approved on other grounds, 758
So. 2d 106 (Fla. 2000); Wright v. State, 711 So. 2d 66 (Fla. 3d DCA 1998); State v. Caudle, 504 So.
2d 419 (Fla. 5th DCA 1987).
68
State v. Caudle, 504 So. 2d 419 (Fla. 5th DCA 1987).
69
Gregersen v. State, 714 So. 2d 1195 (Fla. 4th DCA 1998), decision approved on other grounds, 758
So. 2d 106 (Fla. 2000).
70
Wright v. State, 711 So. 2d 66 (Fla. 3d DCA 1998).
71
State v. Drury, 9 Fla. L. Weekly Supp. 128 (Fla. Palm Beach Cty. Ct. Nov. 26, 2001)State v. Drury, 9
Fla. L. Weekly Supp. 128 (Fla. Palm Beach Cty. Ct. Nov. 26, 2001).
72
Bartz v. State, 740 So. 2d 1243 (Fla. 3d DCA 1999), review denied, 767 So. 2d 453 (Fla. 2000) (21-year
delay barred relief); Gabriel v. State, 723 So. 2d 899 (Fla. 4th DCA 1998) (11 year delay barred relief);
State v. Gerdon, 8 Fla. L. Weekly Supp. 793 (Fla. Sarasota Cty. Ct. Sept. 18, 2001)State v. Gerdon, 8
Fla. L. Weekly Supp. 793 (Fla. Sarasota Cty. Ct. Sept. 18, 2001) (10 year delay attacking voluntariness
of DUI plea was barred by laches notwithstanding the defendant’s claim that he thought he would only
suffer a 10 year suspension, rather than a permanent revocation); State v. Isaguirre, 8 Fla. L. Weekly
Supp. 796 (Fla. Palm Beach Cty. Ct. Sept. 7, 2001)State v. Isaguirre, 8 Fla. L. Weekly Supp. 796 (Fla.
Palm Beach Cty. Ct. Sept. 7, 2001) (laches barred vacating pleas to prior DUIs where one was 14 years
old, the others were eight or more years old, and most of the records had been destroyed).
73
State v. Kelly, 999 So. 2d 1029 (Fla. 2008).
74
State v. Kelly, 999 So. 2d 1029, 1038 (Fla. 2008).
75
In Hyden v. State, 117 So. 3d 1 (Fla. 2d DCA 2011), the prior conviction that was rejected was
obviously old (1983) and the records were destroyed, but the court did not even mention laches.

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§ 2:8.Uncounseled prior convictions, 11 Fla. Prac., DUI Handbook § 2:8 (2018-2019 ed.)

76
State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000). See also Woodbury v. State, 110 So. 3d 17
(Fla. 2d DCA 2013), review denied, 132 So. 3d 223 (Fla. 2013); Davis v. State, 710 So. 2d 116 (Fla.
2d DCA 1998); Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989).
77
State v. Salter, 143 So. 3d 1049 (Fla. 2d DCA 2014) (affirming dismissal of felony-DUI and apparently
relinquishing jurisdiction because State could not prove defendant’s prior misdemeanor convictions
were counseled); Woodbury v. State, 110 So. 3d 17 (Fla. 2d DCA 2013), review denied, 132 So. 3d
223 (Fla. 2013) (affirming retention of jurisdiction over misdemeanor-DUI after dismissal of felony, but
noting that circuit and county court had concurrent jurisdiction over misdemeanor where a felony-DUI
was initially filed).

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Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 3 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 3 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

Introduction

INTRODUCTION
Various charges result from driving or actual physical control of a vehicle while impaired by alcoholic
beverages, chemicals, or controlled substances. Thus, the State may accuse the defendant of more than one
offense based on a single driving episode or even a single victim. As with any case, occasionally the state may
subject the defendant to a retrial after a mistrial. This chapter focuses on the problems with such prosecutions
and trials.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 3:1.The nature of the double jeopardy clause, 11 Fla. Prac., DUI Handbook § 3:1...

11 Fla. Prac., DUI Handbook § 3:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:1. The nature of the double jeopardy clause

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332
• West’s Key Number Digest, Double Jeopardy 6, 28, 142, 202

Legal Encyclopedias
• C.J.S., Criminal Law §§ 208, 223, 255, 260, 274, 1464
• C.J.S., Motor Vehicles §§ 1382 to 1394

The United States Constitution1 and the Florida Constitution2 provide that no one shall be twice placed in
jeopardy for the same offense. These provisions guarantee three constitutional protections: (1) freedom from a
second prosecution for the same offense after an acquittal; (2) freedom from a second prosecution for the same
offense after a conviction; and (3) freedom from multiple punishments for the same offense. 3

The United States Supreme Court established the test for whether two or more offenses are the same in
Blockburger v. United States4 and confirmed it in United States v. Dixon.5 If each offense requires proof of an
element not required to establish the other, they are separate offenses. Otherwise, they are the “same offense.”
The Legislature has incorporated the same test into the Florida Statutes.6

The statute permits multiple convictions and punishments for offenses containing unique statutory elements.
But the statute still forbids multiple convictions for: (1) “[o]ffenses which require identical elements of proof;”
(2) “[o]ffenses which are degrees of the same offense as provided by statute;” and (3) “[o]ffenses which are
lesser offenses the statutory elements of which are subsumed by the greater offense.” 7 Both federal8 and state9
courts hold that Blockburger sets out a test of statutory construction.

It is apparent from the statutory language that offenses that are the same, as defined in the statute and
Blockburger, cannot be prosecuted in successive prosecutions barring some event such as an appeal or a
mistrial.10 In determining whether offenses are the same, it is necessary to look to the involved statutes. In
Gordon v. State,11 the Florida Supreme Court identified a two step process in determining whether multiple

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§ 3:1.The nature of the double jeopardy clause, 11 Fla. Prac., DUI Handbook § 3:1...

convictions and sentences are permissible for offenses arising out of one episode. First, a determination must be
made whether the offenses are separate, based on the Blockburger test as codified in the statute. If they are not
separate offenses, multiple convictions are impermissible under the statute. If they are separate offenses, the
second part of the test must be considered. The second step requires that there be a determination of whether
one of the statutory exceptions to the rule that there can be convictions and sentences for separate offenses
applies. If one of those exceptions applies, the statute forbids multiple convictions.

It is clear that the will of the Legislature controls. 12 Legislative intent is the polestar for double jeopardy
analysis.13 If the Legislature explicitly states that two or more offenses arising out of the same episode, or based
on the same act should be punished, it is not even necessary to apply the Blockburger test, provided the charges
are tried together. Under such circumstances, even though the offenses are not separate as defined by the
Blockburger test, the multiple convictions and sentences are constitutional. 14 The purpose of the Double
Jeopardy Clause is to ensure that prosecutors do not seek to prosecute citizens more than once for the same
offense in successive proceedings and that judges do not exceed the legislative authorization in imposing
punishment for multiple offenses.15 It is not to control the legislative process.16

If, however, there is no clear statement of legislative intent to punish for multiple crimes, the result is different.
Then, the Blockburger17 test, as codified in Florida Statutes, Section 775.021, must be applied.18

Florida Statutes, Section 775.021(4), provides the best guide to general legislative intent. 19 However, specific
statutory provisions may evidence a statutory intent to convict and punish multiple offenses that would not meet
the Blockburger test.20

While the wealth of authority on this subject is somewhat confusing, it appears that the accused has less double
jeopardy protection in a single trial than in successive prosecutions. In that regard, one court has commented
that this may be inconsistent with common sense, but it is, nevertheless, the law. 21

The bar to successive prosecutions established in Blockburger does not arise until the defendant has been placed
in jeopardy by plea22 or trial on one of the charges. 23 Thus, a nolle prosequi or not guilty verdict on a
misdemeanor after jeopardy attaches (i.e. when the jury is sworn and impaneled to hear evidence 24 in a jury trial
or when the court begins to hear evidence in a nonjury trial), 25 will bar prosecution on a felony that meets the
Blockburger test.26 However, a nolle prosequi of a DUI charge before trial does not bar subsequent prosecution
on such a felony.27

Violation of the Double Jeopardy Clause is fundamental error and can be raised for the first time on appeal. 28
However, as indicated above, a plea of guilty or no contest places the defendant in jeopardy. This will bar a
subsequent prosecution on the same offense, but it waives any double jeopardy argument in a collateral attack
on the judgment resulting from the plea unless: (1) the plea is a general plea rather than part of a plea bargain;
(2) the double jeopardy violation is apparent from the record; and (3) there is nothing in the record to indicate a
waiver of the double jeopardy violation. 29 Acceptance of a bargained for plea waives any double jeopardy
claim.30 Thus, where the defendant agreed to plead to vehicular homicide and driving while his license was
suspended resulting in death, in return for a nolle prosequi of a DUI Manslaughter charge, the defendant waived
any subsequent double jeopardy attack. 31 Such pleas do not, however, waive the right to subsequently seek relief
on the grounds that the plea was involuntarily entered or a product of ineffective assistance of counsel. 32

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
The Fifth Amendment provides that no person shall be “subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. Amend. V.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 3:1.The nature of the double jeopardy clause, 11 Fla. Prac., DUI Handbook § 3:1...

2
Art. I, § 9, Fla. Const provides that “[n]o person shall … be twice put in jeopardy for the same offense.”
3
Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228, 235 (1980) . See also
State v. Shelley, 176 So.3d 914 (Fla. 2015); Valdes v. State, 3 So. 3d 1067 (Fla. 2009);
Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994); Rimondi v. State, 89 So. 3d 1059 (Fla. 4th DCA
2012); Yeye v. State, 37 So. 3d 324 (Fla. 4th DCA 2010); McKnight v. State, 906 So. 2d 368,
370 (Fla. 5th DCA 2005); State v. Torres, 890 So. 2d 292, 296 (Fla. 2d DCA 2004); Cabanela v.
State, 871 So. 2d 279, 281 (Fla. 3d DCA 2004); Rozier v. State, 620 So. 2d 194 (Fla. 1st DCA 1993),
review denied, 629 So. 2d 135 (Fla. 1993).
4
Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
5
U.S. v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
6
§ 775.021(4), Fla. Stat. See also Gil v. State, 118 So. 3d 787 (Fla. 2013); Valdes v. State, 3
So. 3d 1067 (Fla. 2009); Jones v. State, 608 So. 2d 797 (Fla. 1992); Brown v. State, 189 So.3d 837 (Fla.
4th DCA 2015); Ready v. State, 183 So.3d 1234 (Fla. 4th DCA 2016); Ivey v. State, 47 So. 3d 908 (Fla.
3d DCA 2010).
7
§ 775.021(4)(b), Fla. Stat. See also Gil v. State, 118 So. 3d 787 (Fla. 2013); Valdes v. State, 3
So. 3d 1067 (Fla. 2009); Anguille v. State, 243 So.3d 410 (Fla. 4th DCA 2018); Brown v. State, 189
So.3d 837 (Fla. 4th DCA 2015); Ready v. State, 183 So.3d 1234 (Fla. 4th DCA 2016); Edwards v. State,
139 So. 3d 981 (Fla. 1st DCA 2014); Ramirez v. State, 113 So. 3d 105 (Fla. 5th DCA 2013);
R.J.R. v. State, 88 So. 3d 264 (Fla. 1st DCA 2012), review denied, 109 So. 3d 781 (Fla. 2013); Ivey v.
State, 47 So. 3d 908 (Fla. 3d DCA 2010); Partch v. State, 43 So. 3d 758 (Fla. 1st DCA 2010);
McKinney v. State, 24 So. 3d 682 (Fla. 5th DCA 2009), decision approved, 66 So. 3d 852 (Fla.
2011); Smith v. State, 19 So. 3d 417 (Fla. 2d DCA 2009).
8
“With respect to cumulative sentences in a single trial, the double jeopardy clause does no more than
prevent the sentencing court from prescribing greater punishment than the legislature intended.”
Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983). See also Valdes
v. State, 3 So. 3d 1067 (Fla. 2009).
9
Boler v. State, 678 So. 2d 319 (Fla. 1996); State v. Enmund, 476 So. 2d 165 (Fla. 1985) (finding the
Legislature intended multiple punishments where both a murder and another felony occur during a
single criminal episode).
10
See e.g. Janos v. State, 763 So. 2d 1094 (Fla. 4th DCA 1999), review denied, 767 So. 2d 461 (Fla. 2000)
(plea of nolo contendere to misdemeanor driving with a suspended license through the circuit court
clerk, pursuant to an administrative option, barred subsequent felony prosecution for same offense based
on same event); McManama v. State, 816 So. 2d 781 (Fla. 2d DCA 2002) (guilty plea to misdemeanor
driving with a suspended license barred subsequent felony prosecution based on same event).
11
Gordon v. State, 780 So. 2d 17 (Fla. 2001), receded from on other grounds by Valdes v. State, 3
So. 3d 1067 (Fla. 2009). See also Lafferty v. State, 114 So. 3d 1115 (Fla. 2d DCA 2013); Duff v. State,
942 So. 2d 926 (Fla. 5th DCA 2006), review denied, 956 So. 2d 457 (Fla. 2007); Mitchell v. State, 830
So. 2d 944 (Fla. 5th DCA 2002), review denied, 845 So. 2d 892 (Fla. 2009).
12
State v. Shelley, 176 So.3d 914 (Fla. 2015); Valdes v. State, 3 So. 3d 1067 (Fla. 2009);
Gordon v. State, 780 So. 2d 17 (Fla. 2001), receded from on other grounds by Valdes v. State, 3 So.
3d 1067 (Fla. 2009); Boler v. State, 678 So. 2d 319, 321 (Fla. 1996). See also Gil v. State, 118 So. 3d

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§ 3:1.The nature of the double jeopardy clause, 11 Fla. Prac., DUI Handbook § 3:1...

787 (Fla. 2013); Anguille v. State, 243 So.3d 410 (Fla. 4th DCA 2018); McCullough v. State, 230
So.3d 586 (Fla. 2d DCA 2017); Brown v. State, 189 So.3d 837 (Fla. 4th DCA 2015); Ramirez v.
State, 113 So. 3d 105 (Fla. 5th DCA 2013); Rimondi v. State, 89 So. 3d 1059 (Fla. 4th DCA 2012);
Partch v. State, 43 So. 3d 758 (Fla. 1st DCA 2010); McKinney v. State, 24 So. 3d 682 (Fla. 5th DCA
2009), decision approved, 66 So. 3d 852 (Fla. 2011), cert. denied, 132 S. Ct. 527, 181 L. Ed. 2d 369
(2011); Smith v. State, 19 So. 3d 417 (Fla. 2d DCA 2009).
13
Gil v. State, 118 So. 3d 787 (Fla. 2013); Valdes v. State, 3 So. 3d 1067 (Fla. 2009); State v.
Anderson, 695 So. 2d 309, 311 (Fla. 1997); Anguille v. State, 243 So.3d 410 (Fla. 4th DCA 2018);
McCullough v. State, 230 So.3d 586 (Fla. 2d DCA 2017); Tambriz-Ramirez v. State, 213 So.3d 920
(Fla. 4th DCA 2017), decision approved, 248 So.3d 1087 (Fla. 2018); Brown v. State, 189 So.3d 837
(Fla. 4th DCA 2015); Rimondi v. State, 89 So. 3d 1059 (Fla. 4th DCA 2012); Ivey v. State, 47 So. 3d
908 (Fla. 3d DCA 2010); Yeye v. State, 37 So. 3d 324 (Fla. 4th DCA 2010); Young v. State, 827
So. 2d 1075 (Fla. 5th DCA 2002); Webb v. State, 816 So. 2d 1190 (Fla. 4th DCA 2002).
14
Missouri v. Hunter, 459 U.S. 359, 368–69, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); M.P. v.
State, 682 So. 2d 79, 81 (Fla. 1996); State v. Smith, 547 So. 2d 613, 614 (Fla. 1989); State v.
Enmund, 476 So. 2d 165, 167–68 (Fla. 1985); Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010);
Yeye v. State, 37 So. 3d 324 (Fla. 4th DCA 2010); Rich v. State, 823 So. 2d 208 (Fla. 2d DCA 2002);
Brown v. State, 761 So. 2d 1135, 1136–37 (Fla. 1st DCA 2000), decision approved, 781 So. 2d 1083
(Fla. 2001); Spradley v. State, 537 So. 2d 1058 (Fla. 1st DCA 1989).
15
Brown v. Ohio, 432 U.S. 161, 165–66, 97 S. Ct. 2221, 2225–26, 53 L. Ed. 2d 187 (1977); Valdes
v. State, 3 So. 3d 1067, 1069 (Fla. 2009); Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001). See also
Kelso v. State, 961 So. 2d 277 (Fla. 2007); Lott v. State, 74 So. 3d 556 (Fla. 5th DCA 2011).
16
Brown v. Ohio, 432 U.S. 161, 165–66, 97 S. Ct. 2221, 2225–26, 53 L. Ed. 2d 187 (1977); Hayes
v. State, 803 So. 2d 695, 699 (Fla. 2001).
17
Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
18
Valdes v. State, 3 So. 3d 1067 (Fla. 2009). See also State v. Shelley, 176 So.3d 914 (Fla. 2015);
Ready v. State, 183 So.3d 1234 (Fla. 4th DCA 2016); Rimondi v. State, 89 So. 3d 1059 (Fla. 4th DCA
2012); Lott v. State, 74 So. 3d 556 (Fla. 5th DCA 2011); Ivey v. State, 47 So. 3d 908 (Fla. 3d DCA
2010); Yeye v. State, 37 So. 3d 324 (Fla. 4th DCA 2010).
19
Brown v. State, 761 So. 2d 1135, 1137 (Fla. 1st DCA 2000), decision approved, 781 So. 2d 1083 (Fla.
2001).
20
See e.g. Boler v. State, 678 So. 2d 319 (Fla. 1996).
21
Thompson v. State, 585 So. 2d 492, 493 (Fla. 5th DCA 1991), opinion adopted on other grounds,
607 So. 2d 422 (Fla. 1992) (holding that the statute bars concurrent prosecution for a general statutory
theft crime together with a specific statutory theft crime).
22
Pettis v. State, 803 So. 2d 903 (Fla. 1st DCA 2002); Jackson v. State, 682 So. 2d 1227 (Fla. 4th DCA
1996).
23
Coleman v. State, 569 So. 2d 870 (Fla. 2d DCA 1990). See also State v. Roberson, 888 So. 2d 727
(Fla. 5th DCA 2004) (dismissal of multiple counts based upon the possibility that the counts might
violate double jeopardy was premature because jeopardy had not yet attached).

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§ 3:1.The nature of the double jeopardy clause, 11 Fla. Prac., DUI Handbook § 3:1...

24
Rawlins v. Kelley, 322 So. 2d 10 (Fla. 1975); Baccari v. State, 145 So. 3d 958, 963 (Fla. 4th DCA
2014); State v. Torres, 890 So. 2d 292, 295 (Fla. 2d DCA 2004); Janos v. State, 763 So. 2d 1094 (Fla.
4th DCA 1999), review denied, 767 So. 2d 461 (Fla 4th DCA 2000); Kee v. State, 727 So. 2d 1094 (Fla.
2d DCA 1999).
25
Rawlins v. Kelley, 322 So. 2d 10 (Fla. 1975); State v. Torres, 890 So. 2d 292, 295 (Fla. 2d DCA 2004);
Janos v. State, 763 So. 2d 1094 (Fla. 4th DCA 1999), review denied, 767 So. 2d 461 (Fla 4th DCA
2000).
26
Humphries v. Wainwright, 584 F.2d 702 (5th Cir.1978); Houser v. State, 474 So. 2d 1193, 1196 (Fla.
1985).
27
State v. Carter, 452 So. 2d 1137 (Fla. 5th DCA 1984). See also Abreu-Gutierrez v. James, 1 So. 3d 262
(Fla. 4th DCA 2009) (pretrial dismissal does not generally bar refilling of charges because jeopardy has
not attached).
28
Baptiste v. State, 165 So.3d 746 (Fla. 4th DCA 2015); Gonzalez v. State, 123 So. 3d 691 (Fla. 4th DCA
2013); Latos v. State, 39 So. 3d 511 (Fla. 4th DCA 2010); Cruz v. State, 956 So. 2d 1279 (Fla. 4th DCA
2007).
29
Novaton v. State, 634 So. 2d 607 (Fla. 1994). See also Marsh v. State, 2018 WL 1660225 (Fla.
2d DCA Opinion Filed April 6, 2018); Griffith v. State, 208 So.3d 1208 (Fla. 5th DCA 2017); Odom v.
State, 194 So.3d 565 (Fla. 1st DCA 2016); Stapler v. State, 190 So.3d 162 (Fla. 5th DCA 2016);
Delgado v. State, 174 So.3d 1071 (Fla. 5th DCA 2015); Holubek v. State, 173 So.3d 1114 (Fla. 5th
DCA 2015); Baptiste v. State, 165 So.3d 746 (Fla. 4th DCA 2015); Abbate v. State, 82 So. 3d 886 (Fla.
4th DCA 2011); Latos v. State, 39 So. 3d 511 (Fla. 4th DCA 2010); Bailey v. State, 21 So. 3d 147, 149
(Fla. 5th DCA 2009); Brown v. State, 1 So. 3d 1231, 1232 (Fla. 2d DCA 2009); Labovick v. State, 958
So. 2d 1065 (Fla. 4th DCA 2007); Roedel v. State, 773 So. 2d 1280 (Fla. 5th DCA 2000); Pierce v.
State, 744 So. 2d 1193 (Fla. 4th DCA 1999).
30
Novaton v. State, 634 So. 2d 607 (Fla. 1994). See also Farrar v. State, 42 So. 3d 265 (Fla. 5th DCA
2010); Reigelsperger v. State, 12 So. 3d 876 (Fla. 5th DCA 2009); Mandelbaum v. State, 676 So. 2d 510
(Fla. 4th DCA 1996).
31
Bryant v. State, 644 So. 2d 513 (Fla. 5th DCA 1994), review denied, 654 So. 2d 130 (Fla. 1995).
32
Weitz v. State, 795 So. 2d 1021 (Fla. 2d DCA 2001). See also Wilkerson v. State, 128 So. 3d 189 (Fla.
5th DCA 2013); Rogers v. State, 113 So. 3d 960 (Fla. 2d DCA 2013); Tapp v. State, 44 So. 3d 666 (Fla.
2d DCA 2010).

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Works.

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§ 3:2.Prosecutions for multiple criminal traffic offenses..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 3:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:2. Prosecutions for multiple criminal traffic offenses based on the same episode or transaction involving
injury or damage to one person or item of property

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332
• West’s Key Number Digest, Double Jeopardy 6, 28, 142, 161 to 165, 182

Legal Encyclopedias
• C.J.S., Criminal Law §§ 208, 251, 255, 260, 274, 1464
• C.J.S., Motor Vehicles §§ 1382 to 1394

Consider the application of these rules to successive prosecutions for criminal traffic offenses based on a single
event and a single victim. Several cases considered two convictions for driving on a suspended or revoked
license based on the same driving. Administrative dismissal of a driving with a suspended license charge by the
clerk upon compliance with the law pursuant to statute, bars prosecution of felony driving with a suspended
license charge based on the same episode.1 Similarly, a guilty plea to misdemeanor driving with a suspended
license at first appearance before a county court judge bars subsequent felony prosecution for the same offense
based on the same episode. 2 And recently, the Supreme Court ruled that double jeopardy bars a felony
conviction for driving while license was revoked as a habitual traffic offender where the defendant was
previously convicted in county court of driving on a suspended license based on the same driving. 3

A conviction of reckless driving bars a subsequent prosecution for vehicular homicide based on the same event
and victim, if the state is unable to prove the more serious offense without also proving the reckless driving
charge.4 Logically, the same result applies to a DUI and a DUI Manslaughter. It is necessary, however, to
determine whether the DUI, which was the subject of the earlier conviction, is the same one which is the basis
for the DUI Manslaughter charge in a subsequent prosecution. While this statement may seem self evident, it is
clearly a potential issue and there are conflicts between some courts on the issue. The early case of State v.
Stiefel5 should be the beginning point for discussion of this issue.

Stiefel is important both because of its holding and because it is often seemingly ignored without comment.

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§ 3:2.Prosecutions for multiple criminal traffic offenses..., 11 Fla. Prac., DUI...

There the defendant was convicted of DWI and later charged with DWI Manslaughter. The court ruled that the
defendant could be convicted of the felony in the subsequent proceeding because the DWI was a continuing
offense, occurring at each point along the route, while the DWI Manslaughter was an instant offense, occurring
at one point on the route. Thus, the court concluded that the offenses were committed separately and in fact not
based on the same event.6

In Chikitus,7 the Florida Supreme Court cited Stiefel regarding the continuing nature of reckless driving, but the
court distinguished Stiefel because the charging document indicated that the reckless driving and the vehicular
homicide were based on the same accident. In State v. Perez,8 the court relied on Chikitus to illustrate how a
reckless driving and vehicular homicide may both be validly pursued, although that was not the basis for the
resolution of the case.

In Labovick v. State,9 the court considered a situation similar to the one in Stiefel,10 but did not mention the
Stiefel decision. While Stiefel11 dealt with a DWI conviction in one proceeding followed by a DWI
Manslaughter conviction in a subsequent proceeding, Labovick12 dealt with a DUI conviction and a DUI
Manslaughter conviction in the same proceeding. The two courts seem to agree on the fundamental principles,
but the application of those principles produced different results. As noted above in Stiefel,13 the court ruled that
both convictions could stand, but in Labovick,14 the court ruled that only the DUI Manslaughter was proper.

In Labovick,15 the court said:

The State argues that dual convictions are proper in this case because there was
more than one episode of driving under the influence. However, the state’s factual
basis belies that assertion. DUI is a continuing offense for which only one
conviction may be maintained for each episode. (Citation omitted.) Here, the
defendant never stopped driving his car at any point during what amounted to a
single episode. Although separate convictions could lie for causing injury or death to
different victims, only one conviction may be maintained for each episode of driving
under the influence (DUI). Generally, a separate criminal episode occurs when there
is a sufficient temporal break that allows the offender to reflect and form a new
criminal intent. (Citation omitted.) However, as mentioned above, there was no such
temporal break in this case.

State v. Witcher16 dealt with precisely the same situation as the one in Stiefel,17 and without mentioning that
decision, the court articulated the same principles, but with different results, as in Labovick.18 In Witcher,19 the
court recognized the continuing nature of DUI, but ruled that a DUI conviction bars a subsequent DUI
Manslaughter conviction.

The courts have considered other continuing offenses and firmly held to the principle expressed in Labovick20
that there can be only one conviction for a continuous uninterrupted offense. Accordingly, one cannot be
convicted for more than one charge of driving on a suspended license based on a single uninterrupted driving
episode.21 On the other hand, the Double Jeopardy Clause did not bar convictions for aggravated fleeing or
attempting to elude an officer and reckless driving, where the defendant continuously drove recklessly through
three counties, but committed a different reckless act in each county.22

Stiefel23 and subsequent conflicting cases agree on one fundamental point: there cannot be both a DUI
Manslaughter conviction and a simple DUI conviction based on the same episode. The disagreement seems to
be over whether the convictions, in fact, arise from one event. The charging documents 24 or factual basis25 assist
in resolving that issue.

However, when a greater DUI offense is clearly based on a lesser DUI offense, there can be only one
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conviction. DUI is a lesser included offense of DUI Manslaughter and DUI involving injury. Consequently, one
cannot be convicted of DUI and DUI Manslaughter or DUI involving injury “arising from the same act.” 26
Similarly, where one car was damaged in an accident, the defendant could only be convicted of DUI with
property damage because the elements of DUI are subsumed by the charge of DUI with property damage. 27

It is also a violation of the Double Jeopardy Clause to convict the accused of different versions of the same
crime based on a single death or injury. 28 Thus, where an accident resulted in one death, the defendant could not
be convicted of both DUI Manslaughter based on impairment and DUI Manslaughter based on an unlawful
blood alcohol level.29 Nor, where the same accident resulted in one person being seriously injured, could the
defendant be convicted of both DUI with serious bodily injury based on impairment and DUI with serious
bodily injury based on an unlawful blood alcohol level.30

These rules also prohibit multiple convictions for different types of homicide based on a single death. Thus, a
defendant cannot be convicted of both DUI Manslaughter and manslaughter by culpable negligence for one
death.31 The same is true for DUI Manslaughter and vehicular homicide, 32 and reckless driving as a lesser-
included offense of vehicular homicide. 33 These decisions are based on legislative intent not to punish a single
homicide under two different statutes. 34 Despite a 1988 statutory change 35 allowing convictions for multiple
causes based on the same event and victim, that intent has not changed.36

For some time, Florida courts have struggled with how best to construe Florida Statutes, Section 775.021(4)
(b), which precludes multiple convictions for “[o]ffenses which are degrees of the same offense as provided by
statute.” The test the Supreme Court established and has relied on is that this provision precludes multiple
convictions if the “offenses are merely degree variants of the core offense.” 37 Additionally, the court applied the
“primary evil” test, which focuses on whether the offenses are designed to combat the same evil. 38 In Valdes v.
State,39 the Court abandoned these tests in favor of a simpler one. According to the new test “the only offenses
that fall under subsection (4)(b)(2), are those that constitute different degrees of the same offense, as explicitly
set forth in the relevant statutory sections.”40

The Valdes41 decision has had little apparent impact on death cases involving vehicles. Before Valdes,42 the
Court took the position that Section 775.021(4)(b) did not change the rule that there can be only one
conviction for one death in a DUI Manslaughter and vehicular homicide case. 43 Additionally, Justice Grimes
concurring in Goodwin,44 expressed the view that “the Legislature could not have intended that a defendant
could be convicted of two crimes of homicide for killing a single person.” The Supreme Court has not
addressed this issue since Valdes45 and district courts46 have recognized that it did not change the rule expressed
in Houser47 barring multiple convictions based on one death.

Both before and after Valdes48 the courts have considered the impact of double jeopardy in a variety of single
death or injury cases. Convictions for both driving with an unlawful blood alcohol level (DUBAL)
manslaughter and vehicular homicide based on one death are impermissible because “the two offenses … are
aggravated forms of a single underlying offense distinguished only by degree factors.” 49 Similarly, there cannot
be convictions for both DUI Manslaughter and driving on a suspended license causing death, based on one
fatality.50 And there cannot be convictions for DUI with serious bodily and driving without a valid license with
serious bodily injury51 or driving with a suspended license with serious bodily injury. 52 However, there can be
convictions for both DUI Manslaughter and driving on a suspended license. 53 There can also be convictions for
both DUI with serious bodily injury and driving with a suspended license54 or without a valid license.55

Recently, in Anguille v. State,56 the court ruled that the defendant could be convicted of both DUI with serious
bodily injury and reckless driving with seriously bodily based on an accident involving one victim. But in the
same case, the court concluded that the defendant could not be convicted of both DUI with serious bodily injury
and DUI with property damage to the same victim because they are “degrees of the same offense as provided by
statute.”57

Vehicular death charges joined with leaving the scene cases involving a single death have been treated
differently. In Lawrence v. State,58 the court upheld convictions on both DUI Manslaughter and leaving the
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scene of an accident resulting in death. The court recognized three factors distinguishing these kinds of cases
from other cases involving multiple offenses causing a single death. First, leaving the scene is not a homicide
charge; rather, it is a “subsequent traffic felony.” 59 Second, unlike other cases involving multiple offenses
causing a single death, aggravated leaving the scene charges do not require proof of causation, but only that the
accident resulted in death.60 Finally, authorities the defense typically relies on involve two simultaneous
offenses in a single act; whereas, in leaving the scene cases, there are two separate acts that occur sequentially
—the defendant operates a vehicle while intoxicated and causes death followed by leaving the scene with
knowledge or cause to know of the death.61

The application of the rule in Lawrence62 is different where the leaving the scene is relied on as a basis for
enhancing the degree of the vehicular death charge. In such cases, the district courts consistently find that
double jeopardy principles permit conviction on only the homicide charge. 63 On the other hand, if leaving the
scene is not grounds for enhancing the vehicular death charge, the district courts follow Lawrence64 and uphold
convictions on both charges.65

There is a split as to the application of double jeopardy principles to cases involving homicide charges based on
motor vehicle accidents and fleeing and eluding arising out of the same accident. In McKinney v. State,66 the
defendant stole a vehicle and engaged in a high speed chase causing a fatal accident. The defendant was
charged with third degree murder, which is a felony murder charge, and fleeing and eluding causing death. The
fleeing and eluding was the underlying felony for the third degree murder. On appeal, the court ruled that the
defendant could be convicted of both charges because the fleeing charge was not a homicide offense and such a
charge could result in a conviction without proof of causation. 67 In Linton v. State,68 the court disagreed with
McKinney69 and ruled that a charge of fleeing and eluding an officer cannot be enhanced based on the same
death that results in a conviction for first degree felony murder by motor vehicle.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Janos v. State, 763 So. 2d 1094 (Fla. 4th DCA 1999), review denied, 767 So. 2d 461 (Fla. 2000). See
also Sierra v. State, 956 So. 2d 1266 (Fla. 4th DCA 2007).
2
McManama v. State, 816 So. 2d 781 (Fla. 2d DCA 2002).
3
Gil v. State, 118 So. 3d 787 (Fla. 2013).
4
Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979) (dealing with reckless driving conviction followed by
a vehicular homicide prosecution). See also Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L.
Ed. 2d 228 (1980); State v. Perez, 718 So. 2d 912 (Fla. 5th DCA 1998), review denied, 727 So. 2d 909
(Fla. 1999); Maloney v. State, 546 So. 2d 118 (Fla. 2d DCA 1989), cause dismissed, 554 So. 2d 1168
(Fla. 1989); State v. Barritt, 531 So. 2d 338 (Fla. 1988).
5
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972).
6
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972). See also Dawson v. State, 266 So. 2d 116 (Fla.
1st DCA 1972).
7
Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979).
8
State v. Perez, 718 So. 2d 912 (Fla. 5th DCA 1998), review denied, 729 So. 2d 909 (Fla. 1999).

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9
Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007).
10
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972).
11
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972).
12
Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007).
13
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972).
14
Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007).
15
Labovick v. State, 958 So. 2d 1065, 1068 (Fla. 4th DCA 2007).
16
State v. Witcher, 737 So. 2d 584 (Fla. 1st DCA 1999).
17
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972).
18
Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007).
19
State v. Witcher, 737 So. 2d 584 (Fla. 1st DCA 1999).
20
Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007).
21
Boutwell v. State, 631 So. 2d 1094 (Fla. 1994); Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA
1994); Hallman v. State, 492 So. 2d 1136 (Fla. 2d DCA 1986).
22
Murphy v. State, 723 So. 2d 313 (Fla. 1st DCA 1998), review denied, 735 So. 2d 1286 (Fla. 1999). See
also Joerin v. State, 22 So. 3d 157 (Fla. 2d DCA 2009); Cruz v. State, 956 So. 2d 1279, 1281 (Fla. 4th
DCA 2007) (high speed or wanton fleeing and reckless driving are not the same offense based on
Blockburger).
23
State v. Stiefel, 256 So. 2d 581 (Fla. 2d DCA 1972).
24
Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979).
25
Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007).
26
Colon v. State, 738 So. 2d 1023 (Fla. 4th DCA 1999); State v. Witcher, 737 So. 2d 584 (Fla. 1st DCA
1999); Werhan v. State, 673 So. 2d 550 (Fla. 1st DCA 1996); Deviney v. State, 579 So. 2d 373 (Fla.
4th DCA 1991); Satterfield v. State, 553 So. 2d 793 (Fla. 1st DCA 1989).
27
Ritchie v. State, 44 Fla. Supp. 2d 17 (Fla. 12th Cir.1990). See also Valdes v. State, 6 Fla. L. Weekly
Supp. 248 (Fla. 11th Cir. Ct. Jan. 29, 1999)Valdes v. State, 6 Fla. L. Weekly Supp. 248 (Fla. 11th Cir.
Ct. Jan. 29, 1999); State v. Atwell, 2 Fla. L. Weekly Supp. 346 (Fla. Broward Cty. Ct. June 16,
1994)State v. Atwell, 2 Fla. L. Weekly Supp. 346 (Fla. Broward Cty. Ct. June 16, 1994).
28
Kopson v. State, 125 So. 3d 169 (Fla. 4th DCA 2013).
29
Kopson v. State, 125 So. 3d 169 (Fla. 4th DCA 2013).
30
Kopson v. State, 125 So. 3d 169 (Fla. 4th DCA 2013).
31
Houser v. State, 474 So. 2d 1193 (Fla. 1985). See also Gonzalez v. State, 743 So. 2d 1151 (Fla. 3d

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DCA 1999).
32
Ivey v. State, 47 So. 3d 908 (Fla. 3d DCA 2010). See also Goodman v. State, 229 So.3d 366 (Fla. 4th
DCA 2017), review denied, 2018 WL 1256499 (Fla. Opinion Filed March 9, 2018); Miller v. State,
549 So. 2d 1106 (Fla. 2d DCA 1989), reversed on other grounds, 573 So. 2d 337 (Fla. 1991); State v.
Armstrong, 547 So. 2d 1293 (Fla. 5th DCA 1989).
33
Collins v. State, 605 So. 2d 568 (Fla. 5th DCA 1992).
34
Houser v. State, 474 So. 2d 1193, 1197 (Fla. 1985).
35
§ 775.021(4), Fla. Stat.
36
State v. Chapman, 625 So. 2d 838 (Fla. 1993). See also McCullough v. State, 230 So.3d 586 (Fla.
2d DCA 2017); Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002), decision vacated, 896 So. 2d
704 (Fla. 2005); Gonzalez v. State, 743 So. 2d 1151 (Fla. 3d DCA 1999); Edwards v. State, 639 So. 2d
203 (Fla. 2d DCA 1994).
37
See e.g. Gordon v. State, 780 So. 2d 17, 21 (Fla. 2001), receded from by Valdes v. State, 3 So. 3d
1067 (Fla. 2009).
38
Gordon v. State, 780 So. 2d 17, 21 (Fla. 2001), receded from by Valdes v. State, 3 So. 3d 1067
(Fla. 2009).
39
Valdes v. State, 3 So. 3d 1067 (Fla. 2009).
40
Valdes v. State, 3 So. 3d 1067, 1087 (Fla. 2009).
41
Valdes v. State, 3 So. 3d 1067 (Fla. 2009).
42
Valdes v. State, 3 So. 3d 1067 (Fla. 2009).
43
State v. Chapman, 625 So. 2d 838 (Fla. 1993).
44
Goodwin v. State, 634 So. 2d 157, 158 (Fla. 1994).
45
Valdes v. State, 3 So.3d 1067 (Fla. 2009).
46
Oakley v. State, 237 So.3d 396 (Fla. 4th DCA 2018); McCullough v. State, 230 So.3d 586 (Fla.
2d DCA 2017) (all three judges wrote; one was uncertain as to the impact of Valdes, but the others
expressly rejected the suggestion that Valdes changed the single homicide rule); Ivey v. State, 47 So.3d
908 (Fla. 3d DCA 2010).
47
Houser v. State, 474 So. 2d 1193 (Fla. 1985).
48
Valdes v. State, 3 So. 3d 1067 (Fla. 2009).
49
Goodwin v. State, 634 So. 2d 157 (Fla. 1994). See also State v. Anderson, 695 So. 2d 309 (Fla. 1997).
50
State v. Cooper, 634 So. 2d 1074 (Fla. 1994); Senteno v. State, 737 So. 2d 1120 (Fla. 2d DCA 1999).
See also Crusaw v. State, 195 So.3d 422 (Fla. 1st DCA 2016); Kopson v. State, 125 So. 3d 169 (Fla.
4th DCA 2013).

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§ 3:2.Prosecutions for multiple criminal traffic offenses..., 11 Fla. Prac., DUI...

51
Kelly v. State, 987 So.2d 1237 (Fla. 2d DCA 2008).
52
Marsh v. State, 2018 WL 1660225 (Fla. 2d DCA Opinion Filed April 6, 2018). But see Lott v. State,
74 So. 3d 556 (Fla. 5th DCA 2011) (“Based on the Valdes analysis, we conclude that convictions and
punishments for driving while license suspended (DWLS) causing serious bodily injury and reckless
driving causing serious bodily injury do not violate double jeopardy when both convictions arise out of a
single transaction.”).
53
State v. Cooper, 634 So. 2d 1074 (Fla. 1994). See also Carney v. State, 17 So. 3d 348 (Fla. 2d DCA
2009); Carvalho v. State, 932 So. 2d 644 (Fla. 4th DCA 2006); Thomas v. State, 837 So. 2d 443 (Fla.
4th DCA 2002); Senteno v. State, 737 So. 2d 1120 (Fla. 2d DCA 1999).
54
Marsh v. State, 2018 WL 1660225 (Fla. 2d DCA Opinion Filed April 6, 2018).
55
Kelly v. State, 987 So.2d 1237 (Fla. 2d DCA 2008).
56
Anguille v. State, 243 So.3d 410 (Fla. 4th DCA 2018).
57
Anguille v. State, 243 So.3d 410, 415 (Fla. 4th DCA 2018).
58
Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001), review denied, 821 So.2d 297 (Fla. 2002).
See also McCullough v. State, 230 So.3d 586 (Fla. 2d DCA 2017) (defendant could be convicted of
both vehicular homicide and leaving the scene of a crash with death because vehicular homicide requires
proof that the defendant caused the death whereas leaving the scene only requires proof that the crash
resulted in death); Stanley v. State, 57 So. 3d 944 (Fla. 4th DCA 2011), review denied, 71 So. 3d 117
(Fla. 2011) and cert. denied, 132 S. Ct. 1036, 181 L. Ed. 2d 763 (2012) (defendant could be convicted of
both leaving the scene of an accident resulting in death and first degree murder); Kelly v. State, 987
So. 2d 1237 (Fla. 2d DCA 2008) (defendant could be convicted of both DUI with serious bodily injury
and leaving the scene of an accident with injury).
59
Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001), review denied, 821 So.2d 297 (Fla. 2002).
60
Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001), review denied, 821 So.2d 297 (Fla. 2002).
61
Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001), review denied, 821 So.2d 297 (Fla. 2002).
62
Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001), review denied, 821 So.2d 297 (Fla. 2002).
63
Baron v. State, 125 So.3d 979 (Fla. 4th DCA 2013) (there was a double jeopardy violation where there
were “dual convictions and sentences on count two, leaving the scene of an accident with death and
count six, DUI manslaughter with leaving the scene of an accident.”); Haag v. State, 67 So. 3d 351 (Fla.
2d DCA 2011) (“[B]ecause Haag’s two convictions for leaving the scene of a crash involving injury
under section 316.027 are subsumed within the conviction for vehicular homicide/leaving the scene
under section 782.071(1)(b), double jeopardy principles require that the two convictions under
section 316.027 be reversed.”); Colon v. State, 53 So.3d 376 (Fla. 5th DCA 2011) (holding that the
prohibition against double jeopardy does not allow a conviction for both vehicular homicide enhanced
based on failure to render aid and a conviction for leaving the scene of an accident with death based on
the same incident); Ivey v. State, 47 So.3d 908 (Fla. 3d DCA 2010) (holding that the prohibition against
double jeopardy barred conviction for leaving the scene of a fatal accident where the defendant’s DUI
Manslaughter conviction was increased to a first degree felony based on the same leaving the scene).
64
Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001), review denied, 821 So.2d 297 (Fla. 2002).

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“second-degree DUI manslaughter, an unmodified homicide offense, and leaving the scene of an
accident that resulted in death, a non-homicide traffic offense.”); Stanley v. State, 57 So. 3d 944 (Fla.
4th DCA 2011), review denied, 71 So. 3d 117 (Fla. 2011) and cert. denied, 132 S. Ct. 1036, 181 L. Ed.
2d 763 (2012) (defendant could be convicted of both leaving the scene of an accident resulting in death
and first degree murder); Kelly v. State, 987 So. 2d 1237 (Fla. 2d DCA 2008) (defendant could be
convicted of both DUI with serious bodily injury and leaving the scene of an accident with injury).
66
McKinney v. State, 51 So. 3d 645 (Fla. 1st DCA 2011), review denied, 95 So. 3d 213 (Fla. 2012).
67
McKinney v. State, 51 So. 3d 645 (Fla. 1st DCA 2011), review denied, 95 So. 3d 213 (Fla. 2012).
68
Linton v. State, 212 So.3d 1100 (Fla. 5th DCA 2017), review dismissed, 2018 WL 2316542 (Fla.
Opinion Filed May 21, 2018) (defendant hi-jacked a car, but forced the passenger to stay in the vehicle,
after a high speed chance the defendant lost control of the car and it rolled over, causing the death of the
passenger; thus, resulting in the felony murder and fleeing charges). See also McCullough v. State,
230 So.3d 586 (Fla. 2d DCA 2017) (agrees with Linton, concluding: “the McKinney court erred because
it tried to import the alternative conduct analysis of section 775.021(4)(a) into its independent
analysis of the single homicide rule. But to hold that the alternative conduct analysis of the statutory
Blockburger test also applies to the single homicide rule is the same as holding that there is no single
homicide rule at all.”).
69
McKinney v. State, 51 So. 3d 645 (Fla. 1st DCA 2011), review denied, 95 So. 3d 213 (Fla. 2012).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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11 Fla. Prac., DUI Handbook § 3:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:3. Prosecution for multiple DUI offenses based on the same episode or transaction involving injury or
damage to multiple persons or items of property

West’s Key Number Digest

• West’s Key Number Digest, Double Jeopardy 6, 28, 142, 161 to 165, 182

Legal Encyclopedias
• C.J.S., Criminal Law §§ 208, 251, 255, 260, 274, 1464

Some drivers have very bad luck. They may have no prior DUI charges and suddenly be accused of several
different DUI offenses as a result of one episode. This can happen where an accident results in injury to several
people and property damage to several cars. The State may allege a separate crime for each victim. As
explained, the validity of such charges is determined by legislative intent pursuant to § 775.021(4), Fla. Stat.

For years district court rulings conflicted on whether the constitutions and statutes permit multiple convictions
under such circumstances. One decision upheld two convictions and sentences for DUI with serious bodily
injury based on injury to two people in one accident. 1 Similarly, the court upheld four convictions for DUI with
property damage where four vehicles were involved in one accident.2

The Florida Supreme Court cast doubt on these decisions in Boutwell v. State.3 In that case, the Court ruled that
the defendant could be convicted of only one charge of driving on a suspended license causing an accident
resulting in serious injuries in violation of § 322.34(3), Fla. Stat., despite the fact that four people suffered
serious bodily injury in the accident. 4 However, a little later, in Melbourne v. State,5 the Court ruled that a
defendant may be properly convicted of multiple DUI offenses arising out of one event where there are multiple
victims. Florida courts have subsequently applied this ruling.6

The Supreme Court’s decision in Melbourne v. State7 should be considered carefully to avoid confusion. The
Court explained the difference between Boutwell,8 involving driving with a suspended license causing an
accident with multiple deaths or injuries, and Melbourne, involving DUI causing an accident with multiple
deaths or injuries. In the former, multiple prosecutions were impermissible because the link between driving
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§ 3:3.Prosecution for multiple DUI offenses based on the..., 11 Fla. Prac., DUI...

with a suspended license and the injury is indirect and the driving with a suspended license did not in any way
cause the defendant’s aberrant driving. In the latter, the link between DUI and the injury was direct and the DUI
caused the defendant’s unsafe driving. The distinction is further illustrated by cases holding that there can only
be one conviction for leaving the scene of an accident resulting in death or injury no matter how many people
are killed or injured in the accident. 9 The absence of a link between the statutory violation of leaving the scene
and the death and injuries, bars multiple convictions just as in Boutwell.10

Simple DUI is treated differently. Melbourne11 and subsequent district court cases hold that multiple convictions
for simple DUI based on multiple victims are impermissible. The court considered this situation where the
defendant was charged with two DUIs with serious bodily injury based on two victims, but was convicted of
only the lesser included DUI on each count. The appellate court concluded that there could be only one simple
DUI conviction for the entire episode. 12 Similarly, the court applied the same rationale to find a double jeopardy
violation where there were three victims, but the state opted to charge the defendant with three identical counts
of felony DUI based on prior DUI convictions.13

As the previous discussion suggests, legislative intent plays an extremely important role in determining whether
the defendant can be convicted of more than one charge based on one episode. That is true even where there are
multiple victims of one bad act. In State v. Mitchell,14 the court considered whether one continuous episode of
fleeing and eluding can result in multiple charges based on the number of officers. The court ruled that the
Legislature intended to allow multiple charges in such cases. However, in Innis v. State,15 the court reached a
different conclusion where two officers were in one vehicle during a chase rather than being in multiple
vehicles as in Mitchell.16 In Innis,17 the court concluded that there was no legislative intent to allow separate
charges where two officers were in one car.

In Mitchell,18 the court relied on the Grappin/Watts19 “a/any test.” That test provides:
when a question arises regarding the unit of prosecution intended by the legislature in a particular
criminal statute, use of the article “a” will result in the conclusion that the legislature clearly
intended that the commission of multiple proscribed acts in the course of a single episode be
prosecuted as discrete offenses; whereas use of the article “any” will result in the conclusion that
the statute is ambiguous as to legislative intent and, as a result, in application of the rule of lenity
to prohibit more than one prosecution.20

However, in Bautista v. State,21 the Florida Supreme Court clarified the nature of the “a/any test.” The Court
reconciled that test with the ruling in Melbourne v. State,22 where the Court ruled that multiple convictions for
multiple deaths arising out of one accident, did not violate the double jeopardy clause. The Melbourne Court
reached that conclusion without comment on the “a/any test,” which on its face would not permit multiple
convictions because the statute refers to “[t]he death of any human being.”23

In Bautista,24 the Court concluded that the “a/any” test is not inconsistent with its ruling in Melbourne,25 and
multiple convictions for multiple deaths in DUI Manslaughter cases are permissible. In reaching that
conclusion, the Court explained that the “a/any test” is not “a simple syntactical rule” to be applied “in isolation
from the context in which the test arose.” 26 Instead, it is one tool to be used with other rules of statutory
construction to determine “the Legislature’s intended unit of prosecution.” 27 The Court went on to say:
Grappin and its progeny should not be interpreted to suggest that the intended unit of prosecution
is automatically rendered ambiguous whenever a statute uses the word “any.” In the DUI
manslaughter statute, the intent of the Legislature is clear. And since our purpose in construing a
statutory provision is to give effect to legislative intent, the unit of prosecution in DUI
manslaughter cases must be the number of victims killed—not the number of DUI traffic
violations. The a/any test should not be applied to create ambiguity where none exists and then to
reach a result contrary to clear legislative intent.28

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pulaski v. State, 540 So. 2d 193 (Fla. 2d DCA 1989), review denied, 547 So. 2d 1210 (Fla.
1989). See also Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991), decision quashed on other
grounds, 600 So. 2d 457 (Fla. 1992) and (rejected by, Boutwell v. State, 625 So. 2d 1215 (Fla. 4th
DCA 1993)) (upholding separate convictions and sentences for four counts of DUI involving serious
bodily injury based on injury to four people in one accident); Onesky v. State, 544 So. 2d 1048 (Fla. 2d
DCA 1989).
2
State v. Wright, 546 So. 2d 798 (Fla. 1st DCA 1989).
3
Boutwell v. State, 631 So. 2d 1094 (Fla. 1994). Prior to Boutwell, one court ruled that the
defendant’s suspension could not be enhanced based on one prior conviction and three different DUI
charges arising in one accident. The legislative “scheme is for increased terms of suspension based on
the number of times the defendant drives under the influence, not based on the happenstance
consequences of one episode of driving under the influence.” Jackson v. State, 634 So. 2d 1103,
1106 (Fla. 4th DCA 1994). See also Whipple v. State, 789 So. 2d 1132 (Fla. 4th DCA 2001),
abrogated by, Stoletz v. State, 875 So. 2d 572 (Fla. 2004) and disapproved of on other grounds by,
Bolware v. State, 995 So. 2d 268 (Fla. 2008); State v. Lainez, 771 So. 2d 617 (Fla. 4th DCA 2000)
(court relied on Jackson in support of the holding that a charge cannot be raised to a felony based on
prior convictions if all those convictions arose out of one accident); Byrd v. State, 789 So. 2d 1147 (Fla.
4th DCA 2001) review denied, 805 So. 2d 809 (Fla. 2001) (follows Lainez). But in Test v. State, 11 Fla.
L. Weekly Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003)Lainez). But in Test v. State, 11 Fla. L. Weekly
Supp. 80 (Fla. 6th Cir. Ct. June 19, 2003), a three-judge panel held that Jackson did not bar an increased
licensed revocation based on two DUI offenses committed at least five minutes and one mile apart.
4
Boutwell v. State, 631 So. 2d 1094, 1095 (Fla. 1994).
5
Melbourne v. State, 679 So. 2d 759 (Fla. 1996) (holding that multiple convictions for DUI/serious
bodily injury are valid where there were several victims of an accident). See also Lamoureux v. State,
679 So. 2d 1184 (Fla. 1996); State v. Salazar, 679 So. 2d 1183 (Fla. 1996); Wood v. State, 771 So. 2d
612 (Fla. 4th DCA 2000).
6
Colon v. State, 738 So. 2d 1023 (Fla. 4th DCA 1999) (upholding convictions for two counts DUI/serious
bodily and three counts DUI/injury to property or person); State v. Miller, 700 So. 2d 1253 (Fla. 1st
DCA 1997) (finding that multiple convictions for DUI with injuries or property damage are valid where
there are several people injured and two items of property damaged); Hertzschuch v. State, 687 So. 2d
52 (Fla. 3d DCA 1997) (holding that multiple convictions for DUI with property damage are valid
where more than one item of property was damaged in an accident). See also Duckett v. State, 686 So.
2d 662 (Fla. 2d DCA 1996) (where defendant hit a disabled bus, killing five people and injuring several
others, multiple convictions were permissible); State v. Knopp, 11 Fla. L. Weekly Supp. 367 (Fla.
Brevard Cty. Ct. Jan. 9, 2004)State v. Knopp, 11 Fla. L. Weekly Supp. 367 (Fla. Brevard Cty. Ct. Jan. 9,
2004) (double jeopardy does not bar multiple misdemeanor convictions for nonserious injury or property
damage).
7
Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
8
Boutwell v. State, 631 So. 2d 1094 (Fla. 1994).

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9
Tellier v. State, 754 So. 2d 88 (Fla. 5th DCA 2000) (State conceded and court held that convictions for
both leaving the scene of an accident with injury and leaving the scene of an accident with death arising
out of one accident violated the Double Jeopardy Clause); Pierce v. State, 744 So. 2d 1193 (Fla. 4th
DCA 1999) (holding that double jeopardy bars convictions for both vehicular homicide/leaving the
scene and leaving the scene of an accident resulting in injury based on one accident). See also Baron v.
State, 125 So. 3d 979 (Fla. 4th DCA 2013) (double jeopardy barred conviction for both leaving the
scene of an accident resulting in death and DUI Manslaughter based on the same death); Haag v. State,
67 So. 3d 351 (Fla. 2d DCA 2011) (where an accident resulted in a death and injury to two other
individuals, defendant could only be convicted of vehicular homicide/leaving the scene; double jeopardy
barred two more convictions for leaving the scene of a crash involving injury); Goldman v. State, 918
So. 2d 442 (Fla. 4th DCA 2006) (conviction for leaving the scene of an accident causing injury was
barred where the defendant was also convicted of DUI manslaughter/leaving the scene of an accident
with death).
10
Boutwell v. State, 631 So. 2d 1094 (Fla. 1994).
11
Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
12
Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA 1994). See also Aguilar v. State, 239 So.3d 108, 113
(Fla. 3d DCA 2018); Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007); State v. Witcher, 737 So.
2d 584 (Fla. 1st DCA 1999).
13
Hosford v. State, 682 So. 2d 218 (Fla. 5th DCA 1996).
14
State v. Mitchell, 719 So. 2d 1245 (Fla. 1st DCA 1998), review denied, 729 So. 2d 393 (Fla. 1999).
See also Cruz v. State, 956 So. 2d 1279, 1280 (Fla. 4th DCA 2007).
15
Innis v. State, 893 So. 2d 696 (Fla. 5th DCA 2005), review dismissed, 989 So. 2d 1184 (Fla. 2008).
16
State v. Mitchell, 719 So. 2d 1245 (Fla. 1st DCA 1998), review denied, 729 So. 2d 393 (Fla. 1999).
See also Cruz v. State, 956 So. 2d 1279, 1280 (Fla. 4th DCA 2007).
17
Innis v. State, 893 So. 2d 696 (Fla. 5th DCA 2005), review dismissed, 989 So. 2d 1184 (Fla. 2008).
18
State v. Mitchell, 719 So. 2d 1245 (Fla. 1st DCA 1998), review denied, 729 So. 2d 393 (Fla. 1999).
19
Based on Grappin v. State, 450 So. 2d 480 (Fla. 1984) and State v. Watts, 462 So. 2d 813 (Fla.
1985). The Florida Supreme Court affirmed the test established in Grappin and Watts in Wallace v.
State, 724 So. 2d 1176 (Fla. 1998), and based on that test, ruled that one incident of resisting an officer
could be the basis for only one charge, regardless of the number of officers.
20
State v. Mitchell, 719 So. 2d 1245, 1247 (Fla. 1st DCA 1998), review denied, 729 So. 2d 393 (Fla.
1999).
21
Bautista v. State, 863 So. 2d 1180 (Fla. 2003).
22
Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
23
Bautista v. State, 863 So. 2d 1180, 1182 (Fla. 2003) (quoting § 316.193(3)(c)(3), Fla. Stat.).
24
Bautista v. State, 863 So. 2d 1180 (Fla. 2003).
25
Melbourne v. State, 679 So. 2d 759 (Fla. 1996).

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26
Bautista v. State, 863 So. 2d 1180, 1187 (Fla. 2003).
27
Bautista v. State, 863 So. 2d 1180, 1188 (Fla. 2003). See also McKnight v. State, 906 So. 2d 368
(Fla. 5th DCA 2005) (court applied “the allowable unit of prosecution” test to hold that the double
jeopardy clause does not bar multiple convictions of first-degree vehicular homicide for the death of
each victim involved in a single accident caused by Defendant who subsequently fled the accident scene
and failed to render aid to the victims); Bryan v. State, 865 So. 2d 677 (Fla. 4th DCA 2004) (court
applied this test to aggravated assault statute to hold that intentionally driving a vehicle towards another
vehicle in which two officers were riding constituted two offenses).
28
Bautista v. State, 863 So. 2d 1180, 1188 (Fla. 2003).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 3:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:4. Effect of other traffic offenses, civil proceedings, license suspension proceedings, and detention on DUI
prosecutions

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332
• West’s Key Number Digest, Double Jeopardy 6, 142

Legal Encyclopedias
• C.J.S., Criminal Law §§ 208, 255, 260, 1464
• C.J.S., Motor Vehicles §§ 1382 to 1394

In three situations, defendants have argued that prior traffic charges, administrative proceedings, or detention of
the accused affects a subsequent DUI prosecution. First, defendants have claimed that a civil infraction bars a
subsequent DUI prosecution based in part on the same conduct. Second, defendants have maintained that
pretrial driving privilege suspensions for refusal to submit to a chemical test or for having a blood or breath
alcohol level above the legal limit, 1 bar a subsequent DUI prosecution based on the same event. Third,
defendants have argued that statutory pretrial detention and release requirements bar subsequent DUI
punishment based on the same episode.

The first argument is grounded on two United States Supreme Court decisions: United States v. Halper2 and
Grady v. Corbin.3 In Halper, the Court held, pursuant to the double jeopardy clause, that a criminal conviction
bars a subsequent punitive civil penalty based on the same conduct. The civil penalty in that case was punitive
because it had no relationship to the loss of the government.

In Grady, the Court held, pursuant to the double jeopardy clause, that a conviction bars a subsequent
prosecution for a more serious offense, where the state relies on conduct which was the basis for the first charge
to prove the more serious charge. The Grady decision was overruled by the United States Supreme Court in
United States v. Dixon.4 The decision in Dixon is also controlling in Florida; 5 therefore, the same conduct
principle does not apply in this State.

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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

The argument that a civil infraction bars a subsequent DUI prosecution based in part on the same conduct has
been thoroughly discredited. Such an interpretation of Grady has been rejected and Grady itself is no longer
valid.6 The courts have also concluded that Halper does not justify the conclusion that civil infraction fines bar
subsequent DUI prosecutions because the fines are not punishment. They are meant only to reduce accidents by
encouraging safe driving. Such fines are not excessive or disproportionate to the conduct. 7 One court has also
considered the effect of non-DUI criminal traffic convictions on DUI prosecutions. 8 The court ruled that a
conviction on a plea of guilty to fleeing and attempting to elude a police officer and driving with a suspended
license, does not bar a subsequent prosecution for felony DUI arising out of the same episode, based on three
prior DUI convictions.9

The second argument is based on Halper10 and its progeny. Defendants argue that the pretrial suspension is
punishment; therefore, pursuant to the ruling in Halper, it bars a subsequent DUI prosecution. This contention
has been consistently rejected because such suspensions are not punitive, but rather merely administrative
remedies. That was the view expressed by the Florida Supreme Court in Smith v. City of Gainesville11 in dealing
with a suspension similar to the pretrial suspensions of today. Florida courts have repeatedly relied on that
principle in ruling on similar issues.12

Such pretrial suspensions have been characterized as both generally and individually remedial. Generally, they
apply to the well being of the public because they remove dangerous drivers from the roads. Individually, they
protect intoxicated drivers from themselves. “[I]t is no more punitive than denying a person who is legally blind
a driver’s license. Both will live longer and healthier lives if they do not drive.” 13

The third argument is actually grounded on the Ward14 analysis readopted in Hudson15 to replace the Halper16
analysis. Defendants have argued that the pretrial detention requirements set forth in § 316.193(9), Fla.
Stat.17 constitute punishment and bar subsequent DUI convictions or sentence. One trial judge 18 agreed with the
defense position and did a good job explaining and applying the Ward19 analysis, but that decision was
reversed20 based on the district court’s ruling in State v. Atkinson.21 In Atkinson, the court concluded: “The
practice of detaining an intoxicated driver is to protect that driver and the community from an unreasonable
danger imposed by drunken driving. It is a situation analogous to the detention of persons under quarantine
orders wherein a threat is posed to the public health and safety.”22

Subsequently, the trial judge in Luby found that § 316.193(9), Fla. Stat. resulted in “denial of the right to
immediate pretrial release on reasonable conditions.”23 On appeal, the court rejected this position and stated:
[A]n impaired or inebriated driver who is arrested and temporarily detained pursuant to the
provisions of Section 316.193(9), of the Florida Statutes is detained for the purposes of public
safety, thus the entitlement to bail, bond, or release on recognizance does not attach until such
time as the arrestee is no longer a public hazard or threat to public safety in accordance with the
provisions of the statute. . . . The State has an overwhelming interest in the protection of the
members of the community from the dangers presented by the too-early release of DUI arrestees. 24

Another reason for rejecting Halper as a basis for any of the defense arguments, is that the test in Halper was
abrogated by Hudson v. United States.25 The Court returned to the analysis in United States v. Ward.26 In Ward,
the Court recognized a two step process for determining whether the questioned sanction is civil or criminal.
First, the court must determine whether the Legislature intended that the sanction be remedial (civil) or punitive
(criminal). If punitive, double jeopardy applies. Second, if intended to be remedial, the court must determine
whether on its face the action is so punitive in purpose or effect that it negates the intent that it be remedial. 27

An issue related to pretrial detention is whether certain conditions of pretrial release might bar prosecution on
the charge on which the defendant has been released. In State v. Price,28 a three-judge circuit court appellate
panel affirmed the decision of two trial courts holding that requiring the accused to register for screening with a
safety council, comply with the council’s recommendations, and attend a DUI driving school constituted

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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

penalties barring prosecution on the DUI under the Double Jeopardy Clause. The appellate court found that
there was no abuse of discretion. The court did not discuss any of the cases or principles mentioned above.

The Second District Court of Appeals effectively disapproved the ruling in Price29 in State v. Torres30 and
Parent v. State.31 In Torres, the court ruled that a requirement imposed at first appearance as a condition of
pretrial release that the accused undergo evaluation and participate in recommended counseling, did not bar
subsequent prosecution based on the Double Jeopardy Clause. The court reached that conclusion for two
reasons. First, jeopardy had not attached because no jury was sworn in a jury trial and no judge began to hear
evidence in a bench trial. Second, the pretrial release condition to submit to an evaluation and attend certain sex
offender counseling sessions, did not constitute punishment within the meaning of the Double Jeopardy
Clause.32 The court found that conditional pretrial release was remedial and not punitive. Furthermore, the court
specifically disapproved the reasoning in Price.33

The Parent34 case involved a DUI and other charges in county court. At first appearance, the judge imposed
these special conditions of release: telephone reporting, no alcohol or drug consumption, random urinalysis, and
attendance at three meetings of a substance abuse program per week. Based on the decision in Torres,35 the
court ruled that these conditions did not constitute punishment for purposes of the Double Jeopardy Clause.

The courts have considered the application of double jeopardy principles to two other situations that differ
significantly from those previously discussed. In those cases, rather than consider the impact of a particular
proceeding on subsequent criminal prosecutions, the courts examined the impact of criminal prosecutions on
subsequent noncriminal actions. The first such situation involved the impact of criminal prosecutions on
subsequent civil restitution proceedings. The second involved the impact of DUI prosecutions on
administratively imposed interlock usage.

The first case36 involved a civil restitution lien. There the defendant argued, pursuant to Halper,37 that a criminal
conviction barred subsequent imposition of such a lien. The court ruled that the lien was intended to provide an
accelerated method of getting restitution to crime victims and it was not barred by the Double Jeopardy
Clause.38

The second situation dealt with an administrative agency requiring use of a statutorily mandated ignition
interlock device where the court failed to require use of the device. In Doyon v. Dep’t of Highway Safety &
Motor Vehicles,39 the trial judge failed to impose the requirement, the State did not seek to correct the sentence,
the defendant served his sentence, and then the Department required installation of the device. The court ruled
that this administrative action was punishment and violated the Double Jeopardy Clause. Once the time for
filing a motion to correct the sentence passed, the sentence was final and could not be corrected by the addition
of new requirements. In contrast, in Bradsheer v. Dep’t of Highway Safety & Motor Vehicles,40 the court ruled
there could be no double jeopardy violation because the Department had no authority to impose criminal
sanctions; therefore, the order requiring the interlock could not be considered part of the criminal sanctions.

In Langford v. Dep’t of Highway Safety & Motor Vehicles,41 the court ruled that the Department properly
required that the defendant use an ignition interlock device as a condition of license reinstatement because the
defendant had been convicted of his third DUI. As with administrative license suspensions, the court found that
this was for public protection and not punishment. This ruling appears to be inconsistent with the district court’s
decision in Doyon.42 However, the Legislature amended the law to authorize or mandate the Department to
require use of the interlock device as a condition of license reinstatement. 43 That provision is explained in detail
in §§ 13:1 et seq.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

1
§ 322.2615, Fla. Stat.
2
U.S. v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), abrogated by Hudson v.
U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997).
3
Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), overruled by U.S. v.
Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
4
U.S. v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
5
Duff v. State, 942 So. 2d 926, 932 (Fla. 5th DCA 2006), review denied, 956 So. 2d 457 (Fla. 2007). See
also State v. Johnson, 676 So. 2d 408, 410 (Fla. 1996); Lott v. State, 74 So. 3d 556 (Fla. 5th DCA
2011).
6
State v. Knowles, 625 So. 2d 88 (Fla. 5th DCA 1993). See also State v. Mathews, 654 So. 2d 291
(Fla. 3d DCA 1995); State v. Myers, 644 So. 2d 535 (Fla. 4th DCA 1994), review denied, 654 So. 2d
918 (Fla. 1995); State v. Murray, 644 So. 2d 533 (Fla. 4th DCA 1994); State v. Dean, 637 So. 2d 355
(Fla. 1st DCA 1994); State v. Coupal, 626 So. 2d 1013 (Fla. 2d DCA 1993).
7
State v. Knowles, 625 So. 2d 88 (Fla. 5th DCA 1993).
8
State v. Gregory, 648 So. 2d 1220 (Fla. 2d DCA 1995).
9
State v. Gregory, 648 So. 2d 1220 (Fla. 2d DCA 1995).
10
U.S. v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), abrogated by Hudson v.
U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997).
11
Smith v. City of Gainesville, 93 So. 2d 105 (Fla. 1957). See also Bolware v. State, 995 So. 2d
268, 274–75 (Fla. 2008) (license revocation was a collateral consequence of a plea and the court was not
required to advise the defendant; however, it was a sufficiently significant impact that the Court directed
the rule be changed to require that the defendant be advised of the revocation); State v. McKinnon, 16
Fla. L. Weekly Supp. 329 (Fla. Duval Cty. Ct. Feb. 19, 2009)State v. McKinnon, 16 Fla. L. Weekly
Supp. 329 (Fla. Duval Cty. Ct. Feb. 19, 2009); State v. St. George, 16 Fla. L. Weekly Supp. 324 (Fla.
Duval Cty. Ct. Jan. 29, 2009)State v. St. George, 16 Fla. L. Weekly Supp. 324 (Fla. Duval Cty. Ct. Jan.
29, 2009).
12
Department of Highway Safety and Motor Vehicles v. Crane, 10 So. 3d 182 (Fla. 1st DCA 2009);
Lescher v. Department of Highway Safety and Motor Vehicles, 946 So. 2d 1140 (Fla. 4th DCA 2006),
decision approved, 985 So. 2d 1078 (Fla. 2008); Department Of Highway Safety and Motor Vehicles
v. Brandenburg, 891 So. 2d 1071 (Fla. 5th DCA 2004); Department of Highway Safety and Motor
Vehicles v. Gordon, 860 So. 2d 469, 471 (Fla. 1st DCA 2003), review denied, 872 So. 2d 899 (Fla.
2004); State v. Atkinson, 755 So. 2d 842 (Fla. 5th DCA 2000); State v. Murray, 644 So. 2d 533 (Fla. 4th
DCA 1994); Gomez v. State, 621 So. 2d 578 (Fla. 3d DCA 1993); Freeman v. State, 611 So. 2d
1260 (Fla. 2d DCA 1992), review denied, 623 So. 2d 493 (Fla.), cert. denied, 510 U.S. 957, 114 S. Ct.
415, 126 L. Ed. 2d 361 (1993). See also Bernsee v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla.
L. Weekly Supp. 925 (Fla. 6th Cir. Ct. July 11, 2007)Bernsee v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 925 (Fla. 6th Cir. Ct. July 11, 2007); Donohue v. State, 10 Fla. L.
Weekly Supp. 300 (Fla. 15th Cir. Ct. February 26, 2003)Donohue v. State, 10 Fla. L. Weekly Supp. 300
(Fla. 15th Cir. Ct. February 26, 2003); Lowe v. State, 10 Fla. L. Weekly Supp. 235 (Fla. 15th Cir. Ct.
February 10, 2003)Lowe v. State, 10 Fla. L. Weekly Supp. 235 (Fla. 15th Cir. Ct. February 10, 2003);
State v. Erving, 6 Fla. L. Weekly Supp. 264 (Fla. 20th Cir. Ct. Sept. 28, 1999)State v. Erving, 6 Fla. L.
Weekly Supp. 264 (Fla. 20th Cir. Ct. Sept. 28, 1999); Bixler v. State, 6 Fla. L. Weekly Supp. 187 (Fla.
2d Cir. Ct. Feb. 9, 1999)Bixler v. State, 6 Fla. L. Weekly Supp. 187 (Fla. 2d Cir. Ct. Feb. 9, 1999).

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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

13
Davidson v. MacKinnon, 656 So. 2d 223, 225 (Fla. 5th DCA 1995), review denied, 662 So. 2d 931 (Fla.
1995). See also Colby v. State, 675 So. 2d 1025 (Fla. 4th DCA 1996); Stabler v. State, 668 So. 2d 1034
(Fla. 1st DCA 1996).
14
U.S. v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742, 14 Env’t. Rep. Cas. (BNA) 1673, 10
Envtl. L. Rep. 20477 (1980).
15
Hudson v. U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997).
16
U.S. v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), abrogated by Hudson v.
U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997).
17
§ 316.193(9), Fla. Stat., provides:
A person who is arrested for a violation of this section may not be released from custody:
(a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance
set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that
his or her normal faculties are impaired;
(b) Until the person’s blood-alcohol level or breath-alcohol level is less than 0.05; or
(c) Until 8 hours have elapsed from the time the person was arrested.
18
State v. Luby, 7 Fla. L. Weekly Supp. 127 (Fla. Hernando Cty. Ct. Nov. 3, 1999)State v. Luby, 7 Fla. L.
Weekly Supp. 127 (Fla. Hernando Cty. Ct. Nov. 3, 1999), reversed, 8 Fla. L. Weekly Supp. 473 (Fla. 5th
Cir. Ct. April 26, 2001)8 Fla. L. Weekly Supp. 473 (Fla. 5th Cir. Ct. April 26, 2001). Although the trial
court opinion was reversed, it remains in the book because it includes a worthwhile analysis that might
be useful in some other way.
19
U.S. v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742, 14 Env’t. Rep. Cas. (BNA) 1673, 10
Envtl. L. Rep. 20477 (1980).
20
State v. Luby, 8 Fla. L. Weekly Supp. 473 (Fla. 5th Cir. Ct. April 26, 2001) State v. Luby, 8 Fla. L.
Weekly Supp. 473 (Fla. 5th Cir. Ct. April 26, 2001).
21
State v. Atkinson, 755 So. 2d 842 (Fla. 5th DCA 2000).
22
State v. Atkinson, 755 So. 2d 842, 844 (Fla. 5th DCA 2000). See also Holland v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 23 (Fla. 9th Cir. Ct. June 21, 2005) Holland v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 23 (Fla. 9th Cir. Ct. June 21, 2005) ;
Franklin v. State, 8 Fla. L. Weekly Supp. 269 (Fla. 5th Cir. Ct. Jan. 2, 2001)Franklin v. State, 8 Fla. L.
Weekly Supp. 269 (Fla. 5th Cir. Ct. Jan. 2, 2001); Bixler v. State, 6 Fla. L. Weekly Supp. 187, 188 (Fla.
2d Cir. Ct. Feb. 9, 1999)Bixler v. State, 6 Fla. L. Weekly Supp. 187, 188 (Fla. 2d Cir. Ct. Feb. 9, 1999) ;
State v. Wilson, 7 Fla. L. Weekly Supp. 465 (Fla. Leon Cty. Ct. March 28, 2000)State v. Wilson, 7 Fla.
L. Weekly Supp. 465 (Fla. Leon Cty. Ct. March 28, 2000).
23
State v. Farley, 10 Fla. L. Weekly Supp. 6 (Fla. 5th Cir. Ct. October 21, 2002) State v. Farley, 10 Fla. L.
Weekly Supp. 6 (Fla. 5th Cir. Ct. October 21, 2002).
24
State v. Farley, 10 Fla. L. Weekly Supp. 6 (Fla. 5th Cir. Ct. October 21, 2002) State v. Farley, 10 Fla. L.
Weekly Supp. 6 (Fla. 5th Cir. Ct. October 21, 2002).
25
Hudson v. U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997). See
also State v. Jones, 230 So.3d 22 (Fla. 4th DCA 2017), review denied, 2018 WL 1224621 (Fla. Opinion
Filed March 9, 2018); State v. Converse, 78 So. 3d 78 (Fla. 5th DCA 2012) (both Jones and
Converse are good examples of the application of federal law relating to prison discipline as a potential
bar to criminal prosecution); Lescher v. Florida Dept. of Highway Safety and Motor Vehicles, 985
So. 2d 1078 (Fla. 2008) (excellent example of application of Hudson in determining whether law
providing for permanent revocation is an ex post facto law); Bixler v. State, 6 Fla. L. Weekly Supp. 187
(Fla. 2d Cir. Ct. Feb. 9, 1999)Bixler v. State, 6 Fla. L. Weekly Supp. 187 (Fla. 2d Cir. Ct. Feb. 9, 1999).

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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

26
U.S. v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742, 14 Env’t. Rep. Cas. (BNA) 1673, 10
Envtl. L. Rep. 20477 (1980).
27
Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); U.S. v. Ursery, 518 U.S.
267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996); Goad v. Florida Dept. of Corrections, 845 So. 2d
880, 884 (Fla. 2003); State v. Jones, 230 So.3d 22 (Fla. 4th DCA 2017), review denied, 2018 WL
1224621 (Fla. Opinion Filed March 9, 2018); Martinez v. State, 91 So. 3d 878 (Fla. 5th DCA 2012);
State v. Bowling, 712 So. 2d 798 (Fla. 2d DCA 1998).
28
State v. Price, 8 Fla. L. Weekly Supp. 617 (Fla. 20th Cir. Ct. May 29, 2001) State v. Price, 8 Fla. L.
Weekly Supp. 617 (Fla. 20th Cir. Ct. May 29, 2001).
29
State v. Price, 8 Fla. L. Weekly Supp. 617 (Fla. 20th Cir. Ct. May 29, 2001) State v. Price, 8 Fla. L.
Weekly Supp. 617 (Fla. 20th Cir. Ct. May 29, 2001).
30
State v. Torres, 890 So. 2d 292 (Fla. 2d DCA 2004).
31
Parent v. State, 900 So. 2d 598 (Fla. 2d DCA 2004).
32
The court agreed with defendant that the counseling requirement was not authorized because defendant
wasn’t on probation, and the trial judge properly struck the condition. But the court also concluded that
“the improper imposition of a pretrial release condition, particularly where, as here, it is of short
duration and limited impact, does not necessarily rise to the level of a punishment.” State v. Torres, 890
So. 2d 292, 296 (Fla. 2d DCA 2004).
33
Price, 8 Fla. L. Weekly Supp. 617 (Fla. 20th Cir. Ct. May 29, 2001)8 Fla. L. Weekly Supp. 617 (Fla.
20th Cir. Ct. May 29, 2001).
34
Parent v. State, 900 So. 2d 598 (Fla. 2d DCA 2004). See also State v. Rodriguez, 13 Fla. L. Weekly
Supp. 452 (Fla. 17th Cir. Ct. Jan. 18, 2006)State v. Rodriguez, 13 Fla. L. Weekly Supp. 452 (Fla. 17th
Cir. Ct. Jan. 18, 2006).
35
State v. Torres, 890 So. 2d 292 (Fla. 2d DCA 2004).
36
Rosero v. State, 668 So. 2d 1114 (Fla. 4th DCA 1996).
37
U.S. v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), abrogated by Hudson v.
U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450, 162 A.L.R. Fed. 737 (1997).
38
Rosero v. State, 668 So. 2d 1114 (Fla. 4th DCA 1996).
39
Doyon v. Department of Highway Safety and Motor Vehicles, 902 So. 2d 842 (Fla. 4th DCA 2005) .
See also Karz v. Dickenson, 932 So. 2d 426 (Fla. 2d DCA 2006).
40
Bradsheer v. Florida Dept. of Highway Safety and Motor Vehicles, 20 So. 3d 915 (Fla. 1st DCA
2009), review dismissed, 48 So. 3d 777 (Fla. 2010).
41
Langford v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1 (Fla. 5th Cir. Ct.
June 21, 2004)Langford v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1 (Fla.
5th Cir. Ct. June 21, 2004).
42
Doyon v. Department of Highway Safety and Motor Vehicles, 902 So. 2d 842 (Fla. 4th DCA 2005).
43
Ch. 2005–138, Laws of Florida (amends § 322.271, Fla. Stat. and created § 322.2715, Fla. Stat.). See
also Karz v. Dickenson, 932 So. 2d 426 (Fla. 2d DCA 2006).

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§ 3:4.Effect of other traffic offenses, civil proceedings,..., 11 Fla. Prac., DUI...

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Works.

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§ 3:5.Application of estoppel, 11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:5. Application of estoppel

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332
• West’s Key Number Digest, Double Jeopardy 3, 100.1

Legal Encyclopedias
• C.J.S., Criminal Law §§ 208, 238
• C.J.S., Motor Vehicles §§ 1382 to 1394

The doctrine of collateral estoppel is related to double jeopardy analysis. It means that once a matter of ultimate
fact is resolved by a valid final judgment, it cannot be relitigated between the same parties in any subsequent
proceeding.1 For the doctrine to apply, jeopardy must have attached.2

The doctrine may bar a second trial based on conduct that was part of a charge on which the defendant has been
acquitted. For the bar to arise, the conduct that is the subject of the second trial must be so intertwined with the
matter resulting in the acquittal that the jury could not have reached that verdict unless it believed the
defendant’s denial of the conduct. 3 Accordingly, if the defendant is found not guilty of DUI, the doctrine of
collateral estoppel will bar trial on any subsequent DUI offense arising out of the same incident. 4 A circuit court
ruled that the doctrine does not bar litigation in an administrative license suspension of issues that were ruled on
in a related criminal proceeding.5

These rules apply to the doctrine of collateral estoppel: (1) the defendant must prove by convincing and
competent evidence that it was necessary in the first trial for the jury to determine the fact sought to be
foreclosed in the second trial; (2) since a general verdict is used, the trial judge must examine the record of the
earlier trial to determine “whether a rational jury could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose;” and (3) hypertechnical requirements should not be imposed on the
defendant.6

The Court applied estoppel in a different way with the same result in State v. Woodruff.7 In that case, the State

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§ 3:5.Application of estoppel, 11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

initially charged the defendant in county court with multiple misdemeanors based on one event. 8 Within the
misdemeanor speedy trial period, the State filed an information based on the same event in circuit court
charging the defendant with felony DUI and multiple misdemeanors. 9 No effort was made to consolidate the
charges filed in county court with the charges filed in circuit court. 10 The State did not nolle pross the
misdemeanors in county court until after the expiration of the misdemeanor speedy trial and recapture periods
and the filing of notice of expiration and a motion for discharge. 11 According to Woodruff,12 the motion for
discharge was granted in county court13 and a motion to dismiss the felony in circuit court was also granted. The
Court rejected the argument that double jeopardy barred the felony charge because jeopardy had not attached in
the county court cases, but concluded that the felony charge was properly dismissed.14

This was the rationale for the decision in Woodruff: (1) estoppel did not bar the felony prosecution because the
felony DUI required proof of an element that the discharged misdemeanors did not—proof of three prior
misdemeanor convictions; (2) the State was estopped from prosecuting the defendant on another misdemeanor
DUI by the discharge of the misdemeanor DUIs in county court; (3) on the felony DUI, it was essential that the
State prove “a misdemeanor DUI conviction on the present charge” and at least three prior misdemeanor
convictions; (4) since the State was estopped by the discharge of the misdemeanor DUIs in county court from
proving a present misdemeanor DUI on the felony charge, it was impossible for the State to prove the charged
felony.15

Although not recognized, Woodruff16 is procedurally complex. Only three of the justices joined in the opinion.
Two justices concurred in the result only and two others concurred in the part of the opinion finding that
termination of the misdemeanor DUI prosecution did not bar the felony prosecution pursuant to either the
Double Jeopardy Clause or the Doctrine of Collateral Estoppel. 17 Thus, a majority of the Court subscribed to
that part of the opinion. But the two concurring justices rejected the proposition that to prove the felony the
State had to prove a misdemeanor DUI. 18 Instead, they concluded that the State need only prove the elements of
DUI plus three prior misdemeanor convictions.19 Four justices must join an opinion for it to be considered a
majority opinion with controlling weight, and concurrence in the result only is not agreement with the opinion. 20
Consequently, there does not seem to be a majority opinion supporting the view that a misdemeanor DUI is an
element of the felony DUI. But this observation is purely academic because the district courts have consistently
treated Woodruff21 as standing for that principle.22

The result was different in State v. Jackson,23 where the State filed a nolle prosequi of the misdemeanor DUI in
county court and refiled the felony charge in circuit court as in Woodruff.24 The State terminated the action in
county court before the misdemeanor speedy trial period expired and before the county judge granted a motion
for discharge, and filed the felony DUI in circuit court before the felony speedy trial period expired. The county
court granted a motion for discharge after the charge was refiled in circuit court. The circuit judge dismissed
the felony charge based on the Woodruff25 rationale. On appeal, the court reversed because, unlike Woodruff,26
the county judge had no jurisdiction when the judge granted a motion to discharge because exclusive
jurisdiction vested in circuit court when the charge was refiled in circuit court. 27

Lovelace v. State28 appeared to conflict with Jackson.29 It was factually very close to Woodruff.30 The court held
that a violation of the speedy trial rule for a misdemeanor DUI precludes a felony DUI based on the same
incident and prior DUI convictions. 31 The defendant was charged in county court with a misdemeanor DUI, but
the State filed a no information after the expiration of the misdemeanor speedy trial period and filed a felony
DUI based on the same event and prior convictions. 32 The court concluded that the county court had the power
to grant a motion to discharge the misdemeanor even though the State had filed the felony, and based on
Woodruff,33 the circuit court should have dismissed the felony DUI. 34 The Lovelace court35 certified conflict with
Jackson.

The Florida Supreme Court initially granted review to consider the certified question in Lovelace,36 but then
dismissed the appeal.37 The Court concluded that there was no conflict between Jackson38 and Lovelace.39 The
Court observed that in Jackson,40 the State nolle prossed the misdemeanor DUI before the misdemeanor speedy
trial period expired and refiled the misdemeanor along with a felony within the felony speedy trial period;
whereas, in Lovelace41 the State terminated the misdemeanor DUI in county court after the misdemeanor

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§ 3:5.Application of estoppel, 11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

speedy trial time had run, and the state did not refile the misdemeanor in circuit court along with the felony
charge. Thus, the courts in Jackson and Lovelace addressed two distinct situations.42

It is important to remember that Woodruff43 and the cases that have relied on it dealt with felony DUIs arising
from multiple prior convictions and a new DUI that was also filed in county court. 44 In fact, the Court
specifically observed that the State could have prosecuted a felony DUI with serious bodily injury
notwithstanding the status of the misdemeanor case. 45 The crucial nature of a misdemeanor DUI in county court
to the Woodruff46 rationale is highlighted in the recent case of State v. Meyers.47

In Meyers,48 the defendant was charged with felony DUI from the beginning—a DUI and three prior
convictions. A misdemeanor for refusing the breath test was filed in county court, but no misdemeanor DUI
charge was filed. The three prior convictions were mentioned on the misdemeanor citation, but the defendant
was arrested for felony DUI. In what appears to partially conflict with the opinion in Woodruff,49 the court
specifically says: “While the underlying element of DUI for felony and misdemeanor DUI is the same, the State
did not have to prove misdemeanor DUI plus prior convictions such that the DUI would be governed by the
misdemeanor speedy trial clock.”50 The court underscores the significance of the lack of any misdemeanor DUI
in county court:
[A] felony is a felony is a felony, and in this case, the DUI was never anything but a felony ….
The felony here was always a felony: the officer who wrote the citation had already concluded
that Meyers had committed DUI and had already checked Meyers’ prior convictions to know that
the offense was Meyers’ fourth DUI, a third-degree felony.51

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Joy, 221 So. 3d
1281 (Fla. 5th DCA 2017); Jones v. State, 120 So. 3d 135 (Fla. 4th DCA 2013); Davis v. State,
645 So. 2d 66 (Fla. 4th DCA 1994). See also Bravo-Fernandez v. United States, 137 S.Ct. 352.
196 L.Ed.2d 242 (2016) (Court identifies several different situations involving multiple charges in
which issue preclusion may be a factor).
2
Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); Davis v. State, 645 So.
2d 66 (Fla. 4th DCA 1994). See also State v. McCord, 402 So. 2d 1147 (Fla. 1981); State v. Carter,
452 So. 2d 1137 (Fla. 5th DCA 1984); State v. Delphun, 23 Fla. L. Weekly Supp. 115 (Fla. 17th Cir. Ct.
May 18, 2015)State v. Delphun, 23 Fla. L. Weekly Supp. 115 (Fla. 17th Cir. Ct. May 18, 2015) (in a
VOP in circuit court the judge granted a motion to suppress; the VOP was based on a misdemeanor
charge in county court and the appellate court reversed the county judge’s adoption without evidence of
the circuit judge’s ruling on the motion to suppress; the appellate court ruled that collateral estoppel did
not apply because jeopardy had not attached); State v. Kanter, 11 Fla. L. Weekly Supp. 208 (Fla. 15th
Cir. Ct. Jan. 29, 2004)State v. Kanter, 11 Fla. L. Weekly Supp. 208 (Fla. 15th Cir. Ct. Jan. 29, 2004)
(where case was nolle prossed in county court and refiled in circuit court, doctrine of collateral estoppel
did not bar relitigation in circuit court of motion to suppress ruled on in county court).
3
State v. Short, 513 So. 2d 679, 681 (Fla. 2d DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). See
also Jackson v. State, 183 So.3d 1211 (Fla. 1st DCA 2016); Dorelus v. State, 154 So. 3d 1206 (Fla. 2d
DCA 2015); Jones v. State, 120 So. 3d 135 (Fla. 4th DCA 2013); Ferguson v. State, 946 So. 2d
553 (Fla. 4th DCA 2006); State v. Chambers, 890 So. 2d 456, 457 (Fla. 2d DCA 2004); Morris v.

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§ 3:5.Application of estoppel, 11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

State, 869 So. 2d 1264 (Fla. 3d DCA 2004); Davis v. State, 645 So. 2d 66 (Fla. 4th DCA 1994).
4
McCray v. State, 350 So. 2d 1126 (Fla. 2d DCA 1977); Humphries v. Wainwright, 584 F.2d 702 (5th
Cir.1978).
5
Smith v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 547 (Fla. 15th Cir. Ct.
April 5, 2013)Smith v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 547 (Fla.
15th Cir. Ct. April 5, 2013) (petitioner unsuccessfully argued that the fact that the county judge granted
a motion to suppress precluded the hearing officer from considering the lawfulness of the arrest).
6
State v. Short, 513 So. 2d 679, 681 (Fla. 2d DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). See
also State v. Joy, 221 So. 3d 1281 (Fla. 5th DCA 2017); State v. Brice, 192 So.3d 692 (Fla. 2d DCA
2016); Dorelus v. State, 154 So. 3d 1206 (Fla. 2d DCA 2015); Morris v. State, 869 So. 2d 1264 (Fla.
3d DCA 2004); Jones v. State, 657 So. 2d 922 (Fla. 2d DCA 1995); Davis v. State, 645 So. 2d 66
(Fla. 4th DCA 1994).
7
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
8
The charges were two DUIs causing serious bodily injury, two DUIs with property damage, and one
DWLS.
9
The information charged these misdemeanors: two counts of DUI with property damage, one count of
DUI with damage to the person, DUI with impairment, DUI with excessive blood alcohol level, and
driving with a suspended license. It also charged felony DUI after three previous DUI convictions.
10
State v. Woodruff, 676 So. 2d 975, 977 (Fla. 1996).
11
State v. Woodruff, 676 So. 2d 975, 977 (Fla. 1996).
12
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
13
In State v. Mercer, 112 So. 3d 523, 528 (Fla. 2d DCA 2013), review denied, 129 So. 3d 1069 (Fla.
2013), the court notes that, while the Supreme Court in Woodruff said the misdemeanors had been
discharged, the State nolle prossed the misdemeanors before the motion could be granted, but the speedy
trial and recapture times had expired and the defendant would have been entitled to discharge.
14
State v. Woodruff, 676 So. 2d 975, 977 (Fla. 1996).
15
State v. Woodruff, 676 So. 2d 975, 977-78 (Fla. 1996).
16
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
17
State v. Woodruff, 676 So. 2d 975, 979 (Fla. 1996) (JJ Wells and Overton concurring in part and
dissenting in part).
18
State v. Woodruff, 676 So. 2d 975, 979 (Fla. 1996) (JJ Wells and Overton concurring in part and
dissenting in part).
19
State v. Woodruff, 676 So. 2d 975, 979 (Fla. 1996) (JJ Wells and Overton concurring in part and
dissenting in part).
20
“A concurring in result only opinion indicates agreement only with the decision, that is, the official
outcome and result reached, but a refusal to join in the majority’s opinion and its reasoning. A separate
opinion that concurs in result only can constitute the fourth vote necessary to establish a decision under
the Florida Constitution, but the effect in such a case is that there is no majority opinion of the Court and

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§ 3:5.Application of estoppel, 11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

thus no precedent beyond the specific facts of the controversy at hand.” Harry Lee Anstead, Gerald
Kogan, Thomas D. Hall, & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court
of Florida, 29 Nova L.Rev. 431, 460-461 (2005).
21
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
22
State v. Psomas, 766 So. 2d 1085 (Fla. 2d DCA 2000) (the court followed the Woodruff decision in a
case that was factually identical, but the Psomas court seem to agree with Justice Wells’s dissenting
opinion); Hernandez v. State, 985 So. 2d 1115 (Fla. 3d DCA 2008) (county judge transferred
misdemeanor to circuit court, but it was not consolidated; misdemeanor speedy trial expired but county
judge denied discharge and circuit judge denied dismissal of felony; court reversed and said: “Following
Woodruff, we must conclude that because the trial court should have dismissed the misdemeanor DUI,
the current felony DUI cannot be sustained.”)
23
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So. 2d 807 (Fla. 2002).
24
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
25
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
26
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
27
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So. 2d 807 (Fla. 2002).
28
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006). See also Bush v. State, 937 So. 2d 1148 (Fla. 5th DCA 2006) (as in Lovelace, defendant was
charged with misdemeanor DUI, speedy trial expired, defense filed a notice of expiration and State nolle
prossed the misdemeanor and filed a felony DUI after the 15 day grace period; county judge discharged
the misdemeanor DUI, and on appeal the court ruled that the felony DUI should have been dismissed).
29
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So. 2d 807 (Fla. 2002).
30
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
31
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
32
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
33
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
34
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
35
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
36
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
37
State v. Lovelace, 928 So. 2d 1176 (Fla. 2006).
38
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So. 2d 807 (Fla. 2002).
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§ 3:5.Application of estoppel, 11 Fla. Prac., DUI Handbook § 3:5 (2018-2019 ed.)

39
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
40
State v. Jackson, 784 So. 2d 1229 (Fla. 1st DCA 2001), review denied, 805 So. 2d 807 (Fla. 2002).
41
Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), review dismissed, 928 So. 2d 1176 (Fla.
2006).
42
State v. Lovelace, 928 So. 2d 1176 (Fla. 2006).
43
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
44
See State v. Grosser, 24 So. 3d 718 (Fla. 4th DCA 2009) (court recognized that in Lovelace, the problem
with the felony was the inability to prove the felony DUI because the State had to prove a conviction on
the misdemeanor DUI that should have been discharged in county court.)
45
State v. Woodruff, 676 So. 2d 975, 978 (Fla. 1996). See also State v. Mercer, 112 So. 3d 523, 526
(Fla. 2d DCA 2013), review denied, 129 So. 3d 1069 (Fla. 2013); Bonilla v. State, 62 So. 3d 1233, 1234
(Fla. 5th DCA 2011); Nesworthy v. State, 648 So. 2d 259 (Fla. 5th DCA 1994).
46
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
47
State v. Meyers, 184 So.3d 1149 (Fla. 2d DCA 2015), reviewed denied, 2016 WL 3272518 (Fla.
Opinion Filed June 15, 2016).
48
State v. Meyers, 184 So.3d 1149 (Fla. 2d DCA 2015), reviewed denied, 2016 WL 3272518 (Fla.
Opinion Filed June 15, 2016).
49
State v. Woodruff, 676 So. 2d 975 (Fla. 1996).
50
State v. Meyers, 184 So.3d 1149, 1151 (Fla. 2d DCA 2015), reviewed denied, 2016 WL 3272518 (Fla.
Opinion Filed June 15, 2016).
51
State v. Meyers, 184 So.3d 1149, 1150 (Fla. 2d DCA 2015), reviewed denied, 2016 WL 3272518 (Fla.
Opinion Filed June 15, 2016).

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Works.

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§ 3:6.Fla. R. Crim. P. 3.151 and 3.152, 11 Fla. Prac., DUI Handbook § 3:6 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 3:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:6. Fla. R. Crim. P. 3.151 and 3.152

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332
• West’s Key Number Digest, Criminal Law 619, 620
• West’s Key Number Digest, Double Jeopardy 57, 88.1

Legal Encyclopedias
• C.J.S., Criminal Law §§ 213, 223 to 225, 558 to 562
• C.J.S., Motor Vehicles §§ 1382 to 1394

Fla. R. Crim. P. 3.151 provides several different grounds for dismissal of an offense based on the prosecution of
a related offense.1 It requires that two or more indictments or informations charging such offenses be
consolidated for trial on timely motion of either party. Failure to make the motion waives the right to
consolidation.2

When a defendant has been tried on a charge of one of two or more related offenses, every other related charge
shall be dismissed on the defendant’s motion.3 There are three exceptions to this requirement: (1) the
defendant’s motion for consolidation of such charges was denied; (2) the defendant has waived the right to
consolidation; (3) the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant
charging the other offenses.4 This rule also applies to lesser-included offenses that are not included in the jury
instructions.5

Franklin v. State6 illustrates the application of this rule. In that case, defendant was initially charged with DUI
Manslaughter and leaving the scene of an accident resulting in death. A jury found the defendant not guilty of
leaving the scene, but was unable to reach a verdict on the DUI Manslaughter. The State filed an amended
information adding leaving the scene of an accident resulting in injury to a different person. On appeal, the
court ruled that this new charge should have been dismissed pursuant to Fla. R. Crim. P. 3.151. The arrest and
booking reports and informations showed that the defendant was unaware of the charge until after the first trial.
The charges were clearly related because they arose from the same accident and could be tried in the same
court. The defendant did not move to consolidate, but he did not waive that right and there was no showing that
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§ 3:6.Fla. R. Crim. P. 3.151 and 3.152, 11 Fla. Prac., DUI Handbook § 3:6 (2018-2019 ed.)

the prosecution was unable to proceed. Thus, the requirements of the rule were met.

Generally, as suggested above, for the defendant to benefit from the rule, the defendant must go to trial. 7
However, the defendant may also benefit from the rule if he or she enters a plea of guilty or nolo contendere to
one charge with the understanding that the others will be dismissed or that no other related charges will be
filed.8 If the court cannot accept that condition, the plea will be considered withdrawn. 9 To benefit from this
provision the defendant must indicate reliance on the rule at the time of entering the plea of guilty or nolo
contendere.10

This rule is inapplicable to double jeopardy claims. 11 It applies only to valid separate offenses. Thus, failure to
seek consolidation under the rule does not waive a double jeopardy claim. 12 And the remedy of prohibition,
which is available when the trial court violates the Double Jeopardy Clause, is unavailable for a violation of the
rule.13

Severance is another issue dealing with multiple charges. It is covered in Fla. R. Crim. P. 3.152, which permits
severance of properly joined charges if necessary for a fair determination of guilt or innocence. 14

Two Fourth District decisions considered the need for severance of drug charges from a companion DUI. In
Estrich v. State,15 the defendant was charged with DUI Manslaughter and possession of a misdemeanor amount
of marijuana found on defendant’s person at the scene. Xanax pills for which the defendant had a prescription
were found in the car and there was substantial evidence that he was under the influence of Xanax. While
defendant’s blood contained marijuana metabolite, the evidence indicated that the marijuana had no impact on
the defendant. The trial judge denied a motion to sever the marijuana possession charge from the DUI
Manslaughter charge. On appeal, the court reversed because: “There was a significant risk that evidence of the
defendant’s possession of an illegal drug would bolster the State’s contention that yet another drug impaired the
defendant’s ability to drive.”16

The result was different in Gonzales v. State.17 There the defendant was found passed out behind the wheel of a
car in an intersection at about 4:00 a.m. He had all of the indicia of impairment. A deputy observed his
condition and smelled alcohol. After the deputy arrested the defendant for DUI, the deputy discovered cocaine
in the defendant’s pocket. The trial judge refused to sever the possession of cocaine charge from the DUI. The
defendant argued, “that the State improperly bolstered its proof of the DUI charge with evidence of the cocaine
when the State was unable to prove that the defendant had actually consumed the cocaine.” 18 In a 2-1 decision,
the court rejected the defense argument and upheld the denial of the motion for severance because the
possession of cocaine was circumstantial evidence that the defendant was under the influence of cocaine and the
evidence of impairment was significant.19

A trial judge took a similar approach to the one in Gonzalez.20 The judge refused to sever DUI and possession of
cannabis and drug paraphernalia charges.21 The judge considered these two factors: (1) did the offenses arise out
of the same episode; (2) would evidence of one offense be admissible in a separate trial on the other offense. 22
The second factor requires an examination of relevance and risk of unfair prejudice. The court concluded that
the drug charges arose out of the same episode as the DUI, evidence on that matter would be relevant to the
ability to make judgments in the DUI, and there was not a substantial risk of unfair prejudice. 23 Thus, severance
was not required. Another trial judge reached a similar conclusion where the defendant was charged with DUI
and battery.24 The court found that the defendant’s use of alcohol at the time of the battery was relevant to the
battery, and the fact that the defendant left the place where the battery allegedly occurred, was evidence of
consciousness of guilt on the battery.25

Several courts have considered the need to sever DUI from other criminal traffic offenses. In Johnson v. State,26
the court reversed a ruling that a claim that counsel was ineffective for failure to seek severance of DWLS from
DUI, was insufficient on its face. The court ruled that even if the charges were properly joined, severance could
have been ordered to promote a fair determination of guilt or innocence. 27 Florida’s Eleventh Circuit has
adopted clear standards.28 If the driving record being introduced to prove the driving on a suspended license
charge contains information about suspensions other than the one at issue, it is likely severance will be required.

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§ 3:6.Fla. R. Crim. P. 3.151 and 3.152, 11 Fla. Prac., DUI Handbook § 3:6 (2018-2019 ed.)

These standards suggest that such prior information should be redacted to avoid severance. 29 In Allen v. State,30
the court ruled that an assertion in a postconviction motion that counsel was ineffective in a DUI case for not
seeking severance of a refusal charge was sufficient to require an evidentiary hearing, if not conclusively
refuted by the record.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Offenses are related “if they are triable in the same court and are based on the same act or transaction or
on two or more connected acts or transactions.” Fla. R. Crim. P. 3.151(a). Offenses are not related if one
is completed before the other is committed. Unruh v. State, 560 So. 2d 266, 268 (Fla. 1st DCA 1990).
2
Fla. R. Crim. P. 3.151(b). State v. Mateen, 678 So. 2d 449 (Fla. 2d DCA 1996) (defendant’s claim of
lack of awareness rejected); Malik v. State, 640 So. 2d 224 (Fla. 5th DCA 1994).
3
Fla. R. Crim. P. 3.151(c).
4
Fla. R. Crim. P. 3.151(c).
5
State v. Gibson, 682 So. 2d 545 (Fla. 1996). See also Festa v. State, 927 So. 2d 1049 (Fla. 4th DCA
2006).
6
Franklin v. State, 719 So. 2d 938 (Fla. 1st DCA 1998). See also State v. Varnum, 991 So. 2d 918
(Fla. 4th DCA 2008), review denied, 14 So.3d 1005 (Fla. 2009); Fields v. State, 743 So. 2d 92 (Fla.
5th DCA 1999).
7
Grubbs v. State, 771 So. 2d 49 (Fla. 5th DCA 2000); State v. Feldman, 362 So. 2d 481 (Fla. 1st DCA
1978); State v. Harris, 357 So. 2d 758 (Fla. 4th DCA 1978).
8
Fla. R. Crim. P. 3.151(d).
9
Fla. R. Crim. P. 3.151(d).
10
State v. Feldman, 362 So. 2d 481 (Fla. 1st DCA 1978); State v. Harris, 357 So. 2d 758 (Fla. 4th
DCA 1978); State v. Garneau, 2 Fla. L. Weekly Supp. 17 (Fla. 6th Cir. Ct. Oct. 14, 1993)State v.
Garneau, 2 Fla. L. Weekly Supp. 17 (Fla. 6th Cir. Ct. Oct. 14, 1993).
11
State v. Mateen, 678 So. 2d 449, 451 (Fla. 2d DCA 1996); Scalf v. State, 573 So. 2d 202 (Fla. 1st
DCA 1991).
12
Scalf v. State, 573 So. 2d 202 (Fla. 1st DCA 1991).
13
State v. Hamilton, 210 So.3d 776 (Fla. 2d DCA 2017) (district court reversed circuit court order based
on violation of Rule 3.151 prohibiting county court from proceeding on a refusal charge where jury
found defendant not guilty of DUI and next day State filed the refusal based on the same event; district
court ruled that unlike a violation of Double Jeopardy Clause, violation of this rule does not divest trial
judge of subject matter jurisdiction).
14
Fla. R. Crim. P. 3.152.
15
Estrich v. State, 995 So. 2d 613 (Fla. 4th DCA 2008).

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§ 3:6.Fla. R. Crim. P. 3.151 and 3.152, 11 Fla. Prac., DUI Handbook § 3:6 (2018-2019 ed.)

16
Estrich v. State, 995 So. 2d 613, 618 (Fla. 4th DCA 2008).
17
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
18
Gonzales v. State, 9 So. 3d 725, 727 (Fla. 4th DCA 2009).
19
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009). See also Pitts v. State, 227 So.3d 674 (Fla. 1st
DCA 2017) (denial of severance of DWLS and fleeing was proper because they were connected; the
suspension was admissible to show a motive for fleeing and the fleeing was admissible to show
defendant was driving knowing his license was suspended).
20
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
21
State v. Amico, 7 Fla. L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999) State v. Amico, 7 Fla.
L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999).
22
State v. Amico, 7 Fla. L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999) State v. Amico, 7 Fla.
L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999).
23
State v. Amico, 7 Fla. L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999) State v. Amico, 7 Fla.
L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999).
24
State v. Schmidt, 10 Fla. L. Weekly Supp. 367 (Fla. Broward Cty. Ct. March 18, 2003)State v. Schmidt,
10 Fla. L. Weekly Supp. 367 (Fla. Broward Cty. Ct. March 18, 2003).
25
State v. Schmidt, 10 Fla. L. Weekly Supp. 367 (Fla. Broward Cty. Ct. March 18, 2003)State v. Schmidt,
10 Fla. L. Weekly Supp. 367 (Fla. Broward Cty. Ct. March 18, 2003).
26
Johnson v. State, 14 So. 3d 1282 (Fla. 2d DCA 2009).
27
Johnson v. State, 14 So. 3d 1282, 1283 (Fla. 2d DCA 2009).
28
Rivera v. State, 6 Fla. L. Weekly Supp. 376 (Fla. 11th Cir. Ct. March 26, 1999) Rivera v. State, 6 Fla. L.
Weekly Supp. 376 (Fla. 11th Cir. Ct. March 26, 1999). See also Martinez v. State, 6 Fla. L. Weekly
Supp. 396 (Fla. 11th Cir. Ct. Feb. 26, 1999)Martinez v. State, 6 Fla. L. Weekly Supp. 396 (Fla. 11th Cir.
Ct. Feb. 26, 1999); Laffita v. State, 6 Fla. L. Weekly Supp. 396 (Fla. 11th Cir. Ct. Feb. 26, 1999) Laffita
v. State, 6 Fla. L. Weekly Supp. 396 (Fla. 11th Cir. Ct. Feb. 26, 1999).
29
Rivera v. State, 6 Fla. L. Weekly Supp. 376 (Fla. 11th Cir. Ct. March 26, 1999) Rivera v. State, 6 Fla. L.
Weekly Supp. 376 (Fla. 11th Cir. Ct. March 26, 1999). See also Martinez v. State, 6 Fla. L. Weekly
Supp. 396 (Fla. 11th Cir. Ct. Feb. 26, 1999)Martinez v. State, 6 Fla. L. Weekly Supp. 396 (Fla. 11th Cir.
Ct. Feb. 26, 1999); Laffita v. State, 6 Fla. L. Weekly Supp. 396 (Fla. 11th Cir. Ct. Feb. 26, 1999) Laffita
v. State, 6 Fla. L. Weekly Supp. 396 (Fla. 11th Cir. Ct. Feb. 26, 1999).
30
Allen v. State, 125 So. 3d 191 (Fla. 4th DCA 2013).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 3:7 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 3. Multiple Charges and Trial

§ 3:7. Dismissal of charge as a result of a mistrial or other premature termination of trial

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332
• West’s Key Number Digest, Double Jeopardy 86, 88.1, 95.1, 104

Legal Encyclopedias
• C.J.S., Criminal Law §§ 225, 230, 238, 242
• C.J.S., Motor Vehicles §§ 1382 to 1394

During a trial, things may happen which cast doubt on the fairness of the proceeding. A mistrial may be
required. Occasionally, there may be a question as to whether the defendant can be retried. The Double
Jeopardy Clause bars a retrial after jeopardy has attached when the court grants a judgment of acquittal, the
State withdraws the charges, or the court grants a mistrial over the defense objection except in cases of
“manifest necessity” or defense misconduct.1

In dealing with such matters, the distinction between termination of a trial by mistrial and mere delay of a trial
in progress is important. The latter may be a viable alternative to a mistrial. For instance, during a DUI bench
trial the court suppressed a video tape. The court gave the State an opportunity to appeal, but did not declare a
mistrial or dismiss the charge. That same day, the State announced that the matter could not be appealed. The
judge said that the trial would resume in four weeks. The defendant sought dismissal. On appeal, the court ruled
that double jeopardy does not bar resumption of the same proceeding after a continuance, if there is no
prejudice to the accused.2 The question in such cases is whether the court has subjected the defendant to a mere
delay of the proceedings or to a new proceeding, exposing the defendant to additional jeopardy. The latter is the
case only “when the second proceeding takes place before a new trier of fact, whether that be a different judge
or jury, or the same judge starting with a clean slate.”3

If the court orders a second proceeding, it should be with the defendant’s consent or manifest necessity. It must
be emphasized, however, that if there are insufficient grounds for the mistrial and only silence by the defendant,
retrial will be barred.4 Silence cannot be considered consent.5

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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

Before ordering a mistrial without the defendant’s consent, the court must consider all alternatives. 6 This was
important in a case involving a discovery violation. The judge declared a mistrial without a request or
consideration of other remedies. The court ruled that the defendant could not be retried. 7 Other alternatives
included recessing to allow additional discovery or excluding the evidence. 8 The court reached the same
conclusion where one defendant moved for a mistrial based on a discovery violation, but a codefendant
objected.9 On appeal, the court observed that the trial court failed to consider severing the other defendants’
cases from that of the defendant who desired the mistrial.10

Similarly, in Thomason v. State,11 the Florida Supreme Court found no manifest necessity for a mistrial based on
the illness of defense counsel where both attorneys argued that counsel could proceed. There was no objective
evidence supporting the conclusion that counsel could not proceed, and the trial judge failed to consider other
alternatives.

In Stewart v. State,12 the court underscored the importance of exploring all options before declaring a mistrial
unsolicited by the defense. As might be expected in the troubled times of the past decade, during the trial the
judge was told of an anthrax scare in an office located in the courthouse and that it would take at least 12 hours
to determine whether the involved white powdery substance was anthrax. The judge was concerned about going
on with the trial because the jurors would have to be told about the problem and they might be seriously
distracted. There was also a witness who might not appear. Thus, the trial judge declared a mistrial over a
defense objection. The defendant was subsequently convicted. On appeal, the court reversed because the trial
judge did not consider other options such as proceeding with the trial in another location. Additionally, the trial
judge did not talk to the jurors about whether they would be available to complete the trial at a later date, nor
did the judge consider means of avoiding exposure of the jurors to information about the case.

However, in Renteria v. State,13 a case similar to Stewart,14 the appellate court found that the trial court did not
abuse its discretion in ordering a mistrial. The difference was that in Renteria, the trial judge explored
alternatives before declaring a mistrial. In Renteria, on September 11, 2001, the court continued the trial until
the next day because of the attack on the United States. The next day, three of the jurors did not appear. They
were an American Airlines stewardess, a postal worker, and an individual who worked with infectious diseases.
The case was continued until October 16, 2001, but the defendant’s attorney was in trial, so it was continued
until November 2, 2001. On that occasion, the juror who worked with infectious diseases was unavailable
because of the anthrax crisis, so the judge reset the case for December 17, 2001, and informed the jurors by
mail. This time, only five jurors showed up, and the trial judge asked the defendant if he would be willing to
proceed with five jurors. The defendant declined, and the court declared a mistrial. The trial judge denied a
motion to dismiss, which was based on double jeopardy grounds. On appeal, the court affirmed because the trial
judge explored viable alternatives before declaring a mistrial, and the defendant was unable to show an abuse of
discretion.

The trial court must also consider all available options before declaring a mistrial based on problems with
jurors. Thus, where a deputy court clerk erroneously excused a juror, the trial judge should have considered
using an alternate or ordering a continuance to locate the juror, before ordering a mistrial. 15 Similarly, retrial was
barred where the trial judge declared a mistrial during deliberations upon learning that one of the jurors had
some beer during lunch. The judge did not examine any members of the jury. The defendant refused to proceed
with five jurors. The trial judge was required to make “assiduous inquiry into the possibility of another course
of action.”16 The court came to the same conclusion where the judge declared a mistrial without any inquiry
when he was advised during deliberations that one of the alternates was the brother of one of the jurors. 17 The
court concluded that the two must have talked about the case. “The trial court erred in failing to conduct any
inquiry and, by relying instead on assumption, inference and speculation, abused its discretion in concluding
that a mistrial was justified by manifest necessity.” 18 In the same way, retrial was barred where a juror was sick
and the court declared a mistrial without exploring other options. 19 On the other hand, the Court upheld retrial
after a mistrial where a juror had a seizure during deliberations.20

The same rules apply where the court considers a mistrial because of inconvenience to a juror or a judge. Mere

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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

inconvenience to jurors or the judge, including cancellation of vacation plans, does not constitute manifest
necessity. This may cause irritation, but that is insufficient for a finding of manifest necessity. 21 Thus, retrial was
barred where the trial judge declared a mistrial without exploring other options shortly after the jury was sworn,
because two jurors “complained that the trial schedule would constitute a significant inconvenience and that
they had not been given an opportunity to make this fact known before they were sworn as jurors.” 22 Even
where jurors become so upset that they develop a bias requiring a mistrial, the court must still make inquiry, and
the record must support such a conclusion.23

The same cautious approach is required where there are problems with witnesses. For example, before declaring
a mistrial due to unavailability of a witness, the court should make inquiry and create a record as to the nature of
the testimony, the reasons for unavailability, and the times when the witness will be unavailable. 24

In Dawson v. State,25 the appellate court ruled that there was no manifest necessity for declaring a mistrial where
the State said a chemist was on vacation for two weeks in a drug case. The State thought the defense intended to
stipulate to the admissibility of the drugs. The State said it could confirm whether the chemist would be gone
for that long, but the trial judge declared a mistrial. The appellate court concluded that the trial judge had not
explored all the options, including: (1) whether a two-week delay was really necessary; (2) was the chemist’s
testimony actually required; (3) could the jury be available after a delay; and (4) could the trial proceed on
counts other than the drug charge. Even if this was a critical witness, the trial court still had to explore options
other than a mistrial “to mitigate the situation and preserve the continuity of the trial.” 26

Problems with the conduct of counsel can often be handled with action short of a mistrial. For instance, where
the trial judge concluded that the defense attorney had made a comment in opening statement that violated an
order granting a motion in limine, there were viable options other than granting a mistrial over the defense
objection.27 The most obvious option was to sustain the State’s objection and give a curative instruction. The
court reached the same conclusion where the defense attorney made an inappropriate remark in opening
statement ridiculing the law enforcement officers who made the stop. 28 And where the attorneys got into a
altercation outside the presence of the jury, there was no manifest necessity for the mistrial. 29

Clearly, the judge who orders a mistrial without the defendant’s request walks a precarious path. Sometimes,
however, the judge who orders a mistrial even with the defendant’s request, may still face difficulty with retrial.
These problems arise when there is a claim that the prosecutor or the judge 30 deliberately caused the mistrial.

Retrial is foreclosed in such cases only if the prosecutor intentionally “goad[s]” the defense into requesting a
mistrial; mere overreaching by a prosecutor is not enough. 31 The prosecutor’s negligence or even gross
negligence,32 reckless comments,33 and attempts to introduce inadmissible evidence or to win the case without
the intent to cause a mistrial,34 will not justify dismissal. This test only applies where the court has actually
granted a mistrial, and not to the situation where there is no mistrial, but the defendant raises the prosecutorial
abuse on appeal. Retrial after such an appeal is proper.35

To decide whether the prosecutor intentionally goaded the defendant into moving for a mistrial, the judge must
infer the existence or nonexistence of the prosecutor’s intent from the objective facts of each case. 36 The judge
should not simply rely on the prosecutor’s representations. 37 Where the State gains an advantage from the
mistrial and there is no objective evidence of any intent other than to cause a mistrial, it is proper for the court
to dismiss the charges.38 This test was met where an assistant state attorney caused a mistrial by introducing
breathalyzer test results knowing the operator was unavailable for the scheduled trial. 39

In a somewhat unusual case,40 a three-judge circuit court appellate panel ruled in a two to three opinion that the
test was also met, and reversed the trial judge’s holding that the prosecutor had not intentionally caused a
mistrial in a DUI case. The trial judge had prohibited any reference to driving on a suspended license, a seat belt
violation, and marijuana charges. The prosecutor then asked a question that brought out the suspended license
charge. The court relied on these factors in reaching the conclusion that the trial judge had abused his discretion
in denying a motion to dismiss: (1) the trial judge sustained “countless consecutively” made defense objections
“that clearly thwarted” the State’s case, which was not developing, and the offending prosecutor’s comment

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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

came after several of those objections; (2) the officer had been directed more than once not to mention any
crimes other than the DUI, and the court and counsel had taken other action to stress the importance of focusing
on just the DUI; and (3) the State had originally charged the defendant with DUI, driving while license
suspended, possession of marijuana, and failure to wear a seatbelt. The State nolle prossed all the charges
except for DUI, but after the mistrial, refiled the suspended license charge and the marijuana charge to go along
with the DUI.

In contrast, the test was not met where the prosecutor caused a mistrial by attempting to introduce the testimony
of witnesses whose damaging statements had willfully not been disclosed. 41 The court concluded that the intent
of the prosecutor was not “to ‘save’ a losing case,” but rather to introduce evidence that tended to convict the
defendant.42

In other instances, the prosecutor may not be at fault. Thus, the test was not met where, despite a pretrial order
prohibiting testimony that the defendant had refused to submit to field sobriety tests, an officer gave such
testimony in response to the prosecutor’s question.43 The trial judge found that the circumstances did not support
dismissal because the officer was specifically told not to give such testimony and the prosecutor’s question
“was not intended to elicit such a response.”44

There are many other examples of ineffectiveness or error by prosecutors that required a mistrial, but did not
meet the test for dismissal. They include: (1) asking improper questions because of a misunderstanding of the
law of impeachment;45 (2) commenting on the defendant’s failure to testify because of the mistaken belief that
the defendant was required to give testimony under the circumstances; 46 (3) failing to tell a witness about the
exclusion of evidence;47 (4) having a witness inadvertently give excluded testimony, 48 volunteer such testimony
that was nonresponsive to the prosecutor’s question, 49 or give such testimony in response to the prosecutor’s
badly worded question;50 (5) making an improper statement to the court about the defendant’s character, without
any indication of bad faith;51 (6) taking a legal position about the admissibility of evidence in good faith after
having been told by the trial judge that the judge would probably declare a mistrial; 52 (7) eliciting a response that
the defendant said he did not want to make a statement after being read his rights, where the prosecutor said she
expected the officer to testify to some spontaneous statements, and nothing happened that would make the
prosecutor want to cause a mistrial; 53 (8) accusing defense counsel in the presence of the jury of deliberately
trying to cause a mistrial;54 and (9) calling a police officer who gave excluded testimony in response to defense
cross-examination.55

In some instances, the prosecutor may become aware of a problem with the case after the jury has been sworn,
and seeks to resolve the problem by nolle prossing the charge and proceeding later. This tactic will not be
successful.56 Thus, where the State nolle prossed a charge after the jury was sworn because the date on the
citation was wrong, the defendant could not be subjected to a second trial. The State had corrected the date in
various documents prior to trial, and the court had ruled that the charge would not be dismissed for the defect in
the date. Accordingly, it was clear that the State was prepared to prove the defendant guilty of DUI on the date
specified in discovery.57

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Bolick, 512 So. 2d 960 (Fla. 2d DCA 1987); Holmes v. Bonanno, 484 So. 2d 77 (Fla. 2d DCA
1986). See also McFadden v. State, 540 So. 2d 844 (Fla. 3d DCA 1989), review denied, 549 So. 2d
1014 (Fla. 1989).
2
State v. Sipe, 537 So. 2d 178 (Fla. 3d DCA 1989). See also Holcomb v. State, 858 So. 2d 1112, 1113–
1114 (Fla. 2d DCA 2003) (no bar where jeopardy attached in a bench trial, but court continued the trial

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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

for almost seven months where the state amended information, and delay caused no prejudice to the
defendant); R.M. v. State, 603 So. 2d 64, 65 (Fla. 3d DCA 1992) (finding a mistrial as to one defendant
in a bench trial did not bar completion of the trial as to second defendant even though there had been a
brief delay between the mistrial and the resumption of the trial).
3
R.M. v. State, 603 So. 2d 64, 65 (Fla. 3d DCA 1992). One trial judge has suggested that where a judge is
forced to grant a request for disqualification mid-trial, a mistrial without the defendant’s consent may be
improper because another judge could take over the matter. The court recognized that early controlling
appellate decisions suggest a contrary conclusion. See State v. Moss, 6 Fla. L. Weekly Supp. 51, 52 (Fla.
Broward Cty. Ct. Aug. 24, 1998)State v. Moss, 6 Fla. L. Weekly Supp. 51, 52 (Fla. Broward Cty. Ct.
Aug. 24, 1998).
4
Feria v. Spencer, 616 So. 2d 84 (Fla. 3d DCA 1993). See also Merchant v. State, 201 So.3d 146 (Fla. 3d
DCA 2016), review denied, 2016 WL 6602450 (Fla. Opinion Filed Nov. 08, 2016); Joseph v. State, 988
So. 2d 133 (Fla. 1st DCA 2008); Dawson v. State, 979 So. 2d 1099 (Fla. 3d DCA 2008); McCulloch v.
State, 859 So. 2d 531, 532 (Fla. 4th DCA 2003), review denied, 869 So. 2d 540 (Fla. 2004) (citing
C.A.K. v. State, 661 So. 2d 365, 367 (Fla. 2d DCA 1995)); Nobles v. Beauchamp, 686 So. 2d 750 (Fla.
1st DCA 1997) (alleged cumulative errors were insufficient to establish manifest necessity).
5
Feria v. Spencer, 616 So. 2d 84 (Fla. 3d DCA 1993). See also Merchant v. State, 201 So.3d 146 (Fla. 3d
DCA 2016), review denied, 2016 WL 6602450 (Fla. Opinion Filed Nov. 08, 2016); Joseph v. State, 988
So. 2d 133 (Fla. 1st DCA 2008); Dawson v. State, 979 So. 2d 1099 (Fla. 3d DCA 2008). But where the
defense attorney told the court that it was the defendant’s position that the trial was a nullity, that
constituted consent. See State v. Downing, 9 Fla. L. Weekly Supp. 93 (Fla. 15th Cir. Ct. Nov. 28,
2001)State v. Downing, 9 Fla. L. Weekly Supp. 93 (Fla. 15th Cir. Ct. Nov. 28, 2001).
6
Thomason v. State, 620 So. 2d 1234, 1239 (Fla. 1993); Rohr v. State, 916 So. 2d 1002 (Fla. 2d DCA
2006) (Double Jeopardy Clause barred retrial where court declared a mistrial because defendant was late
and had called saying she was on the way; the court did not consider all options, including waiting). See
also Turner v. State, 37 So. 3d 212, 222 (Fla. 2010); Merchant v. State, 201 So.3d 146 (Fla. 3d DCA
2016), review denied, 2016 WL 6602450 (Fla. Opinion Filed Nov. 08, 2016); Tulo v. State, 31 So. 3d
949 (Fla. 2d DCA 2010); Douglas v. State, 28 So. 3d 931 (Fla. 3d DCA 2010); Chapinoff v. State, 2 So.
3d 1080 (Fla. 3d DCA 2009); Joseph v. State, 988 So. 2d 133 (Fla. 1st DCA 2008); Dawson v. State,
979 So. 2d 1099 (Fla. 3d DCA 2008); McCulloch v. State, 859 So. 2d 531, 532 (Fla. 4th DCA 2003),
review denied, 869 So. 2d 540 (Fla. 2004) (citing C.A.K. v. State, 661 So. 2d 365, 367 (Fla. 2d DCA
1995)); Turner v. State, 851 So. 2d 276, 279 (Fla. 4th DCA 2003).
7
Parce v. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988), review denied, 542 So. 2d 988 (Fla. 1989).
8
Parce v. Byrd, 533 So. 2d 812 (Fla. 5th DCA 1988), review denied, 542 So. 2d 988 (Fla. 1989). See also
Rodriguez v. Burk, 637 So. 2d 317 (Fla. 4th DCA 1994).
9
Taylor v. State, 811 So. 2d 803 (Fla. 1st DCA 2002).
10
Taylor v. State, 811 So. 2d 803 (Fla. 1st DCA 2002).
11
Thomason v. State, 620 So. 2d 1234 (Fla. 1993). See also Tulo v. State, 31 So. 3d 949 (Fla. 2d DCA
2010) (no manifest necessity where judge declared a mistrial because the assistant prosecutor’s father
died, but the judge did not determine whether another prosecutor could try the rest of the case or
whether the trial could be continued until the assigned attorney could return).
12
Stewart v. State, 846 So. 2d 1175 (Fla. 1st DCA 2003).
13
Renteria v. State, 11 Fla. L. Weekly Supp. 541 (Fla. 17th Cir. Ct. Feb. 3, 2004)Renteria v. State, 11 Fla.
L. Weekly Supp. 541 (Fla. 17th Cir. Ct. Feb. 3, 2004).
14
Stewart v. State, 846 So. 2d 1175 (Fla. 1st DCA 2003).
15
Perkins v. Graziano, 608 So. 2d 532 (Fla. 5th DCA 1992). See also Busshaus v. State, 22 Fla. L. Weekly
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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

Supp. 1148 (Fla. 18th Cir. Ct. May 22, 2015) (mistrial was improperly declared where juror told clerk
during recess he did not like breathalyzers or cops he didn’t know, expressed surprise at being chosen
and admitted he should not have made the statements; on State’s request the judge excused the juror
leaving only five; defense rejected court’s offer to continue; the court ruled that the mistrial was
improper because the judge “did not consider the reasonable alternative of conducting further inquiry of
the juror prior to excusing him.”).
16
Baez v. State, 699 So. 2d 305, 306 (Fla. 3d DCA 1997); Merchant v. State, 201 So.3d 146 (Fla. 3d
DCA 2016), review denied, 2016 WL 6602450 (Fla. Opinion Filed Nov. 08, 2016).
17
Merchant v. State, 201 So.3d 146 (Fla. 3d DCA 2016), review denied, 2016 WL 6602450 (Fla. Opinion
Filed Nov. 08, 2016).
18
Merchant v. State, 201 So.3d 146 (Fla. 3d DCA 2016), review denied, 2016 WL 6602450 (Fla. Opinion
Filed Nov. 08, 2016).
19
Rodriguez v. State, 743 So. 2d 538 (Fla. 2d DCA 1998), review denied, 729 So. 2d 918 (Fla. 1999).
20
Turner v. State, 37 So. 3d 212, 222 (Fla. 2010), cert. denied, 131 S. Ct. 426, 178 L. Ed. 2d 332 (2010)
(citing State ex rel. Williams v. Grayson, 90 So. 2d 710, 713, 63 A.L.R.2d 777 (Fla. 1956) (the Court
recognized that manifest necessity may exist where the judge, juror, or accused must be absent due to
illness; here the defendant moved for a mistrial and there was sufficient record evidence of manifest
necessity). See also Perez v. State, 20 Fla. L. Weekly Supp. 899 (Fla. 18th Cir. Ct. June 19, 2013) Perez
v. State, 20 Fla. L. Weekly Supp. 899 (Fla. 18th Cir. Ct. June 19, 2013) (there was manifest necessity
where one juror was upset by a recent traffic accident and another could not concentrate because of her
business; defense counsel refused to continue with five jurors and said two problem jurors were
unacceptable; alternatively, court found any error invited).
21
Cohens v. Elwell, 600 So. 2d 1224 (Fla. 1st DCA 1992). See also Douglas v. State, 28 So. 3d 931 (Fla.
3d DCA 2010) (no manifest necessity where after jury was sworn, defendant was quarantined due to
virus, but court did not explore having jury return the following Thursday when quarantine was to be
lifted; both State and defendant objected to mistrial and only inquiry of jurors was by a bailiff who was
told by three jurors that they could not return the following week); Rodriguez v. State, 719 So. 2d
1215 (Fla. 2d DCA 1998) (no manifest necessity for mistrial where month-long delay to avoid prejudice
to defendant was necessitated by last minute codefendant’s plea, and State’s announcement that the
codefendant would testify against defendant, where court did not inquire of jurors as to effect of
continuance).
22
Torres v. State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001).
23
Cohens v. Elwell, 600 So. 2d 1224 (Fla. 1st DCA 1992). See also Rodriguez v. State, 719 So. 2d
1215 (Fla. 2d DCA 1998).
24
Cohens v. Elwell, 600 So. 2d 1224 (Fla. 1st DCA 1992). See also Dawson v. State, 979 So. 2d 1099
(Fla. 3d DCA 2008); Stewart v. State, 846 So. 2d 1175 (Fla. 1st DCA 2003).
25
Dawson v. State, 979 So. 2d 1099 (Fla. 3d DCA 2008). See also Joseph v. State, 988 So. 2d 133 (Fla. 1st
DCA 2008).
26
Dawson v. State, 979 So. 2d 1099, 1102 (Fla. 3d DCA 2008). See also Joseph v. State, 988 So. 2d 133
(Fla. 1st DCA 2008).
27
Turner v. State, 851 So. 2d 276, 279 (Fla. 4th DCA 2003) (there was no mistrial, but the trial judge
threatened to order a mistrial unless the defendant testified, which the trial judge deemed necessary to
cure the defense attorney’s improper opening statement).
28
Jackson v. State, 855 So. 2d 178 (Fla. 4th DCA 2003) (during voir dire the defense attorney had asked
questions dealing with racism, bias, and official harassment of African–Americans, but the state’s
objections were sustained, and in opening the defense attorney referred to the officers as “ ‘these jerky,
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§ 3:7.Dismissal of charge as a result of a mistrial or..., 11 Fla. Prac., DUI...

little jerky cops of Magonia Park.’ ”).

29
Chapinoff v. State, 2 So. 3d 1080 (Fla. 3d DCA 2009) (the attorneys moved for a mistrial because the
trial judge ordered them to do so or face criminal contempt proceedings and Florida Bar action; this was
not a voluntary relinquishment of double jeopardy rights and the defendant could not be retried because
the judge did not consider other options).
30
Lebron v. State, 799 So. 2d 997, 1015 (Fla. 2001) (the principles dealing with prosecutorial
misconduct also apply to the judge). See also Gore v. State, 784 So. 2d 418, 427 (Fla. 2001).
31
Oregon v. Kennedy, 456 U.S. 667, 675, 102 S. Ct. 2083, 2089, 72 L. Ed. 2d 416 (1982) ; State v.
Gaines, 770 So. 2d 1221 (Fla. 2000); State v. Mercado, 121 So. 3d 604 (Fla. 5th DCA 2013), review
denied, 2017 WL 5247741 (Fla. Opinion Filed Nov. 13, 2017); Worsham v. State, 894 So. 2d 1043 (Fla.
5th DCA 2005), review denied, 907 So. 2d 519 (Fla. 2005); State v. Poteet, 20 Fla. L. Weekly Supp. 971
(Fla. 18th Cir. Ct. July 26, 2013)State v. Poteet, 20 Fla. L. Weekly Supp. 971 (Fla. 18th Cir. Ct. July 26,
2013) (suggesting there is a two part test, citing Rutherford v. State, 545 So. 2d 853, 855 (Fla. 1989):
“‘the prosecution goads the defense into moving for a mistrial and gains an advantage from the
retrial.’”).
32
Fuente v. State, 549 So. 2d 652 (Fla. 1989). See also State v. Rodriguez, 723 So. 2d 888 (Fla. 2d DCA
1998); State v. T.S., 627 So. 2d 1254 (Fla. 3d DCA 1993); State v. Poteet, 20 Fla. L. Weekly Supp. 971
(Fla. 18th Cir. Ct. July 26, 2013)State v. Poteet, 20 Fla. L. Weekly Supp. 971 (Fla. 18th Cir. Ct. July 26,
2013); State v. Kamps, 13 Fla. L. Weekly Supp. 870 (Fla. 15th Cir. Ct. June 27, 2006)State v. Kamps,
13 Fla. L. Weekly Supp. 870 (Fla. 15th Cir. Ct. June 27, 2006); State v. Downing, 9 Fla. L. Weekly
Supp. 93 (Fla. 15th Cir. Ct. Nov. 28, 2001)State v. Downing, 9 Fla. L. Weekly Supp. 93 (Fla. 15th Cir.
Ct. Nov. 28, 2001); State v. Mahoney, 8 Fla. L. Weekly Supp. 293 (Fla. 17th Cir. Ct. Feb. 12,
2001)State v. Mahoney, 8 Fla. L. Weekly Supp. 293 (Fla. 17th Cir. Ct. Feb. 12, 2001); State v.
Carrollwolven, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002)State v.
Carrollwolven, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002).
33
Johnson v. State, 545 So. 2d 411 (Fla. 3d DCA 1989), review denied, 551 So. 2d 461 (Fla. 1989).
See also State v. James, 710 So. 2d 180 (Fla. 3d DCA 1998), as amended, (May 13, 1998) (retrial not
barred where prosecutor told jury in opening statement what a witness knew, when the prosecutor knew
he would not call the witness, despite telling the court that he would call her).
34
Robinson v. State, 574 So. 2d 108 (Fla. 1991), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116
L.Ed.2d 99 (1991). See also Turner v. State, 37 So. 3d 212, 221 (Fla. 2010); Roundtree v. State, 706 So.
2d 95 (Fla. 3d DCA 1998); State v. Mahoney, 8 Fla. L. Weekly Supp. 293 (Fla. 17th Cir. Ct. Feb. 12,
2001)State v. Mahoney, 8 Fla. L. Weekly Supp. 293 (Fla. 17th Cir. Ct. Feb. 12, 2001); State v. Todd, 10
Fla. L. Weekly Supp. 1047 (Fla. Broward Cty. Ct. Sept. 3, 2003); State v. Carrollwolven, 9 Fla. L.
Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002)State v. Carrollwolven, 9 Fla. L. Weekly
Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002).
35
Gore v. State, 784 So. 2d 418 (Fla. 2001).
36
Duncan v. State, 525 So. 2d 938 (Fla. 3d DCA 1988) (retrial barred where mistrial declared after gun
was excluded from evidence and prosecutor had toy gun retrieved from his office and twirled it around
in front of the jury when defense counsel was arguing that if a gun had been involved in the offense,
someone would have seen it; facts did not support any conclusion other than that the prosecutor intended
to cause a mistrial and State gained an advantage as a result of the mistrial). See also State v. Todd, 10
Fla. L. Weekly Supp. 1047 (Fla. Broward Cty. Ct. Sept. 3, 2003) (court goes through detailed analysis of
factors it considered in concluding that the prosecutor did not intend to goad the defense into asking for
a mistrial); State v. Carrollwolven, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12,
2002)State v. Carrollwolven, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002).
37
Duncan v. State, 525 So. 2d 938 (Fla. 3d DCA 1988).

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38
Duncan v. State, 525 So. 2d 938 (Fla. 3d DCA 1988).
39
State v. Taylor, 23 Fla. Supp. 2d 146 (Fla. 7th Cir. 1987).
40
Metz v. State, 8 Fla. L. Weekly Supp. 81 (Fla. 15th Cir. Ct. Dec. 11, 2000)Metz v. State, 8 Fla. L.
Weekly Supp. 81 (Fla. 15th Cir. Ct. Dec. 11, 2000).
41
Rutherford v. State, 545 So. 2d 853, 855 (Fla. 1989), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107
L.Ed.2d 341 (1989). See also Turner v. State, 37 So. 3d 212, 221 (Fla. 2010).
42
Rutherford v. State, 545 So. 2d 853, 855 (Fla. 1989), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107
L.Ed.2d 341 (1989). See also Richards v. State, 140 So. 3d 1158 (Fla. 1st DCA 2014) (record supported
conclusion prosecutor did not intend to goad defense into seeking mistrial where prosecutor asked first
witness in an aggravated assault case a question suggesting defendant used cocaine; while testimony was
prejudicial, it was relevant and prosecutor believed it was admissible; “There is no indication in the
record … that the State would have benefited in any way from a mistrial being declared at such an early
stage in the proceedings.”); State v. Tyson, 86 So. 3d 538 (Fla. 2d DCA 2012) (court reversed dismissal,
finding that prosecutor’s improper comments in opening did not meet the test of intent to cause a
mistrial; the trial judge did not find such an intent; no evidence had been presented or excluded; the
defense had not presented its theory); State v. Santiago, 928 So. 2d 480 (Fla. 5th DCA 2006) (asking a
question eliciting a nonresponsive answer that violated an order granting a motion in limine, and asking
a question with the intent to get in evidence that the prosecutor believed was relevant and admissible,
did not indicate an intent to goad the defendant into moving for a mistrial and retrial was not barred);
State v. Todd, 10 Fla. L. Weekly Supp. 1047 (Fla. Broward Cty. Ct. Sept. 3, 2003) (attempt to introduce
overly prejudicial evidence to secure a conviction resulting in a mistrial on defense motion does not bar
retrial).
43
State v. Carrollwolven, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002)State v.
Carrollwolven, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002). See also State v.
Scurry, 933 So. 2d 565 (Fla. 1st DCA 2006) (retrial not barred where prosecutor told witness not to
mention the fact that there had been a prior trial, but defense attorney asked a confusing question on
cross resulting in a brief mention of earlier trial by the witness).
44
The prosecutor asked, “ ‘what did you decide to do,’ not ‘what did the Defendant say.’ ”
45
Happ v. State, 596 So. 2d 991 (Fla. 1992), cert. granted on other grounds, judgment vacated, 506
U.S. 949, 113 S. Ct. 399, 121 L. Ed. 2d 325 (1992).
46
Johnson v. State, 545 So. 2d 411 (Fla. 3d DCA 1989), review denied, 551 So. 2d 461 (Fla. 1989).
47
State v. Butler, 528 So. 2d 1344 (Fla. 2d DCA 1988).
48
Cooper v. State, 716 So. 2d 823 (Fla. 5th DCA 1998).
49
State v. Santiago, 928 So. 2d 480 (Fla. 5th DCA 2006).
50
State v. Weed, 6 Fla. L. Weekly Supp. 372 (Fla. 9th Cir. Ct. April 13, 1999) State v. Weed, 6 Fla. L.
Weekly Supp. 372 (Fla. 9th Cir. Ct. April 13, 1999).
51
State v. T.S., 627 So. 2d 1254 (Fla. 3d DCA 1993).
52
Roundtree v. State, 706 So. 2d 95 (Fla. 3d DCA 1998).
53
Worsham v. State, 894 So. 2d 1043 (Fla. 5th DCA 2005), review denied, 907 So. 2d 519 (Fla. 2005).
See also State v. Kamps, 13 Fla. L. Weekly Supp. 870 (Fla. 15th Cir. Ct. June 27, 2006)State v. Kamps,
13 Fla. L. Weekly Supp. 870 (Fla. 15th Cir. Ct. June 27, 2006) (retrial not barred where mistrial granted
after court sustained objection to question about Miranda, but prosecutor immediately asked why rights
were not read and trooper said they weren’t required at that time).

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54
State v. Poteet, 20 Fla. L. Weekly Supp. 971 (Fla. 18th Cir. Ct. July 26, 2013)State v. Poteet, 20 Fla. L.
Weekly Supp. 971 (Fla. 18th Cir. Ct. July 26, 2013) (arresting officer had been told not to mention
“‘controlled substance;’” on direct, officer said defendant looked like he was on something; defense
asked on cross “‘what are we talking about;’” resulting in prosecutor’s outburst).
55
Soberon v. State, 8 Fla. L. Weekly Supp. 148 (Fla. 11th Cir. Ct. Nov. 14 2000)Soberon v. State, 8 Fla.
L. Weekly Supp. 148 (Fla. 11th Cir. Ct. Nov. 14 2000) (court stated that improper police-witness
conduct cannot be attributed to the prosecutor). See also State v. Ostdiek, 5 Fla. L. Weekly Supp. 59
(Fla. 20th Cir. Ct. July 31, 1997)State v. Ostdiek, 5 Fla. L. Weekly Supp. 59 (Fla. 20th Cir. Ct. July 31,
1997) (dismissal after mistrial was improper where officer did not disclose to the State or the defense
that the defendant said he did not want to take the breath test because his lawyer told him not to after his
last DUI and the defense brought this out on cross-examination).
56
Stanley v. State, 687 So. 2d 19 (Fla. 5th DCA 1996), review denied, 695 So. 2d 701 (Fla. 1997).
57
Stanley v. State, 687 So. 2d 19 (Fla. 5th DCA 1996), review denied, 695 So. 2d 701 (Fla. 1997).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 4 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 4 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

Introduction

INTRODUCTION
DUI cases involve a variety of evidence, including chemical test results, observations of the accused’s behavior,
field sobriety exercise results, and statements. There are various grounds for excluding such evidence, but the
unlawfulness of the initial detention in violation of the Fourth Amendment to the United States Constitution and
Art. I, § 12, Florida Constitution, applies to most evidence secured after the stop. Thus, the validity of the
detention is appropriately considered in one chapter. Other reasons for exclusion of specific kinds of evidence
are dealt with in following chapters.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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Works.

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§ 4:1.Procedural considerations, 11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:1. Procedural considerations

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(17), 349.5(4), 355(6)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1335, 1408 to 1411, 1545

Fla. R. Crim. P. 3.190 sets forth the initial procedure for consideration of unlawful detention as a basis for
exclusion of evidence. The defendant must file a written motion seeking suppression of the evidence. The court
should deny the motion if it is insufficient on its face. The court should hear the motion if it is sufficient.

Generally, the judge hears the motion before trial; however, the court may hear the motion after the jury has
been sworn. In that case, if it is granted, the Double Jeopardy Clause makes it unlikely the State will be able to
appeal. A mistrial is necessary to appeal, but retrial is barred unless the defendant causes, moves for, or
consents to the mistrial.1 The court may exercise its discretion, however, to refuse to hear the motion to suppress
unless the defendant agrees to a mistrial if the motion is granted.2

In Gaines,3 the Court acknowledged that the State had no right to appeal the granting of a motion to suppress
during a trial, unless the defendant agreed to a mistrial prior to the hearing on the motion. However, the Court
expressed concern that, even with such an agreement, there may be no authorization for the State to appeal in
any statute or rule. Therefore, the Court referred that matter to the appropriate committees for consideration.
The Court recommended as an alternative procedure, that the trial judge reserve ruling on the motion to
suppress and for judgment of acquittal. If the jury finds the defendant guilty, the trial judge can then grant both
motions, and the State can appeal.4

During the hearing there may be conflicting testimony as to the basis for the stop or removal of the occupants
from the vehicle. The trial judge has the duty to assess the credibility of witnesses at the suppression hearing. 5 In
considering such testimony, the trial judge “is free to ignore or place less emphasis on certain testimony.” 6 It is
error for the appellate court “to reweigh the evidence and choose to believe a state witness which the [trial

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§ 4:1.Procedural considerations, 11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

judge] chose not to believe.”7 Thus, the trial judge was free to disregard the officer’s testimony, where the judge
concluded that a video showed that the defendant was not committing any infraction, but the officer testified
that before the video started recording the defendant was driving more erratically. 8 “The county court [is] free to
rely on its credibility determination to ignore or place less emphasis on the officer’s testimony and [is] not
required to give equal weight to the officer’s testimony and the video.”9

In the recent case of Wiggins v. Department of Highway Safety & Motor Vehicles,10 the Court reversed a
suspension, finding that the “circuit court applies the correct law by rejecting officer testimony as being
competent, substantial evidence when that testimony is contrary to and refuted by objective real-time video
evidence.”11 While the Wiggins Court said it was making that finding in the limited circumstances of license
suspension hearings, the factual findings of trial judges in motions to suppress must also be based on competent,
substantial evidence.12 The Court characterized the evidence:
[T]he officer’s testimony that there was reasonable suspicion to stop Wiggins is flatly contradicted
and refuted by video evidence of record. Contrary to the officer’s testimony, the video indicates
that Wiggins did not veer out of his lane, did not weave within his lane, did not brake erratically,
did not make a wide turn, or do anything else to elicit reasonable suspicion…. Evidence that is
confirmed untruthful or nonexistent is not competent, substantial evidence.13

If, however, the officer’s testimony is uncontroverted, believable, and supports only a single theory, the trial
court must accept that theory as fact. That is true even if only the arresting officer testifies. 14 In other words, “A
court must accept evidence which … is neither impeached, discredited, controverted, contradictory within itself,
or physically impossible.”15 The “legal effect” of such factual evidence is a question of law. 16 However, some
district court decisions hold that a judge or jury may reject uncontroverted testimony even where it is the only
evidence in the case.17

Testimony as to the legal significance of facts is unlike descriptions of the facts. Thus, an officer’s belief as to
the sufficiency of the legal basis for the stop is not binding on the court. 18 Similarly, an officer’s conclusions as
to probable cause or reasonable suspicion do not control the outcome.19

The rules for presentation of evidence in the hearing are not the same as the trial itself. Hearsay is admissible to
prove consent, to secure a search warrant, and to establish probable cause for arrest. 20 However, there was a split
between the Fourth and Second Districts as to whether the fellow officer rule could justify reliance on hearsay
to prove the basis for a traffic stop by one officer followed by a DUI investigation by a second officer who had
nothing to do with the initial stop.

In Ferrer v. State,21 the court was concerned with the validity of the initial traffic stop by one officer, which was
followed by a DUI investigation and arrest by a second officer, who had nothing to do with the traffic stop. The
Fourth District held that in a suppression hearing the fellow officer rule allowed the second officer to testify as
to the circumstances of the initial stop based on what the stopping officer told the second officer. 22 The stopping
officer did not testify at all. In Bowers v. State,23 the Second District disagreed and said:
Under the (fellow officer) rule one officer may rely on the knowledge and information possessed
by another officer to establish probable cause for an arrest for a felony or misdemeanor offense
…. The fellow officer rule is not a rule of evidence. It does not change the rules of evidence. And,
it is not one of the enumerated exceptions to the hearsay rule.24

The Florida Supreme Court resolved this conflict in favor of the Second District’s holding. 25 In Bowers,26 the
Supreme Court concluded that the State cannot show probable cause for a traffic stop by reliance on the
testimony of an officer who was not present at or involved in the stop as to what the stopping officer said to the
testifying officer after the stop. The testifying officer made a marijuana and DUI arrest after the traffic stop, but
the sufficiency of the evidence to sustain that arrest was not an issue in the case. Several recent circuit and

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§ 4:1.Procedural considerations, 11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

county court decisions have considered these rules.27

Most of the time in suppression hearings the focus is on the prosecution’s burden, but the burden is initially on
the defense. The defense must make an initial showing that the search was illegal. The defendant meets that
burden by showing that there was a warrantless search. 28 The defendant must plead sufficient facts to establish
an unlawful search.29 Additionally, the defendant must make a prima facie showing at the hearing that the search
was invalid.30

The defendant must also establish standing;31 however, if the State does not raise the issue of standing at the trial
or appellate level, it waives the argument.32 While the U.S. Supreme Court apparently intended the use of the
term “standing” to be abandoned, the courts still use it. 33 The focus in such situations is on violations of the
accused’s rights by an unlawful search or seizure. 34 “Standing” to attack a search means having a reasonable
expectation of privacy with which the State has interfered. 35 And “standing” to attack a seizure means having a
constitutionally protected possessory interest with which the State has interfered. 36 In a DUI case, the defendant
can easily meet this burden even if the car is stolen. The driver of a stolen car has standing to attack the stop,
but not the search of the car. 37 There is no possessory or ownership interest in stolen property nor is society
prepared to recognize an expectation of privacy in stolen property as reasonable; therefore, one in possession of
such property has no standing to object to seizure.38

The defendant must also show that the involved evidence was secured due to a detention. That is to say, that it
was not secured through a consensual encounter. That also means the defense must show by pleading and proof,
that the involved evidence was obtained by the government as a result of an invalid search or seizure. 39 The
defense fails to meet this burden if the evidence shows only conduct like observing an item by shining a
flashlight into a vehicle.40 If that search and seizure was without a warrant, it is presumptively illegal, and the
State must show that it was reasonable.41

Finally, the defendant must demonstrate that the involved evidence was the type that is subject to suppression.
This is usually noncontroversial, but there are a few issues that may come up on this point. First, a breath test
involves the taking of deep lung air, and according to Skinner v. Railway Labor Executives’ Ass’n,42 “like the
blood alcohol test we considered in Schmerber, should also be deemed a search.”43 Second, neither the State nor
Federal constitutions protect against searches by private citizens. 44 Third, an order suppressing test results is an
order suppressing evidence obtained by a search and seizure and is appealable by the State pursuant to Fla. R.
Crim. P. 9.140(c)(1)(B).45

On the other hand, the identity of the driver has been treated differently. Two district courts ruled in suspended
driver’s license cases that an unlawful stop will not result in exclusion of testimony as to the identity of the
defendant.46

The Supreme Court disapproved those district court opinions in State v. Perkins.47 The Court said, “we hold that
when, as in the instant case, an officer unlawfully stops a defendant solely to determine whether he or she is
driving on a suspended license, that officer’s post-stop observation of the defendant behind the wheel must be
suppressed.”48 The Court does not directly address whether identity would be excluded if the unlawful stop was
for reasons other than to determine whether the driver had a suspended license. The Court draws a distinction,
however, between an officer’s incidental observations during an unlawful stop and observations directly related
to the criminal investigation. “The principle evidence in the instant case is the observation of the defendant
behind the wheel. When viewed in the context of driving with a suspended license, the observations by a police
officer of a defendant following an unlawful stop can hardly be described as incidental to the criminal
investigation.”49 How this applies to a DUI case without a companion charge of driving on a suspended license
is unclear.

The burden shifts to the State only when the defense has met its limited burden. If the defendant refuses to
accept the state’s offer to stipulate to the truth of the facts alleged in the motion to suppress, the State must
present evidence. It cannot rely on the allegations of the motion. 50 However, the State need not positively
establish the defendant’s identity as they must at trial.51

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§ 4:1.Procedural considerations, 11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

Generally, the State must prove that a warrant authorized the detention or that one of the established exceptions
to the warrant requirement applies.52 However, different rules apply to motor vehicles. Officers may search a
motor vehicle without a warrant if they have probable cause to believe the vehicle contains contraband and is
readily mobile.53 The fact that the owner has been arrested, and it is extremely unlikely that the vehicle can be
moved, does not affect the lawfulness of the search.54

Furthermore, where officers lawfully stop a vehicle, they may order the driver to exit the vehicle for the
officer’s safety.55 However, an officer cannot direct that the driver of a vehicle stopped at a roadblock exit the
vehicle, unless the officer has developed reasonable suspicion that the driver has committed or is committing an
offense.56

The degree of the burden of proof as to the validity of the search and seizure is important because, if the trial
judge articulates the wrong burden, it can result in reversal. If the State must prove the legality of the police
conduct without a warrant, there is some variation as to the appropriate burden. In Palmer v. State,57 the court
concluded that the State had to prove the validity of the search by clear and convincing evidence. In Palmer,58
police made a lawful traffic stop, but continued to detain the defendant when the purpose of the traffic stop was
accomplished. In State v. Ansley,59 where the State relied on plain view, the court ruled that the State had to
show the validity of the seizure by clear and convincing evidence because that was the burden required to prove
consent, and there is no justification for treating other constitutional safeguards differently. However, in State v.
Lyons,60 the court recognized that the burden has been clear and convincing evidence, but declined to decide the
appropriate burden because proof by a preponderance of the evidence was required to prove voluntariness of
confessions and consent in other cases. Thus, there are significant variations as to the proper burden.

Perhaps the decision as to the burden of proof should be based on the current rule as to the burden in proving
voluntariness of consent. In Reynolds v. State,61 the Court clearly articulated this rule:

Where there is an illegal detention or other illegal conduct on the part of the police, a consent will
be found voluntary only if there is clear and convincing evidence that the consent was not a
product of the illegal police action. Norman v. State, 379 So. 2d 643, 647 (Fla. 1980);
Bailey v. State, 319 So. 2d 22, 28-29 (Fla. 1975). Otherwise, the voluntariness of the consent must
be established by a preponderance of the evidence.62

All of the applicable exceptions to the warrant requirement are covered in this chapter. However, there are
several important principles that apply to review of the trial court’s ruling on the application of these
exceptions. There must be “competent, substantial evidence” supporting the trial judge’s findings. 63 The
appellate court reviews the trial court’s findings of historical fact only for “ ‘clear error’ ” and with “ ‘due
weight to be accorded to inferences drawn from those facts.’ ” 64 All the evidence and inferences are to be
construed in a light most favorable to the ruling. 65 Factual findings are presumptively correct. 66 However, the
court reviews de novo the application of the law to the facts.67 Issues of probable cause and reasonable suspicion
are reviewed de novo.68 While it is not required, it does facilitate this review process for the trial judge to make
findings of fact, and the appellate courts encourage it.69

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Gaines, 770 So. 2d 1221 (Fla. 2000); State v. Livingston, 681 So. 2d 762 (Fla. 2d DCA
1996).

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2
State v. Gaines, 731 So. 2d 7 (Fla. 4th DCA 1999), decision aff’d, 770 So. 2d 1221 (Fla. 2000).
3
State v. Gaines, 770 So. 2d 1221 (Fla. 2000).
4
This procedure has since been set forth in a committee note to Fla. R. Crim. P. 3.190. See Amendments
to the Florida Rules of Criminal Procedure, 837 So. 2d 924 (Fla. 2002).
5
State v. Oakley, 751 So. 2d 172 (Fla. 2d DCA 2000).
6
Sunby v. State, 845 So. 2d 1006, 1007 (Fla. 5th DCA 2003).
7
Sunby v. State, 845 So. 2d 1006, 1007 (Fla. 5th DCA 2003). See also Malone v. State, 195 So.3d 1184
(Fla. 2d DCA 2016); Duke v. State, 82 So. 3d 1155, 1158 (Fla. 2d DCA 2012).
8
Sunby v. State, 845 So. 2d 1006 (Fla. 5th DCA 2003). See also Malone v. State, 195 So.3d 1184 (Fla. 2d
DCA 2016) (circuit court erred and improperly reweighed evidence in reversing suppression where
officer testified that defendant had an odor of alcohol, slurred speech, watery and glassy eyes, admitted
drinking and performed poorly on FSTs; but county judge had concluded that the video of virtually the
entire contact contained no indication of slurred speech or impairment, and the problem with FSTs
resulted from a disability); State v. Rilogio, 24 Fla. L. Weekly Supp. 974 (Fla. Volusia Cty. Ct. Dec. 22,
2016)State v. Rilogio, 24 Fla. L. Weekly Supp. 974 (Fla. Volusia Cty. Ct. Dec. 22, 2016) (the trial judge
granted motion to suppress based on the fact that the officer’s testimony was inconsistent with the video;
“The video footage of Defendant’s interaction with Officer Jones, and specifically how the Defendant
looked and sounded on the videos, is the best evidence as to whether or not Officer Jones had reasonable
suspicion of impairment.”).
9
Malone v. State, 195 So.3d 1184, 1186-87 (Fla. 2d DCA 2016).
10
Wiggins v. Florida Department of Highway Safety & Motor Vehicles, 209 So.3d 1165 (Fla. 2017).
But see Dostie v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 897 (Fla. 4th
Cir. Ct. Jan. 6, 2017)Dostie v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 897
(Fla. 4th Cir. Ct. Jan. 6, 2017) (court upheld hearing officer’s finding of probable cause for DUI where
the driving was consistent with impairment, notwithstanding the fact that video did not support finding
where police officer said petitioner had an odor of alcohol and that defendant had blood-shot watery
eyes and flushed face, but the video was to far away to confirm or refute that testimony; police officer
also said defendant had slurred speech, court could not detect any slurred speech on video but there were
significant portions of conversation between the trooper and petitioner during their initial encounter
where the speech on video was “muffled, mumbled or inaudible” and petitioner refused FSES).
11
Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So.3d 1165, 1175 (Fla.
2017).
12
See e.g., Parker v. State, 873 So.3d 270, 279 (Fla. 2004).
13
Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So.3d 1165, 1173 (Fla.
2017). See also Foster v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 404 (Fla.
6th Cir. Ct. June 6, 2017)Foster v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp.
404 (Fla. 6th Cir. Ct. June 6, 2017) (court relied on Wiggins test but upheld the ALJ because the
testimony of the officer as to the condition of the petitioner was not contradicted and refuted by the
video); Hendry v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 992 (Fla. 13th
Cir. Ct. June 5, 2014)Hendry v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp.
992 (Fla. 13th Cir. Ct. June 5, 2014) (the court reached the same conclusion as in Wiggins before the
Supreme Court’s decision and found that there was not competent substantial evidence of a lawful stop
where the officer testified that the petitioner was stopped because his headlights were out, but a video
conclusively showed that they were illuminated).
14
State v. Daniel, 665 So. 2d 1040, 1044 (Fla. 1995), overruled on other grounds, Holland v. State, 696
So. 2d 757 (Fla. 1997); State v. Corvin, 677 So. 2d 947 (Fla. 2d DCA 1996). Contra Maurer v. State,

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§ 4:1.Procedural considerations, 11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

668 So. 2d 1077 (Fla. 5th DCA 1996).

15
State v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA 1988), cause dismissed, 531 So. 2d 1352 (Fla.
1988). See also Britts v. State, 158 Fla. 839, 844, 30 So. 2d 363, 366 (1947); Brannen v. State, 94 Fla.
656, 661–62, 114 So. 429, 430–31 (1927) (the court makes it clear that this applies to factual testimony,
not opinion testimony); State v. Ojeda, 147 So. 3d 53 (Fla. 3d DCA 2014); State v. Williams, 119 So. 3d
544 (Fla. 1st DCA 2013); Harris v. State, 104 So. 2d 739, 742-43 (Fla. 2d DCA 1958); State v. Wong,
990 So. 2d 1154 (Fla. 3d DCA 2008), review denied, 6 So. 3d 608 (Fla. 2009); State v. Jones, 849
So. 2d 438, 443 (Fla. 3d DCA 2003); State v. Casey, 821 So. 2d 1187 (Fla. 3d DCA 2002); State v.
Scruggs, 563 So. 2d 717 (Fla. 3d DCA 1990); State v. Moreno, 558 So. 2d 470 (Fla. 3d DCA 1990);
State v. Simm, 558 So. 2d 110 (Fla. 3d DCA 1990); State v. Bowden, 538 So. 2d 83, 85 (Fla. 2d DCA
1989); State v. Darden, 20 Fla. L. Weekly Supp. 233 (Fla. 11th Cir. Ct. Nov. 2, 2012)State v. Darden, 20
Fla. L. Weekly Supp. 233 (Fla. 11th Cir. Ct. Nov. 2, 2012); State v. Rodriguez, 18 Fla. L. Weekly Supp.
940 (Fla. 11th Cir. Ct. July 15, 2011)State v. Rodriguez, 18 Fla. L. Weekly Supp. 940 (Fla. 11th Cir. Ct.
July 15, 2011).
16
Brannen v. State, 94 Fla. 656, 662, 114 So. 429, 431 (1927).
17
Lewis v. State, 979 So. 2d 1197, 1200 (Fla. 4th DCA 2008); Maurer v. State, 668 So. 2d 1077 (Fla. 5th
DCA 1996); State v. Paul, 638 So. 2d 537, 539 (Fla. 5th DCA 1994), review denied, 654 So. 2d 131
(Fla. 1995). See also Z.E. v. State, 241 So.3d 979 (Fla. 2d DCA 2018); Duke v. State, 82 So. 3d 1155
(Fla. 2d DCA 2012); Cassidy v. State, 18 So. 3d 620 (Fla. 5th DCA 2009).
18
Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999), review denied, 763 So. 2d 1043 (Fla. 2000)
(officer saw one van backed up to another van in a parking lot at 3 a.m., van doors were open, contents
were being transferred and defendant started to walk away when officer approached); Huebner v.
State, 731 So. 2d 40, 45 (Fla. 4th DCA 1999) (trial judge could properly conclude that officer was in hot
pursuit even though officer did not think he was). See also Hawxhurst v. State, 159 So. 3d 1012, 1014
(Fla. 3d DCA 2015) (fact officer incorrectly thought he had probable cause for one charge did not
prevent court from upholding arrest if the officer had probable cause for another charge); Davison v.
State, 15 So. 3d 34 (Fla. 1st DCA 2009) (holding stop of vehicle was valid notwithstanding officer’s
mistaken belief defendant committed violation of a particular traffic law, where facts established
probable cause to believe defendant committed violation of a different traffic law); State v. Kenopke, 7
Fla. L. Weekly Supp. 98 (Fla. 15th Cir. Ct. Oct. 22, 1999)State v. Kenopke, 7 Fla. L. Weekly Supp. 98
(Fla. 15th Cir. Ct. Oct. 22, 1999); State v. Krueger, 6 Fla. L. Weekly Supp. 595 (Fla. 9th Cir. Ct. Aug. 5,
1999)State v. Krueger, 6 Fla. L. Weekly Supp. 595 (Fla. 9th Cir. Ct. Aug. 5, 1999).
19
Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999), review denied, 763 So. 2d 1043 (Fla. 2000).
See also State v. Cruse, 121 So. 3d 91 (Fla. 3d DCA 2013).
20
Parker v. State, 89 So. 3d 844, 859 (Fla. 2011) (quoting Lara v. State, 464 So. 2d 1173, 1177 (Fla.
1985)). See also State v. Littles, 68 So. 3d 976 (Fla. 5th DCA 2011) (statements made by one officer to
arresting officer were not hearsay when introduced to show probable cause for the arrest); State v. Jones,
21 Fla L. Weekly Supp. 860 (Fla. 9th Cir. Ct. April 9, 2014)State v. Jones, 21 Fla L. Weekly Supp. 860
(Fla. 9th Cir. Ct. April 9, 2014) (on a motion to suppress, officer’s testimony computer system revealed
that defendant’s license was suspended was not hearsay because “[i]t was not being offered to prove the
truth of the matter asserted but to demonstrate what information [the officer] had when making the
arrest.”).
21
Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001), review denied, 817 So. 2d 846 (Fla. 2002), and
disapproved by State v. Bowers, 87 So. 3d 704 (Fla. 2012).
22
Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001), review denied, 817 So. 2d 846 (Fla. 2002), and
disapproved by State v. Bowers, 87 So. 3d 704 (Fla. 2012).
23
Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA 2009), decision approved, 87 So. 3d 704 (Fla. 2012).
See also McDaniel v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 270 (Fla.
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16th Cir. Ct. Dec. 13, 2010)McDaniel v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly
Supp. 270 (Fla. 16th Cir. Ct. Dec. 13, 2010) (court agreed with Bowers on similar facts in an
administrative proceeding).
24
Bowers v. State, 23 So. 3d 767, 770 (Fla. 2d DCA 2009), decision approved, 87 So. 3d 704 (Fla.
2012).
25
State v. Bowers, 87 So. 3d 704 (Fla. 2012).
26
State v. Bowers, 87 So. 3d 704 (Fla. 2012).
27
State v. Chopra, 23 Fla. L. Weekly Supp. 73 (Fla. 9th Cir. Ct. April 15, 2015)State v. Chopra, 23 Fla. L.
Weekly Supp. 73 (Fla. 9th Cir. Ct. April 15, 2015) (Bowers did not bar introduction of what dispatcher
told stopping officer; it “requires only that the officer who actually made the traffic stop and ensuing
investigation testify as to his or her basis for those actions. It does not stand for the proposition that the
officer cannot testify regarding what information was relied on in making a determination of reasonable
suspicion or probable cause.”); State v. Robinson, 21 Fla. L. Weekly Supp. 864 (Fla. 9th Cir. Ct. March
12, 2014)State v. Robinson, 21 Fla. L. Weekly Supp. 864 (Fla. 9th Cir. Ct. March 12, 2014) (it was
proper for an officer to testify that a civilian witness told him defendant was driving at the time of an
accident; hearsay is admissible on issues of reasonable suspicion and probable cause and Bowers did not
change that; further, the confrontation clause does not apply to suppression hearings); Palmer v. State,
21 Fla. L. Weekly Supp. 541 (Fla. 4th Cir. Ct. Jan. 9, 2014)Palmer v. State, 21 Fla. L. Weekly Supp. 541
(Fla. 4th Cir. Ct. Jan. 9, 2014) (where the arresting officer did not make the stop nor witness driving or
actual physical control, Bowers barred the court from relying on the arresting officer’s hearsay
testimony as to what he was told by the stopping officer as to that officer’s observations and statements
of witnesses to establish reasonable suspicion for the initial stop and probable cause for the arrest);
Philpott v. State, 20 Fla. L. Weekly Supp. 653 (Fla. 18th Cir. Ct. Feb. 7, 2013)Philpott v. State, 20 Fla.
L. Weekly Supp. 653 (Fla. 18th Cir. Ct. Feb. 7, 2013) (Bowers does not prevent an officer who makes a
stop from testifying to what a dispatcher told the officer that led to the stop; here, the information
provided by the dispatcher was insufficient); Akellanos-Cruz v. State, 20 Fla. L. Weekly Supp. 488 (Fla.
18th Cir. Ct. Dec 12, 2012)Akellanos-Cruz v. State, 20 Fla. L. Weekly Supp. 488 (Fla. 18th Cir. Ct. Dec
12, 2012) (hearsay rule bars reliance exclusively on arrest affidavit and stopping officer’s sworn
statement); Ethier v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 352 (Fla. 4th
Cir. Ct. Dec 12, 2012)Ethier v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp.
352 (Fla. 4th Cir. Ct. Dec 12, 2012) (testimony by stopping officer that before the stop he was advised
by another officer that petitioner was speeding was admissible under Bowers; that case barred testimony
from an officer who was not involved in the original stop as to what he was told by the stopping officer
after a subsequent arrest); State v. Newby, 19 Fla. L. Weekly Supp. 988 (Fla. 6th Cir. Ct. Dec. 1,
2011)State v. Newby, 19 Fla. L. Weekly Supp. 988 (Fla. 6th Cir. Ct. Dec. 1, 2011) (officer’s testimony
as to what nurse told him to show probable cause for blood tests was improperly excluded; Bowers does
not prohibit officer’s testimony as to out of court statements to show his/her own probable cause); State
v. Lopez, 19 Fla. L. Weekly Supp. 563 (Fla. 18th Cir. Ct. March 13, 2012)State v. Lopez, 19 Fla. L.
Weekly Supp. 563 (Fla. 18th Cir. Ct. March 13, 2012) (trial judge in felony DUI held, pursuant to
Bowers, that the validity of a detention for DUI cannot be established by testimony from an officer not
involved in the detention that he was told by a civilian that the driver drove while intoxicated, when the
information was not provided to the detaining officer before the stop); State v. Hemmer, 25 Fla. L.
Weekly Supp. 1023 (Fla. Orange Cty. Ct. Jan, 31, 2018) (trial court granted motion to suppress based on
Bowers, where one officer stopped the defendant and another did the DUI investigation. “The State by
failing to call the law enforcement officer who made the stop, failed to present competent substantial
evidence that reasonable suspicion to stop the Defendant existed.”); State v. James, 25 Fla. L. Weekly
Supp. 543 (Fla. Volusia Cty Ct. July 19, 2017)State v. James, 25 Fla. L. Weekly Supp. 543 (Fla. Volusia
Cty Ct. July 19, 2017) (trial judge interpreted Bowers as allowing deputies to testify as to what 911
caller told them to show reasonable suspicion for traffic stop; but for the 911 call to be considered in
determining whether the arresting deputy had probable cause the caller would have to testify; otherwise,
State would be allowed to prove the truth of the 911 call through hearsay); State v. Baskin, 22 Fla. L.
Weekly Supp. 830 (Fla. Flagler Cty. Ct. Jan. 22, 2015)State v. Baskin, 22 Fla. L. Weekly Supp. 830
(Fla. Flagler Cty. Ct. Jan. 22, 2015) (statement from dispatch or another deputy to prove vehicle stopped
by a deputy had been involved in a crash was hearsay and was inadmissible pursuant to Bowers in a
suppression hearing); State v. Primrose, 22 Fla. L. Weekly Supp. 758 (Fla. Brevard Cty. Ct. Jan. 5,

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2015)State v. Primrose, 22 Fla. L. Weekly Supp. 758 (Fla. Brevard Cty. Ct. Jan. 5, 2015) (citizen
informant saw intoxicated defendant getting in vehicle at an event and told his supervisor as he saw this
happening or shortly thereafter; supervisor immediately reported to Deputy Ferante and that Deputy
passed it on to another deputy who arrested defendant; the supervisor and Deputy Ferante testified at the
motion hearing, but the arresting officer did not testify; trial judge ruled statements were admissible as
spontaneous statements and there was no evidence they lacked trustworthiness); State v. Teeter, 21 Fla.
L. Weekly Supp. 595 (Fla. Brevard Cty. Ct. March 3, 2014)State v. Teeter, 21 Fla. L. Weekly Supp. 595
(Fla. Brevard Cty. Ct. March 3, 2014) (Bowers does not preclude the introduction of out of court
statements the officer relied on in developing probable cause; they are not hearsay because they are not
introduced to prove the truth of the statements, but rather to show what the officer considered); State v.
Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013)State v. Walsh, 21 Fla. L.
Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013) (Bowers did not bar testimony from a trooper
investigating an accident as to what a deputy told him concerning actual physical control and
impairment; that testimony was not being introduced for its truth, but rather to show that the trooper had
probable cause for arrest).
28
Palmer v. State, 753 So. 2d 679 (Fla. 2d DCA 2000). See also Crist v. State, 98 So. 3d 81 (Fla. 2d
DCA 2012) (after traffic citation was issued and officer continued to detain the defendant, burden
shifted to State to prove voluntary consent by clear and convincing evidence).
29
State v. Lyons, 293 So. 2d 391 (Fla. 2d DCA 1974).
30
State v. Lyons, 293 So. 2d 391 (Fla. 2d DCA 1974).
31
State v. Bostick, 745 So. 2d 496 (Fla. 1st DCA 1999). See also State v. Williams, 184 So.3d 1205 (Fla.
1st DCA 2016); State v. Ortamadruga, 180 So.3d 1184 (Fla. 3d DCA 2015); Hendley v. State, 58 So.
3d 296 (Fla. 2d DCA 2011), review denied, 65 So. 3d 515 (Fla. 2011); Ingram v. State, 928 So. 2d 423
(Fla. 1st DCA 2006); Hawk v. State, 848 So. 2d 475, 476 n.1 (Fla. 5th DCA 2003).
32
Brown v. State, 636 So. 2d 174 (Fla. 2d DCA 1994). See also State v. Williams, 184 So.3d 1205 (Fla.
1st DCA 2016).
33
Hicks v. State, 929 So. 2d 13, 16 n.3 (Fla. 2d DCA 2006).
34
Hicks v. State, 929 So. 2d 13, 16 n.3 (Fla. 2d DCA 2006).
35
Jones v. State, 648 So. 2d 669, 675 (Fla. 1994), cert. denied, 515 U.S. 1147, 115 S.Ct. 2588, 132
L.Ed.2d 836 (1995). See also State v. Worsham, 227 So.3d 602 (Fla. 4th DCA 2017), cert denied,
138 S.Ct. 264, 199 L.Ed.2d 125 (2017) (in DUI Manslaughter case, Defendant had right of privacy in
black box); Hendley v. State, 58 So. 3d 296 (Fla. 2d DCA 2011), review denied, 65 So. 3d 515 (Fla.
2011); Hicks v. State, 929 So. 2d 13 (Fla. 2d DCA 2006); Ingram v. State, 928 So. 2d 423 (Fla. 1st DCA
2006).
36
Jones v. State, 648 So. 2d 669, 675 (Fla. 1994), cert. denied, 515 U.S. 1147, 115 S.Ct. 2588, 132
L.Ed.2d 836 (1995). See also Cliett v. State, 722 So. 2d 916, 918 (Fla. 2d DCA 1998).
37
State v. Singleton, 595 So. 2d 44 (Fla. 1992); Nelson v. State, 578 So. 2d 694 (Fla. 1991); State v.
Gentry, 57 So. 3d 245 (Fla. 5th DCA 2011); Silverman v. State, 610 So. 2d 116 (Fla. 4th DCA 1992).
38
State v. Lennon, 963 So. 2d 765 (Fla. 3d DCA 2007), review denied, 978 So. 2d 160 (Fla. 2008) (no
standing to object to search and seizure of a stolen jet ski and trailer on the side of the road); Hendley
v. State, 58 So. 3d 296 (Fla. 2d DCA 2011), review denied, 65 So. 3d 515 (Fla. 2011) (no reasonable
expectation of privacy in a fraudulent prescription); Hicks v. State, 929 So. 2d 13 (Fla. 2d DCA 2006)
(no standing to challenge search of files on stolen laptop computer found in motor vehicle).
39
State v. Gay, 823 So. 2d 153 (Fla. 5th DCA 2002), review denied, 845 So.2d 889 (Fla. 2003). See also
State v. Mobley, 98 So. 3d 124 (Fla. 5th DCA 2012).

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40
State v. Green, 943 So. 2d 1004, 1005 (Fla. 2d DCA 2006).
41
State v. Gay, 823 So. 2d 153 (Fla. 5th DCA 2002), review denied, 845 So.2d 889 (Fla. 2003).
42
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639, 4
I.E.R. Cas. (BNA) 224, 130 L.R.R.M. (BNA) 2857, 13 O.S.H. Cas. (BNA) 2065, 49 Empl. Prac. Dec.
(CCH) P 38791, 111 Lab. Cas. (CCH) P 11001, 1989 O.S.H. Dec. (CCH) P 28476 (1989).
43
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 716, 109 S. Ct. 1402, 1413, 103 L. Ed.
2d 639, 4 I.E.R. Cas. (BNA) 224, 130 L.R.R.M. (BNA) 2857, 13 O.S.H. Cas. (BNA) 2065, 49 Empl.
Prac. Dec. (CCH) P 38791, 111 Lab. Cas. (CCH) P 11001, 1989 O.S.H. Dec. (CCH) P 28476 (1989).
See also Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016); Schmerber v.
California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
44
Armstrong v. State, 46 So. 3d 589 (Fla. 1st DCA 2010), review denied, 44 So. 3d 581 (Fla. 2010) (deals
with rules for deciding when an officer is acting as a private citizen for purposes of the Fourth
Amendment); State v. Butler, 1 So. 3d 242, 246 (Fla. 1st DCA 2008) (court recognized this test for state
action: (1) “private party acts as an ‘instrument or agent’ of the state in effecting a search and seizure;”
(2) “government knows of and acquiesces to the conduct;” and (3) “search is conducted solely in pursuit
of a governmental interest, rather than the private actor’s self-interest.”); Green v. State, 824 So. 2d 311,
314 (Fla. 1st DCA 2002); Glasser v. State, 737 So. 2d 597, 598 (Fla. 4th DCA 1999); Garner v.
State, 729 So. 2d 990, 992 (Fla. 5th DCA 1999); State v. Parent, 8 Fla. L. Weekly Supp. 699 (Fla. Palm
Beach Cty. Ct. Aug. 24, 2001)State v. Parent, 8 Fla. L. Weekly Supp. 699 (Fla. Palm Beach Cty. Ct.
Aug. 24, 2001) (Trial judge denied motion to suppress results of medical blood draw because the officer
did not order the draw nor indicate that it would assist the police; therefore, it was secured by a private
citizen.).
45
Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994).
46
Ware v. State, 679 So. 2d 3 (Fla. 2d DCA 1996), disapproved of by State v. Perkins, 760 So. 2d
85 (Fla. 2000); O’Neal v. State, 649 So. 2d 311 (Fla. 3d DCA 1995), disapproved of by State v.
Perkins, 760 So. 2d 85 (Fla. 2000).
47
State v. Perkins, 760 So. 2d 85 (Fla. 2000), cert. denied 531 U.S. 1029, 121 S. Ct.606, 148 L. Ed. 2d
517 (2000); See also Delafield v. State, 777 So. 2d 1020 (Fla. 2d DCA 2000); Turben v. State, 761
So. 2d 1243 (Fla. 2d DCA 2000) (driving on suspended license, reckless driving, and DUI). But see
Hicks v. State, 189 So.3d 173 (Fla. 4th DCA 2016) (court distinguished Perkins and other cases; here
the identification of the defendant was determined by the officer’s observations before the unlawful
stop; therefore, they were admissible).
48
State v. Perkins, 760 So. 2d 85, 88 (Fla. 2000), cert. denied 531 U.S. 1029, 121 S. Ct.606, 148 L. Ed.
2d 517 (2000).
49
State v. Perkins, 760 So. 2d 85, 89 n.7 (Fla. 2000).
50
Palmer v. State, 753 So. 2d 679, 680 (Fla. 2d DCA 2000).
51
State v. Davis, 415 So. 2d 82 (Fla. 4th DCA 1982); State v. Michaels, 17 Fla. L. Weekly Supp. 934 (Fla.
17th Cir. Ct. April 9, 2010)State v. Michaels, 17 Fla. L. Weekly Supp. 934 (Fla. 17th Cir. Ct. April 9,
2010); State v. Arguelles, 16 Fla. L. Weekly Supp. 825 (Fla. 17th Cir. Ct. June 19, 2009)State v.
Arguelles, 16 Fla. L. Weekly Supp. 825 (Fla. 17th Cir. Ct. June 19, 2009); State v. Frederick, 16 Fla. L.
Weekly Supp. 150 (Fla. 17th Cir. Ct. Nov. 19, 2008)State v. Frederick, 16 Fla. L. Weekly Supp. 150
(Fla. 17th Cir. Ct. Nov. 19, 2008).

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52
Jones v. State, 648 So. 2d 669, 674 (Fla. 1994), cert. denied, 515 U.S. 1147, 115 S.Ct. 2588, 132
L.Ed.2d 836 (1995); Higerd v. State, 54 So. 3d 513 (Fla. 1st DCA 2010), review denied, 64 So. 3d 1260
(Fla. 2011) and cert. denied, 132 S. Ct. 521, 181 L. Ed. 2d 350 (2011); Stalling v. State, 678 So. 2d 843
(Fla. 1st DCA 1996).
53
California v. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). See also Maryland
v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999); Pennsylvania v. Labron, 518
U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996); State v. Diaz-Ortiz, 174 So.3d 1022 (Fla. 5th
DCA 2015); State v. Nowak, 1 So. 3d 215 (Fla. 5th DCA 2008); State v. Fischer, 987 So. 2d 708, 710
(Fla. 5th DCA 2008); State v. Clark, 986 So. 2d 625 (Fla. 2d DCA 2008); State v. Green, 943 So. 2d
1004, 1006 (Fla. 2d DCA 2006); Mylock v. State, 750 So. 2d 144 (Fla. 1st DCA 2000).
54
State v. Green, 943 So. 2d 1004, 1006 (Fla. 2d DCA 2006). See also State v. Gardner, 72 So. 3d 218
(Fla. 2d DCA 2011); State v. Nowak, 1 So. 3d 215 (Fla. 5th DCA 2008).
55
Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Olave, 948
So. 2d 995, 997 (Fla. 4th DCA 2007); Ingram v. State, 928 So. 2d 423 (Fla. 1st DCA 2006); Reid v.
State, 898 So. 2d 248 (Fla. 4th DCA 2005), review denied, 917 So. 2d 195 (Fla 2005); Pierre v. State,
732 So. 2d 376 (Fla. 2d DCA 1999); Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996) (court
held that officer properly ordered driver to exit based on a well-founded suspicion that the driver was
DUI); R.H. v. State, 671 So. 2d 871 (Fla. 3d DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996);
State v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995).
56
Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).
57
Palmer v. State, 753 So. 2d 679 (Fla. 2d DCA 2000). See also State v. Thompson, 72 So. 3d 246
(Fla. 2d DCA 2011); State v. Lowe, 12 Fla. L. Weekly Supp. 527 (Fla. 9th Cir Ct. Feb. 1, 2005) State v.
Lowe, 12 Fla. L. Weekly Supp. 527 (Fla. 9th Cir Ct. Feb. 1, 2005).
58
Palmer v. State, 753 So. 2d 679 (Fla. 2d DCA 2000).
59
State v. Ansley, 251 So. 2d 42 (Fla. 2d DCA 1971).
60
State v. Lyons, 293 So. 2d 391 (Fla. 2d DCA 1974).
61
Reynolds v. State, 592 So. 2d 1082 (Fla. 1992). See also Montes-Valeton v. State, 216 So.3d 475,
480 (Fla. 2017).
62
Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992). See also Moody v. State, 2018 WL 3553816
(Fla. 2d DCA Opinion Filed July 25, 2018); Peraza v. State, 69 So. 3d 338 (Fla. 4th DCA 2011);
Gonzalez v. State, 59 So. 3d 182 (Fla. 4th DCA 2011).
63
Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). See also Parker v. State, 873 So.3d 270,
279 (Fla. 2004); Connor v. State, 803 So. 2d 598 (Fla. 2001); State v. Glatzmayer, 789 So. 2d
297 (Fla. 2001); State v. Beans, 215 So.3d 172 (Fla. 5th DCA 2017); State v. Watson, 187 So.3d 349
(Fla. 5th DCA 2016); State v. Reaves, 15 So. 3d 784 (Fla. 5th DCA 2009); Pritchard v. State, 987 So. 2d
204 (Fla. 5th DCA 2008); State v. Triana, 979 So. 2d 1039 (Fla. 3d DCA 2008), review denied, 991
So. 2d 389 (Fla. 2008); McKnight v. State, 972 So. 2d 247 (Fla. 1st DCA 2007); State v. Irizarry, 948
So. 2d 39 (Fla. 5th DCA 2006); Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006); Houston v.
State, 925 So. 2d 404 (Fla. 5th DCA 2006), review denied, 935 So. 2d 122 (Fla 2006); Dewberry v.
State, 905 So. 2d 963 (Fla. 5th DCA 2005); State v. Taylor, 826 So. 2d 399, 402 (Fla. 3d DCA 2002);
State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001).
64
Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). See also U.S. v. Arvizu, 534 U.S.
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§ 4:1.Procedural considerations, 11 Fla. Prac., DUI Handbook § 4:1 (2018-2019 ed.)

266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002); Ornelas v. U.S., 517 U.S. 690, 116 S. Ct. 1657, 134
L. Ed. 2d 911 (1996); Connor v. State, 803 So. 2d 598 (Fla. 2001).
65
Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999). See also State v. Watson, 187 So.3d 349
(Fla. 5th DCA 2016); State v. Reaves, 15 So. 3d 784 (Fla. 5th DCA 2009); McKnight v. State, 972 So.
2d 247 (Fla. 1st DCA 2007); Houston v. State, 925 So. 2d 404 (Fla. 5th DCA 2006), review denied, 935
So. 2d 1220 (Fla. 2006); Dewberry v. State, 905 So. 2d 963 (Fla. 5th DCA 2005); State v. Kindle,
782 So. 2d 971 (Fla. 5th DCA 2001); Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998); Grant v.
State, 718 So. 2d 238 (Fla. 2d DCA 1998).
66
Schoenwetter v. State, 931 So. 2d 857, 866 (Fla. 2006), cert. denied, 549 U.S. 1035, 127 S.Ct. 587,
166 L.Ed.2d 437 (2006). See also Moody v. State, 842 So. 2d 754, 758 (Fla. 2003), cert. denied, 540
U.S. 939, 124 S.Ct. 181, 157 L.Ed.2d 252 (2003); State v. Beans, 215 So.3d 172 (Fla. 5th DCA 2017);
State v. Watson, 187 So.3d 349 (Fla. 5th DCA 2016); State v. Bullock, 164 So.3d 701 (Fla. 5th DCA
2015); State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001); Smith v. State, 719 So. 2d 1018 (Fla. 3d
DCA 1998); Grant v. State, 718 So. 2d 238 (Fla. 2d DCA 1998), review dismissed, 923 So.2d 1162 (Fla.
2006).
67
Schoenwetter v. State, 931 So. 2d 857, 866 (Fla. 2006), cert. denied, 549 U.S. 1035, 127 S.Ct. 587,
166 L.Ed.2d 437 (2006). See also U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740
(2002); Ornelas v. U.S., 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Fitzpatrick v.
State, 900 So. 2d 495, 513 (Fla. 2005), as revised on denial of reh’g, (Apr. 21, 2005); Moody v.
State, 842 So. 2d 754, 758 (Fla. 2003), cert. denied, 540 U.S. 939, 124 S.Ct. 181, 157 L.Ed.2d 252
(2003); State v. Bullock, 164 So.3d 701 (Fla. 5th DCA 2015); State v. Irizarry, 948 So. 2d 39 (Fla. 5th
DCA 2006); Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006); Hicks v. State, 929 So. 2d 13, 17
(Fla. 2d DCA 2006); Houston v. State, 925 So. 2d 404 (Fla. 5th DCA 2006), review denied, 935 So. 2d
1220 (Fla. 2006); Dewberry v. State, 905 So. 2d 963 (Fla. 5th DCA 2005).
68
Melendez v. Sheriff of Palm Beach County, 743 So. 2d 1145, 1147 (Fla. 4th DCA 1999). See also
U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002); Ornelas v. U.S., 517 U.S.
690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Connor v. State, 803 So. 2d 598 (Fla. 2001); Swartz
v. State, 857 So. 2d 950 (Fla. 4th DCA 2003); State v. Bagley, 844 So. 2d 688, 689 (Fla. 3d DCA 2003);
K.G.M. v. State, 816 So. 2d 748 (Fla. 4th DCA 2002).
69
Harrelson v. State, 662 So. 2d 400, 403 (Fla. 1st DCA 1995).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:2. Consensual encounters

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(10), 349(14)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

The United States Constitution1 and the Florida Constitution protect against unreasonable searches and seizures.
This protection is necessary only where there is a detention. Many contacts between government agents and
citizens fall short of a detention and constitute mere consensual encounters. The federal and state constitutions
are not implicated in such contacts. 2 No Fourth Amendment interests are involved where officers ask an
individual to step aside and talk with them. 3 Thus, the initial inquiry must be whether the contact was a
detention or a consensual encounter.

The latter occurs when an officer contacts a citizen in a way that would leave a reasonable person with the
impression that he or she was free to go. 4 Conversely, contact between law enforcement and a citizen cannot be
said to be consensual for Fourth and Fourteenth Amendment purposes when “taking into account all of the
circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person
that he was not at liberty to ignore the police presence and go about his business.’ ” 5 “The ‘reasonable person’
test presupposes an innocent person.”6

The contact is a detention, rather than a consensual encounter, where the officer restrains the subject’s freedom
of movement by physical force or demonstrates a show of authority to a degree that violates this test. 7 The
individual must be aware of the show of authority. 8 Compliance with the objective reasonable person test is a
threshold that must be met for there to be a detention or seizure. 9 However, if the seizure is based on a show of
authority rather than actual physical restraint, there can be no seizure unless the evidence establishes submission
to the show of authority.10

The fact that the defendant feels intimidated does not by itself make the contact “the functional equivalent of a

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

‘stop.’ ”11 Also, the fact that the officer advises the subject of his Miranda rights standing alone does not
transform the consensual encounter into an investigatory stop. 12 Additionally, the fact that the person is not told
he or she can refuse to respond to the officer does not change the consensual nature of the contact. 13 Even
frisking the person before he or she voluntarily gets into a police cruiser does not vitiate the consent. 14

The courts have noted several factors indicating that the contact is consensual. No one factor is dispositive.
They should all be considered based on a totality of the circumstances approach. 15 These factors include: (1) the
absence of any restraint,16 (2) the notification to the individual that he or she is free to go, 17 (3) the location of the
contact in a public area,18 (4) the lack of display of any weapons, 19 (5) the presence of officers dressed only in
civilian clothing,20 (6) the officers’ use of a casual tone of conversation, 21 (7) the officers’ failure to use the
patrol car to block the defendant’s path,22 (8) the officers’ failure to touch the subject prior to any search, 23 (9)
the absence of any emergency lights or sirens, 24 (10) the lack of display of a badge, 25 (11) the absence of any
show of authority, aggression, or coercive behavior, 26 (12) a single officer just asking a citizen to come over and
talk to him.27 Conversely, the courts have found that other factors elevate the contact to the level of a detention.
These include: (1) threatening presence of several officers, 28 (2) displaying a weapon, 29 (3) touching a citizen, 30
(4) using language or a tone of voice indicating that compliance might be compelled, 31 (5) ordering the citizen to
raise his/her hands,32 (6) requesting that a citizen remove his/her hand or wallet 33 from his/her pocket,34 (7)
continuing to pursue a person when the person is walking away, 35 (8) employing a second officer to cut off the
path of the subject,36 (9) ordering an individual to get off his/her bike and sit on the curb, 37 or (10) telling an
individual to “‘stand by’” while the officer checks with people in a residence. 38 Clearly, the factors that identify
the transaction as a consensual contact or a detention are interrelated.

The standards on consensual encounters are well illustrated by Michigan v. Chesternut.39 In Chesternut, the
defendant began to run when he saw an approaching police car. The driver of the police vehicle accelerated to
catch up with the defendant and followed beside him as he continued to run. The officer did not activate a siren
or flasher nor did the officer attempt to block the defendant’s way or control his direction of travel or speed.
The defendant dropped some drugs. The Court found that there was no stop. Conversely, a trial judge ruled that
there was a detention where an officer pulled his cruiser directly in front of a pedestrian, forcing the individual
to stop or walk around the vehicle.40 However, the trial court found that there was a consensual encounter where
an officer positioned the police vehicle at an angle behind the defendant’s parked car, but the defendant could
have gotten around the police vehicle. 41 These standards have often been applied to motor vehicles or to
pedestrians under circumstances that are easily related to motor vehicle stops.

Where officers engage in conduct that a reasonable person would find controlling or directive, there is a
detention. Thus, it was a detention when an officer: (1) pulled up next to the car driven by the defendant,
flashed his or her police identification from the window of an unmarked car and pulled him over, ostensibly for
the purpose of talking to him;42 (2) intentionally blocked the defendant’s vehicle so it could not leave and told
the defendant to put his hands on the hood of the car;43 (3) pulled up behind the defendant’s vehicle, ordered him
to turn it off, and to provide his driver’s license; 44 (4) blocked defendant’s exit from the vehicle and called for
back-up;45 (5) approached a running vehicle and demanded a license; 46 (6) used an air horn to stop a pedestrian
or a vehicle;47 (7) ordered driver in stopped vehicle to roll down his window; 48 (8) pulled a driver back to his car
that had been left in the aisle of a parking lot; 49 (9) placed a parked vehicle in park; 50 (10) turned on blue lights
and told the defendant to get back in his car; 51 (11) followed car, turned on spotlight and told defendant to put
his hands on the dashboard;52 (12) instructed person slumped over steering wheel to “ ‘show me your hands;’” 53
(13) directed the defendant sitting in a parked car to turn off his engine for safety reasons; 54 (14) activated blue
lights, positioned cruiser so defendant had to stop, and ordered him to remain in car; 55 (15) instructed individual
to remain in parked car; 56 or (16) shined a flashlight on occupants and said “police” followed by taking the
registration and telling them to stay until he returned. 57 These examples include several situations in which the
defendant might not have been aware of the officer’s presence. The continued viability of those decisions may
be impacted by the subsequent Supreme Court decision in G.M. v. State.58

G.M.59 dealt with a common police procedure that generated a lot of discussion—the use of emergency or
takedown lights. Four of Florida’s district courts ruled that pulling behind a vehicle and activating such lights
constitutes a detention.60 The Third District disagreed and ruled, “that the activation of the officers’ emergency

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

lights to identify themselves as police officers did not convert the encounter into a seizure.” 61 The court rejected
a per se rule and certified conflict with courts ruling to the contrary. 62 The officers were in an unmarked car and
the court identified circumstances supporting the conclusion that this was a consensual encounter. 63 In G.M. v.
State,64 the Florida Supreme Court agreed that a per se rule is impermissible. “Instead, the activation of police
lights is one important factor to be considered in a totality-based analysis as to whether a seizure has occurred.”
(Emphasis by Court.)65 However, the Court also held that for such conduct to be considered a detention, the
subject must be aware of the emergency lights.66

In G.M.,67 the Court ruled that if the occupants of the vehicle had been aware of the emergency lights under the
facts of that case, it would have constituted a detention. No reasonable person would have believed that they
were free to go, and indeed, it would have been unsafe for both the citizen and officers for the court to
encourage such conduct.68 The facts in G.M.69 were: (1) the subjects were in a park, the officers’ vehicle quickly
crossed the public street with the emergency lights on, entered the park, and stopped behind two parked cars
where some people were gathered; (2) nothing indicated that the officers believed the individuals needed aid;
(3) the individuals did not act like they wanted help from law enforcement; (4) while the officers were not in
uniform, they did show badges and carried guns as they exited the vehicle; and (5) as one officer approached
one of the cars, a second officer took up a position where he could watch the individuals and stop anyone who
tried to leave.70

Where officers engage in conduct that a reasonable person would not find controlling or directive, there is a
consensual encounter. Thus, it was a consensual encounter for an officer to: (1) closely follow a car until the
driver voluntarily stopped;71 (2) approach a car the officer had been watching for quite a while, which had the
headlights on and the motor running, and ask the driver for his license; 72 (3) approach a car in a public place to
make inquiries,73 including welfare checks;74 (4) approach a person parked in a vehicle where that person
voluntarily rolls down the car window; 75 (5) stop a cruiser perpendicular to a car, so the car could still go
forward or backward;76 (6) pull up next to a vehicle at a stop sign and talk to the driver; 77 (7) look into a vehicle
with a spotlight or flashlight; 78 (8) stop an unmarked car without emergency lights at an angle five to six feet
behind a vehicle at a convenience store, just as any customer could have done; 79 (9) continue questioning a
driver after concluding a valid traffic stop and telling her that she is free to go; 80 (10) park a police car at the
curb without activating emergency lights and approach subject parked in a vehicle in a private driveway; 81and
(11) knock on a window and request that occupant open the window.82

Requests for identification pose a particularly difficult question. While some of the previously cited authorities
indicate that there are circumstances when a demand for identification constitutes a detention, other cases point
to circumstances when such a request apparently constitutes a consensual encounter. Thus, the court concluded
it was a consensual encounter when an officer approached a car, which had the headlights on and the motor
running, and asked the driver for a license. 83 Many other cases reached a similar conclusion under various
circumstances.84

On this subject, the decision in Lightbourne v. State85 poses a problem. The case seems to stand for the
proposition that there was a consensual encounter where an officer asked for the identification of a citizen who
was sitting in a car and the officer ran a warrant check. However, subsequent developments suggest that the
status of Lightbourne86 may be in doubt. In Golphin v. State,87 Chief Justice Lewis and Justices Wells and Bell
agreed that the rationale for the decision in Lightbourne was that the seizure was reasonable. 88 “We determined
that a well-founded suspicion was not required under the facts of that case because the officers were responding
to a call (a citizen complaint) and were not acting on their own ‘hunch’.” 89 In a concurring opinion in Golphin,
Justice Cantero, joined by Justice Wells, disagreed with his colleagues, and wrote, “Lightbourne was based on
the voluntary nature of the encounter. We unambiguously held that the defendant was not seized when the
officer checked the defendant’s identification in his patrol car while the defendant waited in his car.” 90 However,
Justice Cantero also noted that the district courts were in disagreement as to the holding in Lightbourne. Justice
Pariente authored an opinion concurring in the result only, 91 in which Justices Anstead and Quince joined. And
they suggested that Lightbourne92 does, indeed, focus on whether the defendant was detained when he gave his
license to the officer.93 Justice Pariente’s concurring opinion also concludes that Lightbourne is “an impediment
to clarity and predictability” because it was decided early in the development of search and seizure law on

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

consensual encounters.94

As the varying opinions in Golphin vs. State95 suggest, this issue of consensual encounter versus detention when
officers ask for identification, and then use the identification to secure additional information, has been very
difficult and divisive. The divisiveness on this issue predated the Supreme Court’s decision in Golphin.96 In
Golphin v. State,97 the district court held that an officer may retain a voluntarily surrendered license for the time
reasonably necessary to carry out the officer’s purpose or until the consent is withdrawn. The court concluded
that there is no bright line as to when an officer must return a license. 98 In contrast, in Baez v. State,99 the court
ruled that an officer can retain a license just long enough to review it and not to complete other tasks, like
warrant checks.

This conflict was the basis for the exercise of jurisdiction by the Florida Supreme Court in State v. Baez.100
However, there was such disagreement on the Court that it was unclear as to whether the Court actually
resolved the Golphin/Baez conflict. Chief Justice Pariente concluded that it appeared a majority of the Court
held that there was a reasonable suspicion in Baez justifying the detention and did not resolve the conflict as to
how long an officer can retain a license that was voluntarily produced before the conduct becomes a detention. 101
However, in Lanier v. State,102 the court concluded: “The supreme court has held that officers may lawfully
request identification from drivers during the course of consensual encounters and may hold the identification
long enough to check the validity of the identification and run a warrants check.” Also, in Delorenzo v. State,103
the court concluded that the Supreme Court’s comment on reasonable suspicion in Baez was dicta and the Court
determined in Baez that there was no stop or seizure.

The conclusions in Lanier104 and Delorenzo105 that the Supreme Court resolved the conflict as to whether a
consensual encounter continues after an officer uses a voluntarily surrendered license for a warrant check were
incorrect. In Golphin v. State,106 all of the justices specifically recognized that the Court did not resolve that
conflict in Baez.107

So, did the Court in Golphin108 definitively resolve the matter? That remains unclear. Factually, Golphin109 was
not the same as Baez.110 The biggest difference was that in Baez111 officers asked a driver for a license, whereas
in Golphin112 officers asked a pedestrian for identification. In Golphin,113 this is what a majority of the Court
decided:

[W]e determine that the totality of the circumstances of Golphin’s encounter with
law enforcement indicates that he was not seized for purposes of the Fourth
Amendment when the police officer held in her hand at that specific site the
identification he had consensually and voluntarily provided and viewed it as she
conducted a computerized check for warrants in his presence and without moving
away from that location where the identification had been consensually and
voluntarily produced. Further, even if the encounter had amounted to a seizure, we
conclude that the evidence discovered during the search of Golphin need not be
suppressed pursuant to the application of the three-part test announced in State v.
Frierson, 926 So.2d 1139 (Fla. 2006).

The Court seems to have been very careful to limit its opinion to the facts of the case and not to establish a more
expansive rule. Indeed, it is important to note what the Court specifically declined to rule on. In that regard, the
Court said:
Golphin did not preserve and we have not been asked to separately consider, and indeed do not
decide, whether or not Golphin after consensually and voluntarily producing identification
specifically consented to Officer Doemer using that identification in his presence to conduct a
warrants check or how the lack of any such consent might impact the analysis in this case.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

Golphin did not argue below that any consent implied by the production of his identification
extended only to the examination of its validity, which was undermined or eviscerated when the
officer used the identification for the further purpose of conducting a warrants check in his
presence. Circumstances may exist in which an officer’s conduct exceeds the scope of consent
that reasonably can be implied by the act of handing over one’s identification, and such
circumstances may indicate that a seizure has occurred. That is not, however, an issue currently
before the Court.114

It seems fairly clear that the Golphin/Baez conflict has not been completely resolved. The conflict was that one
court ruled that a consensual encounter between a driver and officer becomes a detention when the officer takes
a consensually provided license and does a warrant check; whereas, the other court ruled that a consensual
encounter between a pedestrian and an officer does not become a detention merely because the officer takes a
consensually provided identification and does a warrant check. The best we can conclude pursuant to the
Supreme Court’s opinions in Baez115 and Golphin116 is that based on the totality of circumstances there was a
consensual encounter when two officers approached a group including the accused, others in the group left but
the accused remained, the accused provided identification in response to an officer’s request, and the officer did
a computer check without moving away from the accused. Those were the facts in Golphin.117 It seems in the
end that the question of what impact taking a voluntarily provided license to do a warrant check has on a
consensual encounter has only partially been answered. The Court has made clear, however, that per se
rules in Fourth Amendment analysis are not acceptable and the court must look to the totality of the
circumstances, which include the request for identification and the subsequent warrant check. 118

In Tedder v. State,119 the Second District considered the application of Golphin.120 In the majority opinion, the
court commented that retaining a voluntarily provided license and asking additional questions even after the
warrant check is complete does not, standing alone, eliminate the consensual nature of the contact. 121 However,
the Florida Supreme subsequently declined to exercise jurisdiction because the part of the opinion dealing with
this issue received the support of only one of three judges. 122 The other judges specifically declined to join in
that part of the opinion. Therefore, there was no controlling opinion in Tedder dealing with the Golphin issue.123

Recently, in Horne v. State,124 the court applied Golphin125 to find that no reasonable person would have felt free
to go and to reverse denial of a motion to suppress. The defendant voluntarily provided her license to the officer
and after a negative warrant check, the officer retained the license and defendant consented to a search of her
person. “Under the totality of the instant circumstances, the officer’s asking to search Horne without returning
her license outweighs the fact that she initially voluntarily spoke with the officer and consented to the warrants
check.”126 The circumstances were: (1) the officer’s car was parked between the defendant and her way home,
which was 15 houses away; (2) at one point during the warrant check, three officers and two police cars were
present; (3) the officer never told the defendant she was free to leave; and (4) there was no basis for continued
contact with the defendant after the warrant check.

Another issue that generated conflict in the district courts, is whether it constitutes a detention for an officer to
ask a driver to exit a vehicle. In the landmark case of Popple v. State,127 the Florida Supreme Court resolved that
conflict. In Popple, the Court said: “[w]hether characterized as a request or an order,” the direction to exit the
car was a show of authority which restrained the driver’s freedom of movement. 128

In Gentles v. State,129 the court applied the ruling in Popple130 to directions by an officer to an individual in a
parked car to turn the engine off. The court found that, as with directions to exit, telling the driver to turn off the
engine constitutes a show of authority.131

Thus, for Fourth Amendment purposes, officers in such cases detain the drivers. These rulings are particularly
important in DUI cases because, such police/citizen conduct frequently occurs and much of the evidence results
from the officer’s observations after citizen submission.

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

The law is clear that the first question in determining whether evidence was lawfully secured, is whether there
was a detention or only a consensual encounter. The same is true in a DUI case. If the facts leading to
reasonable suspicion or probable cause resulted from a consensual encounter, the inquiry is at an end. If,
however, those facts resulted from a detention, the inquiry must proceed to the next question: does some
exception to the warrant requirement apply?

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures shall not be violated ….” Art. 1, § 12,
Fla. Const. contains the same provision.
2
Florida v. Rodriguez, 469 U.S. 1, 105 S. Ct. 308, 83 L. Ed. 2d 165 (1984). See also U.S. v.
Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002).
3
Florida v. Rodriguez, 469 U.S. 1, 105 S. Ct. 308, 83 L. Ed. 2d 165 (1984). See also U.S. v.
Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002).
4
Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988); Caldwell v.
State, 41 So. 3d 188 (Fla. 2010); G.M. v. State, 19 So. 3d 973 (Fla. 2009); Jacobson v. State, 476 So.
2d 1282 (Fla. 1985); Wilson v. State, 242 So.3d 484 (Fla. 2d DCA 2018); State v. Bell, 122 So. 3d 422
(Fla. 2d DCA 2013).
5
Kaupp v. Texas, 538 U.S. 626, 629, 123 S. Ct. 1843, 1845, 155 L. Ed. 2d 814 (2003) (quoting
Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (quoting Michigan
v. Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988))); Caldwell v. State, 41
So. 3d 188 (Fla. 2010); G.M. v. State, 19 So. 3d 973 (Fla. 2009); Voorhees v. State, 699 So. 2d
602, 608 (Fla. 1997); Brown v. State, 224 So.3d 806 (Fla. 2d DCA 2018); State v. Albert, 193 So.3d
7 (Fla. 5th DCA 2016), review denied, 2016 WL 3002466 (Fla. Opinion Filed May 25, 2016); Hill v.
State, 39 So. 3d 437 (Fla. 3d DCA 2010); F.E.H., Jr. v. State, 28 So. 3d 213 (Fla. 4th DCA 2010);
Houston v. State, 925 So. 2d 404, 406 (Fla. 5th DCA 2006), review denied, 935 So. 2d 1220 (Fla. 2006).
6
State v. Baldwin, 686 So. 2d 682, 685 (Fla. 1st DCA 1996).
7
Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (everyone in vehicle
stopped for traffic violation is considered seized); Caldwell v. State, 41 So. 3d 188 (Fla. 2010);
G.M. v. State, 19 So. 3d 973, 978 (Fla. 2009); A.L. v. State, 133 So. 3d 1239, 1241 (Fla. 4th DCA
2014); Garcia v. State, 88 So. 3d 394 (Fla. 4th DCA 2012); Hill v. State, 39 So. 3d 437 (Fla. 3d DCA
2010); F.E.H., Jr. v. State, 28 So. 3d 213 (Fla. 4th DCA 2010); Garcia v. State, 979 So. 2d 1189 (Fla.
4th DCA 2008), review denied 116 So. 3d 355 (Fla. 2009); State v. Dixon, 976 So. 2d 1206 (Fla. 4th
DCA 2008); Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004); State v. Poole, 730 So. 2d 340
(Fla. 3d DCA 1999); Grant v. State, 596 So. 2d 98 (Fla. 2d DCA 1992); State v. Wilson, 566 So. 2d
585 (Fla. 2d DCA 1990); Dees v. State, 564 So. 2d 1166 (Fla. 1st DCA 1990); J.C.W. v. State, 545 So.
2d 306 (Fla. 1st DCA 1989), review denied, 553 So. 2d 1165 (Fla. 1989).
8
G.M. v. State, 19 So. 3d 973 (Fla. 2009) (there is no per se rule that activating emergency lights
constitutes a seizure, and the trial judge must look to the totality of the circumstances; but, in any event,
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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

no detention occurs until the vehicle’s occupant becomes aware of the emergency lights, which
constitutes the show of authority); Dermio v. State, 112 So. 3d 551, 556 (Fla. 2d DCA 2013), review
denied, 137 So. 3d 1019 (Fla. 2014) (no seizure initially where officer put on emergency lights and
blocked vehicle, but the defendant was asleep; therefore, unaware of officer); Houston v. State, 925 So.
2d 404 (Fla. 5th DCA 2006), review denied, 935 So. 2d 1220 ( Fla. 2006) (no seizure where suspect was
unaware that police car was blocking his vehicle). See also Fabian v. State, 15 Fla. L. Weekly Supp. 403
(Fla. 4th Cir. Ct. March 13, 2008)Fabian v. State, 15 Fla. L. Weekly Supp. 403 (Fla. 4th Cir. Ct. March
13, 2008) (officer pulled behind defendant at gas station entrance and activated blue lights. “[I]f the
citizen is not awake to see the lights, they cannot cause him or her to believe that he or she is not free to
leave. [A]ppellant was unable to perceive the emergency lights when they were initially activated …
because he was unconscious. Therefore, he could not yield to the show of authority until he actually
awoke.”); Falvo v. State, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 4, 2008)Falvo v. State, 15
Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 4, 2008) (defendant was not detained because he was
passed out and unaware when trooper pulled behind him and turned on his emergency lights on an
interstate); State v. Seegobin, 15 Fla. L. Weekly Supp. 33 (Fla. 17th Cir. Ct. Sept. 18, 2007)State v.
Seegobin, 15 Fla. L. Weekly Supp. 33 (Fla. 17th Cir. Ct. Sept. 18, 2007) (passed out defendant was not
detained when officer pulled behind his vehicle which was in a swale off the roadway and turned on her
emergency lights); State v. Roosa, 14 Fla. L. Weekly Supp. 1007 (Fla. 6th Cir. Ct. June 15, 2007)
(consensual encounter continued where officer’s partially blocked vehicle of passed out defendant; court
said: “knowledge on the part of the defendant that his or her vehicle has been blocked is a prerequisite to
a finding that a stop or seizure has taken place … where the defendant is either asleep or unconscious.”);
Gonzalez v. State, 14 Fla. L. Weekly Supp. 949 (Fla. 18th Cir. Ct. June 5, 2007) Gonzalez v. State, 14
Fla. L. Weekly Supp. 949 (Fla. 18th Cir. Ct. June 5, 2007); Avery v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct. Dec. 7, 2006)Avery v. Dep’t of Highway Safety
& Motor Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct. Dec. 7, 2006) (officer activated
emergency lights, but defendant was asleep or passed out; so there was no detention (i.e. submission to
authority) until defendant awoke and became aware of the assertion of authority); Larkin v. Dep’t of
Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 235 (Fla. 7th Cir. Ct. Dec. 12, 2006)Larkin
v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 235 (Fla. 7th Cir. Ct. Dec. 12,
2006) (no seizure where the officer put his emergency lights on, but the defendant was asleep so his
“’freedom of movement’” was restrained by his own actions); Head v. State, 12 Fla. L. Weekly Supp.
824 (Fla. 6th Cir. Ct. May 4, 2005)Head v. State, 12 Fla. L. Weekly Supp. 824 (Fla. 6th Cir. Ct. May 4,
2005) (where officer stopped cruiser behind defendant’s vehicle, there was no detention because
defendant was unconscious or asleep and was unaware of officer’s presence); State v. Major, 12 Fla. L.
Weekly Supp. 1150 (Fla. 17th Cir. Ct. Nov. 22, 2004) (circuit judge acting in trial capacity concluded
that an unconscious person can only be detained by physical restraint); State v. Hazel, 6 Fla. L. Weekly
Supp. 204 (Fla. 20th Cir. Ct. Sept 18 1998)State v. Hazel, 6 Fla. L. Weekly Supp. 204 (Fla. 20th Cir. Ct.
Sept 18 1998) (“being unconscious, Hazel could not have perceived any such display of authority.”);
State v. Schehr, 13 Fla. L. Weekly Supp. 994 (Fla. Escambia Cty. Ct. July 19, 2006)State v. Schehr, 13
Fla. L. Weekly Supp. 994 (Fla. Escambia Cty. Ct. July 19, 2006) (no detention where defendant was
asleep or unconscious when officer pulled behind him, and he could not have believed that he was not
free to go when officer detected odor of alcohol).
9
California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991).
10
California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). See also
Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007); G.M. v. State, 19
So. 3d 973, 979 (Fla. 2009).
11
State v. Hughes, 562 So. 2d 795, 797 (Fla. 1st DCA 1990).
12
Caldwell v. State, 41 So. 3d 188 (Fla. 2010) (the fact that Miranda rights were read must be
considered as part of the totality of the circumstances in determining whether a reasonable person would
believe that he or she was not free to leave; here the reading of Miranda did not create a detention).
13
Dante v. State, 971 So. 2d 938 (Fla. 3d DCA 2007), review denied, 987 So. 2d 80 (Fla. 2008).
14
Caldwell v. State, 985 So. 2d 602 (Fla. 2d DCA 2008), decision approved on other grounds, 41 So.

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

3d 188 (Fla. 2010) (The Supreme Court declined to review the Second District’s finding that a pat-down
did not transform the consensual encounter into a detention, but noted: “its application appears to be
strictly limited to circumstances where a citizen voluntarily becomes a passenger in the officer’s vehicle,
but neither objects nor consents to being searched.”).
15
Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004). See also Moody v. State, 2018 WL 3553816
(Fla. 2d DCA Opinion Filed July 25, 2018); Santiago v. State, 133 So. 3d 1159 (Fla. 4th DCA 2014);
State v. Bell, 122 So. 3d 422, 425 (Fla. 2d DCA 2013); State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA
2010); Kutzorik v. State, 891 So. 2d 645 (Fla. 2d DCA 2005).
16
See e.g. Caldwell v. State, 41 So. 3d 188 (Fla. 2010); E.V. v. State, 138 So. 3d 1163 (Fla. 3d
DCA 2014); Napoleon v. State, 985 So. 2d 1170 (Fla. 1st DCA 2008).
17
Villanueva v. State, 189 So.3d 982, 985 (Fla. 2d DCA 2016); Lane v. State, 145 So. 3d 940 (Fla. 2d
DCA 2014); Horne v. State, 113 So. 3d 158 (Fla. 2d DCA 2013); Garcia v. State, 88 So. 3d 394 (Fla.
4th DCA 2012), review denied, 11 So.3d 355 (Fla. 2009); England v. State, 46 So. 3d 127 (Fla. 2d
DCA 2010); Garcia v. State, 979 So. 2d 1189 (Fla. 4th DCA 2008).
18
Caldwell v. State, 41 So. 3d 188 (Fla. 2010); Zukor v. State, 488 So. 2d 601 (Fla. 3d DCA 1986),
review denied, 496 So. 2d 144 (Fla. 1986) (contact in train station); See also E.V. v. State, 138 So.
3d 1163 (Fla. 3d DCA 2014); Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004).
19
Caldwell v. State, 41 So. 3d 188 (Fla. 2010); Zukor v. State, 488 So. 2d 601 (Fla. 3d DCA 1986),
review denied, 496 So. 2d 144 (Fla. 1986). See also E.V. v. State, 138 So. 3d 1163 (Fla. 3d DCA
2014); State v. Bell, 122 So. 3d 422, 425 (Fla. 2d DCA 2013); Blake v. State, 939 So. 2d 192 (Fla.
5th DCA 2006); State v. Livingston, 681 So. 2d 762 (Fla. 2d DCA 1996); State v. Albritton, 664 So.
2d 1049 (Fla. 2d DCA 1995); Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995).
20
Zukor v. State, 488 So. 2d 601 (Fla. 3d DCA 1986), review denied, 496 So. 2d 144 (Fla.1986).
21
Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006); State v. Albritton, 664 So. 2d 1049 (Fla. 2d
DCA 1995); Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995); Hand v. State, 13 Fla. L. Weekly
Supp. 1162 (Fla. 17th Cir. Ct. July 31, 2006) (asking if everything was alright and what was going on,
along with asking for identification constituted a consensual encounter).
22
State v. Albritton, 664 So. 2d 1049 (Fla. 2d DCA 1995). See also State v. Dedrick, 17 Fla. L. Weekly
Supp. 1134 (Fla. Brevard Cty. Ct. May 9, 2010).
23
E.V. v. State, 138 So. 3d 1163 (Fla. 3d DCA 2014); State v. Bell, 122 So. 3d 422, 425 (Fla. 2d DCA
2013); Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006); State v. Albritton, 664 So. 2d 1049 (Fla.
2d DCA 1995).
24
Caldwell v. State, 41 So. 3d 188 (Fla. 2010).
25
Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006); State v. Livingston, 681 So. 2d 762 (Fla. 2d
DCA 1996); Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995). But displaying a badge alone does
not make the contact a detention. See U.S. v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d
242 (2002).
26
E.V. v. State, 138 So. 3d 1163 (Fla. 3d DCA 2014). See also State v. Meachum, 196 So. 3d 496 (Fla.
1st DCA 2016) (presence of three officers at a traffic contact with the defendant in his car did not turn a
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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

consensual encounter into a detention); State v. Bell, 122 So. 3d 422, 425 (Fla. 2d DCA 2013).
27
State v. Albert, 193 So.3d 7 (Fla. 5th DCA 2016), review denied, 2016 WL 3002466 (Fla. Opinion Filed
May 25, 2016).
28
U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). See also Caldwell v.
State, 41 So. 3d 188 (Fla. 2010); Hill v. State, 39 So. 3d 437 (Fla. 3d DCA 2010); F.E.H., Jr. v. State,
28 So. 3d 213 (Fla. 4th DCA 2010); State v. Dixon, 976 So. 2d 1206 (Fla. 4th DCA 2008); State v.
Kasparian, 937 So. 2d 1273 (Fla. 4th DCA 2006); Miller v. State, 865 So. 2d 584 (Fla. 5th DCA
2004); State v. Poole, 730 So. 2d 340, 342 (Fla. 3d DCA 1999); Chambers v. State, 700 So. 2d 68,
71 (Fla. 5th DCA 1997); State v. Baldwin, 686 So. 2d 682, 685 (Fla. 1st DCA 1996); State v. M.J., 685
So. 2d 1350 (Fla. 2d DCA 1996).
29
U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). See also State v.
Kasparian, 937 So. 2d 1273 (Fla. 4th DCA 2006); Chambers v. State, 700 So. 2d 68 (Fla. 5th DCA
1997); State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996); State v. M.J., 685 So. 2d 1350 (Fla. 2d
DCA 1996).
30
U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). See also Lewis v. State,
143 So. 3d 998 (Fla. 4th DCA 2014); State v. Kasparian, 937 So. 2d 1273 (Fla. 4th DCA 2006);
Copeland v. State, 717 So. 2d 83 (Fla. 1st DCA 1998); Chambers v. State, 700 So. 2d 68 (Fla. 5th DCA
1997); State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996); State v. M.J., 685 So. 2d 1350 (Fla. 2d
DCA 1996).
31
U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). See also F.E.H., Jr.
v. State, 28 So. 3d 213 (Fla. 4th DCA 2010); J.C. v. State, 15 So. 3d 870 (Fla. 2d DCA 2009); State v.
Kasparian, 937 So. 2d 1273 (Fla. 4th DCA 2006); Chambers v. State, 700 So. 2d 68 (Fla. 5th DCA
1997); State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996); State v. M.J., 685 So. 2d 1350 (Fla. 2d
DCA 1996); State v. Woodard, 681 So. 2d 733 (Fla. 2d DCA 1996); State v. Macnider, 13 Fla. L.
Weekly Supp. 1139 (Fla. 6th Cir. May 23, 2006) (defendant responding to officer’s directive “’come
here for a minute’” constituted a detention).
32
D.N. v. State, 805 So. 2d 63 (Fla. 3d DCA 2002), review denied, 819 So. 2d 134 (Fla. 2002).
33
Bautista v. State, 902 So. 2d 312 (Fla. 2d DCA 2005).
34
Lee v. State, 868 So. 2d 577 (Fla. 4th DCA 2004). See also Griffin v. State, 150 So. 3d 288 (Fla. 1st
DCA 2014); June v. State, 131 So. 3d 2, 6-7 (Fla. 1st DCA 2013); R.J.C. v. State, 84 So. 3d 1250
(Fla. 4th DCA 2012); Gestewitz v. State, 34 So. 3d 832 (Fla. 4th DCA 2010); Johnson v. State, 989
So. 2d 1228 (Fla. 4th DCA 2008); Delorenzo v. State, 921 So. 2d 873, 876 (Fla. 4th DCA 2006);
Harrison v. State, 627 So. 2d 583 (Fla. 5th DCA 1993); Canion v. State, 550 So. 2d 562 (Fla. 4th
DCA 1989); Evans v. State, 546 So. 2d 1125 (Fla. 3d DCA 1989). But note, there are other cases
that indicate asking the defendant to remove his or her hands from his or her pocket may not result in a
detention. See R.J.C. v. State, 84 So. 3d 1250, 1255 (Fla. 4th DCA 2012) (recognizing: “the Second and
Fifth Districts have held that such a request, when made to ensure an officer’s safety, does not elevate a
consensual encounter to a detention”); State v. Baldwin, 686 So. 2d 682 (Fla. 1st DCA 1996) (in
deciding whether request to remove hands from pocket constitutes a detention, the court must consider
the context of the events and totality of the circumstances); State v. Woodard, 681 So. 2d 733 (Fla.
2d DCA 1996) (consensual encounter did not become a detention where the officer asked the defendant
to remove his hands from his pocket for officer safety).
35
Young v. State, 982 So. 2d 1274 (Fla. 4th DCA 2008).

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

36
Young v. State, 982 So. 2d 1274 (Fla. 4th DCA 2008); Rios v. State, 975 So. 2d 488 (Fla. 2d DCA
2007).
37
A.L. v. State, 133 So. 3d 1239, 1241 (Fla. 4th DCA 2014).
38
Neeley v. State, 112 So. 3d 764 (Fla. 2d DCA 2013).
39
Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988).
40
State v. Parenti, 8 Fla. L. Weekly Supp. 111 (Fla. Pinellas Cty. Ct. Oct. 30, 2000)State v. Parenti, 8 Fla.
L. Weekly Supp. 111 (Fla. Pinellas Cty. Ct. Oct. 30, 2000). See also State v. Perez, 16 Fla. L. Weekly
Supp. 432 (Fla. Leon Cty. Ct. March 14, 2008)State v. Perez, 16 Fla. L. Weekly Supp. 432 (Fla. Leon
Cty. Ct. March 14, 2008) (finding that there was a detention where officer placed cruiser at an angle in
front of vehicle that was in a drive-thru lane at a fast food restaurant; officer said this was to protect
others and property); State v. Diaz, 10 Fla. L. Weekly Supp. 917 (Fla. Dade Cty. Ct. Aug. 11, 2003)State
v. Diaz, 10 Fla. L. Weekly Supp. 917 (Fla. Dade Cty. Ct. Aug. 11, 2003) (holding there was a detention
where police car blocked defendant’s vehicle in condo parking facility).
41
State v. Hoo, 16 Fla. L. Weekly Supp. 204 (Fla. Brevard Cty. Ct. Nov. 17, 2008)State v. Hoo, 16 Fla. L.
Weekly Supp. 204 (Fla. Brevard Cty. Ct. Nov. 17, 2008).
42
State v. Castillo, 545 So. 2d 965 (Fla. 3d DCA 1989).
43
Sharpless v. State, 549 So. 2d 735 (Fla. 2d DCA 1989). See also Stennes v. State, 939 So. 2d 1148 (Fla.
4th DCA 2006) (blocking car constituted a detention); Young v. State, 803 So. 2d 880 (Fla. 5th DCA
2002) (abrogated on other grounds by, G.M. v. State, 19 So. 3d 973 (Fla. 2009)) (blocking car
constituted a detention); Smith v. State, 592 So. 2d 1239 (Fla. 2d DCA 1992) (pedestrian was detained
where officer told him to put his hands on the hood of the police car); State v. Lopez, 19 Fla. L. Weekly
Supp. 563 (Fla. 18th Cir. Ct. March 13, 2012)State v. Lopez, 19 Fla. L. Weekly Supp. 563 (Fla. 18th
Cir. Ct. March 13, 2012) (trial judge in felony DUI held that the defendant was detained when the
officer parked behind the defendant’s vehicle so it was blocked and approached driver’s side door);
State v. Koehler, 18 Fla. L. Weekly Supp. 455 (Fla. 17th Cir. Ct. Feb. 23, 2011)State v. Koehler, 18 Fla.
L. Weekly Supp. 455 (Fla. 17th Cir. Ct. Feb. 23, 2011) (detention where officer pulled marked car in
front of vehicle stopped at intersection and blocked vehicle; officer also shined spotlight on it and
approached with a flashlight); State v. Calonge, 25 Fla. L. Weekly Supp. 747 (Fla. Polk Cty. Ct. Sept.
13, 2017)State v. Calonge, 25 Fla. L. Weekly Supp. 747 (Fla. Polk Cty. Ct. Sept. 13, 2017) (“Opening
the door of Defendant’s vehicle in his private driveway to awaken him is tantamount to asking
Defendant to exit his vehicle” and constitutes a detention); State v. Lozada, 23 Fla. L. Weekly Supp. 196
(Fla. Brevard Cty. Ct. July 9, 2015)State v. Lozada, 23 Fla. L. Weekly Supp. 196 (Fla. Brevard Cty. Ct.
July 9, 2015) (defendant was detained where in a crowded parking lot officer positioned his car in front
of defendant’s truck and another police vehicle was positioned facing defendant’s truck; both police
vehicles effectively blocked the two exits from the parking lot); State v. Green, 22 Fla. L. Weekly Supp.
1072 (Fla. Flagler Cty. Ct. March 16, 2015) (defendant was detained where officer parked partially
behind vehicle so that defendant might have been able to leave “upon several parking maneuvers” that
would have been less than easy and officer was talking to passenger, who he soon asked to exit the
vehicle); State v. Dittcus, 22 Fla. L. Weekly Supp. 596 (Fla. Duval Cty. Ct. Dec. 2, 2014) State v.
Dittcus, 22 Fla. L. Weekly Supp. 596 (Fla. Duval Cty. Ct. Dec. 2, 2014) (officer detained defendant who
was in a lawfully parked vehicle when she took the defendant’s car keys and blocked the vehicle with
the police car); State v. Will, 15 Fla. L. Weekly Supp. 718 (Fla. Volusia Cty. Ct. May 14, 2008)State v.
Will, 15 Fla. L. Weekly Supp. 718 (Fla. Volusia Cty. Ct. May 14, 2008) (detention where officer’s
vehicle blocked vehicle from exiting another person’s private driveway and told defendant to “‘come
here’”); State v. Tweardy, 14 Fla. L. Weekly Supp. 875 (Fla. Dade Cty. Ct. June 5, 2007)State v.
Tweardy, 14 Fla. L. Weekly Supp. 875 (Fla. Dade Cty. Ct. June 5, 2007) (positioning marked police car
behind van so defendant could not move van without striking police car was a detention); State v.
Harrington, 12 Fla. L. Weekly Supp. 882 (Fla. Palm Beach Cty. Ct. June 10, 2005)State v. Harrington,
12 Fla. L. Weekly Supp. 882 (Fla. Palm Beach Cty. Ct. June 10, 2005) (parking patrol car behind
defendant’s vehicle where trash cans and a recycling bin were in front of the vehicle, constituted a
detention, and court noted that it need not be impossible for the subject to leave, but only for a

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

reasonable person to feel he or she is not free to leave). But see Blake v. State, 939 So. 2d 192 (Fla.
5th DCA 2006) (no detention where patrol car was one to two car lengths behind suspect vehicle and at
about 120 degree angle, so vehicle could leave).
44
Taylor v. State, 658 So. 2d 173 (Fla. 5th DCA 1995). See also Harrelson v. State, 662 So. 2d 400
(Fla. 1st DCA 1995).
45
Morrow v. State, 848 So. 2d 1290, 1293 (Fla. 2d DCA 2003) (standing outside passenger’s door so
that the passenger could not exit constituted a detention); State v. Beans, 215 So.3d 172 (Fla. 5th DCA
2017) (defendant was detained where officers first tried to contact him at a house and he slammed the
door in their face, but they continued to knock on the door; they then followed him in a vehicle to a
drive-through where there was a car in front of him; officers approached each side of the vehicle so
close it created a risk that he might hit one of them if he tried to back out; the officers used accusatory
language in dealing with him).
46
State v. King, 485 So. 2d 1312 (Fla. 5th DCA 1986).
47
Oslin v. State, 912 So. 2d 672 (Fla. 5th DCA 2005) (case involved a pedestrian); Siplin v. State,
795 So. 2d 1010 (Fla. 2d DCA 2001), abrogated on other grounds by G.M. v. State, 19 So. 3d 973
(Fla. 2009).
48
Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008). See also Cieslak v. State, 19 Fla. L. Weekly
Supp. 681 (Fla. 6th Cir. Ct. April 12, 2012)Cieslak v. State, 19 Fla. L. Weekly Supp. 681 (Fla. 6th Cir.
Ct. April 12, 2012) (defendant was detained where he rolled down his window in response to officer’s
gesturing for him to do so after the officer woke him up); State v. Young, 25 Fla. L. Weekly Supp. 896
(Fla. Volusia Cty. Ct. March 20, 2015)State v. Young, 25 Fla. L. Weekly Supp. 896 (Fla. Volusia Cty.
Ct. March 20, 2015) (trial judge followed Greider and found that there was a detention when an officer
ordered the defendant to roll her window down; she was slumped over in a lawfully parked car at about
1:47 a.m.); State v. Sooy, 13 Fla. L. Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 3, 2006)State v.
Sooy, 13 Fla. L. Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 3, 2006) (officer ordered driver in
stopped vehicle to roll down his window so he could tell him about an ordinance prohibiting sleeping in
public). But see Dermio v. State, 112 So.3d 551 (Fla. 2d DCA 2013), review denied, 137 So.3d 1019
(Fla. 2014) (distinguished Greider; in this case, consensual encounter did not become a detention when
officer told defendant to roll down window because unlike the facts in Greider, the officer still had a
reasonable concern as to the health of the defendant).
49
Rachel v. State, 987 So. 2d 1281 (Fla. 4th DCA 2008).
50
State v. Stein, 16 Fla. L. Weekly Supp. 603 (Fla. 2d Cir. Ct. May 12, 2009) State v. Stein, 16 Fla. L.
Weekly Supp. 603 (Fla. 2d Cir. Ct. May 12, 2009) (driver was unconscious, so the result might have
been different pursuant to G.M. v. State, 19 So. 3d 973 (Fla. 2009).
51
Philpott v. State, 20 Fla. L. Weekly Supp. 653 (Fla. 18th Cir. Ct. Feb. 7, 2013)Philpott v. State, 20 Fla.
L. Weekly Supp. 653 (Fla. 18th Cir. Ct. Feb. 7, 2013).
52
Oliver v. State, 157 So. 3d 495 (Fla. 5th DCA 2015); Pacheco v. State, 20 Fla. L. Weekly Supp. 255
(Fla. 17th Cir. Ct. Nov. 9, 2012)Pacheco v. State, 20 Fla. L. Weekly Supp. 255 (Fla. 17th Cir. Ct. Nov.
9, 2012). See also State v. Evans, 21 Fla. L. Weekly Supp. 451 (Fla. Brevard Cty. Ct. Jan. 28,
2014)State v. Evans, 21 Fla. L. Weekly Supp. 451 (Fla. Brevard Cty. Ct. Jan. 28, 2014) (defendant was
detained when a uniformed deputy tried to get defendant to stop backing up by using a spotlight, yelling
at driver with an authoritative tone, exiting the patrol car, and approaching defendant).
53
State v. Thomas, 21 Fla. L. Weekly Supp. 202 (Fla. Brevard Cty. Ct. Sept. 18, 2013)State v. Thomas, 21
Fla. L. Weekly Supp. 202 (Fla. Brevard Cty. Ct. Sept. 18, 2013).
54
Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011). See
also State v. Nancarrow, 24 Fla. L. Weekly Supp. 829 (Fla. Volusia Cty. Ct. Oct. 16, 2016) State v.
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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

Nancarrow, 24 Fla. L. Weekly Supp. 829 (Fla. Volusia Cty. Ct. Oct. 16, 2016) (parking police car
behind defendant’s vehicle, directing defendant to turn off the car and provide identification without
sufficient grounds for a welfare check was a detention).
55
Tobin v. State, 146 So. 3d 159 (Fla. 1st DCA 2014).
56
McClemore v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 777 (Fla. 6th Cir.
Ct. March 2, 2015)McClemore v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp.
777 (Fla. 6th Cir. Ct. March 2, 2015). See also Bober v. Dep’t of Highway Safety & Motor Vehicles, 22
Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12, 2015)Bober v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12, 2015) (initial contact between deputy
and driver of jeep was consensual, but it became a stop when the deputy told petitioner to stay in her
seat, demanded she give him her identification, and took it to the police car to check it out).
57
A.P. v. State, 182 So.3d 915 (Fla. 5th DCA 2015).
58
G.M. v. State, 19 So. 3d 973 (Fla. 2009).
59
G.M. v. State, 19 So. 3d 973 (Fla. 2009).
60
Koppelman v. State, 876 So. 2d 618 (Fla. 4th DCA 2004); Young v. State, 803 So. 2d 880 (Fla.
5th DCA 2002); Hrezo v. State, 780 So. 2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So. 2d
1113 (Fla. 1st DCA 1999). All of these decisions were abrogated by G.M. v. State, 19 So. 3d 973
(Fla. 2009).
61
G.M. v. State, 981 So. 2d 529, 536 (Fla. 3d DCA 2008), aff’d but criticized, 19 So. 3d 973 (Fla.
2009).
62
G.M. v. State, 981 So. 2d 529 (Fla. 3d DCA 2008), aff’d but criticized, 19 So. 3d 973 (Fla. 2009).
63
G.M. v. State, 981 So. 2d 529 (Fla. 3d DCA 2008), aff’d but criticized, 19 So. 3d 973 (Fla. 2009).
64
G.M. v. State, 19 So. 3d 973 (Fla. 2009).
65
G.M. v. State, 19 So. 3d 973, 979 (Fla. 2009). See also Smith v. State, 87 So. 3d 84 (Fla. 4th DCA
2012) (defendant was detained when legally parked on a residential street not indicating any need for
help and officer parked “‘catty corner’” to vehicle, activated his emergency lights, and used a spotlight
to illuminate vehicle); State v. Seymour, 72 So. 3d 320 (Fla. 2d DCA 2011) (trial court erred in
finding that the officer detained defendant by activating emergency lights where officer stopped in
response to three men flagging him down from the side of the road at 1 a.m. and he left the police car in
the roadway); Salazar v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 216(Fla.
12th Cir. Ct. June 24, 2016)Salazar v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly
Supp. 216(Fla. 12th Cir. Ct. June 24, 2016) (Petitioner was parked on the side of a busy road; deputy
pulled behind car and activated his blue emergency lights for safety reasons; activation of those lights
did not make the contact unlawful; “Not only were there traffic safety concerns, but petitioner had
activated her emergency flashers, giving the indication that she may need aid, and increasing the
likelihood that law enforcement would stop and attempt to render assistance.”); State v. Galindo, 21 Fla.
L. Weekly Supp. 1005 (Fla. 17th Cir. Ct. May 19, 2014) (defendant mistakenly stopped when officer
activated lights to stop car in front of defendant, but this was a detention because based on “common
sense and road knowledge, it would seem likely that [defendant] may have thought the officer was
stopping him and/or demanding his license on a show of authority.”); Grace v. State, 19 Fla. L. Weekly
Supp. 702 (Fla. 11th Cir. Ct. May 8, 2012)Grace v. State, 19 Fla. L. Weekly Supp. 702 (Fla. 11th Cir.
Ct. May 8, 2012) (defendant was detained where uniformed officer parked behind defendant’s vehicle,
activated emergency lights and kept them on, knocked on window so that defendant saw officer and
emergency lights; officer had defendant produce license, registration, and proof of insurance, and took

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

them to his cruiser so that defendant could not leave without abandoning his documents).
66
G.M. v. State, 19 So. 3d 973 (Fla. 2009). See also Dermio v. State, 112 So. 3d 551, 556 (Fla. 2d
DCA 2013), review denied, 137 So. 3d 1019 (Fla. 2014) (no seizure initially where officer put on
emergency lights and blocked vehicle, but the defendant was asleep; therefore, unaware of officer); State
v. Vancora, 23 Fla. L. Weekly Supp. 402 (Fla. 17th Cir. Ct. August 14, 2015)State v. Vancora, 23 Fla.
L. Weekly Supp. 402 (Fla. 17th Cir. Ct. August 14, 2015) (the sleeping defendant whose vehicle was
stopped at a green light was not detained when the officer activated his overhead lights because she was
already stopped and unaware of the officer); Arthur v. Dep’t of Highway Safety & Motor Vehicles, 23
Fla. L. Weekly Supp. 300 (Fla. 6th Cir. Ct. August 3, 2015)Arthur v. Dep’t of Highway Safety & Motor
Vehicles, 23 Fla. L. Weekly Supp. 300 (Fla. 6th Cir. Ct. August 3, 2015) (defendant was not detained
where deputy pulled behind vehicle in driveway, but the defendant was passed out behind the wheel and
unaware of the deputy’s presence); State v. Traurig, 18 Fla. L. Weekly Supp. 175 (Fla. 20th Cir. Ct.
Aug. 31, 2010)State v. Traurig, 18 Fla. L. Weekly Supp. 175 (Fla. 20th Cir. Ct. Aug. 31, 2010)
(consensual encounter where officer pulled behind parked truck and turned on emergency lights, driver
was asleep and unaware of lights, and nothing indicated that driver was not free to express desire to go);
Fabian v. State, 15 Fla. L. Weekly Supp. 403 (Fla. 4th Cir. Ct. March 13, 2008) Fabian v. State, 15 Fla.
L. Weekly Supp. 403 (Fla. 4th Cir. Ct. March 13, 2008) (officer pulled behind defendant at gas station
entrance and activated blue lights. “[I]f the citizen is not awake to see the lights, they cannot cause him
or her to believe that he or she is not free to leave. [A]ppellant was unable to perceive the emergency
lights when they were initially activated … because he was unconscious. Therefore, he could not yield
to the show of authority until he actually awoke.”); Falvo v. State, 15 Fla. L. Weekly Supp. 305 (Fla. 6th
Cir. Ct. Jan. 4, 2008)Falvo v. State, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 4, 2008)
(defendant was not detained when trooper pulled behind him and turned on his emergency lights on an
interstate because he was passed out and unaware); State v. Seegobin, 15 Fla. L. Weekly Supp. 33 (Fla.
17th Cir. Ct. Sept. 18, 2007)State v. Seegobin, 15 Fla. L. Weekly Supp. 33 (Fla. 17th Cir. Ct. Sept. 18,
2007) (passed out defendant was not detained when officer pulled behind his vehicle which was in a
swale off the roadway and turned on her emergency lights); State v. Roosa, 14 Fla. L. Weekly Supp.
1007 (Fla. 6th Cir. Ct. June 15, 2007) (consensual encounter continued where officer’s partially blocked
vehicle of passed out defendant; court said: “knowledge on the part of the defendant that his or her
vehicle has been blocked is a prerequisite to a finding that a stop or seizure has taken place … where the
defendant is either asleep or unconscious.”); Gonzalez v. State, 14 Fla. L. Weekly Supp. 949 (Fla. 18th
Cir. Ct. June 5, 2007)Gonzalez v. State, 14 Fla. L. Weekly Supp. 949 (Fla. 18th Cir. Ct. June 5, 2007);
Avery v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct.
Dec. 7, 2006)Avery v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla.
4th Cir. Ct. Dec. 7, 2006) (officer activated emergency lights, but defendant was asleep or passed out; so
there was no detention (i.e. submission to authority) until defendant awoke and became aware of the
assertion of authority); Head v. State, 12 Fla. L. Weekly Supp. 824 (Fla. 6th Cir. Ct. May 4, 2005) Head
v. State, 12 Fla. L. Weekly Supp. 824 (Fla. 6th Cir. Ct. May 4, 2005) (where officer stopped cruiser
behind defendant’s vehicle, there was no detention because defendant was unconscious or asleep and
was unaware of officer’s presence); State v. Hazel, 6 Fla. L. Weekly Supp. 204 (Fla. 20th Cir. Ct. Sept.
18, 1998)State v. Hazel, 6 Fla. L. Weekly Supp. 204 (Fla. 20th Cir. Ct. Sept. 18, 1998) ; State v.
Meunier, 21 Fla. L. Weekly Supp. 372 (Fla. Brevard Cty. Ct. Nov. 25, 2013)State v. Meunier, 21 Fla. L.
Weekly Supp. 372 (Fla. Brevard Cty. Ct. Nov. 25, 2013) (where the defendant was passed out or asleep
in a parked car so that he was unaware of the fact that the police cruiser was blocking his ability to
leave, there was no detention); State v. Schehr, 13 Fla. L. Weekly Supp. 994 (Fla. Escambia Cty. Ct.
July 19, 2006)State v. Schehr, 13 Fla. L. Weekly Supp. 994 (Fla. Escambia Cty. Ct. July 19, 2006) (no
detention where defendant was asleep or unconscious when officer pulled behind him without his
emergency lights on, and the defendant could not have believed that he was not free to go when officer
detected odor of alcohol); State v. Ramsey, 12 Fla. L. Weekly Supp. 363 (Fla. Gadsden Cty. Ct. Feb. 1,
2005)State v. Ramsey, 12 Fla. L. Weekly Supp. 363 (Fla. Gadsden Cty. Ct. Feb. 1, 2005) (no detention
where blue lights not activated and only amber and white lights, which were not visible to driver, were
used). But see Kamau v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 418 (Fla.
4th Cir. Ct. Dec. 8, 2014)Kamau v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly
Supp. 418 (Fla. 4th Cir. Ct. Dec. 8, 2014) (unconscious petitioner was detained when officer blocked his
car with police cruiser, turned the engine off, put the keys on top of the car, banged on window, shouted
at him to wake up, and stood in the tight space between petitioner’s car door and another vehicle).
67
G.M. v. State, 19 So. 3d 973 (Fla. 2009).

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68
G.M. v. State, 19 So. 3d 973, 980 (Fla. 2009).
69
G.M. v. State, 19 So. 3d 973 (Fla. 2009).
70
G.M. v. State, 19 So. 3d 973, 979–80 (Fla. 2009).
71
State v. Smith, 529 So. 2d 1226 (Fla. 3d DCA 1988).
72
McLane v. Rose, 537 So. 2d 652 (Fla. 2d DCA 1989).
73
State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. Lunga, 7 Fla. L. Weekly Supp. 410 (Fla.
Broward Cty. Ct. March 7, 2000)State v. Lunga, 7 Fla. L. Weekly Supp. 410 (Fla. Broward Cty. Ct.
March 7, 2000). See also Department of Highway Safety and Motor Vehicles v. Luttrell, 983 So. 2d
1215 (Fla. 5th DCA 2008); McKnight v. State, 972 So. 2d 247 (Fla. 1st DCA 2007); P.W. v. State,
965 So. 2d 1197 (Fla. 4th DCA 2007) (asking for consent to search does not change the voluntary
character of the contact); Houston v. State, 925 So. 2d 404 (Fla. 5th DCA 2006), review denied 935 So.
2d 1220 (Fla. 2006); Findley v. State, 20 Fla. L. Weekly Supp. 959 (Fla. 17th Cir. Ct. June 26,
2013)Findley v. State, 20 Fla. L. Weekly Supp. 959 (Fla. 17th Cir. Ct. June 26, 2013) (it was a
consensual encounter for an officer to approach a legally parked vehicle with the engine running and
brake lights on in a parking spot near the rear of a business where customers didn’t usually park, tap on
window signaling for the driver, who was slouched low in the seat, to roll it down; path of vehicle was
not blocked and defendant was free to refuse to roll down window); State v. Dar, 20 Fla. L. Weekly
Supp. 886 (Fla. 17th Cir ct. May 24, 2013)State v. Dar, 20 Fla. L. Weekly Supp. 886 (Fla. 17th Cir ct.
May 24, 2013) (it was a consensual encounter for an officer to approach defendant in a parked vehicle
and ask what he was doing and for identification).
74
Dermio v. State, 112 So. 3d 551, 556 (Fla. 2d DCA 2013), review denied, 137 So. 3d 1019 (Fla. 2014).
See also Tripp v. State, 251 So.3d 982 (Fla. 1st DCA 2018) (even though officer said he was not
conducting a welfare check, the court ruled that the contact was a welfare check, a consensual encounter,
where officers received a report of an intoxicated individual, saw him stumbling in the crosswalk of a
busy road, tripping and unable to get his bearings; asking for identification did not convert the
consensual encounter to a detention); Standridge v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla.
L. Weekly Supp. 399 (Fla. 4th Cir. Ct. April 6, 2016)Standridge v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 399 (Fla. 4th Cir. Ct. April 6, 2016) (officer approached petitioner’s
improperly parked vehicle; window was rolled up, defendant was acting in a way that caused deputy
concern abut his medical condition and was nonresponsive. “Simply because Officer Walcott knocked
on the window to inquire about the Petitioner’s condition once he observed the vehicle irregularly
parked with the engine running and Petitioner slumped over to the passenger seat did not elevate the
encounter to a seizure.”); State v. Harmon, 24 Fla. L. Weekly Supp. 278 (Fla. 17th Cir. Ct. Feb. 26,
2016)State v. Harmon, 24 Fla. L. Weekly Supp. 278 (Fla. 17th Cir. Ct. Feb. 26, 2016) (deputy’s
unsuccessful direction to defendant to roll down window followed by opening the door was a
continuation of medical/welfare check where vehicle was parked at a closed gas station for 3 to 5
minutes; vehicle was running, defendant was in driver’s seat and seemed unconscious; deputy yelled,
banged on window with his hand and then with his flashlight before defendant woke; defendant would
not respond to repeated requests to roll down window and seemed to be in a daze; deputy opened the
unlocked door for safety reasons, to check on medical condition and to do a welfare check, and asked
the defendant if he had any medical problems; when defendant responded negatively, deputy detected
odor of alcohol and other indicators of impairment); Arthur v. Dep’t of Highway Safety & Motor
Vehicles, 23 Fla. L. Weekly Supp. 300 (Fla. 6th Cir. Ct. August 3, 2015)Arthur v. Dep’t of Highway
Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 300 (Fla. 6th Cir. Ct. August 3, 2015) (defendant
was parked in a driveway, passed out behind the wheel; officer telling defendant to unlock door was a
consensual encounter because the officer was concerned about the defendant’s safety—welfare check;
he developed reasonable suspicion when the defendant opened the door); Trinh v. Dep’t of Highway
Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 201 (Fla. 4th Cir. Ct. July 24, 2015)Trinh v. Dep’t of
Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 201 (Fla. 4th Cir. Ct. July 24, 2015)
(officer conducted a valid welfare check when he found defendant sound asleep in driver’s seat of
parked car with engine running and tried unsuccessfully to wake him; officer properly opened door and
made further efforts to wake defendant; then detention was proper because officer smelled alcohol

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

coming from vehicle and noticed defendant had bloodshot and watery eyes); Kobel v. Dep’t of Highway
Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 1141 (Fla. 6th Cir. Ct. April 30, 2015) (officer was
conducting a valid welfare check where he entered a lawfully parked vehicle because the occupant was
unconscious and nonresponsive; it was proper for him to turn engine off and remove the keys when he
smelled alcohol coming from the defendant and it was evident the defendant was intoxicated); Diaz v.
State, 22 Fla. L. Weekly Supp. 899 (Fla. 17th Cir. Ct. Feb. 27, 2015)Diaz v. State, 22 Fla. L. Weekly
Supp. 899 (Fla. 17th Cir. Ct. Feb. 27, 2015) (contact was consensual where officer approached vehicle
parked across parking spaces, occupant was motionless and nonresponsive to efforts to rouse her,
causing officer to be concerned about her health; consensual nature did not change when she finally
woke up and opened the car door in response to officer’s order because officer’s concern for her well
being had not yet been eliminated); State v. Stillman, 21 Fla. L. Weekly Supp. 609 (Fla. 9th Cir. Ct.
March 13, 2014)State v. Stillman, 21 Fla. L. Weekly Supp. 609 (Fla. 9th Cir. Ct. March 13, 2014) (it
was a consensual encounter where officer approached a parked car and saw the driver sweating
profusely, moving back and forth, incoherent, did not roll window down after officer asked three times,
fumbled with the window button and finally opened the car door; officer smelled alcohol and other
indicia of impairment); Hoopingarner v. State, 16 Fla. L. Weekly Supp. 159 (Fla. 6th Cir. Ct. Oct. 31,
2008)Hoopingarner v. State, 16 Fla. L. Weekly Supp. 159 (Fla. 6th Cir. Ct. Oct. 31, 2008) (stopping
behind vehicle, putting on flashing emergency lights for officer’s safety and that of others, and
approaching vehicle to see if anyone needed help after officer corroborated tip, found vehicle in the
roadway at 2:30 a.m. and heard a female scream coming from vehicle, was a welfare check and a citizen
encounter); State v. Tams, 20 Fla. L. Weekly Supp. 1236 (Fla. Manatee Cty. Ct. August 23, 2013)
(pulling behind a vehicle stopped on roadway with four flat tires and front end damage and putting on
rear window emergency lights was a consensual encounter; it remained so when deputy asked for
license and registration and checked them; but it became an investigatory stop when deputy told
defendant that a traffic unit had been called to see if he was fit to drive). But see Kamau v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 418 (Fla. 4th Cir. Ct. Dec. 8, 2014)Kamau
v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 418 (Fla. 4th Cir. Ct. Dec. 8,
2014) (unconscious petitioner was detained when officer blocked his car with police cruiser, turned the
engine off, put the keys on top of the car, banged on window, shouted at him to wake up, and stood in
the tight space between Petitioner’s car door and another vehicle); State v. Nancarrow, 24 Fla. L.
Weekly Supp. 829 (Fla. Volusia Cty. Ct. Oct. 16, 2016)State v. Nancarrow, 24 Fla. L. Weekly Supp.
829 (Fla. Volusia Cty. Ct. Oct. 16, 2016) (parking police car behind defendant’s vehicle, directing
defendant to turn off car and provide identification was an unlawful detention where deputy saw the
defendant properly pull onto the shoulder of a dark road late at night; and deputy saw that the defendant
was able to roll down his window, was alert and conscious, and responded poorly to deputy’s inquiry
from the police cruiser as to whether he was all right; there was no sign of injury or sickness; the
defendant had done nothing illegal; there was no visible injury, no blood or vomit); State v. Howard, 24
Fla. L. Weekly Supp. 178 (Fla. Broward Cty. Ct. Feb. 10, 2016)State v. Howard, 24 Fla. L. Weekly
Supp. 178 (Fla. Broward Cty. Ct. Feb. 10, 2016) (not a consensual encounter for officers to enter car
where defendant was lawfully sleeping in the driver’s seat of a properly parked car in a casino parking
garage at 5:20 am; officer had no information indicating illegal activity or any other basis for detaining
the defendant; lawfully sleeping in the car was not grounds for entry); State v. Schubert, 23 Fla. L.
Weekly Supp. 782 (Fla. Broward Cty. Ct. Dec. 15, 2015)State v. Schubert, 23 Fla. L. Weekly Supp. 782
(Fla. Broward Cty. Ct. Dec. 15, 2015) (it was an unlawful search for officer to enter truck where
defendant was sleeping, not justified by community care taking function where officer did not try to
wake the defendant, see any evidence of injury or illness or indicate any concern for defendant’s safety);
State v. Hanson, 23 Fla. L. Weekly Supp. 351 (Fla. Volusia Cty. Ct. August 27, 2015)State v. Hanson,
23 Fla. L. Weekly Supp. 351 (Fla. Volusia Cty. Ct. August 27, 2015) (it was unlawful for officer to open
car door, take keys from defendant, wake her and order her to exit car; not community care taking
because officer did nothing to wake the driver before entering or indicate any concern for her safety or
need for assistance).
75
Schaitel v. State, 8 Fla. L. Weekly Supp. 22 (Fla. 17th Cir. Ct. Aug. 14, 2000)Schaitel v. State, 8 Fla. L.
Weekly Supp. 22 (Fla. 17th Cir. Ct. Aug. 14, 2000); Brown v. State, 7 Fla. L. Weekly Supp. 179 (Fla.
15th Cir. Ct. Dec. 17, 1999)Brown v. State, 7 Fla. L. Weekly Supp. 179 (Fla. 15th Cir. Ct. Dec. 17,
1999). See also State v. Traurig, 18 Fla. L. Weekly Supp. 175 (Fla. 20th Cir. Ct. Aug. 31, 2010)State v.
Traurig, 18 Fla. L. Weekly Supp. 175 (Fla. 20th Cir. Ct. Aug. 31, 2010).
76
State v. Christman, 838 So. 2d 1189 (Fla. 2d DCA 2003). See also Houston v. State, 925 So. 2d 404,
406 (Fla. 5th DCA 2006), review denied, 935 So. 2d 1220 (Fla. 2006) (plain clothed officers parking

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

unmarked car without emergency lights on five to six feet behind truck at a convenience store did not
constitute a detention); State v. Phillips, 10 Fla. L. Weekly Supp. 247 (Fla. 13th Cir. Ct. Dec. 19,
2002)State v. Phillips, 10 Fla. L. Weekly Supp. 247 (Fla. 13th Cir. Ct. Dec. 19, 2002) (consensual
encounter where officer pulled police cruiser behind car, which was in a driveway, but the driver could
still back car into the street and officers did not issue commands); State v. Caldera, 10 Fla. L. Weekly
Supp. 96 (Fla. 13th Cir. Ct. Nov. 14, 2002)State v. Caldera, 10 Fla. L. Weekly Supp. 96 (Fla. 13th Cir.
Ct. Nov. 14, 2002) (pulling police cruiser behind parked car and one officer approaching each side of the
vehicle was a consensual encounter).
77
State v. Raker, 883 So. 2d 887 (Fla. 1st DCA 2004). See also State v. Gillen, 21 Fla. L. Weekly Supp.
715 (Fla. Brevard Cty. Ct. March 5, 2014)State v. Gillen, 21 Fla. L. Weekly Supp. 715 (Fla. Brevard
Cty. Ct. March 5, 2014) (where deputy had trouble getting defendant to follow her instructions to avoid
an obstruction in the road, but defendant ultimately complied, pulling next to defendant’s vehicle, using
the siren, and asking defendant what he was doing did not constitute a detention).
78
State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010); State v. Wimbush, 668 So. 2d 280 (Fla. 2d
DCA 1996).
79
Houston v. State, 925 So. 2d 404 (Fla. 5th DCA 2006), review denied, 935 So. 2d 1220 (Fla. 2006).
80
State v. Sosa, 932 So. 2d 582 (Fla. 5th DCA 2006). See also Crist v. State, 98 So. 3d 81 (Fla. 2d DCA
2012).
81
State v. Jonassen, 15 Fla. L. Weekly Supp. 288 (Fla. Broward Cty. Ct. Dec. 19, 2007) State v. Jonassen,
15 Fla. L. Weekly Supp. 288 (Fla. Broward Cty. Ct. Dec. 19, 2007). See also State v. Greathouse, 21
Fla. L. Weekly Supp. 715 (Fla. Brevard Cty. Ct. April 21, 2014)State v. Greathouse, 21 Fla. L. Weekly
Supp. 715 (Fla. Brevard Cty. Ct. April 21, 2014) (it was a consensual encounter for an officer to follow
defendant home, not block defendant’s car, which was parked in the driveway, talk to the defendant, ask
for identification, and check for warrants where officer did not display a weapon, touch the defendant,
use controlling language or otherwise restrict his freedom to walk away).
82
State v. Humphries, 16 Fla. L. Weekly Supp. 932 (Fla. 17th Cir. Ct. July 22, 2009)State v. Humphries,
16 Fla. L. Weekly Supp. 932 (Fla. 17th Cir. Ct. July 22, 2009). See also Allen v. State, 19 Fla. L.
Weekly Supp. 331 (Fla. 6th Cir. Ct. Jan. 23, 2012)Allen v. State, 19 Fla. L. Weekly Supp. 331 (Fla. 6th
Cir. Ct. Jan. 23, 2012) (there was no detention where the sleeping driver voluntarily rolled down the car
window in response to the deputy knocking on the door to wake him up); State v. Johnson, 18 Fla. L.
Weekly Supp. 1049 (Fla. Brevard Cty. Ct. Aug. 11, 2011) (there was no detention when an officer saw
car backing out of space without headlights on so he yelled at the defendant without results, and then
tapped on the window, resulting in the defendant voluntarily rolling down his window).
83
McLane v. Rose, 537 So. 2d 652 (Fla. 2d DCA 1989).
84
Tripp v. State, 251 So.3d 982 (Fla. 1st DCA 2018) (asking an intoxicated pedestrian for identification
during a welfare check did not change contact from consensual encounter to a detention); State v.
Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010) (asking for license, registration, and proof of insurance
from the driver of an SUV parked and running did not transform a consensual encounter into a
detention); State v. Galicia, 948 So. 2d 983 (Fla. 2d DCA 2007) (merely asking passenger for
identification did not raise consensual encounter to level of detention); Brye v. State, 927 So. 2d 78
(Fla. 1st DCA 2006) (asking pedestrian for identification did not change consensual encounter to a
detention); State v. Gonzalez, 919 So. 2d 702 (Fla. 5th DCA 2006), review denied, 160 So.3d 895
(2015) (asking passenger for identification did not constitute a detention); Holden v. State, 877 So. 2d
800, 802 (Fla. 5th DCA 2004); Chappell v. State, 838 So. 2d 645 (Fla. 5th DCA 2003); Hines v.
State, 737 So. 2d 1182, 1185 (Fla. 1st DCA 1999); State v. Baldwin, 686 So. 2d 682, 685 (Fla. 1st DCA
1996); State v. Chang, 668 So. 2d 207 (Fla. 1st DCA 1996), cause dismissed, 675 So. 2d 926 (Fla.
1996); State v. E.W., 599 So. 2d 1042 (Fla. 4th DCA 1992) (citing I.N.S. v. Delgado, 466 U.S. 210,
104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984)); State v. Barnett, 572 So. 2d 1033 (Fla. 2d DCA 1991),
review denied, 581 So. 2d 163 (Fla. 1991); Roberts v. State, 566 So. 2d 848 (Fla. 5th DCA 1990); State

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

v. Mendez, 540 So. 2d 930 (Fla. 4th DCA 1989); State v. Peterson, 8 Fla. L. Weekly Supp. 729 (Fla. Lee
Cty. Ct. Aug. 17, 2001)State v. Peterson, 8 Fla. L. Weekly Supp. 729 (Fla. Lee Cty. Ct. Aug. 17, 2001).
85
Lightbourne v. State, 438 So. 2d 380 (Fla. 1983).
86
Lightbourne v. State, 438 So. 2d 380 (Fla. 1983).
87
Golphin v. State, 945 So. 2d 1174 (Fla. 2006), cert. denied, 552 U.S. 810, 128 S.Ct. 40, 169 L.Ed.2d
11 (2007) (history note not repeated in subsequent citations).
88
Golphin v. State, 945 So. 2d 1174, 1179 (Fla. 2006).
89
Golphin v. State, 945 So. 2d 1174, 1179 (Fla. 2006).
90
Golphin v. State, 945 So. 2d 1174, 1194 (Fla. 2006).
91
Golphin v. State, 945 So. 2d 1174, 1196 (Fla. 2006).
92
Lightbourne v. State, 438 So. 2d 380 (Fla. 1983).
93
Golphin v. State, 945 So. 2d 1174, 1198 (Fla. 2006).
94
Golphin v. State, 945 So. 2d 1174, 1198 (Fla. 2006).
95
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
96
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
97
Golphin v. State, 838 So. 2d 705 (Fla. 5th DCA 2003), decision approved, 945 So. 2d 1174 (Fla.
2006). See also Mays v. State, 887 So. 2d 402 (Fla. 2d DCA 2004), review granted, decision approved,
959 So. 2d 216 (Fla. 2007); Holden v. State, 877 So. 2d 800 (Fla. 5th DCA 2004); Smalls v. State, 858
So. 2d 1244 (Fla. 5th DCA 2003).
98
Golphin v. State, 838 So. 2d 705 (Fla. 5th DCA 2003), decision approved, 945 So. 2d 1174 (Fla.
2006).
99
Baez v. State, 814 So. 2d 1149 (Fla. 4th DCA 2002), decision quashed, 894 So. 2d 115 (Fla.
2004). See also Perko v. State, 874 So. 2d 666 (Fla. 4th DCA 2004).
100
State v. Baez, 894 So. 2d 115 (Fla. 2004).
101
State v. Baez, 894 So. 2d 115 (Fla. 2004) (C.J. Pariente dissenting).
102
Lanier v. State, 936 So. 2d 1158, 1161 (Fla. 2d DCA 2006).
103
Delorenzo v. State, 921 So. 2d 873, 878 (Fla. 4th DCA 2006).
104
Lanier v. State, 936 So. 2d 1158 (Fla. 2d DCA 2006).
105
Delorenzo v. State, 921 So. 2d 873 (Fla. 4th DCA 2006).
106
Golphin v. State, 945 So. 2d 1174, 1179, 1194 (Fla. 2006).

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

107
State v. Baez, 894 So. 2d 115 (Fla. 2004).
108
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
109
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
110
State v. Baez, 894 So. 2d 115 (Fla. 2004).
111
State v. Baez, 894 So. 2d 115 (Fla. 2004).
112
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
113
Golphin v. State, 945 So. 2d 1174, 1177 (Fla. 2006). See also Falls v. State, 953 So. 2d 627 (Fla. 4th
DCA 2007).
114
Golphin v. State, 945 So. 2d 1174, 1182-83 (Fla. 2006).
115
State v. Baez, 894 So. 2d 115 (Fla. 2004).
116
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
117
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
118
Caldwell v. State, 41 So. 3d 188 (Fla. 2010) (relying on Golphin, 945 So. 2d at 1184). See also
State v. Hernandez, 146 So.3d 163 (Fla. 3d DCA 2014) (holds that the Supreme Court in Golphin
declined to establish a bright line as to the retention of identification and concluded that each case must
be based on the totality of the circumstances); State v. Page, 73 So. 3d 351 (Fla. 4th DCA 2011) (court
reversed trial judge’s suppression of evidence based on trial judge’s conclusion that Golphin mandated
suppression where officers used identification to check for warrants; mere act of checking for warrant
did not require reasonable suspicion and did not transform the encounter into a seizure).
119
Tedder v. State, 18 So. 3d 1052 (Fla. 2d DCA 2008), review denied, 996 So. 2d 213 (Fla. 2008) and
review denied, 12 So. 3d 197 (Fla. 2009).
120
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
121
Tedder v. State, 18 So. 3d 1052, 1055 (Fla. 2d DCA 2008). See also State v. Meachum, 196 So.3d
496 (Fla. 1st DCA 2016) (court reversed trial judge’s finding that contact was not consensual where
defendant was parked at a motel and three officers in one cruiser made contact; one officer requested
defendant’s license and did a warrant check but the record did not reflect that officers blocked
defendant’s vehicle, used lights or sirens or drew weapons; the mere presence of three officers, one of
whom retained the license for about two minutes to do a warrant check and another talked to someone
else in the motel did not convert the consensual encounter into a detention).
122
Tedder v. State, 12 So. 3d 197 (Fla. 2009).
123
Tedder v. State, 12 So. 3d 197 (Fla. 2009) (Justice Lewis concurring).
124
Horne v. State, 113 So. 3d 158 (Fla. 2d DCA 2013). See also Milford v. State, 14 Fla. L. Weekly Supp.
1005 (Fla. 6th Cir. Ct. April 19, 2007) (distinguishing Golphin, court found that defendant was detained
when two deputies confronted him, a third took his I.D. 15 feet away to a cruiser, the other two deputies
searched defendant’s companion and asked to search the defendant during the warrant check, and two
deputies testified defendant was not free to go).

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§ 4:2.Consensual encounters, 11 Fla. Prac., DUI Handbook § 4:2 (2018-2019 ed.)

125
Golphin v. State, 945 So. 2d 1174 (Fla. 2006).
126
Horne v. State, 113 So. 3d 158, 161 (Fla. 2d DCA 2013). See also Villanueva v. State, 189 So.3d
982, 985 (Fla. 2d DCA 2016) (“retention of a defendant’s driver’s license when the officer asks for
consent to search should be heavily factored in when determining the nature of the encounter.”); Lane v.
State, 145 So. 3d 940 (Fla. 2d DCA 2014).
127
Popple v. State, 626 So. 2d 185 (Fla. 1993). See also Santiago v. State, 133 So. 3d 1159 (Fla. 4th
DCA 2014); Humpert v. State, 974 So. 2d 449 (Fla. 1st DCA 2007); Jacoby v. State, 851 So. 2d 913
(Fla. 2d DCA 2003); Parsons v. State, 825 So. 2d 406 (Fla. 2d DCA 2002); Miranda v. State, 816 So.
2d 132 (Fla. 4th DCA 2002), review denied, 832 So. 2d 105 (Fla. 2002); Brown v. State, 744 So. 2d
1149 (Fla. 2d DCA 1999); Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999); Allen v.
State, 703 So. 2d 1162 (Fla. 2d DCA 1997); Alvarez v. State, 695 So. 2d 1263 (Fla. 2d DCA 1997);
Bowen v. State, 685 So. 2d 942 (Fla. 5th DCA 1996); Forte v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 474 (Fla. 11th Cir. Ct. April 1, 2003)Forte v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 474 (Fla. 11th Cir. Ct. April 1, 2003); State v.
Chapman, 18 Fla. L. Weekly Supp. 232 (Fla. Brevard Cty. Ct. Nov. 18, 2010)State v. Chapman, 18 Fla.
L. Weekly Supp. 232 (Fla. Brevard Cty. Ct. Nov. 18, 2010); State v. Garland, 11 Fla. L. Weekly Supp.
1010 (Fla. Polk Cty. Ct. May 14, 2002) (opening door of vehicle and reaching inside to wake up a
sleeping defendant is equivalent to asking the person to exit and constitutes a detention).
128
Popple, 626 So. 2d at 188. See also McCray v. State, 177 So.3d 685, 688 (Fla. 1st DCA 2015); Davis
v. State, 946 So. 2d 575 (Fla. 1st DCA 2006); Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA
1999) (repeatedly telling person in parked car to exit vehicle was a detention, not a consensual
encounter); Forte v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 474 (Fla. 11th
Cir. Ct. April 1, 2003)Forte v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 474
(Fla. 11th Cir. Ct. April 1, 2003).
129
Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
130
Popple v. State, 626 So. 2d 185 (Fla. 1993).
131
Gentles v. State, 50 So. 3d 1192, 1197 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla.
2011).

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Works.

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§ 4:3.Reasonable suspicion, 11 Fla. Prac., DUI Handbook § 4:3 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:3. Reasonable suspicion

West’s Key Number Digest

• West’s Key Number Digest, Arrest 63.5(6)
• West’s Key Number Digest, Automobiles 349

Legal Encyclopedias
• C.J.S., Arrest §§ 38, 40
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Where an officer has articulable facts sufficient to create a reasonable suspicion based on the officer’s
knowledge and experience that the suspect is committing, has committed, or is about to commit a crime, the
officer may temporarily detain the individual for investigation. 1 This is less than probable cause “and requires a
showing considerably less than preponderance of the evidence.” 2 The officer, and ultimately the court, must rely
on facts known to the officer before the detention. 3 Accordingly, an officer may temporarily detain a vehicle
where a reliable BOLO4 creates a reasonable suspicion that the occupants of the vehicle had committed a
misdemeanor.5

Officers may rely on many factors in deciding whether there is reasonable suspicion. These include the time of
day, the day of the week, the location, the physical appearance of the suspect, the behavior of any involved
vehicle, or anything unusual in the situation as interpreted in light of the officer’s knowledge. 6 Officers stopping
a vehicle should also consider the time since the offense, the distance from the scene, the route of flight, the
specificity of the description of the vehicle and its occupants, the source of the information, and anything
unusual in the situation.7 The “totality of the circumstances” must be considered.8

It is not necessary for the detaining officer to be the one who actually developed the reasonable suspicion.
Under the “fellow officer” rule, a detaining officer may rely on another officer’s reasonable suspicion to make a
stop.9 This doctrine is very broad and permits reliance on knowledge in the possession of essentially the whole
law enforcement community.10 An officer of one city may make a stop based upon a bulletin from another city
justifying the conclusion that a suspect was wanted for questioning in connection with a completed offense. 11
However, the officers who issued the bulletin must have had specific and articulable facts justifying a

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:3.Reasonable suspicion, 11 Fla. Prac., DUI Handbook § 4:3 (2018-2019 ed.)

reasonable suspicion that the suspect was involved in the offense. 12 Where a community service aid observed
sufficient evidence of DUI, but issued a BOLO describing only the vehicle and the direction of travel, there was
not reasonable suspicion for a stop.13

In Montes-Valeton v. State,14 the Court recently ruled that the fellow officer rule requires that the officer who
has the information upon which the State relies to establish reasonable suspicion or probable cause,
communicate with the officer taking direct action against the suspect. The officer taking that action must be
acting based upon what he or she was told by the first officer. 15 Montes-Valeton16 involved the issue of whether
there was probable cause to extract a forced blood sample under the implied consent law 17 based solely upon
information known to another officer and not conveyed to the acting officer. While the Court makes it clear that
the officer ordering the test must be motivated by the direction of the officer with the information, it does not
define the quantum of required information. Instead, the Court explains that the officer with the information did
not direct the acting officer to take the blood, indicate that probable cause existed “or communicate[] anything
regarding Montes-Valeton” to the officer ordering the blood draw. 18 “Without the communication to the
arresting officer of some information that initiates the arrest, the predicate for application of the fellow officer
rule is lacking. Trooper Molina therefore lacked imputed probable cause knowledge of Montes–Valeton’s
intoxication under the fellow officer rule.”19

These principles apply to so many different circumstances that it is impossible and beyond the scope of this
book to discuss each one. Instead, it may be useful to consider the legal value of information as a basis for
vehicle stops. In DUI cases, the initial investigatory stop may have nothing to do with the ultimate DUI arrest.
The facts causing officers to believe that the defendant has committed DUI may only come after a stop to
investigate some other matter. Obviously, if that temporary detention is unlawful, the DUI evidence is
inadmissible.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 901.151, Fla. Stat.; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For a short
clear example of the application of Terry standards to vehicle stops see State v. Delgado, 402 So.2d 41
(Fla. 3d DCA 1981). For a good explanation of the Terry standards in general see Tamer v. State, 484
So. 2d 583 (Fla. 1986).
2
Baptiste v. State, 995 So. 2d 285, 291 (Fla. 2008) (quoting from Illinois v. Wardlow, 528 U.S.
119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).)
3
Harris v. State, 537 So. 2d 187 (Fla. 2d DCA 1989). See also Majors v. State, 70 So. 3d 655 (Fla. 1st
DCA 2011), review denied, 79 So. 3d 745 (Fla. 2011).
4
BOLO is an acronym for “be on the lookout.”
5
State v. Wise, 603 So. 2d 61 (Fla. 2d DCA 1992) (although officer may not have authority to arrest for a
misdemeanor even if probable cause develops, the officer can still issue a notice to appear). See also
McClamma v. State, 138 So. 3d 578 (Fla. 2d DCA 2014), review denied, 151 So.3d 1228 (Fla. 2014)
(while concluding that an officer could not conduct an investigatory stop for loitering and prowling
under the facts of that case, the court noted: “In the case of a misdemeanor such as possession of
marijuana, an officer may observe circumstances in his presence that create a reasonable suspicion that a
person is in possession of marijuana. The officer can temporarily detain the person, not to establish
probable cause as one would for a felony, but to establish that the item possessed was marijuana and not
a lawful substance. The Terry stop leads to evidence sufficient to establish that all elements of the
misdemeanor occurred in the officer’s presence, thereby permitting an arrest.”); Goss v. State, 744 So.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 4:3.Reasonable suspicion, 11 Fla. Prac., DUI Handbook § 4:3 (2018-2019 ed.)

2d 1167 (Fla. 2d DCA 1999) (“Although an officer cannot make a warrantless arrest for a misdemeanor
or ordinance violation unless it is conducted in the officer’s presence … this does not preclude the
officer from conducting an investigatory stop based on a reasonable suspicion that the person has
committed, is committing or is about to commit a crime.”). But see State v. Bennett, 520 So. 2d 635
(Fla. 4th DCA 1988) (Judge Glickstein concurring) (indicating that a Terry stop for a misdemeanor that
has occurred would be improper, if the misdemeanor is one for which an officer cannot make an arrest
without a warrant or personal observation); Rodriguez v. State, 29 So. 3d 310 (Fla. 2d DCA 2009),
review denied, 26 So. 3d 1291 (Fla. 2010) (while noting Judge Glickstein’s observations, court
recognized that there is nothing in Florida law precluding an investigatory stop in cases where the
officer has a well-founded suspicion of an offense for which the officer cannot make an immediate
arrest).
6
Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999), review denied, 763 So. 2d 1043 (Fla. 2000);
Moore v. State, 561 So. 2d 625 (Fla. 1st DCA 1990). See also Cole v. State, 190 So.3d 185 (Fla. 3d
DCA 2016), review denied, 2016 WL 4182848 (Fla. Opinion Filed Aug. 08, 2016); State v. Cruse, 121
So. 3d 91 (Fla. 3d DCA 2013); Price v. State, 120 So. 3d 198 (Fla. 5th DCA 2013); State v. Reyes, 4 So.
3d 46 (Fla. 3d DCA 2009); State v. Lennon, 963 So. 2d 765 (Fla. 3d DCA 2007), review denied, 978 So.
2d 160 (Fla. 2008); Rodriguez v. State, 948 So. 2d 912 (Fla. 4th DCA 2007).
7
Hunter v. State, 660 So. 2d 244 (Fla. 1995), cert. denied, 516 U.S. 1128, 116 S. Ct. 946, 133 L. Ed.
2d 871 (1996). See also Sammiel v. State, 225 So. 3d 250 (Fla. 4th DCA 2017); Sanchez v. State, 199
So.3d 472 (Fla. 4th DCA 2016); Exantus-Barr v. State, 193 So.3d 936 (Fla. 4th DCA 2016); Sousa v.
State, 192 So.3d 481 (Fla. 2d DCA 2016); State v. Jemison, 171 So.3d 808 (Fla. 4th DCA 2015);
Gaines v. State, 155 So. 3d 1264 (Fla. 4th DCA 2015); King v. State, 17 So. 3d 728 (Fla. 1st DCA
2009); State v. Wong, 990 So. 2d 1154 (Fla. 3d DCA 2008), review denied, 6 So. 3d 608 (Fla. 2009);
Jean v. State, 987 So. 2d 196 (Fla. 4th DCA 2008); Rodriguez v. State, 948 So. 2d 912 (Fla. 4th DCA
2007); State v. Gelin, 844 So. 2d 659 (Fla. 3d DCA 2003), review denied, 855 So. 2d 620 (Fla. 2003);
State v. Wise, 603 So. 2d 61 (Fla. 2d DCA 1992); State v. Ellis, 9 Fla. L. Weekly Supp. 495 (Fla.
Brevard Cty. Ct. June 7, 2002)State v. Ellis, 9 Fla. L. Weekly Supp. 495 (Fla. Brevard Cty. Ct. June 7,
2002) (excellent analysis of how detailed information provided by citizen informants concerning a
trespasser, combined with officer’s experience and knowledge of likely vehicular routes shortly after the
reported event, established reasonable suspicion for a stop leading to a DUI arrest).
8
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015);
Santiago v. State, 133 So. 3d 1159, 1163 (Fla. 4th DCA 2014); Price v. State, 120 So. 3d 198, 200 (Fla.
5th DCA 2013); Wallace v. State, 8 So. 3d 492, 495 (Fla. 5th DCA 2009), review denied, 19 So. 3d
312 (Fla. 2009); State v. Reyes, 4 So. 3d 46 (Fla. 3d DCA 2009); State v. Russell, 659 So. 2d 465
(Fla. 3d DCA 1995), review denied, 665 So. 2d 220 (Fla. 1995); Moore v. State, 561 So. 2d 625 (Fla. 1st
DCA 1990).
9
A.J.M. v. State, 746 So. 2d 1222, 1224 (Fla. 3d DCA 1999). See also Jackson v. State, 241 So.3d
914, 917 (Fla. 1st DCA 2018), review denied, 2018 WL 3239506 (Fla. Opinion Filed July 3, 2018);
State v. Watson, 187 So.3d 349 (Fla. 5th DCA 2016); Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA
2009), decision approved, 87 So. 3d 704 (Fla. 2012); Strickroth v. State, 963 So. 2d 366, 368 (Fla. 2d
DCA 2007) (“It can involve direct communications between officers who have sufficient information
and the officer who stops the suspect, or it can involve general communications among officers of whom
at least one possesses the required level of suspicion.”); Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA
1998); Wattam v. State, 21 Fla. L. Weekly Supp. 378 (Fla. 6th Cir. Ct. Dec. 18, 2013) Wattam v. State,
21 Fla. L. Weekly Supp. 378 (Fla. 6th Cir. Ct. Dec. 18, 2013) (where a Sheriff’s 911 operator received
information from a citizen informant sufficient to establish a reasonable suspicion and advised a city
police dispatcher about the erratic driving, the stop by that city’s officers was lawful under the fellow
officer rule; all the information provided to the sheriff’s 911 operator was imputed to the city officer and
“[t]hat officer does not actually have to know all the details known by the 911 operator before he
initiates a lawful traffic stop,” and the 911 operator did not have to be a sworn law enforcement officer);
State v. Culiner, 21 Fla. L. Weekly Supp. 311 (Fla. 17th Cir. Ct. Oct. 24, 2013)State v. Culiner, 21 Fla.
L. Weekly Supp. 311 (Fla. 17th Cir. Ct. Oct. 24, 2013) (citizen informant’s information to 911
dispatcher was imputed to arresting officers); State v. Long, 20 Fla. L. Weekly Supp. 1151 (Fla. 17th

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:3.Reasonable suspicion, 11 Fla. Prac., DUI Handbook § 4:3 (2018-2019 ed.)

Cir. Ct. August 5, 2013) (information provided by citizen informant to dispatcher was imputed to
stopping trooper); Lathrop v. State, 20 Fla. L. Weekly Supp. 1145 (Fla. 17th Cir. Ct. July 31, 2013)
(information from road ranger to trooper who made the stop was imputed to another officer who made
the arrest); Cherico v. State, 12 Fla. L. Weekly Supp. 127 (Fla. 17th Cir. Ct. Oct. 4, 2004)Cherico v.
State, 12 Fla. L. Weekly Supp. 127 (Fla. 17th Cir. Ct. Oct. 4, 2004); State v. Singer, 12 Fla. L. Weekly
Supp. 25 (Fla. 9th Cir. Ct. June 22, 2004)State v. Singer, 12 Fla. L. Weekly Supp. 25 (Fla. 9th Cir. Ct.
June 22, 2004); Popjoy v. State, 11 Fla. L. Weekly Supp. 538 (Fla. 13th Cir. Ct. March 9, 2004) Popjoy
v. State, 11 Fla. L. Weekly Supp. 538 (Fla. 13th Cir. Ct. March 9, 2004); State v. Hart, 25 Fla. L.
Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017)State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla.
Volusia Cty. Ct. June 15, 2017) (trial court wrote a detailed order discussing the fellow officer rule as it
applies to reliance on a second officer to establish the lawfulness of DUI arrest); State v. Oharrow, 18
Fla. L. Weekly Supp. 422 (Fla. Brevard Cty. Ct. Feb. 21 2011)State v. Oharrow, 18 Fla. L. Weekly
Supp. 422 (Fla. Brevard Cty. Ct. Feb. 21 2011) (where one deputy had reasonable suspicion of DUI, that
knowledge was imputed to others and the fact that the stopping deputy did not know whose voice he
heard was irrelevant; it could have been the dispatcher’s voice and that would have been sufficient). But
see State v. Holman, 11 Fla. L. Weekly Supp. 725 (Fla. Escambia Cty. Ct. May 14, 2004)State v.
Holman, 11 Fla. L. Weekly Supp. 725 (Fla. Escambia Cty. Ct. May 14, 2004) (information provided to
911 operator cannot be basis for application of fellow officer rule in the absence of evidence that
operator was an officer, but information provided by that operator to a police dispatcher can be).
10
Smith v. State, 719 So. 2d 1018, 1022 (Fla. 3d DCA 1998) (“The ‘fellow officer’ rule is applicable
whether the communication is from a superior, a fellow officer with the same police department,
between different agencies or agencies at different levels within a state, between officials in different
states, and between federal and state or local authorities.”). See also State v. Watson, 187 So.3d 349
(Fla. 5th DCA 2016).
11
U.S. v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985).
12
U.S. v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985).
13
State v. Webb, 10 Fla. L. Weekly Supp. 785 (Fla. 17th Cir. Ct. July 14, 2003)State v. Webb, 10 Fla. L.
Weekly Supp. 785 (Fla. 17th Cir. Ct. July 14, 2003).
14
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017).
15
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017).
16
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017).
17
The issue of whether warrantless forced extraction of blood is still available under the implied consent
law in the absence of exigent circumstances or consent in light of recent U.S. Supreme Court decisions
is discussed in Chapter 5.
18
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017).
19
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017) (the Court does not say that the officer with the
information must convey sufficient facts to the officer ordering the blood test, detention or arrest to
establish probable cause or reasonable suspicion, but the Court does end this part of the opinion with this
quote: “ ‘A supervising officer’s knowledge about a defendant cannot be relied upon to provide probable
cause for his arrest where there is no evidence that such knowledge was communicated to the agents on
the scene who actually made or ordered the defendant’s arrest.’” (quoting from United States v.
Edwards, 885 F.2d 377, 382 (7th Cir. 1989))). But see State v. James, 25 Fla. L. Weekly Supp. 543 (Fla.
Volusia Cty. Ct. July 19, 2017)State v. James, 25 Fla. L. Weekly Supp. 543 (Fla. Volusia Cty. Ct. July
19, 2017) (trial judge ruled that Montes-Valton means that “in order for the fellow officer rule to apply,
the information establishing probable cause for the arrest must be communicated directly from the
officer possessing the knowledge to the officer who will be making the arrest.”).

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§ 4:3.Reasonable suspicion, 11 Fla. Prac., DUI Handbook § 4:3 (2018-2019 ed.)

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:4. Tips, BOLOs, & informants

West’s Key Number Digest

• West’s Key Number Digest, Arrest 63.5(6)
• West’s Key Number Digest, Automobiles 349(2.1), 349(6)

Legal Encyclopedias
• C.J.S., Arrest §§ 38, 40
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Officers often stop vehicles for investigation based on reasonable suspicion allegedly established by tips,
BOLOs, or informants. Occasionally, the officer sees things after the stop that provide reasonable suspicion for
further investigation or probable cause for a DUI arrest. The United States Supreme Court has established
standards for such stops.

Illinois v. Gates1 is the starting point for these standards. It deals with probable cause for an arrest based on an
anonymous tip. The Court says the tip must be judged based on the “totality of the circumstances.” The trial
judge must consider both the quantity (i.e. content) and quality (i.e. reliability) of the information. Thus, if the
tip is not particularly reliable, more information is necessary to establish probable cause. On the other hand, if
the tip is particularly reliable, less information is necessary. The officer’s personal knowledge and the tip’s
reliability, as determined through independent police work, are key to probable cause.

In Alabama v. White,2 the Court applied these standards to reasonable suspicion for an investigatory stop. As
with probable cause, the tip must be judged based on the “totality of the circumstances.” The trial judge must
still balance content and reliability of the information. The court must also consider the officer’s personal
knowledge and the tip’s reliability as determined through independent police work. The difference between the
assessment of the sufficiency of a tip to provide reasonable suspicion and the sufficiency of a tip to provide
probable cause is the level of knowledge required. The quantity (i.e. content) and quality (i.e. reliability) of
information need not be as great to establish reasonable suspicion as it does to establish probable cause. 3

The application of these principles in White is enlightening. The tip in that case was sufficient to establish

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§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

reasonable suspicion to believe that a drug offense was about to be committed and to justify stopping the car. It
included predictions of future conduct, which officers corroborated by personal observation. Such predictions
are important because they demonstrate inside knowledge that can be corroborated by the officer’s subsequent
observations.4 That knowledge usually can only come from a special familiarity with the suspect’s affairs. 5 If the
tip consists of easily obtained facts and conditions that presumably existed at the time of the tip, it is insufficient
under the White standards.6 The anonymous tip may establish reasonable suspicion for the stop of a vehicle, if
an independent police investigation corroborates sufficiently detailed anonymous information. 7

The Florida Supreme Court considered the foregoing U.S. Supreme Court decisions in J.L. v. State8 and set
forth fundamental principles that should be considered when dealing with these issues. The Court recognized
that information must be reliable not only as to identification, but also in its assertion of criminal activity. 9 Tips
from known informants are generally more reliable than anonymous tips. 10 An anonymous tip may provide
reasonable suspicion if it describes “suspicious details concerning conduct that is presently occurring or is about
to occur in the future”11 and police confirm those details. 12 If the tip alleges criminal conduct, but provides only
innocent details, reliability of the allegations of criminal conduct may be shown if those details predict future
actions that would not generally be known, and officers independently corroborate the predicated details. 13
Anonymous information of presently occurring innocent details may also provide reasonable suspicion if the
details are confirmed and independent police work produces additional suspicious circumstances. 14

It is clear from the foregoing authorities that whether the focus is on reasonable suspicion or probable cause, the
“totality of the circumstances” is critical. If a confidential informant is used “[t]hose circumstances include the
informant’s credibility, the extent of detail in the tip, and the subsequent corroboration.” 15

These standards have been applied in Florida to a variety of circumstances to justify a vehicle stop. A BOLO for
a black suspect driving a red late model Jaguar, possibly going to rob a liquor store with a machine gun, was
sufficient for officers to stop two black males in a maroon Jaguar a few seconds after they received the BOLO. 16
In the early morning hours, an officer was dispatched to an area based solely on two emergency reports of a
screaming woman. When the officer arrived he saw no activity or people except for four men in a moving car.
One of them was driving and the other three were in the back seat. The officer had reasonable suspicion for a
stop of the vehicle.17 An anonymous tip as to a future drug transaction gave detailed information about the
“identity, location, movements, and activity of the defendant.” The police found a person matching that
description at the location described by the tipster and driving a car described by the tipster. The defendant’s
movements at the time were substantially what the tipster had predicted. This stop was lawful. 18 There are many
similar examples.19

In other cases, the courts have found that the tip was insufficient to establish reasonable suspicion because of a
lack of information. There was no basis for an investigatory stop of a vehicle where the only information
corroborated by police observation prior to the stop of the vehicle was the race and gender of the occupants, the
size and color of the car, and the county on the tag. 20 “It is not enough merely to corroborate the identity, dress,
description, or location of an individual who is the subject of an anonymous tip.” 21 Reports of frequent
burglaries in an area combined with the observation of the suspect’s car parked at 9 p.m. next to the woods at
the edge of the grounds of a company building, were insufficient to justify an investigatory stop. 22 Where
officers had insufficient information from a known source and additional sufficient information from an
unknown source, which was uncorroborated, the officer could not lawfully stop the suspect vehicle. 23 Likewise,
a stop was unlawful where it was based solely on a citizen’s report that two people in a white late-model car
met others in a blue Pontiac, a key case passed between the cars, and the occupants of the blue car opened the
trunk of the white car.24 So too, officers did not have grounds to stop a man merely because he was parked in a
pick-up truck watching children play in an empty lot. 25 The court noted that there were situations where law-
abiding citizens did the same thing. 26 And anonymous information that someone was driving a car with a
firearm in it was insufficient for a stop, because there was no indication that the gun was illegal or that it
involved any criminal conduct.27

Occasionally, officers develop reasonable suspicion through an informant to believe that a suspect is
committing the crime of DUI or DUI in combination with another crime. In one such case, 28 two citizens

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§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

complained to deputies about a man in a pick-up truck near an elementary school. One said that the man
appeared intoxicated and was staggering and confused. The citizens gave a description of the man, the truck,
and the tag number. A crossing guard who described seeing a suspicious person in the area directed one deputy
to a vehicle pulling out of a nearby parking space. As the deputy was approaching the man, a woman who had
called about the man pointed at the suspect. The deputy knew that some men in the area had exposed
themselves to children. The deputy stopped the vehicle and developed probable cause for a DUI arrest. The
court held that the officer lawfully stopped the car because the citizens’ complaints were reliable and were
immediately corroborated. They provided a founded suspicion that either a DUI was taking place or that the
driver was exposing himself to children. In this case, the information provided by citizen-informants was
corroborated, but that is not required.

On the other hand, the rule that there must be corroboration where the informant is anonymous has been applied
in many reckless driving and DUI cases. 29 Deputies received information from an anonymous source that a
particular car was all over the road and had struck a bridge. One deputy saw the car, followed it for a short
period, watched it park, and then made the stop. That deputy saw nothing indicating impairment as he followed
the car. The court rejected the argument that scratches and dents all over the car provided the necessary
corroboration because they were on all sides and there was no testimony that any of them seemed fresh. 30 The
court stated, “the police must observe some independent suspicious activity before they make a valid stop.” 31 In
contrast, an officer developed sufficient corroboration for a tip that there were two intoxicated females at a
parking lot preparing to leave, based on the officer’s observations during consensual contact. 32

The cases dealing with the sufficiency of telephone tips to justify stops for bad driving and DUI must be
considered in light of the recent decision of the United States Supreme Court in Navarette v. California.33 This
was a five to four decision. The dissent is worth reading because it illustrates the important impact of the case.

In Navarette,34 the Court ruled that an anonymous tip to 911 advising that a truck, identified by make, model
and license number, had run the caller off the road was sufficiently reliable to provide reasonable suspicion that
such an event had occurred. The Court looked at specific considerations it found supportive of the tips
reliability. An officer stopped the truck about 19 miles from the location given by the informant and 18 minutes
from the call, suggesting that the caller reported the incident soon after she was run off the road. “That sort of
contemporaneous report has long been treated as especially reliable.” 35 Additionally, the fact that the
information was provided over the 911 emergency system supported its reliability because that system has some
features allowing a caller to be identified, traced, and recorded. Thus, subjecting dishonest callers to potential
consequences, including prosecution, and permitting “a reasonable officer [to] conclude that a false tipster
would think twice before using such a system.” 36 Accordingly, an officer could react as if there was creditable
information that the involved driver had driven the truck in a dangerous way.

The majority in Naverette then took a major step and ruled that based on that information alone the officer had
reasonable suspicion for a DUI stop.37 The Court goes on to provide something of a catalogue of “driving
behaviors [recognized] as sound indicia of drunk driving” 38 and concludes that a reliable tip as to such conduct
“generally would justify a traffic stop on suspicion of drunk driving.” 39 Such was the case for the Naverettes. 40
The tip as to them
alleged a specific and dangerous result of the driver’s conduct: running another car off the
highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk
driving to be dismissed as an isolated example of recklessness. Running another vehicle off the
road suggests lane-positioning problems, decreased vigilance, impaired judgment, or some
combination of those recognized drunk driving cues.41

The Court rejects the importance of alternative explanations for the inappropriate driving such as problem
children or other distractions.42 And concludes that the fact that the officer observed nothing suggesting
impaired driving during five minutes of following the suspect did not require a different result for two reasons.
First, the officer had no such duty and could have made the stop based solely on the reasonable suspicion

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derived from the tip. Second, the fact that the suspect driver was able to straighten up when an officer appeared
on the scene was not inconsistent with the previously justified belief that the driver was drunk. 43

The foregoing cases dealing with tips as a basis for DUI stops have involved information conveyed by
telephone, but there have been a number of cases where officers rely on face-to-face informants, either
identified or unidentified. In Solino v. State,44 information provided face-to-face by an anonymous driver to an
officer that a bottle had been tossed out of another vehicle’s window was not sufficiently reliable to establish
reasonable suspicion. However, the court took a different approach in J.P.N. v. State,45 where an unidentified
man in a parking lot talked face-to-face with an officer for 60 to 90 seconds and reported that a vehicle was
moving slowly up and down the rows of parked cars and the occupants were getting out looking into vehicles.
The officer had been patrolling the lot because there had been a number of recent car burglaries. Based on the
totality of the circumstances, the court found that the officer had reasonable suspicion for an investigatory
stop.46 The court said that face-to-face anonymous sources are presumed inherently more reliable than
unidentified telephone sources.47

However, in McKelvin v. State,48 the court distinguishes the decision in J.P.N. 49 The court makes it clear that in
the absence of evidence that officers were able to determine the face-to-face source’s credibility, such an
unidentified source, who provides no contact information nor way for officers to locate him/her, is treated the
same as an anonymous telephonic source.50 In contrast to the record in J.P.N., 51 the record in McKelvin52
included no evidence as to the length of officers’ contact with the informant nor evidence that officers had
knowledge of or were concerned with commission of the type of crime in the area that was the subject of the tip.

D.P. v. State53 illustrates circumstances justifying reliance on a face-to-face tipster. In D.P., 54 a nervous and
frightened woman approached an officer. Her hands were shaking and she was yelling. The woman pointed at
the defendant and said that he had just pointed a gun at her. Based on the woman’s fear and appearance, the
officer concluded she was reliable. When the officer told the defendant what the woman said and indicated that
he wanted to do a pat-down, the defendant denied that he had a gun and began to back away. The officer
discovered the gun on the defendant, but the woman disappeared. The court concluded that this face-to-face
anonymous source was reliable because: (1) the information was provided at the scene and the officer
immediately investigated—there was no time lag; (2) the officer evaluated the informant’s credibility as she
provided the information, based on observations of her demeanor and state of mind; (3) the informant provided
the information in the presence of the defendant and others, thus subjecting herself to risk of harm; and (4) the
defendant’s behavior supported the validity of the information.

As suggested by many of the foregoing authorities, known citizen-informants are generally treated differently
than anonymous informants. Officers usually need not corroborate information provided by citizen-informants. 55
While the anonymous tipster is on the low end of the scale of reliability, the citizen-informant is on the high end
and is entitled to a presumption of reliability.56 This is so because unlike other informants such people are
generally available, may suffer sanctions for giving false information, and are normally motivated by the desire
to further justice or other matters, not by a craving for pecuniary gain. 57 However, a tipster who anonymously
calls in information and appears after the detention cannot be treated as a citizen informant, because the validity
of the stop must be evaluated based on what the officer knew at the time of the stop. 58 There are many examples
of who is and is not a citizen informant.59

There has been a conflict, however, among some of the districts as to the required extent of identification of the
informant for the person to be treated as a citizen-informant, rather than an anonymous informant. In Foy v.
State,60 the Fifth District Court of Appeal ruled that a caller who identified herself as a suspect’s mother and
provided information about the suspect, qualified as a citizen-informant. In contrast, in Miller v. State,61 the
Second District Court of Appeal ruled that a caller who identified herself as the suspect’s wife and provided
information was an anonymous informant. The court took that same approach in Maynard v. State62 as to a
caller who identified herself as the suspect’s mother. The court concluded that officers must verify the caller’s
identity.63 In Johnson v. State,64 the court followed that same rule to justify the conclusion that an informant was
anonymous even though he provided his name, address, and telephone number, because the police did not
independently verify that information before acting on it.

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In State v. Maynard,65 the Court resolved this conflict. The Court adopted the standards set forth in State v.
Evans66 for determining whether a person is a citizen-informant. There the court identified four factors that
should be considered. First, the person provided information to law enforcement as to his or her identification.
In Evans, that information included her name, location, and occupation. Second, the police could readily
ascertain the informant’s identity. This is the critical factor. Even if the informant’s identity is not made know,
if it is readily ascertainable, that person will qualify as a citizen-informant. 67 The third factor is that the
informant is not motived by the desire for “pecuniary gain, but by the desire to further justice.” (quoting from
State v. Talbott).68 Finally, rather than being a person who is involved in the criminal enterprise, the citizen-
informant is usually an “average citizen who by happenstance finds himself in the position of a victim of or a
witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty.”
(quoting from LaFave, Search and Seizure § 3.3 (3d Ed. 1996)).69 According to State v. T.S.,70 weakness in one
of these factors can be compensated for by strength in another indicator of reliability.

In Maynard,71 the Court applied these standards to justify the conclusion that the informant there was a citizen-
informant. She identified herself as the mother of the individual who she was calling about and she gave her
address. “Even though it is not clear whether the caller gave the police her actual name, the fact that she
disclosed her address made her identity easily ascertainable.” 72 The only identifiable motive for the call was
“concern for the safety of her son and others.”73

The court followed the decision in Maynard74 in State v. K.V.75 In that case, the court ruled that a security guard
at an apartment complex was a citizen-informant based on two considerations. First, she could be easily
identified. Second, she was not motivated by a desire for pecuniary gain, but rather by a sense of civic duty.
This motive is clearly a critical factor in such cases.

Recently, the Florida Supreme Court confirmed these principles in Pasha v. State.76 In that case, a husband and
wife called 911 to report criminal activity at a particular location. They reported that they were following the
suspect’s vehicle and provided the license plate number. About a minute after two deputies received the
dispatch, the informants flagged them down at a nearby stoplight by yelling, pointing, and flashing their
headlights at a white van that had a plate with numbers matching those provided in the 911 call. The deputies
stopped the van. The Court concluded that the stop was lawful and the husband and wife were citizen
informants because their “identities were easily ascertainable and readily discoverable. See Maynard, 783
So.2d at 229–30 …. There is no indication that [they] were motivated by any reason other than a concern for the
safety of others. See id. at 230.”77

In contrast to the rulings in Pasha78 and State v. K.V.,79 in Wallace v. State,80 the court concluded that a
handcuffed individual who had watched officers remove a partially hidden firearm and marijuana from his car,
could not be treated as a citizen informant as to information he gave police indicating that the defendant had
placed the firearm there. Obviously, his identity was well known to the officers, but he had a strong motive for
lying because he could be arrested for possession of a concealed firearm. 81 The informant’s tip was insufficient
standing alone to establish a founded suspicion for an investigatory detention of the defendant. 82

Maynard,83 and other cases dealing with the rules controlling the use of informants, do not address stops based
solely on emergencies or public safety issues not involving reasonable suspicion or probable cause. Vitale v.
State84 and Castella v. State85 explore these issues. In Vitale,86 officers received a high priority call based on an
anonymous tip that a driver was slumped over the wheel of a car parked in front of a convenience store with the
engine running. Contact with the driver provided additional support for the conclusion that there was an
emergency and led to the production of drugs. In affirming the denial of a motion to suppress, the court
concluded that the rule requiring independent police corroboration of an anonymous tip relied on to establish
reasonable suspicion does not apply to medical emergencies. 87 The test is whether officers reasonably believe
that a person is in need of immediate aid.88

Similarly, in Castella v. State,89 officers received what the court characterized as a tip from a citizen-informant,

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but it did not provide sufficient information for reasonable suspicion or probable cause. However, it was
reasonable for deputies to believe that the defendant may have been involved in a boating accident involving
injuries and possible debris in the waterway. Therefore, it was proper, based on the “‘community caretaking
doctrine,’” for deputies to detain the defendant in his boat despite the lack of any indication he had violated any
law.90

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). See also Jenkins v.
State, 978 So. 2d 116, 121-22 (Fla. 2008); State v. Butler, 655 So. 2d 1123 (Fla. 1995); State v.
Thomas, 960 So. 2d 869 (Fla. 2d DCA 2007); Chaney v. State, 956 So. 2d 535 (Fla. 4th DCA 2007);
Whittle v. State, 903 So. 2d 210 (Fla. 2d DCA 2005); State v. Walker, 898 So. 2d 198 (Fla. 2d DCA
2005), review denied, 904 So. 2d 431 (Fla. 2005); Owens v. State, 854 So. 2d 737 (Fla. 2d DCA 2003);
Highsmith v. State, 843 So. 2d 369 (Fla. 2d DCA 2003); Niemann v. State, 819 So. 2d 166 (Fla. 4th
DCA 2002), review denied, 839 So. 2d 699 (Fla. 2003); Roman v. State, 786 So. 2d 1220 (Fla. 4th DCA
2001).
2
Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). See also Pasha v. State,
225 So. 3d 688 (Fla. 2017); Baptiste v. State, 995 So. 2d 285 (Fla. 2008); State v. Bullock, 164 So.3d
701 (Fla. 5th DCA 2015); Tobin v. State, 146 So. 3d 159 (Fla. 1st DCA 2014); Cooks v. State, 28
So. 3d 147 (Fla. 1st DCA 2010); K.W. v. State, 906 So. 2d 383 (Fla. 2d DCA 2005).
3
State v. Flores, 932 So. 2d 341 (Fla. 2d DCA 2006), review denied, 941 So. 2d 367 (Fla. 2006) (an
example of a tip that would not be sufficient to establish probable cause, but would be sufficient to
establish reasonable suspicion). See also Schwartz v. State, 125 So. 3d 946 (Fla. 4th DCA 2013), review
denied, 134 So. 3d 450 (Fla. 2014); D.P. v. State, 65 So. 3d 123 (Fla. 3d DCA 2011), review denied,
90 So. 3d 270 (Fla. 2012); Regalado v. State, 25 So. 3d 600 (Fla. 4th DCA 2009).
4
State v. Bullock, 164 So.3d 701 (Fla. 5th DCA 2015); State v. Flores, 932 So. 2d 341 (Fla. 2d DCA
2006), review denied, 941 So. 2d 367 (Fla. 2006); K.W. v. State, 906 So. 2d 383 (Fla. 2d DCA 2005);
Miller v. State, 613 So. 2d 1351 (Fla. 2d DCA 1993); State v. Miller, 606 So. 2d 1210 (Fla. 2d DCA
1992); Davis v. State, 606 So. 2d 460 (Fla. 1st DCA 1992); Whiting v. State, 595 So. 2d 1070 (Fla.
2d DCA 1992); Swanson v. State, 591 So. 2d 1114 (Fla. 1st DCA 1992); Rogers v. State, 586 So. 2d
1148 (Fla. 2d DCA 1991).
5
State v. Diaz, 595 So. 2d 969 (Fla. 3d DCA 1992), on reh’g, (Mar. 31, 1992). See also State v.
Hanna, 622 So. 2d 46 (Fla. 3d DCA 1993).
6
Swanson v. State, 591 So. 2d 1114 (Fla. 1st DCA 1992). See also Davis v. State, 606 So. 2d 460
(Fla. 1st DCA 1992).
7
A.P. v. State, 182 So.3d 915 (Fla. 5th DCA 2016); State v. Bullock, 164 So.3d 701 (Fla. 5th DCA
2015); Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla.
2007); Marsdin v. State, 813 So. 2d 260 (Fla. 4th DCA 2002); Kimball v. State, 801 So. 2d 264 (Fla. 4th
DCA 2001); State v. Kelly, 790 So. 2d 563 (Fla. 3d DCA 2001), review denied, 817 So. 2d 550 (Fla.
2002); Campuzano v. State, 771 So. 2d 1238 (Fla. 4th DCA 2000); Pinkney v. State, 666 So. 2d

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§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

590 (Fla. 4th DCA 1996); Fuller v. State, 658 So. 2d 1202 (Fla. 2d DCA 1995); State v. Santiago,
657 So. 2d 12 (Fla. 2d DCA 1995); State v. Evans, 620 So. 2d 802 (Fla. 2d DCA 1993); Suntich v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 326 (Fla. 17th Cir. Ct. Feb. 13,
2007)Suntich v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 326 (Fla. 17th
Cir. Ct. Feb. 13, 2007) (tip that officer did not know came from a citizen informant was treated as an
anonymous tip and stop was unlawful where officer presented no independent observations that
corroborated the tip); Wands v. Dep’t of Highway Safety, 13 Fla. L. Weekly Supp. 305 (Fla. 7th Cir. Ct.
Jan. 27, 2006)Wands v. Dep’t of Highway Safety, 13 Fla. L. Weekly Supp. 305 (Fla. 7th Cir. Ct. Jan.
27, 2006) (anonymous tip that vehicle was driving recklessly was insufficient for an investigatory
detention where the officer did not observe any reckless driving and had no other basis for stopping the
vehicle).
8
J.L. v. State, 727 So. 2d 204 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254
(2000). See also Baptiste v. State, 995 So. 2d 285 (Fla. 2008); Stinson v. State, 117 So. 3d 859 (Fla.
4th DCA 2013); J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006); Kalnas v. State, 862 So. 2d
860 (Fla. 4th DCA 2003); Woodson v. State, 747 So. 2d 965 (Fla. 2d DCA 1999); Johnson v. State,
741 So. 2d 1223, 1225 (Fla. 2d DCA 1999); Travers v. State, 739 So. 2d 1262 (Fla. 2d DCA 1999);
Riviere v. State, 16 Fla. L. Weekly Supp. 157 (Fla. 6th Cir. Ct. Oct. 28, 2008)Riviere v. State, 16 Fla. L.
Weekly Supp. 157 (Fla. 6th Cir. Ct. Oct. 28, 2008); State v. Vonachen, 13 Fla. L. Weekly Supp. 970
(Fla. 17th Cir. Ct. June 23, 2006)State v. Vonachen, 13 Fla. L. Weekly Supp. 970 (Fla. 17th Cir. Ct.
June 23, 2006).
9
J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000). See also Baptiste v. State, 995 So. 2d 285, 292 (Fla. 2008); Cooks v. State, 28 So. 3d
147, 149 (Fla. 1st DCA 2010); White v. State, 16 Fla. L. Weekly Supp. 417 (Fla. 19th Cir. Ct. Feb. 9,
2009)White v. State, 16 Fla. L. Weekly Supp. 417 (Fla. 19th Cir. Ct. Feb. 9, 2009) (unidentified citizen,
who was an unspecified distance from deputies engaged in traffic stop, was unreliable when she yelled
that driver of approaching white vehicle did not have a driver’s license; stop by deputy was not based on
reasonable suspicion because deputy could only corroborate innocent identifying information, but not
the alleged illegality until after the stop).
10
J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000). See also A.M. v. State, 24 So. 3d 731, 733 (Fla. 3d DCA 2009).
11
J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000).
12
J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000).
13
J.L. v. State, 727 So. 2d 204, 206–207 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L.
Ed. 2d 254 (2000). See also Baptiste v. State, 995 So. 2d 285, 291 (Fla. 2008).
14
J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000).
15
Highsmith v. State, 843 So. 2d 369, 371 (Fla. 2d DCA 2003). See also R.J.C. v. State, 84 So. 3d 1250
(Fla. 4th DCA 2012); Lee v. State, 868 So. 2d 577 (Fla. 4th DCA 2004).
16
Peterson v. State, 503 So. 2d 1336 (Fla. 1st DCA 1987). See also Sammiel v. State, 225 So. 3d 250 (Fla.
4th DCA 2017), review denied, 2017 WL 5903417 (Fla. Opinion Filed Nov. 30, 2017) (a BOLO for a “
‘grayish-greenish beat up van’” leaving a crime scheme was vague, but it was sufficient for stop when
considered with these other factors: source of 911 call was a citizen eyewitness; no other cars were on
the road at the time the BOLO went out; witness told officers at least three people were in the vehicle
and was able to identify direction of travel, and officers stopped the vehicle within 10 minutes of the

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BOLO and less than 5 miles from where it was first seen).
17
Willis v. State, 584 So. 2d 41 (Fla. 3d DCA 1991), review denied, 595 So. 2d 559 (Fla. 1992).
18
State v. Cash, 595 So. 2d 279 (Fla. 3d DCA 1992).
19
See e.g. State v. Bullock, 164 So.3d 701 (Fla. 5th DCA 2015); Niemann v. State, 819 So. 2d 166 (Fla.
4th DCA 2002), review denied, 839 So. 2d 699 (Fla. 2003); State v. Hadden, 629 So. 2d 1043 (Fla. 2d
DCA 1993); Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990); State v. Barcenas, 559 So. 2d 70
(Fla. 3d DCA 1989), review denied, 569 So. 2d 1278 (Fla. 1990); Mills v. State, 12 Fla. L. Weekly
Supp. 420 (Fla. 6th Cir. Ct. Jan. 5, 2005)Mills v. State, 12 Fla. L. Weekly Supp. 420 (Fla. 6th Cir. Ct.
Jan. 5, 2005).
20
Swanson v. State, 591 So. 2d 1114 (Fla. 1st DCA 1992). See also Sanchez v. State, 199 So.3d 472 (Fla.
4th DCA 2016) (officer did not have reasonable suspicion for vehicle stop, where shortly before 10 am
officer received a BOLO for two black males fleeing westbound from a store that had been robbed; a
few blocks from the scene, officer saw two black males in a car travelling northbound and then
eastbound; driver had dreadlocks; passenger was seated in the rear seat furthest from driver; passenger
wore a white t-shirt and a large hat; neither person made eye contact with the officer; officer observed
no unlawful conduct prior to stop); King v. State, 17 So. 3d 728 (Fla. 1st DCA 2009) (911 call reporting
that two big black men in a green Chevy Blazer had attempted to break into caller’s home did not
provide reasonable suspicion for officer to stop a light green Ford Explorer occupied by two black men
eight blocks and about seven minutes from the reported crime); Nettles v. State, 957 So. 2d 689 (Fla. 5th
DCA 2007) (BOLO for an older black male with dreadlocks, driving a green Mercedes, regarding an
assault or battery that had occurred a day or two previously was insufficient to stop a person who met
that description, because there was nothing indicating the reliability of the source); Rodriguez v. State,
948 So. 2d 912 (Fla. 4th DCA 2007) (BOLO coming from officers at the scene of a robbery, but from an
unidentified source, was insufficient for stopping vehicle where the only known facts were that the
passenger was black, sweating, and looking at officers; and the vehicle was within a quarter of a mile of
robbery that took place a half hour before, but police had no information that suspect was actually in a
vehicle or the direction of travel of suspect); Pantin v. State, 872 So. 2d 1000 (Fla. 4th DCA 2004)
(BOLO for a stolen late-model two-door Mitsubishi with one occupant did not justify stop); Davis v.
State, 606 So. 2d 460 (Fla. 1st DCA 1992); Fowler v. Dep’t of Highway Safety & Motor Vehicles, 13
Fla. L. Weekly Supp. 1032 (Fla. 4th Cir. Ct. Aug. 14, 2006) (stop invalid where the record showed only
that citizen called to report an accident and defendant was stopped near the time and place of the
accident, but nothing indicated the reason officer believed the defendant had been in the accident); State
v. Jagendorf, 11 Fla. L. Weekly Supp. 895 (Fla. 17th Cir. Ct. July 7, 2004)State v. Jagendorf, 11 Fla. L.
Weekly Supp. 895 (Fla. 17th Cir. Ct. July 7, 2004) (BOLO stating only color, make and damage to
vehicle was insufficient where officer did not observe any damage); State v. Moran, 11 Fla. L. Weekly
Supp. 892 (Fla. 17th Cir. Ct. July 8, 2004)State v. Moran, 11 Fla. L. Weekly Supp. 892 (Fla. 17th Cir.
Ct. July 8, 2004); State v. Sarnicola, 13 Fla. L. Weekly Supp. 741 (Fla. Broward Cty. Ct. May 8,
2006)State v. Sarnicola, 13 Fla. L. Weekly Supp. 741 (Fla. Broward Cty. Ct. May 8, 2006) (anonymous
telephone tip that two males were sitting in a Chevron parking lot in a red car and one of them had a
rifle, was insufficient for investigatory stop).
21
Whiting v. State, 595 So. 2d 1070, 1071 (Fla. 2d DCA 1992). See also Baptiste v. State, 995 So. 2d
285 (Fla. 2008); J.L. v. State, 727 So. 2d 204 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375,
146 L. Ed. 2d 254 (2000); Johnson v. State, 741 So. 2d 1223 (Fla. 2d DCA 1999).
22
Smith v. State, 637 So. 2d 343 (Fla. 2d DCA 1994).
23
Bristol v. State, 584 So. 2d 1086 (Fla. 2d DCA 1991).
24
R.E. v. State, 536 So. 2d 1125 (Fla. 1st DCA 1988). See also Cooks v. State, 28 So. 3d 147 (Fla. 1st
DCA 2010); State v. Arney, 16 Fla. L. Weekly Supp. 749 (Fla. Santa Rosa Cty Ct. April 16, 2009) State
v. Arney, 16 Fla. L. Weekly Supp. 749 (Fla. Santa Rosa Cty Ct. April 16, 2009) (citizen informant’s
statement was reliable but it may have been insufficient to establish reasonable suspicion where it stated
that driver was impaired and was driving poorly because these “are conclusions and a lay report alone

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§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

may not provided (sic) founded suspicion for a stop”). But see State v. Lozada, 23 Fla. L. Weekly Supp.
196 (Fla. Brevard Cty. Ct. July 9, 2015)State v. Lozada, 23 Fla. L. Weekly Supp. 196 (Fla. Brevard Cty.
Ct. July 9, 2015) (conclusory statement by citizen informant that she knew the person she was observing
was drunk because he had peeled out on a dead end road was sufficient).
25
Martin v. State, 658 So. 2d 1153 (Fla. 2d DCA 1995). See also Parsons v. State, 825 So. 2d 406 (Fla.
2d DCA 2002) (officer did not have reasonable suspicion to detain the defendant, who the officer
learned was a sex offender, when the officer saw the defendant asleep, with binoculars in his lap in a car
across from a motel frequented by prostitutes).
26
Martin v. State, 658 So. 2d 1153 (Fla. 2d DCA 1995).
27
Whiting v. State, 595 So. 2d 1070 (Fla. 2d DCA 1992). See also Sharpless v. State, 549 So. 2d 735 (Fla.
2d DCA 1989); State v. Cladera, 10 Fla. L. Weekly Supp. 96 (Fla. 13th Cir. Ct. Nov. 14, 2002)State v.
Cladera, 10 Fla. L. Weekly Supp. 96 (Fla. 13th Cir. Ct. Nov. 14, 2002) (information from two
anonymous sources that a person in a parked vehicle had a gun was insufficient to permit an
investigatory stop).
28
Sellers v. Dep’t of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly Supp. 186 (Fla. 13th Cir. Ct.
March 4, 1994)Sellers v. Dep’t of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly Supp. 186 (Fla.
13th Cir. Ct. March 4, 1994). See also Walker v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L.
Weekly Supp. 482 (Fla. 4th Cir. Ct. March 17, 2009)Walker v. Dep’t of Highway Safety & Motor
Vehicles, 16 Fla. L. Weekly Supp. 482 (Fla. 4th Cir. Ct. March 17, 2009) (officers had reasonable
suspicion when two citizens in a parking lot told officers that a young lady was staggering and did not
need to be driving, and the information was corroborated when one of the officers saw the defendant
unsteady on her feet as she walked to her vehicle); Riviere v. State, 16 Fla. L. Weekly Supp. 157 (Fla.
6th Cir. Ct. Oct. 28, 2008)Riviere v. State, 16 Fla. L. Weekly Supp. 157 (Fla. 6th Cir. Ct. Oct. 28, 2008)
(officer had reasonable suspicion where within a few minutes of receiving BOLO including a very
specific description of a pick-up and driver engaged in dangerous driving, officer saw pick-up and driver
matching description less than two miles from scene of report; truck was proceeding in a direct path
from the scene; citizen informant was identified and complied with police request to come immediately
to the scene of the stop); Sprentall v. State, 15 Fla. L. Weekly Supp. 306 (Fla. 6th Cir. Ct. Jan. 4,
2008)Sprentall v. State, 15 Fla. L. Weekly Supp. 306 (Fla. 6th Cir. Ct. Jan. 4, 2008) (officer had
reasonable suspicion for a stop based on call from a bar; caller gave his name and telephone number and
complained that the defendant was impaired and psychotic and was driving a silver Land Rover and had
driven through the parking lot several times); State v. Hoo, 16 Fla. L. Weekly Supp. 204 (Fla. Brevard
Cty. Ct. Nov. 17, 2008)State v. Hoo, 16 Fla. L. Weekly Supp. 204 (Fla. Brevard Cty. Ct. Nov. 17, 2008)
(officer had reasonable suspicion for stop where two citizen informants called and reported that a black
female with a braided ponytail driving a silver automobile pulled into a parking spot, banged on a door
while yelling obscenities and holding a can of beer, and drove away with the beer in her hand; vehicle
and driver matched the description).
29
Dahhane v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 1004 (Fla. 13th Cir.
Ct. March 17, 2015) (officer, a member of the DUI squad, had reasonable suspicion for a stop where a
BOLO reported a white male who stumbled, appeared to be drunk, and was wearing a tuxedo and
masquerade-type mask in a dark brown Cadillac with a specific tag number; based on the tag number the
officer determined the address and positioned himself on a likely path; after about five to 10 minutes the
officer saw a vehicle matching the description of the report; in the few miles that the officer followed, he
saw the car drift on the lane and construction zone markers and drive more than 10 m.p.h. below speed
limit); Kamau v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 418 (Fla. 4th Cir.
Ct. Dec. 8, 2014)Kamau v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 418
(Fla. 4th Cir. Ct. Dec. 8, 2014) (anonymous report of an unresponsive male in a certain vehicle with
engine running did not provide reasonable suspicion to detain defendant who appeared to be asleep in a
lawfully parked car with the engine running; the officer observed no criminal activity); State v. Clancey,
16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir. Ct. Aug. 26, 2009) (an anonymous tip that the driver of a
well identified vehicle was driving recklessly, weaving, and speeding was not reliable because, while the
officer was able to locate and corroborate the identifying information, the officer was not able to
corroborate any of the alleged illegality); Hoopingarner v. State, 16 Fla. L. Weekly Supp. 159 (Fla. 6th
Cir. Ct. Oct. 31, 2008)Hoopingarner v. State, 16 Fla. L. Weekly Supp. 159 (Fla. 6th Cir. Ct. Oct. 31,
2008) (corroboration established tip was reliable and detention valid where BOLO provided a specific

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§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

make, model, and plate number and indicated driver was DUI; about five minutes after BOLO and two
miles from location where tipster had seen the vehicle, officer saw vehicle matching the description
stopped in road at 2:30 a.m. and he heard a female scream coming from vehicle); Moser v. State, 16 Fla.
L. Weekly Supp. 156 (Fla. 6th Cir. Ct. Sept 25, 2008)Moser v. State, 16 Fla. L. Weekly Supp. 156 (Fla.
6th Cir. Ct. Sept 25, 2008) (an anonymous tip that the driver of a red Honda Element with a specified
plate number being driven in a certain area was impaired, was reliable where deputy found the vehicle
on the side of the road with the engine running, observed person lying in reclined driver’s seat passed
out or asleep, and deputy knocked on window several times with no response); Scott v. State, 15 Fla. L.
Weekly Supp. 325 (Fla. 12th Cir. Ct. Nov. 20, 2007)Scott v. State, 15 Fla. L. Weekly Supp. 325 (Fla.
12th Cir. Ct. Nov. 20, 2007) (stop unlawful where it was based on anonymous tip that driver of a dark
colored Miata was drinking beer and there was no independent corroboration); State v. Berte, 14 Fla. L.
Weekly Supp. 1035 (Fla. 17th Cir. Ct. July 24, 2007) (officer received information about a bar fight;
when he arrived, a group of individuals pointed at a pick-up truck and screamed that the driver had been
involved in the fight; the officer improperly stopped the vehicle based on an uncorroborated anonymous
tip); Smith v. Dep’t of Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 920 (Fla. 6th Cir. Ct.
Feb 7, 2007)Smith v. Dep’t of Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 920 (Fla. 6th
Cir. Ct. Feb 7, 2007) (officer had grounds for investigative stop when officer received anonymous tips
from two different sources indicating that a silver BMW had blown two tires by hitting the curb and an
intoxicated individual was changing the tires at a certain location; when officer arrived, he observed
such a vehicle and defendant get in the vehicle and begin to operate vehicle; officer detected odor of
alcohol); Daingerfield v. Dep’t of Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 914 (Fla.
6th Cir. Ct. April 12, 2007)Daingerfield v. Dep’t of Highway Safety & Motor Vehicle, 14 Fla. L.
Weekly Supp. 914 (Fla. 6th Cir. Ct. April 12, 2007) (deputy stopped vehicle based on information from
anonymous source that there were two males in the vehicle with open containers, including the driver;
they had an odor of alcoholic beverage; the source thought they were intoxicated; the stop was unlawful
because the deputy immediately stopped the vehicle without any independent corroboration); Wands v.
Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 305 (Fla. 7th Cir. Ct. Jan. 27,
2006)Wands v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 305 (Fla. 7th Cir.
Ct. Jan. 27, 2006) (anonymous information that a vehicle was being operated recklessly did not establish
reasonable suspicion where the officer did not witness any such driving and there were no other grounds
for the stop); State v. Hayes, 21 Fla. L. Weekly Supp. 102 (Fla. Brevard Cty. Ct. Sept. 2, 2013)State v.
Hayes, 21 Fla. L. Weekly Supp. 102 (Fla. Brevard Cty. Ct. Sept. 2, 2013) (deputy had reasonable
suspicion motorcyclist might be ill or injured based on an anonymous tip that a motorcyclist, a white
male wearing a black jacket and a silver helmet traveling east on SR 520, appeared to be intoxicated,
had difficulty walking and getting on the motorcycle; the deputy was able to corroborate the tip by
observing such a motorcyclist swaying, having trouble maintaining the lane, and three times having his
foot slip off the pedal and hit the roadway; the deputy was concerned about the person’s well being);
State v. Ortiz-Ramirez, 18 Fla. L. Weekly Supp. 99 (Fla. Monroe Cty. Ct. Aug. 2, 2010)State v. Ortiz-
Ramirez, 18 Fla. L. Weekly Supp. 99 (Fla. Monroe Cty. Ct. Aug. 2, 2010) (anonymous tip as to a
reckless driver was insufficient where the officer’s independent observations were that the vehicle left
its lane three times over 1½ miles and each time it went out about 1 foot); State v. Meder, 17 Fla. L.
Weekly Supp. 1115 (Fla. Sarasota Cty. Ct. June 1, 2010) (BOLO referring to reckless driver and giving
tag number, but giving no information about caller, was insufficient for stop where vehicle drove away
after officer observed driver arguing with someone outside the vehicle, but there was no corroboration of
reckless driving); State v. Torpy, 17 Fla. L. Weekly Supp. 847 (Fla. Brevard Cty. Ct. May 7, 2010)State
v. Torpy, 17 Fla. L. Weekly Supp. 847 (Fla. Brevard Cty. Ct. May 7, 2010) (an unidentified passing
motorist who told an officer that a northbound white Cadillac Escalade was swerving all over the road
was an anonymous tipster; the officer’s observation of the vehicle being driven all over the road was
sufficient corroboration); State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard Cty. Ct. April 14,
2009)State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard Cty. Ct. April 14, 2009) (unidentified
informant reported that black pick-up in front of him was swerving; officer properly corroborated the tip
when he got behind pick-up and observed the truck pass over the double line three times with the driver
side front and rear tires going over the line, vehicle going to the left and then to the right three times;
informant verified that officer was behind right truck); State v. Michael, 15 Fla. L. Weekly Supp. 1230
(Fla. Brevard Cty Ct. Sept. 30, 2008) (unidentified informant in vehicle to right of trooper reported that
driver to his left was “‘driving erratically;’” trooper properly corroborated tip and made lawful stop
when he observed the suspect vehicle while making a left turn go up on the right curb near the grass and
sidewalk and back onto the roadway; trooper had reasonable suspicion notwithstanding the short
observation period due to the nature of the bad driving).

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30
State v. Goepfert, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008)State v. Goepfert, 15 Fla.
L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008).
31
State v. Goepfert, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008)State v. Goepfert, 15 Fla.
L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008).
32
Mejia v. State, 15 Fla. L. Weekly Supp. 38 (Fla. 17th Cir. Ct. Sept. 18, 2007)Mejia v. State, 15 Fla. L.
Weekly Supp. 38 (Fla. 17th Cir. Ct. Sept. 18, 2007).
33
Navarette v. California, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014).
34
Navarette v. California, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). See also State v. Clayton, 23 Fla.
L. Weekly Supp. 382 (Fla. Brevard Cty Ct. July 7, 2015)State v. Clayton, 23 Fla. L. Weekly Supp. 382
(Fla. Brevard Cty Ct. July 7, 2015) (court relied on Navarette to support conclusion that officer had
reasonable suspicion for stop based on 911 tip reporting that a vehicle nearly hit traffic poles and was
being driven horribly and it was clear that the tipster was reporting in real time). But see State v.
Bowers, 24 Fla. L. Weekly Supp.148 (Fla. Volusia Cty. Ct. Dec. 17, 2015) (911 caller who identified
herself was a citizen informant, but the call did not establish reasonable suspicion; caller described the
color and style of defendant’s vehicle and plate number; “opined that Defendant was ‘a potential drunk
driver,’ who was arguing with her passenger, who almost struck the caller’s car while making a turn
(even though she did not actually leave her lane of travel), and who briefly stopped in the roadway
shortly before turning onto a side street.”).
35
Navarette v. California, 134 S. Ct. 1683, 1689, 188 L. Ed. 2d 680 (2014).
36
Navarette v. California, 134 S. Ct. 1683, 1690, 188 L. Ed. 2d 680 (2014).
37
Navarette v. California, 134 S. Ct. 1683, 1690, 188 L. Ed. 2d 680 (2014).
38
Navarette v. California, 134 S. Ct. 1683, 1690-91, 188 L. Ed. 2d 680 (2014). The Court lists these
examples from various cases: (quotation marks have been left out): weaving all over the roadway,
crossing over the center line and almost causing several head on collisions, driving all over the road and
weaving back and forth, and driving on the median. But stops based on unconfirmed tips as to lesser
conduct like driving without a seat belt or slightly over the speed limit would have potential
constitutional consequences.
39
Navarette v. California, 134 S. Ct. 1683, 1691, 188 L. Ed. 2d 680 (2014).
40
Lorenzo Prado Navarette and José Prado Navarette were in the vehicle.
41
Navarette v. California, 134 S. Ct. 1683, 1691, 188 L. Ed. 2d 680 (2014).
42
“[W]e have consistently recognized that reasonable suspicion ‘need not rule out the possibility of
innocent conduct’ United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740
(2002).” Navarette v. California, 134 S. Ct. 1683, 1691, 188 L. Ed. 2d 680 (2014).
43
Navarette v. California, 134 S. Ct. 1683, 1691, 188 L. Ed. 2d 680 (2014).
44
Solino v. State, 763 So. 2d 1249 (Fla. 4th DCA 2000). See also State v. Rewis, 722 So. 2d 863
(Fla. 5th DCA 1998); State v. Baskin, 22 Fla. L. Weekly Supp. 830 (Fla. Flagler Cty. Ct. Jan. 22,
2015)State v. Baskin, 22 Fla. L. Weekly Supp. 830 (Fla. Flagler Cty. Ct. Jan. 22, 2015) (individual who
got out of car in front of deputy and reported that the car in front of him/her had been involved in a crash
and then left was an anonymous tipster and the stop was invalid because the officer did not corroborate
the tip before the stop).

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45
J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006). See also State v. Jaccoma, 14 Fla. L. Weekly
Supp. 876 (Fla. Brevard Cty. Ct. June 22, 2007)State v. Jaccoma, 14 Fla. L. Weekly Supp. 876 (Fla.
Brevard Cty. Ct. June 22, 2007) (individual who voluntarily approached deputy and reported seeing a
vehicle being driven erratically, was concerned the driver might be impaired, and provided a tag number
matching the tag of a vehicle that just drove away, was treated as a citizen informant despite fact that
deputy did not secure identification).
46
J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006).
47
J.P.N. v. State, 931 So. 2d 1066, 1068 (Fla. 4th DCA 2006) (quoting from U.S. v. Heard, 367
F.3d 1275 (11th Cir. 2004)).
48
McKelvin v. State, 53 So. 3d 401, 405 (Fla. 4th DCA 2011).
49
J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006).
50
McKelvin v. State, 53 So. 3d 401, 405 (Fla. 4th DCA 2011) (officers had no way of finding the
source, no knowledge of his/her motives; the source could have been motivated by a desire for
pecuniary gain, a falling out with defendant, or loyalty to a rival drug dealer).
51
J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006).
52
McKelvin v. State, 53 So. 3d 401, 405 (Fla. 4th DCA 2011).
53
D.P. v. State, 65 So. 3d 123 (Fla. 3d DCA 2011), review denied, 90 So. 3d 270 (Fla. 2012). But see
State v. Bullock, 164 So.3d 701 (Fla. 5th DCA 2015) (informant who provided information as to a drug
deal he was about to be involved in at a motel where officers contacted him was a face-to-face
anonymous tipster whose identity was ascertainable; his information had to be corroborated and officers
did that); Berry v. State, 86 So. 3d 595 (Fla. 1st DCA 2012) (stop was unlawful and court distinguished
facts from those in D.P. based on several factors, including that face-to-face informant wanted to remain
anonymous, identity was unknown and not readily ascertainable, information was not provided in
defendant’s presence, and officer did not testify that he engaged in a credibility determination).
54
D.P. v. State, 65 So. 3d 123 (Fla. 3d DCA 2011), review denied, 90 So. 3d 270 (Fla. 2012). See also
State v. T.S., 114 So. 3d 343 (Fla. 3d DCA 2013), review dismissed, 158 So. 3d 556 (Fla. 2015)
(unidentified informant was a citizen informant where, while talking on phone to dispatch, he stepped in
front of officer’s moving car at a McDonald’s, said a man pulled a gun on him and gave a detailed
description of two attackers; the officer did not get contact information, but found two men matching the
description a few hundred yards from the McDonald’s and made arrest on concealed firearm charge;
informant had no pecuniary motive or desire to remain anonymous, and officer had a chance to judge
credibility of informant in a two-minute conversation); State v. Arias, 17 Fla. L. Weekly Supp. 1080
(Fla. 11th Cir. Ct. July 15, 2010) (Unidentified witnesses talked to dispatch and continuously followed
vehicle swerving on expressway, nearly striking median, and pulling in gas station; when officer arrived
at station witnesses pointed to defendant’s car; officers detained defendant which led to a DUI arrest, but
witnesses left the scene before officer identified them; nevertheless, the witnesses were citizen
informants because: (1) they observed criminal conduct as it was occurring and immediately reported it
to dispatch; (2) they gave information face-to-face to arresting officer at scene; (3) they identified
defendant and her vehicle at scene; and (4) due to exigencies, the officer did not have the chance to get
identification from witnesses.).
55
State v. Maynard, 783 So. 2d 226 (Fla. 2001). See also Baptiste v. State, 995 So. 2d 285 (Fla.
2008); J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998), aff’d, 529 U.S. 266, 120 S. Ct. 1375, 146 L.
Ed. 2d 254 (2000); State v. Gonzalez, 884 So. 2d 330 (Fla. 2d DCA 2004); Charles v. State, 871 So. 2d
927 (Fla. 3d DCA 2004); State v. Reyes, 680 So. 2d 1092 (Fla. 3d DCA 1996); State v. Setzler, 667
So. 2d 343 (Fla. 1st DCA 1995); Persaud v. State, 659 So. 2d 1191 (Fla. 3d DCA 1995), review denied,

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§ 4:4.Tips, BOLOs, & informants, 11 Fla. Prac., DUI Handbook § 4:4 (2018-2019 ed.)

667 So. 2d 775 (Fla. 1996).

56
State v. Maynard, 783 So. 2d 226 (Fla. 2001). See also Pasha v. State, 225 So. 3d 688 (Fla. 2017);
Baptiste v. State, 995 So. 2d 285 (Fla. 2008); State v. Godard, 202 So.3d 144 (Fla. 2d DCA 2016);
D.P. v. State, 65 So. 3d 123 (Fla. 3d DCA 2011), review denied, 90 So. 3d 270 (Fla. 2012); A.M. v.
State, 24 So. 3d 731 (Fla. 3d DCA 2009); State v. Cook, 972 So. 2d 958 (Fla. 5th DCA 2007), review
denied, 987 So. 2d 79 (Fla. 2008); Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review
denied, 968 So. 2d 556 (Fla. 2007); Wallace v. State, 964 So. 2d 722 (Fla. 2d DCA 2007); Manning
v. State, 957 So. 2d 111, 114 (Fla. 4th DCA 2007).
57
State v. Maynard, 783 So. 2d 226 (Fla. 2001). See also Baptiste v. State, 995 So. 2d 285, 291
(Fla. 2008); Bryant v. State, 901 So. 2d 810, 825 (Fla. 2005); Berry v. State, 86 So. 3d 595 (Fla. 1st
DCA 2012); Keller v. State, 71 So. 3d 927 (Fla. 1st DCA 2011), review denied, 95 So. 3d 213 (Fla.
2012); Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla.
2007); Manning v. State, 957 So. 2d 111, 114 (Fla. 4th DCA 2007).
58
Baptiste v. State, 995 So. 2d 285, 295 (Fla. 2008). See also Daingerfield v. Dep’t of Highway Safety
& Motor Vehicle, 14 Fla. L. Weekly Supp. 914 (Fla. 6th Cir. Ct. April 12, 2007)Daingerfield v. Dep’t of
Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 914 (Fla. 6th Cir. Ct. April 12, 2007)
(deputy was relying on an anonymous source at the time of the stop because there was no evidence that
officers, including the dispatcher, secured any identifying information from the informant until after the
stop).
59
State v. Godard, 202 So.3d 144 (Fla. 2d DCA 2016) (restaurant manager who pointed to car where dogs
had been left in the heat was a citizen informant even if someone else may have made the original 911
call, where manager made personal contact with officer and pointed to the car); Luna v. State, 154 So.
3d 1181 (Fla. 4th DCA 2015) (court noted that a neighbor who called police was a citizen informant
even though officers did not know her name because there was face to face contact with an officer who
knew the informant’s address); State v. Hutz, 144 So. 3d 618 (Fla. 4th DCA 2014) (security officer at
casino who told officer face to face that defendant was using cocaine was a citizen informant);
Department of Highway Safety and Motor Vehicles v. Ivey, 73 So. 3d 877 (Fla. 5th DCA 2011)
(defendant was lawfully detained based on reasonable suspicion; one citizen reported information
establishing reasonable suspicion for DUI to a second citizen; that person contacted dispatcher, who sent
officers; the knowledge of the dispatcher was imputed to the investigating officer; the citizens were not
anonymous because police contacted them to get written statements); Hadley v. State, 43 So. 3d 113
(Fla. 3d DCA 2010) (woman who gave her name and phone number and reported aggravated battery
against her and shots fired near a gas station was a citizen informant; the information was sufficient—
she reported a crime and the whereabouts and a detailed description of the shooter); State v. DeLuca, 40
So. 3d 120 (Fla. 1st DCA 2010), review denied, 59 So. 3d 107 (Fla. 2011) (911 caller was a citizen
informant where he gave his name, cell phone number, description of his clothing, and location;
described two white men who had pulled a nine mm handgun on him, one of them wore a hat; he
explained they were in a black GMC Yukon with a FSU decal, and gave the license number and
direction of travel, but the cell phone would not connect and officers never located him); Castella v.
State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla. 2007) (unidentified
boater who pulled up to deputies to report a boating accident with injuries and identified the defendant
as being involved, was a citizen informant; the court distinguished Solo and Rewis based on the fact that
the informants there reported traffic infractions or crimes; whereas, the informant here reported an
accident and an emergency situation); Manning v. State, 957 So. 2d 111 (Fla. 4th DCA 2007)
(neighbor who told victim of crime that the defendant had broken into victim’s house was a citizen
informant because his or her identity was readily ascertainable); Chaney v. State, 956 So. 2d 535
(Fla. 4th DCA 2007) (unidentified man who told officer about a drug transaction was a citizen informant
because the officer knew where he lived, although the information was found to be insufficient to
establish probable cause); Beckham v. State, 934 So. 2d 681 (Fla. 2d DCA 2006) (two transients the
officer “knew from the neighborhood” were citizen informants, but their statements that the defendant
was selling marijuana, without any details, was insufficient to create a reasonable suspicion).
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J.P.N. v. State, 931 So. 2d 1066 (Fla. 4th DCA 2006) (unidentified man in Wal–Mart parking lot
who was waiting for his wife was not a citizen informant); State v. Gonzalez, 884 So. 2d 330 (Fla. 2d
DCA 2004) (two daughters who reported cocaine in their parents’ bedroom were citizen informants
because they gave their names and location to police, their relationship to suspects demonstrated the
basis of their knowledge and veracity, and there was no indication of any motive other than concern for
the safety of their parents and others); State v. Vallone, 868 So. 2d 1278 (Fla. 4th DCA 2004)
(unidentified informant mentioned in affidavit was a citizen-informant because he was a relative of a
named officer, and his identity was “readily ascertainable”); A.D.J. v. State, 813 So. 2d 127 (Fla. 5th
DCA 2002) (store manager calling dispatcher about person harassing customers and selling narcotics
was a citizen-informant); Carattini v. State, 774 So. 2d 927 (Fla. 5th DCA 2001) (a woman who told
an officer that three men just ran out of a department store carrying a duffle bag full of clothes, went
outside with the officer and pointed out the defendant and his car, was a citizen-informant even though
the officer did not get her name); Rivera v. State, 771 So. 2d 1246 (Fla. 2d DCA 2000), decision
approved, 995 So. 2d 285 (Fla. 2008) (unidentified motorist advising police department that
occupants of two vehicles were exchanging gunfire was not a citizen informant); Solino v. State, 763
So. 2d 1249 (Fla. 4th DCA 2000) (driver of vehicle telling deputy that a bottle had been tossed out of a
certain vehicle’s window was not a citizen-informant where the deputy did not get the driver’s name or
license tag number and the anonymous driver left); Ellis v. State, 755 So. 2d 767 (Fla. 4th DCA 2000)
(off-duty officer calling 911 and following impaired driver was citizen-informant); R.A. v. State, 725
So. 2d 1240 (Fla. 3d DCA 1999), review denied, 741 So. 2d 1137 (Fla. 1999) (unidentified person who
reported break-in was not a citizen informant, where there was nothing indicating that the call was to
911, which is traceable, or that the call was recorded, and it was very brief with little detail); State v.
Rewis, 722 So. 2d 863 (Fla. 5th DCA 1998) (truck driver who contacted police at rest stop about a drunk
driver was not a citizen-informant); Grant v. State, 718 So. 2d 238 (Fla. 2d DCA 1998), review
dismissed, 923 So. 2d 1162 (Fla. 2006) and State v. Gonzalez, 682 So. 2d 1168 (Fla. 3d DCA 1996),
review denied, 689 So. 2d 1069 (Fla. 1997) (resident of a street where burglaries had recently been
reported and called 911 about a suspicious vehicle was a citizen-informant); Aguilar v. State, 700 So.
2d 58 (Fla. 4th DCA 1997) (neighborhood boy known to the police and who personally approached
them was a citizen-informant); State v. Evans, 692 So. 2d 216 (Fla. 4th DCA 1997) (restaurant
manager who observed impaired driver and identified herself at the scene of observation was a citizen-
informant); Persaud v. State, 659 So. 2d 1191 (Fla. 3d DCA 1995), review denied, 667 So. 2d 775 (Fla.
1996) (victim of residential burglary who reported the crime was a citizen-informant).
State v. Baba, 23 Fla. L. Weekly Supp. 410 (Fla. 17th Cir. Ct. Sept. 11, 2015)State v. Baba, 23 Fla. L.
Weekly Supp. 410 (Fla. 17th Cir. Ct. Sept. 11, 2015) (off duty officer outside of his jurisdiction was a
citizen informant and the information he provided was even more reliable than other citizen informants);
State v. Whidden, 23 Fla. L. Weekly Supp. 405 (Fla. 17th Cir. Ct. Sept. 11, 2015)State v. Whidden, 23
Fla. L. Weekly Supp. 405 (Fla. 17th Cir. Ct. Sept. 11, 2015) (Community Service Aid was “at least a
‘citizen informant’” and his observation of defendant backing into another vehicle and leaving the scene
was sufficient for stop); State v. Chopra, 23 Fla. L. Weekly Supp. 73 (Fla. 9th Cir. Ct. April 15,
2015)State v. Chopra, 23 Fla. L. Weekly Supp. 73 (Fla. 9th Cir. Ct. April 15, 2015) (McDonald’s
manager who pointed to vehicle and told officer driver was drunk was a citizen informant and her tip
established reasonable suspicion; her identity was known and the deputy spoke with her face-to-face);
Wattam v. State, 21 Fla. L. Weekly Supp. 378 (Fla. 6th Cir. Ct. Dec. 18, 2013)Wattam v. State, 21 Fla.
L. Weekly Supp. 378 (Fla. 6th Cir. Ct. Dec. 18, 2013) (person who reported observing vehicle driving
erratically to 911 operator and gave his name, telephone number, and a description of the vehicle that
the caller was driving and who made the call out of a sense of civic duty was a citizen informant so his
information did not have to be corroborated); State v. Culiner, 21 Fla. L. Weekly Supp. 311 (Fla. 17th
Cir. Ct. Oct. 24, 2013)State v. Culiner, 21 Fla. L. Weekly Supp. 311 (Fla. 17th Cir. Ct. Oct. 24, 2013)
(person was a citizen informant where he gave 911 dispatcher his name, phone number, location and
called 911 because he was concerned about suspect’s condition); State v. Wanzer, 21 Fla. L. Weekly
Supp. 107 (Fla. 5th Cir. Ct. Sept. 11, 2013)State v. Wanzer, 21 Fla. L. Weekly Supp. 107 (Fla. 5th Cir.
Ct. Sept. 11, 2013) (retired police officer, who approached trooper and described conduct of nearby
vehicle, was a citizen informant even though he was with trooper only four to 10 seconds before the stop
and did not provide his name, address, and telephone number until after the stop; there was no evidence
informant was motivated by anything other than concern for safety of others); State v. Long, 20 Fla. L.
Weekly Supp. 1151 (Fla. 17th Cir. Ct. August 5, 2013) (driver following defendant and describing
conduct was a citizen informant because she gave her name and what she was observing to dispatcher
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and it was apparent she was doing this because she was concerned defendant might harm someone);
Lathrop v. State, 20 Fla. L. Weekly Supp. 1145 (Fla. 17th Cir. Ct. July 31, 2013) (road ranger was a
citizen informant and observed sufficient events to establish grounds for stopping defendant); State v.
Meenan, 20 Fla. L. Weekly Supp. 1144 (Fla. 17th Cir. Ct. July 31, 2013) (officer did not get woman’s
identity because officer had to apprehend suspect, but she was still a citizen informant where she
approached off duty officer and told him that a silver van had been involved in a hit and run about six or
seven blocks away and that a male was driving, but switched places with a female in the McDonald’s
parking lot; officer saw the van leaving the parking lot); Philpott v. State, 20 Fla. L. Weekly Supp. 653
(Fla. 18th Cir. Ct. Feb. 7, 2013)Philpott v. State, 20 Fla. L. Weekly Supp. 653 (Fla. 18th Cir. Ct. Feb. 7,
2013) (State failed to establish reasonable suspicion where the only thing deputy knew was that
dispatcher said an unidentified caller reported a hit and run; State did not show that the informant was a
citizen-informant); State v. Walker, 20 Fla. L. Weekly Supp. 488 (Fla. 18th Cir. Ct. December 12,
2012)State v. Walker, 20 Fla. L. Weekly Supp. 488 (Fla. 18th Cir. Ct. December 12, 2012) (stop was
lawful where citizen informant told nonlaw enforcement dispatcher that vehicle was driving recklessly,
running a stop sign, repeatedly driving off road and nearly causing several accidents; dispatcher told
officer about a driver who had gone off the road several times, was speeding up and slowing down, and
swerving out of his lane; corroboration was not required; officer could not stop based on tip as to civil
infraction, but recklessness is at least quasi criminal and unusual driving behavior); Sprentall v. State, 15
Fla. L. Weekly Supp. 306 (Fla. 6th Cir. Ct. Jan. 4, 2008)Sprentall v. State, 15 Fla. L. Weekly Supp. 306
(Fla. 6th Cir. Ct. Jan. 4, 2008) (caller from a bar who gave his name and telephone number and
complained that the defendant was impaired and psychotic, was driving a silver Land Rover, and had
driven through the parking lot several times was a citizen informant because he was identifiable); State
v. Goepfert, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008)State v. Goepfert, 15 Fla. L.
Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008) (caller who left a number that was no longer in
service was not a citizen informant; “The caller was an anonymous tipster because he or she had left no
other information that would make the caller identifiable to law enforcement - no name, address, valid
phone number, date of birth, etc.”); Webb v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L.
Weekly Supp. 519 (Fla. 7th Cir. Ct. Feb. 14, 2007)Webb v. Dep’t of Highway Safety & Motor Vehicles,
14 Fla. L. Weekly Supp. 519 (Fla. 7th Cir. Ct. Feb. 14, 2007) (Burger King Manager was citizen
informant and officer could make stop based on report that when the driver placed an order in the drive-
through he ordered “rum and Coke,” and told the manager that “we’re drinking our Coke with rum,” and
that he had “a buncha dopeheads in the car.”); Cook v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 418 (Fla. 6th Cir. Ct. March 3, 2005)Cook v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 418 (Fla. 6th Cir. Ct. March 3, 2005) (cab driver who reported
impaired driver was citizen informant because he was not motivated by pecuniary gain and his identity
could be easily established).
Mills v. State, 12 Fla. L. Weekly Supp. 420 (Fla. 6th Cir. Ct. Jan. 5, 2005)Mills v. State, 12 Fla. L.
Weekly Supp. 420 (Fla. 6th Cir. Ct. Jan. 5, 2005) (where testimony was that the victim of a hit and run
could be contacted by police department and was following the defendant, the victim was a citizen
informant); Fink v. State, 12 Fla. L. Weekly Supp. 198 (Fla. 6th Cir. Ct. Sept. 10, 2004)Fink v. State, 12
Fla. L. Weekly Supp. 198 (Fla. 6th Cir. Ct. Sept. 10, 2004) (officer put intoxicated passenger in a cab,
arrested driver, and with permission of 7–11 employees left the vehicle in the parking lot, but two hours
later one of those employees advised the officer that the man was driving away in the truck; the officer
was entitled to rely on the employee’s statement in making stop); Stephens v. State, 11 Fla. L. Weekly
Supp. 894 (Fla. 17th Cir. Ct. July 8, 2004)Stephens v. State, 11 Fla. L. Weekly Supp. 894 (Fla. 17th Cir.
Ct. July 8, 2004) (identified man who described his observations of erratic driving to an officer, had
nothing to financially gain, and went directly home after reporting his observations, was a citizen
informant and established reasonable suspicion); Kelly v. Dep’t of Highway Safety & Motor Vehicles,
10 Fla. L. Weekly Supp. 378 (Fla. 7th Cir. Dec. 6, 2002)Kelly v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 378 (Fla. 7th Cir. Dec. 6, 2002) (convenience store clerks who
reported an impaired driver were citizen-informants even though their names were unknown); Powell v.
State, 9 Fla. L. Weekly Supp. 586 (Fla. 17th Cir. Ct. May 20, 2002)Powell v. State, 9 Fla. L. Weekly
Supp. 586 (Fla. 17th Cir. Ct. May 20, 2002) (driver who gave dispatcher his first name, described bad
driving, followed vehicle, flashed lights as officer approached suspect vehicle, and then stayed on scene
was a citizen informant); Colon v. State, 9 Fla. L. Weekly Supp. 93 (Fla. 15th Cir. Ct. Dec. 12,
2001)Colon v. State, 9 Fla. L. Weekly Supp. 93 (Fla. 15th Cir. Ct. Dec. 12, 2001) (unidentified passerby
at accident scene, who told officer that the person in a parked red truck ran him and others off the road,
was an anonymous tipster. His information was insufficient to establish reasonable suspicion, even
though the officer saw the defendant in the truck with his head down, and trying to back out of the
parking lot); State v. Hilmer, 9 Fla. L. Weekly Supp. 34 (Fla. 17th Cir. Ct. Sept. 21, 2001)State v.

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Hilmer, 9 Fla. L. Weekly Supp. 34 (Fla. 17th Cir. Ct. Sept. 21, 2001) (manager of bar was a citizen–
informant when he reported a petit theft, and based on that the officer had reasonable suspicion to stop
the individual who fled when the officer approached to see if a notice to appear should be issued); Lee v.
Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 423 (Fla. 13th Cir. Ct. April 27,
2001)Lee v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 423 (Fla. 13th Cir. Ct.
April 27, 2001) (convenience store clerk was a citizen-informant); Pino v. State, 8 Fla. L. Weekly Supp.
26 (Fla. 17th Cir. Ct. May 22, 2000)Pino v. State, 8 Fla. L. Weekly Supp. 26 (Fla. 17th Cir. Ct. May 22,
2000) (a police officer could also be considered a citizen-informant); Sarvis v. State, 7 Fla. L. Weekly
Supp. 7 (Fla. 9th Cir. Ct. Oct. 19, 1999)Sarvis v. State, 7 Fla. L. Weekly Supp. 7 (Fla. 9th Cir. Ct. Oct.
19, 1999) (caller to police department was a citizen–informant where he identified himself, gave his
name and details about a driver that were more than just any other driver could have picked up).
State v. Bowers, 24 Fla. L. Weekly Supp.148 (Fla. Volusia Cty. Ct. Dec. 17, 2015) (911 caller who
provided name and phone number was a citizen informant, but the call did not establish reasonable
suspicion where the caller described the color and style of defendant’s vehicle and plate number;
“opined that Defendant was ‘a potential drunk driver,’ who was arguing with her passenger, who almost
struck the caller’s car while making a turn (even though she did not actually leave her lane of travel),
and who briefly stopped in the roadway shortly before turning onto a side street.”); State v. Lozada, 23
Fla. L. Weekly Supp. 196 (Fla. Brevard Cty. Ct. July 9, 2015)State v. Lozada, 23 Fla. L. Weekly Supp.
196 (Fla. Brevard Cty. Ct. July 9, 2015) (911 caller was a citizen informant because her phone number
was captured and recorded in a report; but court also pointed out that much of her information as to
identity of driver was corroborated and she was reporting as she followed the suspect); State v. Will, 15
Fla. L. Weekly Supp. 718 (Fla. Volusia Cty. Ct. May 14, 2008)State v. Will, 15 Fla. L. Weekly Supp.
718 (Fla. Volusia Cty. Ct. May 14, 2008) (person who identified herself to police, complained about a
money dispute with the defendant, and expressed a concern that the defendant was on something was a
citizen informant, but her information was not reliable because she was motivated by pecuniary
considerations and she gave vague information; officers had no reasonable suspicion where they
observed nothing indicating that the defendant was impaired); State v. Jaccoma, 14 Fla. L. Weekly
Supp. 876 (Fla. Brevard Cty. Ct. June 22, 2007)State v. Jaccoma, 14 Fla. L. Weekly Supp. 876 (Fla.
Brevard Cty. Ct. June 22, 2007) (individual who voluntarily approached deputy, reported observing a
vehicle being driven erratically, was concerned the driver might be impaired, and provided a tag number
matching the tag of a vehicle that just drove away was treated as a citizen informant despite fact that
deputy did not secure identification); State v. McFarland, 14 Fla. L. Weekly Supp. 470 (Fla. Brevard
Cty. Ct. Feb. 25, 2007)State v. McFarland, 14 Fla. L. Weekly Supp. 470 (Fla. Brevard Cty. Ct. Feb. 25,
2007) (bouncer who flagged down officer to report an intoxicated patron who did not pay bill and
pointed to defendant was a citizen informant, and provided reasonable suspicion for investigatory stop
even though officer did not know bouncer’s name at time of the stop); State v. Harrington, 12 Fla. L.
Weekly Supp. 882 (Fla. Palm Beach Cty. Ct. June 10, 2005)State v. Harrington, 12 Fla. L. Weekly
Supp. 882 (Fla. Palm Beach Cty. Ct. June 10, 2005) (person who claimed he/she was following a vehicle
that was all over the road and gave the make, model, license number, and location of travel, but refused
to provide any identifying information was not a citizen informant; the information was insufficient to
permit officers to detain the vehicle, which was found parked in front of a house); State v. Woodard, 12
Fla. L. Weekly Supp. 572 (Fla. Dade Cty. Ct. Feb. 23, 2005)State v. Woodard, 12 Fla. L. Weekly Supp.
572 (Fla. Dade Cty. Ct. Feb. 23, 2005) (unidentified and unidentifiable person who flagged officer down
and spoke a few seconds with the officer was not a citizen informant, and his statement that the driver of
a nearby vehicle was drinking a lot and was intoxicated was insufficient for stop); State v. Messick, 10
Fla. L. Weekly Supp. 356 (Fla. Sarasota Cty. Ct. March 17, 2003)State v. Messick, 10 Fla. L. Weekly
Supp. 356 (Fla. Sarasota Cty. Ct. March 17, 2003) (person who gave dispatcher her name and cell phone
number, and gave detailed description of reckless driving, direction of travel, description of vehicle was
a citizen informant); State v. Burdeshaw, 9 Fla. L. Weekly Supp. 58 (Fla. Bay Cty. Ct. Nov. 8,
2001)State v. Burdeshaw, 9 Fla. L. Weekly Supp. 58 (Fla. Bay Cty. Ct. Nov. 8, 2001) (restaurant
employee was a citizen–informant, but the information was insufficient); State v. Josey, 9 Fla. L.
Weekly Supp. 51 (Fla. Volusia Cty. Ct. Oct. 8, 2001)State v. Josey, 9 Fla. L. Weekly Supp. 51 (Fla.
Volusia Cty. Ct. Oct. 8, 2001) (clerk at Texaco store was a citizen-informant despite post arrest lack of
cooperation; although, information was too vague); State v. Israel, 8 Fla. L. Weekly Supp. 392 (Fla.
Monroe Cty. Ct. April 3, 2001)State v. Israel, 8 Fla. L. Weekly Supp. 392 (Fla. Monroe Cty. Ct. April 3,
2001) (motorist in line of cars, who told officer that the defendant was driving recklessly, was not a
citizen-informant where the officer did not write down her name, did not know who she was, and did not
ask her to remain at the scene).
60
Foy v. State, 717 So. 2d 184 (Fla. 5th DCA 1998).

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61
Miller v. State, 613 So. 2d 1351 (Fla. 2d DCA 1993).
62
Maynard v. State, 742 So. 2d 315 (Fla. 2d DCA 1999), decision quashed, 783 So. 2d 226 (Fla.
2001).
63
Maynard v. State, 742 So. 2d 315 (Fla. 2d DCA 1999), decision quashed, 783 So. 2d 226 (Fla.
2001).
64
Johnson v. State, 741 So. 2d 1223 (Fla. 2d DCA 1999).
65
State v. Maynard, 783 So. 2d 226 (Fla. 2001).
66
State v. Evans, 692 So. 2d 216 (Fla. 4th DCA 1997).
67
State v. Maynard, 783 So. 2d 226 (Fla. 2001). See also Manning v. State, 957 So. 2d 111 (Fla.
4th DCA 2007); Chaney v. State, 956 So. 2d 535 (Fla. 4th DCA 2007); Walker v. Dep’t of Highway
Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 482 (Fla. 4th Cir. Ct. March 17, 2009)Walker v.
Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 482 (Fla. 4th Cir. Ct. March 17,
2009) (two citizens in a parking lot who told officers that the defendant was staggering and did not need
to be driving were citizen informants even though officers did not know them or take their names and
their information could be relied on without corroboration or evidence as to identity or reliability);
White v. State, 16 Fla. L. Weekly Supp. 417 (Fla. 19th Cir. Ct. Feb. 9, 2009)White v. State, 16 Fla. L.
Weekly Supp. 417 (Fla. 19th Cir. Ct. Feb. 9, 2009) (unidentified citizen, who was an unspecified
distance from deputies, was unreliable when she yelled that driver of approaching vehicle did not have
license; stop by deputy was not based on reasonable suspicion because deputy could only corroborate
innocent identifying information, but not alleged illegality until after the stop; this was not akin to a
“face-to-face” contact because informant was only present “within eyeshot and earshot”; it was no
different from an anonymous phone call from someone in the crowd); Riviere v. State, 16 Fla. L.
Weekly Supp. 157 (Fla. 6th Cir. Ct. Oct. 28, 2008)Riviere v. State, 16 Fla. L. Weekly Supp. 157 (Fla.
6th Cir. Ct. Oct. 28, 2008) (name of informant need not be known for the person to be treated as a
citizen informant as long as the identity is readily discoverable); State v. Boase, 16 Fla. L. Weekly Supp.
691 (Fla. Brevard Cty. Ct. April 14, 2009)State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard
Cty. Ct. April 14, 2009) (to be a citizen informant the name of the informant need not be known so long
as the identity can be readily determined; here the unidentified informant was an anonymous tipster
rather than a citizen informant even though the informant was behind the defendant’s moving vehicle
when the officer arrived because his identity was never known, there was no way to determine his
identity, and his motives were unknown).
68
State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001). See also Wallace v. State, 964 So. 2d 722 (Fla.
2d DCA 2007); State v. Talbott, 425 So. 2d 600, 602 (Fla. 4th DCA 1982); Riviere v. State, 16 Fla.
L. Weekly Supp. 157 (Fla. 6th Cir. Ct. Oct. 28, 2008)Riviere v. State, 16 Fla. L. Weekly Supp. 157 (Fla.
6th Cir. Ct. Oct. 28, 2008) (person was a citizen informant “who by happenstance found himself in the
position of a witness to dangerous criminal conduct and called the police as a matter of civic duty. His
motivation was purely a concern that Appellant ‘was going to kill someone’.”).
69
State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001). See also Wallace v. State, 964 So. 2d 722 (Fla.
2d DCA 2007).
70
State v. T.S., 114 So. 3d 343, 347 (Fla. 3d DCA 2013), review dismissed, 158 So.3d 556 (Fla. 2015).
71
State v. Maynard, 783 So. 2d 226 (Fla. 2001).
72
State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001).

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73
State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001).
74
State v. Maynard, 783 So. 2d 226 (Fla. 2001).
75
State v. K.V., 821 So. 2d 1127 (Fla. 4th DCA 2002). See also O’Malley v. State, 10 Fla. L. Weekly
Supp. 786 (Fla. Broward Cty. Ct. July 18, 2003)O’Malley v. State, 10 Fla. L. Weekly Supp. 786 (Fla.
Broward Cty. Ct. July 18, 2003) (officer from another state who reported dangerous driving, was a
citizen-informant because his identity was easily ascertainable and his motive was safety); State v.
Byfield, 10 Fla. L. Weekly Supp. 54 (Fla. Palm Beach Cty. Ct. Nov. 21, 2002)State v. Byfield, 10 Fla.
L. Weekly Supp. 54 (Fla. Palm Beach Cty. Ct. Nov. 21, 2002) (person reporting suspicious activity in
his neighborhood was a citizen-informant because he gave his name and address and there was no
indication that he was motivated by anything other than concern for safety); State v. Smith, 9 Fla. L.
Weekly Supp. 554 (Fla. Gadsden Cty. Ct. June 2, 2002)State v. Smith, 9 Fla. L. Weekly Supp. 554 (Fla.
Gadsden Cty. Ct. June 2, 2002) (person explaining to officer that he was speeding because the red car
that passed while the officer was issuing a citation was all over the road, was not a citizen-informant
because his motive was to avoid the speeding ticket or to pay a reduced fine).
76
Pasha v. State, 225 So. 3d 688 (Fla. 2017).
77
Pasha v. State, 225 So. 3d 688 (Fla. 2017).
78
Pasha v. State, 225 So. 3d 688 (Fla. 2017).
79
State v. K.V., 821 So. 2d 1127 (Fla. 4th DCA 2002).
80
Wallace v. State, 964 So. 2d 722 (Fla. 2d DCA 2007).
81
Wallace v. State, 964 So. 2d 722 (Fla. 2d DCA 2007). See also State v. Novak, 502 So. 2d 990, 993
(Fla. 3d DCA 1987), review denied, 511 So.2d 299 (Fla. 1987) (cited in Wallace).
82
Wallace v. State, 964 So. 2d 722 (Fla. 2d DCA 2007). See also State v. Novak, 502 So. 2d 990, 993
(Fla. 3d DCA 1987), review denied, 511 So. 2d 299 (Fla. 1987) (cited in Wallace).
83
State v. Maynard, 783 So. 2d 226 (Fla. 2001).
84
Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007). See also Newhaus v. State, 20 Fla. L. Weekly
Supp. 474 (Fla. 17th Cir. Ct. Feb. 15, 2013)Newhaus v. State, 20 Fla. L. Weekly Supp. 474 (Fla. 17th
Cir. Ct. Feb. 15, 2013) (based on a report that the driver of a white Toyota 4-Runner might be
unconscious at a certain intersection and the officer’s observations, officer had a duty to make contact
with an individual slumped over wheel not moving while vehicle was sitting in a lane of traffic); Moser
v. State, 16 Fla. L. Weekly Supp. 156 (Fla. 6th Cir. Ct. Sept 25, 2008) Moser v. State, 16 Fla. L. Weekly
Supp. 156 (Fla. 6th Cir. Ct. Sept 25, 2008) (officer lawfully opened the car door under the emergency
exception doctrine where deputy received tip person was impaired and vehicle was on the side of the
road with the engine running, person was lying in reclined driver’s seat passed out or asleep, and deputy
knocked on window several times with no response).
85
Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So.2d 556 (Fla. 2007).
86
Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007).
87
Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007).
88
Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007).
89
Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So.2d 556 (Fla. 2007).

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90
Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So.2d 556 (Fla. 2007).

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Works.

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§ 4:5.Innocent behavior and unusual events, 11 Fla. Prac., DUI Handbook § 4:5...

11 Fla. Prac., DUI Handbook § 4:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:5. Innocent behavior and unusual events

West’s Key Number Digest

• West’s Key Number Digest, Arrest 63.5(6)
• West’s Key Number Digest, Automobiles 349(2.1), 349(6), 349(17)

Legal Encyclopedias
• C.J.S., Arrest §§ 38, 40
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

As suggested above, officers sometimes stop people based on reports of essentially innocent behavior. They
also frequently stop people based on their own observations of such behavior or of somewhat unusual activity.
In other words, they have not been advised of any recent criminal activity and there is nothing obviously
criminal about the conduct they witness. In assessing the sufficiency of such facts to create reasonable
suspicion, the court must consider “the cumulative impact of the circumstances perceived by the officers.” 1
Conduct which potentially encompasses many innocent citizens may not be sufficient to establish reasonable
suspicion.2 There are many examples of the application of this rule.

In one such case,3 an officer saw a car parked during daylight hours on a dirt road in an area where there had
been drug transactions. The people in the car were passing something back and forth, but the officer could not
tell what they were doing. Those facts alone were innocent and gave the officer no authority to make a stop.
One additional factor made the difference. Another officer saw a straw, and it looked like someone in the
vehicle was snorting something. That transformed the innocent conduct into behavior that was sufficient to
create a reasonable suspicion that a crime was taking place.

There are many other illustrations of the treatment of seemingly innocent conduct. In another example,
detectives saw the defendant sitting in his vehicle in the late afternoon. 4 He was looking in his lap and appeared
to be manipulating something. As the detectives approached the vehicle, the defendant’s head went down
toward the center console. When the defendant saw the officers, he moved his car. The defendant testified that
he was looking at a map and moved his car to avoid the detectives, who looked suspicious. Nothing caused this
innocent behavior to rise to the level of reasonable suspicion. Thus, it was improper for officers to detain the

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§ 4:5.Innocent behavior and unusual events, 11 Fla. Prac., DUI Handbook § 4:5...

defendant. Similarly, there was no basis for an investigatory stop based solely on the fact that at about 3 a.m. an
officer saw the defendant drive out of a parking lot located behind a closed business and pick up a white female
who was walking away from the business.5 In a similar case,6 the defendant was detained because he stopped his
car twice in the parking lot of two closed medical offices, looked down at his lap, and did something with his
hands. The court ruled that these facts were insufficient to establish reasonable suspicion. It was “also
suggestive of innocent conduct such as checking his wallet, reading directions, searching his pockets for an item
or doing something equally innocuous.”7

In other instances, the court found seemingly innocent conduct to be sufficient to establish a reasonable
suspicion because of additional factors. An officer knew that auto burglaries and thefts had been committed in
the area the preceding year. At 1:40 a.m. he saw two men slouched down in a car in a used car lot. The officer
had reasonable suspicion for a stop.8 The court reached the same conclusion where an officer with training and
experience in detecting drug use, saw a passenger in a parked car put his hand up to his nose and put his head
back and down.9

As many of the decisions in this section suggest, “[c]ourts have been inclined to find a lack of reasonable
suspicion where the circumstances were a piling on of inferences derived from otherwise legal conduct.” 10
However, the impact of the decision in United States v. Arvizu11 must be considered. In that case, the United
States Supreme Court made it clear that, while individual facts consistent with innocence may be insufficient to
establish reasonable suspicion, all the facts known to officers must be viewed based on the “totality of the
circumstances.” Officers’ experience, specialized training, and knowledge are also appropriate factors. In
viewing all such factors, the trial judge should consider these standards:
A determination that reasonable suspicion exists … need not rule out the possibility of innocent
conduct. (citation omitted) Undoubtedly, each of these alone is susceptible of innocent
explanation, and some factors are more probative than others. Taken together, we believe they
sufficed to form a particularized and objective basis for … stopping the vehicle, making the stop
reasonable within the meaning of the Fourth Amendment.12

As Arvizu13 suggests, the cumulative impact of several individual acts, may be sufficient based on the totality of
the circumstances to establish reasonable suspicion. As is suggested by some rulings included in this chapter,
the status of innocent conduct in establishing reasonable suspicion is somewhat confusing. However, the Florida
Supreme Court’s recent decision in State v. Teamer,14 helps focus on what is truly important when the Court
recognizes that innocence or guilt is not the point, rather it is “‘the degree of suspicion that attaches to particular
types of noncriminal acts.’” Indeed, innocent conduct may create an ambiguity. In Illinois v. Wardlow,15 the
Court states that where conduct is subject to both innocent and criminal inferences, officers may detain the
individual to resolve the ambiguity. This matter is explored further in § 4:9.

There are many other cases suggesting what an officer needs to see to form a founded suspicion for a stop. The
circumstances vary widely. It is beyond the scope of this work to discuss most of these cases in detail. It may,
however, be useful to have a few such authorities to facilitate further research. Accordingly, a number of cases
where the court has found the facts insufficient to establish reasonable suspicion, 16 and a number where the
court has found the facts sufficient for that purpose,17 is listed below.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Kehoe v. State, 521 So. 2d 1094, 1096 (Fla. 1988), abrogated by Dobrin v. Florida Dept. of

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:5.Innocent behavior and unusual events, 11 Fla. Prac., DUI Handbook § 4:5...

Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004). See also District of Columbia v.
Wesby, 138 S.Ct. 577, 199 L.Ed.2d 453 (2018); U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L.
Ed. 2d 740 (2002) (border patrol officer had reasonable suspicion for a stop based upon observation of a
series of innocent acts that cumulatively justified the stop); State v. Teamer, 151 So. 3d 421 (Fla.
2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015).
2
Q.E.G. v. State, 569 So. 2d 1313 (Fla. 1st DCA 1990).
3
State v. Huntley, 501 So. 2d 22 (Fla. 4th DCA 1986), review denied, 511 So. 2d 298 (Fla. 1987). See
also Ray v. State, 40 So. 3d 95 (Fla. 4th DCA 2010); Panter v. State, 8 So. 3d 1262 (Fla. 1st DCA
2009); Wallace v. State, 8 So. 3d 492 (Fla. 5th DCA 2009), review denied, 19 So. 3d 312 (Fla. 2009)
(experience and trained officer had reasonable suspicion where officer saw defendant park car on the
side of store located in a high crime area; defendant seemed nervous, entered the store, and kept
watching the parking lot until another car arrived; defendant exchanged something with the driver of the
other car in the parking lot; that car left and defendant attempted to leave); State v. Watson, 187 So.3d
349 (Fla. 5th DCA 2016) (court relied on Wallace to find reasonable suspicion based on very similar
circumstances). But see Price v. State, 120 So. 3d 198 (Fla. 5th DCA 2013) (the court distinguished
Wallace and found vehicle stop unlawful where about 11:30 a.m. on a weekday three people in a car
looked like they were making hand-to-hand movements but officers didn’t actually see an exchange;
defendant left the car and went into a pharmacy; he returned with a white bag, which officers thought
contained prescription drugs; once again, there were what appeared to more hand-to-hand movements,
but the officers couldn’t see an exchange; unlike Wallace, this was not in a high crime area nor did the
officers actually see an exchange).
4
Teresi v. State, 506 So. 2d 46 (Fla. 2d DCA 1987). See also Leroy v. State, 982 So. 2d 1250 (Fla. 1st
DCA 2008) (stop was unlawful where defendant was driving slowing through apartment house parking
lot, which was posted with a “‘no trespassing’” sign at 8 p.m.; location was a high crime area; but the
defendant was not committing any traffic offense and the officer did not recognize defendant as a
previous trespasser); T.R.T. v. State, 982 So. 2d 1209 (Fla. 2d DCA 2008) (SUV legally parked in high
crime area at 4 a.m. in an alley behind a vacant apartment for five to six minutes, turning lights off
during that period, still present two minutes later, turning lights back on, backing up, turning around,
and driving toward officer did not establish reasonable suspicion for stop); Richardson v. State, 971 So.
2d 295 (Fla. 4th DCA 2008) (officer did not have reasonable suspicion to detain occupants of vehicle
based on observations of vehicle in an empty parking lot next to a tennis complex and vehicle was
swaying back and forth. “Although this activity is certainly unusual, the location of the vehicle and the
non-violent swaying alone do not justify the stop.”); Stennes v. State, 939 So. 2d 1148 (Fla. 4th DCA
2006) (being legally parked next to another vehicle behind an open gas station at 11:30 p.m. and talking
to a passenger in the other vehicle, did not provide grounds for an investigatory stop despite the history
of burglaries in the area); L.J.S. v. State, 905 So. 2d 222 (Fla. 2d DCA 2005) (quickly starting up
vehicle, as occupants hurriedly moving around inside the car as if putting something away, followed by
stopping in middle of a dead-end road for a few minutes and then driving into a private driveway, did
not establish reasonable suspicion); State v. Taylor, 826 So. 2d 399 (Fla. 3d DCA 2002) (being legally
parked on a swale at 4:30 a.m. did not establish reasonable suspicion); Miranda v. State, 816 So. 2d 132
(Fla. 4th DCA 2002), review denied, 832 So. 2d 105 (Fla. 2002) (being legally parked in an apartment
complex’s parking lot at 5 a.m., with the motor turned off and the driver’s window partially rolled down,
did not establish reasonable suspicion); Brown v. State, 744 So. 2d 1149 (Fla. 2d DCA 1999) (an
unidentified puff of smoke accompanied by a hand movement between the car seats did not establish
reasonable suspicion); Alvarez v. State, 695 So. 2d 1263 (Fla. 2d DCA 1997) (leaning over in a legally
parked car at 4 a.m. did not establish reasonable suspicion); Harrelson v. State, 662 So. 2d 400 (Fla. 1st
DCA 1995) (two people in a car in a driveway at 1:08 a.m. with the interior lights on did not establish
reasonable suspicion even though there had been robberies in the area, but none recently reported); Sites
v. State, 582 So. 2d 813 (Fla. 4th DCA 1991) (being asleep in a legally parked car between 10 and 11
p.m. did not establish reasonable suspicion); Spence v. State, 525 So. 2d 442 (Fla. 5th DCA 1988)
(the behavior of two couples in a car in an area known to be a “lover’s lane” did not establish reasonable
suspicion); State v. Cox, 14 Fla. L. Weekly Supp. 643 (Fla. 14th Cir. Ct. April 16, 2007)State v. Cox, 14
Fla. L. Weekly Supp. 643 (Fla. 14th Cir. Ct. April 16, 2007) (officer did not have grounds for stopping
vehicle where she saw a waffle shop employee arguing with the driver on a section of grass next to the
highway, the employee signaled for the officer to come over, the vehicle drove away, and the officer had

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§ 4:5.Innocent behavior and unusual events, 11 Fla. Prac., DUI Handbook § 4:5...

no other information); State v. Quinn, 13 Fla. L. Weekly Supp. 1134 (Fla. 6th Cir. Ct. April 17, 2006)
(driving slowing through a residential area where someone had abandoned a stolen car and going back
and forth as if looking for something or someone at 1:30 a.m. did not establish reasonable suspicion).
5
Abraham v. State, 532 So. 2d 91 (Fla. 4th DCA 1988).
6
Salem v. State, 645 So. 2d 1023 (Fla. 2d DCA 1994).
7
Salem v. State, 645 So. 2d 1023, 1025 (Fla. 2d DCA 1994).
8
State v. Kibbee, 513 So. 2d 256 (Fla. 2d DCA 1987).
9
State v. Warshan, 580 So. 2d 317 (Fla. 3d DCA 1991).
10
K.G.M. v. State, 816 So. 2d 748, 753 (Fla. 4th DCA 2002).
11
U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002).
12
U.S. v. Arvizu, 534 U.S. 266, 277–78, 122 S. Ct. 744, 753, 151 L. Ed. 2d 740 (2002).
13
U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). See also State v. Cruse, 121
So. 3d 91, 98 (Fla. 3d DCA 2013); State v. Jimoh, 67 So. 3d 240 (Fla. 2d DCA 2010), review denied, 64
So. 3d 117 (Fla. 2011).
14
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015)
(quoting Sokolow, 490 U.S. at 10, 109 S. Ct. 1581).
15
Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 677, 145 L. Ed. 2d 570 (2000) . See also
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015); Ellis
v. State, 935 So. 2d 29, 33 (Fla. 2d DCA 2006), review denied, 949 So. 2d 197 (Fla. 2007).
16
Forman v. State, 128 So. 3d 817 (Fla. 2d DCA 2013) (passenger’s “‘furtive movement’” of leaning back
and forth in a vehicle involved in an accident did not create reasonable suspicion); Bowen v. State, 685
So. 2d 942 (Fla. 5th DCA 1996); Jackson v. State, 660 So. 2d 312 (Fla. 2d DCA 1995) (stopping car in
middle of the day in high crime area because rear window was broken out); Tinson v. State, 650 So.
2d 189 (Fla. 2d DCA 1995); Watson v. State, 636 So. 2d 581 (Fla. 2d DCA 1994) (stopping individual
because he had cupped hands in front of his face); Gano v. State, 599 So. 2d 759 (Fla. 2d DCA 1992);
Bush v. State, 594 So. 2d 793 (Fla. 3d DCA 1992); Aguila v. State, 567 So. 2d 1007 (Fla. 3d DCA
1990); Turner v. State, 552 So. 2d 1181 (Fla. 4th DCA 1989) (stopping car on hunch that rental car was
overdue); Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988), review denied, 548 So. 2d 663 (Fla.
1989); Wolf v. State, 18 Fla. L. Weekly Supp. 515 (Fla. 5th Cir. Ct. March 11, 2011)Wolf v. State, 18
Fla. L. Weekly Supp. 515 (Fla. 5th Cir. Ct. March 11, 2011) (officer did not have reasonable suspicion
for car theft where she was in an unconcealed marked car in the parking lot of a nightclub during the
early morning hours and saw defendant walk to three cars, look at each car and walk to the next one,
hold up a keyless entry fob until the light of a different car blinked; defendant got into that car, which
had a dealer tag, and drove off normally; the officer thought the defendant may have taken the keys from
someone in the club).
17
Cole v. State, 190 So.3d 185 (Fla. 3d DCA 2016), review denied, 2016 WL 4182848 (Fla. Opinion Filed
Aug. 08, 2016) (officer had reasonable suspicion for pat down where stop was at 9 p.m.; defendant was
sweating, nervous, fidgety, fists were tightly clenched and he had a pen tightly clenched in one hand; he
could not answer some of officer’s questions or give name and address of friend he said he was going to
see; just before stop made a sudden U-turn into oncoming traffic lanes and parked in a swale facing the
wrong direction); Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999), review denied, 763 So. 2d
1043 (Fla. 2000) (officer saw one van backed up to another van in a parking lot at 3 a.m., van doors
were open, contents were being transferred and defendant started to walk away when officer
approached); State v. Malone, 729 So. 2d 1008 (Fla. 5th DCA 1999) (officer dispatched because of a

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§ 4:5.Innocent behavior and unusual events, 11 Fla. Prac., DUI Handbook § 4:5...

report from bank employee that a six-foot tall black male was attempting to pass a forged check and the
circumstances were sufficient to create a reasonable suspicion that individual the officer stopped in
vehicle in parking lot was that person); State v. Wimbush, 668 So. 2d 280 (Fla. 2d DCA 1996)
(parking car on side of road at 3 a.m., and officer well-trained in narcotics investigations saw white
substance on occupant’s face); State v. Ramos, 598 So. 2d 267 (Fla. 3d DCA 1992) (a woman
complaining that a man parked near her was harassing and scaring her); Willis v. State, 584 So. 2d 41
(Fla. 3d DCA 1991), review denied, 595 So. 2d 559 (Fla. 1992); State v. Woodard, 582 So. 2d 1249
(Fla. 4th DCA 1991); State v. Lewis, 570 So. 2d 1118 (Fla. 2d DCA 1990), review denied, 577 So. 2d
1327 (Fla. 1991) (observing occupants of a car passing a small and tightly rolled cigarette back and forth
was sufficient for that officer to instruct another officer to stop the car); Moore v. State, 561 So. 2d 625
(Fla. 1st DCA 1990); Diaz v. State, 548 So. 2d 843 (Fla. 3d DCA 1989); State v. King, 485 So. 2d
1312 (Fla. 5th DCA 1986); State v. Hoffman, 22 Fla. L. Weekly Supp. 755 (Fla. Brevard Cty. Ct. Jan. 7,
2015)State v. Hoffman, 22 Fla. L. Weekly Supp. 755 (Fla. Brevard Cty. Ct. Jan. 7, 2015) (officer had
reasonable suspicion allowing him to have defendant exit vehicle where police had received information
that convenience stores in this area were going to be robbed, the vehicle was parked on the side of such
a store, it was backed into a space facing an exit, none of the occupants exited for 30 minutes or more
and the engine was running all that time); Lagnese v. State, 8 Fla. L. Weekly Supp. 295 (Fla. 20th Cir.
Ct. Jan. 30, 2001)Lagnese v. State, 8 Fla. L. Weekly Supp. 295 (Fla. 20th Cir. Ct. Jan. 30, 2001) (one
car appeared to be chasing the other, both cars made U-turns at the same intersection and were traveling
a little fast, deputy heard screaming from one car, and both cars turned abruptly behind some businesses,
where they started to make another U–Turn).

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Works.

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§ 4:6.Connection with other crimes, 11 Fla. Prac., DUI Handbook § 4:6 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:6. Connection with other crimes

West’s Key Number Digest

• West’s Key Number Digest, Arrest 63.5(6)
• West’s Key Number Digest, Automobiles 349(2.1), 349(6) to 349(9)

Legal Encyclopedias
• C.J.S., Arrest §§ 38, 40
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Many of the cases discussed above dealt with activity that appeared innocent but the officer viewed as typical of
drug transactions. Sometimes an officer has knowledge of other crimes that have been committed in an area and
sees things that create a reasonable suspicion to believe that the occupants of a car may have been the
perpetrators of that crime. The stop may generate evidence and grounds for a DUI arrest.

As with tips, information concerning the crime must be sufficiently detailed. It is improper for an officer to stop
everyone who fits the vague description of the perpetrator of a crime. 1 Thus, it was improper for an officer to
stop a car based on a vague description by the owner of a stolen vehicle, the nickname of the alleged thief, and
the claim that the offender hung around with people who drove around in the vaguely described car. 2 Similarly,
it was improper for an officer to detain a rental car based on his memory that one of that common model and
color had been on a list of stolen cars.3 The officer did not know the year of the stolen car, the date it was stolen,
the agency it was stolen from, or its tag number. Furthermore, the officer did not check the tag number of the
vehicle he stopped to see if it was stolen.

In another case,4 the deputy knew only that the closed business the defendant was parked in front of had been
burglarized some time in the past. The officer made his observations late at night. When the deputy turned
around, the defendant pulled away and the deputy saw “all kinds of stuff” in the back of the truck. These vague
observations were insufficient to establish reasonable suspicion justifying a stop.

Similarly, an officer did not have grounds for an investigatory stop where the officer saw the vehicle coming
from behind a closed business at 3:30 a.m. and the business had been burglarized, or there had been a series of

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§ 4:6.Connection with other crimes, 11 Fla. Prac., DUI Handbook § 4:6 (2018-2019 ed.)

burglaries in the preceding week or two. 5 However, there had been no report of a burglary the night of the stop.
“[B]eing in an area of past criminal activity during late and unusual hours is not enough to justify a founded or
reasonable suspicion.”6

The result was different, however, where a police officer received information from the defendant’s probation
officer that the defendant had been driving in violation of his community control restrictions. 7 The probation
officer told the police officer that the defendant was on community control for driving on a suspended or
revoked license. The probation officer provided the defendant’s address and told the police officer that the
defendant was a painter who was scheduled to leave early each day except for Sunday. The police officer
confirmed that the defendant’s license was still suspended. The police officer drove by the house and saw a gray
jeep with a work ladder parked in front of the house. That vehicle was registered to a woman who lived at the
defendant’s address. The police officer saw the jeep leave the residence and stop at an intersection with his left
turn signal on across from where the officer was located, but the jeep missed several chances to make the left
turn. The police officer could see that it was a man that was driving, but could not identify the man. When the
police officer started to follow the vehicle it made an abrupt right turn, went down the next street, and
accelerated back to the defendant’s residence. On appeal, the court ruled that these facts were sufficient to
justify an investigatory stop.8

The facts also supported an investigatory stop where the defendant abandoned a vehicle and fled on foot. 9 The
officer determined that there was a warrant out for the registered owner who the officer knew to be white. When
the officer initiated a traffic stop to see if the owner was in the car, the officer immediately saw that the driver
was black. However, the driver ran and abandoned the car. This did not happen in a high crime area;
nevertheless, the court held that the subsequent detention of the defendant on foot was lawful. 10

Other cases illustrate the kind of detail about recently committed crimes courts are likely to consider sufficient.
In one such case, the officer knew that a robbery had been recently committed and the defendants were
proceeding on an obvious lightly traveled escape route. 11 In another example, the court found that an officer had
reasonable suspicion to stop the defendant’s vehicle because he saw it in an area known to police for crack
cocaine trafficking, officers had been recovering between two and three stolen vehicles per day in that area, and
the officer saw that the trunk key hole was pried open. 12 In a burglary case,13 the court ruled that there was
reasonable suspicion to stop the defendant because he had recently been released from prison on burglary
charges, burglaries had recently been committed in the unique way the defendant had done them, and he was
stopped in the early morning hours after two burglaries had been committed. Where a store clerk advised police
that the defendant and others were causing a disturbance and initially refused to leave, an officer had reasonable
suspicion of a trespass.14 Additionally, the fact that the store clerk indicated that the defendant and others were
trying to buy alcohol created reasonable suspicion that a drinking related offense may have been about to
happen.15 Driving past a roadblock, refusing to roll down the window or to open the door when the officer
approached, trying to close the door after the officer opened it, hesitating to turn over documents, and the
presence of a vocal passenger established reasonable suspicion for obstructing and good reason for the officer to
fear for his safety.16 As these cases suggest, such contacts cover a wide range.17

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Bristol v. State, 584 So. 2d 1086 (Fla. 2d DCA 1991). See also Keeling v. State, 929 So. 2d 1169 (Fla.
2d DCA 2006) (report of four people fighting at a convenience store with one injured person and that a
red Ford Ranger truck was leaving, did not give the officer the authority to stop a truck matching that
description as he traveled to the address for the truck owner); State v. Freeman, 21 Fla. L. Weekly Supp.
680 (Fla. Volusia Cty. Ct. March 24, 2014)State v. Freeman, 21 Fla. L. Weekly Supp. 680 (Fla. Volusia
Cty. Ct. March 24, 2014) (trial judge found stop unlawful where officer was dispatched to the scene of a
domestic disturbance and the only thing officer knew was that an unidentified person alleged that
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 4:6.Connection with other crimes, 11 Fla. Prac., DUI Handbook § 4:6 (2018-2019 ed.)

unnamed individuals were arguing in front of a house and one of them left in a gold Dodge Ram pick-up
truck; seconds after the dispatch the officer saw such a vehicle within a ¼ mile of the scene of the
disturbance and stopped it); Freeman v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly
Supp. 875 (Fla. 7th Cir. Ct. Oct. 2, 1014)Freeman v. Dep’t of Highway Safety & Motor Vehicles, 22
Fla. L. Weekly Supp. 875 (Fla. 7th Cir. Ct. Oct. 2, 1014) (circuit judge reviewing administrative
decision agreed with county judge in previously cited case).
2
Bristol v. State, 584 So. 2d 1086 (Fla. 2d DCA 1991) (The owner told the officer that “Polo” had taken
his car by holding him at gunpoint. The officer knew “Polo,” but she did not know his legal name and
did not have a description of him. The officer learned that “Polo” associated with guys that drove around
in a red over white long Cadillac and that the occupants of the vehicle made drug deliveries at
Pennsylvania Park. So when the officer saw a car matching that description, she followed it to
Pennsylvania Park and stopped it.).
3
Cox v. State, 586 So. 2d 1321 (Fla. 2d DCA 1991). See also Pantin v. State, 872 So. 2d 1000
(Fla. 4th DCA 2004) (BOLO for a stolen late-model two-door Mitsubishi with one occupant did not
justify stop). But see State v. Marrero, 890 So. 2d 1278 (Fla. 2d DCA 2005) (provides a useful contrast
to the foregoing cases because of the officer’s information indicating that the vehicle was stolen, which
included knowledge that he developed as to cars manufactured in different years and the fact that the tag
appeared to be for another car).
4
Jordan v. State, 707 So. 2d 338 (Fla. 2d DCA 1998), review dismissed, 717 So. 2d 538 (Fla. 1998).
See also Love v. State, 706 So. 2d 923 (Fla. 2d DCA 1998) (driving slowly late at night in the kind of
car that is often stolen, in a neighborhood that had burglaries at some unspecified time in the past was
insufficient). In F.E.A. v. State, 804 So. 2d 528 (Fla. 1st DCA 2002), the court suggested that Jordan
may have been overruled by Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570
(2000). However, in Paff v. State, 884 So. 2d 271, 273 (Fla. 2d DCA 2004), the court concluded that in
F.E.A. the court did not actually rule on this issue, and, in fact, Wardlow did not overrule Jordan.
5
L.N.D. v. State, 884 So. 2d 515 (Fla. 2d DCA 2004). See also Thomas v. State, 144 So. 3d 660 (Fla.
2d DCA 2014).
6
L.N.D. v. State, 884 So. 2d 515, 516 (Fla. 2d DCA 2004).
7
State v. Lopez, 923 So. 2d 584 (Fla. 5th DCA 2006). See also State v. Clark, 13 Fla. L. Weekly Supp.
852 (Fla. 6th Cir. Ct. June 20, 2006)State v. Clark, 13 Fla. L. Weekly Supp. 852 (Fla. 6th Cir. Ct. June
20, 2006) (officer had reasonable suspicion even though officer could not tell whether defendant was
driving, where citizen informant gave officer defendant’s name, type of vehicle, address of where he
worked and when he went to work and said defendant was driving on a suspended license; officer
confirmed that defendant’s license was suspended; officer observed vehicle at time and place caller
gave).
8
State v. Lopez, 923 So. 2d 584 (Fla. 5th DCA 2006). See also Bratcher v. State, 727 So. 2d 1114 (Fla.
5th DCA 1999) (officer had reasonable suspicion to stop vehicle when a check of tag established that
owner had a warrant outstanding and officer “had no way of knowing the owner was not in the vehicle”
before stop); State v. Neptune, 15 Fla. L. Weekly Supp. 1163 (Fla. 17th Cir. Ct. Sept. 11, 2008) (same
ruling as in Bratcher where officer determined that owner’s license was suspended; officer pulled up
DMV photo and noted that driver matched photo). But see State v. Phelps, 13 Fla. L. Weekly Supp. 221
(Fla. 6th Cir. Ct. Oct. 25, 2005)State v. Phelps, 13 Fla. L. Weekly Supp. 221 (Fla. 6th Cir. Ct. Oct. 25,
2005) (officer did not have reasonable suspicion to stop the defendant where a license tag check
revealed that one of the two owners (a male) had a suspended license, but before making the stop the
officer determined that the male driving the car was a different person from the registered owner).
9
Livingston v. State, 985 So. 2d 1144 (Fla. 5th DCA 2008).
10
Livingston v. State, 985 So. 2d 1144 (Fla. 5th DCA 2008).
11
Gibson v. State, 486 So. 2d 696 (Fla. 4th DCA 1986). See also Pierre-Louis v. State, 682 So. 2d 669

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§ 4:6.Connection with other crimes, 11 Fla. Prac., DUI Handbook § 4:6 (2018-2019 ed.)

(Fla. 4th DCA 1996), review denied, 703 So. 2d 477 (Fla. 1997).
12
Harrison v. State, 549 So. 2d 1205 (Fla. 3d DCA 1989).
13
Green v. State, 743 So. 2d 1233 (Fla. 5th DCA 1999).
14
Lee v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 423 (Fla. 13th Cir. Ct. April
21, 2001)Lee v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 423 (Fla. 13th Cir.
Ct. April 21, 2001).
15
Lee v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 423 (Fla. 13th Cir. Ct. April
21, 2001)Lee v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 423 (Fla. 13th Cir.
Ct. April 21, 2001).
16
Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001). See also State v. Ward, 10 Fla. L. Weekly
Supp. 259 (Fla. Gadsden Cty. Ct. Feb. 14, 2003)State v. Ward, 10 Fla. L. Weekly Supp. 259 (Fla.
Gadsden Cty. Ct. Feb. 14, 2003)(pulling over as vehicle was approaching checkpoint and driver
changing places with passenger established reasonable suspicion that the original driver was illegally
operating the vehicle).
17
Pasha v. State, 225 So. 3d 688 (Fla. 2017) (“The record reflects that the deputies received information
from a 911 dispatcher that two witnesses had called 911 to report a man covered in blood, holding a
knife-like object, running, changing clothes, throwing something into the woods, and leaving the WCC
in a white cargo-style Ford E150 van bearing a specific Florida license plate number. This information
provided the deputies with reasonable suspicion of ongoing or completed criminal activity within the
WCC.”); Jackson v. State, 241 So.3d 914 (Fla. 1st DCA 2018), review denied, 2018 WL 3239506 (Fla.
Opinion Filed July 3, 2018) (officer had reasonable suspicion to stop vehicle about 15 minutes after
robbery; officers knew exact route because they were tracking a stolen iPhone, vehicle contained the
same number of occupants as the BOLO, one of the occupants wore a camouflage hat, consistent with
the BOLO); Sammiel v. State, 225 So. 3d 250 (Fla. 4th DCA 2017), review denied, 2017 WL 5903417
(Fla. Opinion Filed Nov. 30, 2017) (a BOLO for a “ ‘grayish-greenish beat up van’” leaving a crime
scheme was vague, but it was sufficient for stop when considered with these other factors: source of 911
call was a citizen eyewitness; no other cars were on the road at the time the BOLO went out; witness
told officers at least three people were in the vehicle and was able to identify direction of travel and
officers stopped the vehicle within 10 minutes of the BOLO and less than 5 miles from where it was first
seen); Sanchez v. State, 199 So.3d 472 (Fla. 4th DCA 2016), review denied 2016 WL 6603971 (Fla.
Opinion Filed Nov. 8, 2016) (officer did not have reasonable suspicion for vehicle stop, where shortly
before 10 am officer received a BOLO for two black males fleeing westbound from a store that had been
robbed; a few blocks from the scene officer saw two black males in a car travelling northbound and then
eastbound; driver had dreadlocks; passenger was seated in the rear seat furthest from driver; passenger
wore a white t-shirt and a large hat; neither person made eye contact with the officer; officer observed
no unlawful conduct prior to stop); Sousa v. State, 192 So.3d 481 (Fla. 2d DCA 2016) (officer did not
have reasonable suspicion to stop a vehicle near the scene of a robbery where a BOLO reported that
three males with a firearm fled toward apartments where there were nothing but apartments; no
indication that a vehicle was involved and the officer saw a passenger in the back seat bouncing around
and lying down); State v. Jemison, 171 So.3d 808 (Fla. 4th DCA 2015) (officers had reasonable
suspicion to stop defendant’s vehicle where BOLO described make, model, color, and dark window
tinting of the suspected vehicle; officer went to development where burglary occurred; positioned
himself on only escape route, within six minutes of BOLO officer saw vehicle matching exact
description when traffic was light, BOLO came from victim; officer saw defendant circling a
neighborhood, cutting in front of a vehicle to make a turn, and then driving evasively); Domingues v.
State, 159 So. 3d 1019 (Fla. 4th DCA 2015) (officer did not have reasonable suspicion to stop vehicle
leaving residence and order driver to return based solely on a report of a domestic disturbance); State v.
Brown, 21 Fla. L. Weekly Supp. 989 (Fla. 11th Cir. Ct. June 16, 2014)State v. Brown, 21 Fla. L.
Weekly Supp. 989 (Fla. 11th Cir. Ct. June 16, 2014) (officer had reasonable suspicion for investigative
stop where about 8:00 p.m. he saw two people engaged in sexual intercourse inside a pickup truck
parked on a residential street and the fact that having sexual intercourse in a vehicle is not per se illegal
was irrelevant); State v. Culiner, 21 Fla. L. Weekly Supp. 311 (Fla. 17th Cir. Ct. Oct. 24, 2013)State v.
Culiner, 21 Fla. L. Weekly Supp. 311 (Fla. 17th Cir. Ct. Oct. 24, 2013) (stop was lawful where citizen
told dispatcher he was working at a specific fishing pier when he saw an off balance white male check
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§ 4:6.Connection with other crimes, 11 Fla. Prac., DUI Handbook § 4:6 (2018-2019 ed.)

doors of a couple of cars before getting into a red Mercedes or Corvette and speeding out of the lot in an
abnormal way in a specific direction; two or three minutes later a trooper stopped a white male driving a
red Mercedes based on a BOLO reporting a crime in progress and giving the informant’s information);
Tsotsos v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 810 (Fla. 6th Cir. Ct.
July 24, 2012)Tsotsos v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 810 (Fla.
6th Cir. Ct. July 24, 2012) (deputy had reasonable suspicion justifying vehicle stop where deputies
received a report of a disturbance at a bar involving two men who were allegedly taunting the
management to fight after the men damaged a door, a deputy saw two men leaving in a red car and
several people in the lot pointed to vehicle and shouted, “There they go.”); Raff v. State, 17 Fla. L.
Weekly Supp. 1201 (Fla. 17th Cir. Ct. Aug. 11, 2010) (no grounds for a stop where officer was
responding to a report of problems with juveniles when officer observed two people screaming at each
other; one of them was an impaired woman on foot trying to catch up with the other, who was in a
vehicle); State v. Hoffman, 22 Fla. L. Weekly Supp. 755 (Fla. Brevard Cty. Ct. Jan. 7, 2015)State v.
Hoffman, 22 Fla. L. Weekly Supp. 755 (Fla. Brevard Cty. Ct. Jan. 7, 2015) (officer had reasonable
suspicion allowing him to have defendant exit vehicle where police had received information that
convenience stores in this area were going to be robbed; the vehicle was parked on the side of such a
store; it was backed into a space facing an exit; none of the occupants exited for 30 minutes or more; the
engine was running all that time); State v. Todd, 19 Fla. L. Weekly Supp. 43 (Fla. Palm Beach Cty. Ct.
Aug. 5, 2011)State v. Todd, 19 Fla. L. Weekly Supp. 43 (Fla. Palm Beach Cty. Ct. Aug. 5, 2011) (stop
was unlawful where the only information the officer had was that a citizen informant reported that a
black Audi with a specific tag number and a passed out passenger was traveling on a specific roadway
possibly illegally dumping; the officer followed such a vehicle, but observed no evidence of dumping, a
passed out passenger, traffic infractions, or other signs that the driver was sick, tired, or impaired); State
v. Sockabasin, 18 Fla. L. Weekly Supp. 419 (Fla. Brevard Cty. Ct. Feb. 22, 2011)State v. Sockabasin, 18
Fla. L. Weekly Supp. 419 (Fla. Brevard Cty. Ct. Feb. 22, 2011) (911 call from citizen informant
reporting a gunshot and describing vehicle leaving the area, giving direction of travel established
reasonable suspicion for stop when in a few minutes officer saw vehicle matching color, headed in the
predicted direction, and it was the only vehicle on the road); State v. Montroud, 17 Fla. L. Weekly Supp.
852 (Fla. Brevard Cty Ct. March 9, 2010)State v. Montroud, 17 Fla. L. Weekly Supp. 852 (Fla. Brevard
Cty Ct. March 9, 2010) (investigative stop was lawful based on 911 call that motorist had violated a
domestic violence injunction despite subsequent discovery that respondent on injunction had reported
petitioner (driver) for violating injunction).

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Works.

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§ 4:7.Presence in high crime area as sole factor or..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 4:7 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:7. Presence in high crime area as sole factor or combined with other factors

West’s Key Number Digest

• West’s Key Number Digest, Arrest 63.5(6)
• West’s Key Number Digest, Automobiles 349(2.1), 349(6), 349(14.1)

Legal Encyclopedias
• C.J.S., Arrest §§ 38, 40
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Officers regularly stop vehicles because they are in high crime areas. Stops for that reason alone are clearly
invalid.1 That is certainly true of mere presence in an area where crimes have been committed. 2

More often presence in a high crime area is combined with other factors to justify a stop. Frequently, the courts
reject even those stops. Merely making a quick move does not add any additional support. 3 Cases holding that
officers’ observations of a suspect making a furtive movement in a high crime area is insufficient to establish
reasonable suspicion are legion.4 However, officers had reasonable suspicion where an occupied vehicle was
backed into a wooded area at 1 a.m. where identifiable crimes had recently been committed, and one of the
occupants raised his entire body in the seat of the car as though he was putting something in his pants. 5
Similarly, the court found reasonable suspicion to believe there was a drug deal where: (1) officers saw the
defendant in a known narcotics area at night; (2) the defendant stopped his car in the middle of the street where
he was approached by two individuals; (3) the individuals talked with the defendant at his car window and
exchanged something with him; and (4) the defendant then drove away.6

It was well established in Florida that flight from officers in a high crime area was insufficient to establish
reasonable suspicion. But this principle was effectively overruled by the United States Supreme Court. 7 In
Illinois v. Wardlow,8 the Court held that police may consider the nature of the location in evaluating the
circumstances, and unprovoked flight from officers in a high crime area is sufficient for an investigatory stop.
However, in Wardlow,9 the Court did not sanction investigatory stops based on flight from an officer alone.
Furthermore, the burden is on the state to show that the area where the flight from officers occurred was a high
crime area.10 In B.M. v. State,11 the court recognized: “Unprovoked flight from attempted detention in a

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§ 4:7.Presence in high crime area as sole factor or..., 11 Fla. Prac., DUI...

‘suspected crime area’ is different from unprovoked flight in a ‘high crime area,’ the latter of which often forms
the basis for reasonable suspicion.”

The ruling in Wardlow12 has been applied in several situations in Florida. Thus, the defendant’s presence in an
area known for narcotics traffic, combined with the defendant’s flight upon the officer’s approach, was
sufficient to establish reasonable suspicion for an investigatory stop. 13 Similarly, an officer had reasonable
suspicion based on Wardlow,14 when individuals fled from a closed ballpark where there had been a lot of
criminal mischief and burglaries.15 As these cases suggest, it is critical to the finding of reasonable suspicion
based on fleeing in a high crime area that the evidence support the inference that the defendant actually knew
law enforcement officers were approaching16 and that there wasn’t competent, substantial evidence of “‘an
unreasonable show of force’ or improper provocation.” 17 Thus, the fact that a pedestrian in a high crime area
was talking on a cell phone while looking back at an unmarked car, and fled before he could see that the
occupants were officers, was not suggestive of criminal behavior.18

There are some circumstances where the impact of Wardlow19 is still not entirely certain. For instance, one
court20 ruled that driving aimlessly in a high crime area and behaving nervously did not establish reasonable
suspicion. It is unclear whether Wardlow requires a different result. Some decisions provide limited insight.
When the defendant voluntarily stopped to talk to officers in what was initially a citizen encounter, the fact that
he decided to terminate the contact by running from the officer did not establish reasonable suspicion pursuant
to Wardlow. The court noted that the officer did not identify the area as a high crime area. 21 In another case,22 the
officer identified the area as one known for narcotics transactions, but nevertheless, the fact that the defendant
“‘walked quickly’” away and was part of a group that dispersed when officers arrived, did not permit a stop.

The application of Wardlow23 to motor vehicles has produced results differing from the treatment of pedestrians.
In one case, the court ruled that the state did not meet the Wardlow test where the defendant was in a high crime
area and quickly drove away, but the officer testified that the defendant was not fleeing. 24

Differences between vehicles and pedestrians have led to this result. When a person runs, intent is clear, but in a
vehicle the same is not true. 25 “A car that obeys all traffic regulations when leaving a location when a police car
arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on
foot. Such a pedestrian does not invoke the rule of Wardlow.”26 Thus, simply driving away from a gas station as
an officer approaches, even in a parking lot where drugs are sold, does not establish reasonable suspicion under
Wardlow.27 However, an investigatory stop was justified in an area known for narcotics where the driver made
eye contact with a uniformed officer, who was walking in a parking lot, and the driver immediately shifted his
truck into gear and fled from the area at a high rate of speed.28

Other decisions extend Wardlow to conduct other than fleeing. In one case, the court ruled that officers lawfully
detained the defendant because he was with others in a high crime area known for drug activity and nervously
backed away from the officers. 29 In a short opinion, which generated a strong and detailed dissent, the court
seems to hold that where there was a complaint of loitering and prowling, the fact that the defendant walked
away from officers justified an investigatory stop.30

Other conduct in a high crime area may provide less concern for police. Thus, simply stopping at a residence
where officers suspected drugs were being sold did not establish a reasonable suspicion for an investigatory
detention.31 Similarly, being in a high-crime area at 9 p.m. in a car, while talking to two women standing near
the vehicle, did not justify a stop of the car.32

Reliance on differences in race in conjunction with presence in a high crime area is highly suspect. Thus, the
courts have frequently found such factors insufficient to establish reasonable suspicion. In one such case, the
officer stopped the defendant’s vehicle because he believed that a drug transaction had taken place. 33 His belief
was based on the fact that the defendant was a white man talking to a black man in a predominately black area
known for such transactions. On appeal, the court held that these observations did not create reasonable
suspicion justifying the stop.

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§ 4:7.Presence in high crime area as sole factor or..., 11 Fla. Prac., DUI...

Gender based stops have also been rejected. Thus, the court found that an officer had no authority to stop a
white female driver in a bad part of town at an odd hour, because he thought she was lost or getting drugs and
needed to be told about the danger. 34 In one case, the court considered the combination of a young black male
driving a vehicle owned by an older white female in a high crime area. The court found the difference in race,
sex, and age to be “[p]articularly insufficient and abhorrent” as a basis for a stop. 35

When differences in race have been considered an appropriate factor, it has only been as part of a set of
circumstances known to the experienced officer to be indicative of a drug transaction. In one such case, an
officer observed a white male parked late at night in a truck in a predominately black neighborhood across from
two known crack houses.36 A black man, known to the officer as a drug pusher, leaned into the driver’s side of
the truck. The officer believed that at that time the only white males in the area were there to buy cocaine. The
court held that these facts were sufficient to create a reasonable suspicion justifying an investigatory stop of the
white male. In other cases, white males have joined with black males in a pattern of activity known to the
experienced and trained officers as typical of drug trafficking.37

As these cases demonstrate, many vehicle stops in high crime areas involve suspicion of drug trafficking. Many
times officers observe individuals driving slowly through such areas, stopping, and exchanging something.
Under such circumstances, the court found that an officer had reasonable suspicion based on his observation of
an exchange of money on the street for an unidentified item. 38 In State v. Hankerson,39 the Florida Supreme
Court considered similar circumstances to be sufficient to establish probable cause to stop a vehicle. There an
officer who was experienced in narcotics enforcement saw the defendant engage in a series of transactions
where he exchanged small items for currency like hundreds of drug deals the officer had seen. This took place
at a home that had been the subject of complaints about drug activity. The officer also described details of the
defendant’s conduct and behavior that suggested he was engaged in a drug transaction. The defendant drove
away and another officer stopped him.

These decisions make it clear that sufficient observations of an exchange is important. Thus, the court found
that there were no grounds for an investigatory stop where the officer saw an individual approach a car and
seemingly pass something to one of the occupants. 40 In contrast to other cases, the officer could not identify
anything and really only observed arm movements. Similarly, the officer could not lawfully detain an individual
because he saw him approach a car in a high crime area and talk to the occupant, who merely extended his hand
to the individual.41 The absence of an exchange is objective evidence that there was no reasonable suspicion, 42
although there may be other circumstances that make observation of an exchange unnecessary. 43

Clearly, observation of exchanges under suspicious circumstances in a high crime area is important. State v.
Anderson44 is the pivotal case in Florida on this subject. There a trained and experienced officer observed an
exchange in a high crime area under circumstances reasonably indicating a drug transaction. The Court ruled
that the stop was lawful. Subsequently, one court stressed that in Anderson the exchange alone was not
determinative. Rather, it was important that the experienced officer had seen the man with whom the defendant
did business engage in similar transactions late at night, and the officer saw the defendant’s furtive actions. 45
Merely seeing a handshake, usually used to exchange drugs or money in a high crime area, did not rise to this
level.46 However, in all such cases, the court must generally consider the ruling in State v. Hankerson,47
discussed earlier, because it ultimately sets the standards for such decisions.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); D.T. v. State, 178
So.3d 949 (Fla. 4th DCA 2015); Mitchell v. State, 955 So. 2d 640 (Fla. 4th DCA 2007); Lester v.

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§ 4:7.Presence in high crime area as sole factor or..., 11 Fla. Prac., DUI...

State, 754 So. 2d 746 (Fla. 1st DCA 2000); Libby v. State, 561 So. 2d 1253 (Fla. 2d DCA 1990).
2
Mitchell v. State, 558 So. 2d 72, 74 (Fla. 2d DCA 1990) (“[S]imply because the vehicle in which [the
defendant] was a passenger was in an area where burglaries frequently occurred would not constitute
grounds for a legal stop or detention.”) See also Johns v. State, 2018 WL 1769174 (Fla. 2d DCA
Opinion Filed April 13, 2018); Thomas v. State, 144 So. 3d 660 (Fla. 2d DCA 2014); Silverman v.
State, 610 So. 2d 116, 117 (Fla. 4th DCA 1992).
3
G.J.P. v. State, 469 So. 2d 826 (Fla. 2d DCA 1985).
4
Brandin v. State, 669 So. 2d 280, 282 (Fla. 1st DCA 1996); Freeman v. State, 559 So. 2d 295, 297 (Fla.
1st DCA 1990). See also Griffin v. State, 150 So. 3d 288 (Fla. 1st DCA 2014) (standing in a driveway
with a hand in one pocket in a high crime area did not establish reasonable suspicion).
5
Freeman v. State, 559 So. 2d 295 (Fla. 1st DCA 1990).
6
Brandin v. State, 669 So. 2d 280 (Fla. 1st DCA 1996). See also State v. Watson, 187 So.3d 349 (Fla. 5th
DCA 2016).
7
State v. O.S., 767 So. 2d 509 (Fla. 4th DCA 2000), review denied, 790 So. 2d 1106 (Fla. 2001).
8
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). See also District of
Columbia v. Wesby, 138 S.Ct. 577, 587, 199 L.Ed.2d 453 (2018); T.P. v. State, 224 So.3d 792 (Fla. 2d
DCA 2017); Majors v. State, 70 So. 3d 655 (Fla. 1st DCA 2011), review denied, 79 So. 3d 745 (Fla.
2011); Hill v. State, 51 So. 3d 649, 651 (Fla. 1st DCA 2011).
9
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). See also Majors v.
State, 70 So. 3d 655 (Fla. 1st DCA 2011), review denied, 79 So. 3d 745 (Fla. 2011); Garnetti v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 28 (Fla. 9th Cir. Ct. June 4, 2004) Garnetti
v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 28 (Fla. 9th Cir. Ct. June 4,
2004) (no reasonable suspicion where defendant who was standing at 11:20 p.m. near a car that
appeared to have run off the road and ran when officer arrived, where there was no evidence that this
was a high crime area or of any other suspicious circumstance).
10
D.R. v. State, 941 So. 2d 536 (Fla. 2d DCA 2006) (State failed to meet this burden where defendant fled,
and officer said he had not worked in the neighborhood in a while but there were multiple narcotic
complaints from the area, and no other facts were produced to support officer’s opinion that it was a
high crime area). See also State v. Winter, 108 So. 3d 729 (Fla. 5th DCA 2013); J.R.P. v. State, 942
So. 2d 452 (Fla. 2d DCA 2006). But see Grayson v. State, 212 So.3d 481 (Fla. 5th DCA 2017) (officers
had reasonable suspicion for a stop where officers saw defendant going in and out of a wood line at 3:00
am, 30 minutes after a reported burglary near a neighborhood where there had been a recent rash of
burglaries; no one else was seen in the area; it was unusual for people to walk there that time of night
and when the officers identified themselves the defendant ran back into the woods); Parker v. State,
18 So. 3d 555, 558 (Fla. 1st DCA 2008) (presence in a high crime area is not the only factor that may
combine with flight to establish reasonable suspicion; report of prowling or other recently committed
close-by offense may also be sufficient).
11
B.M. v. State, 212 So.3d 526, 529 (note 3) (Fla. 2d DCA 2017).
12
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).
13
McGee v. State, 818 So. 2d 558 (Fla. 2d DCA 2002). See also Mitchell v. State, 955 So. 2d 640
(Fla. 4th DCA 2007).
14
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).

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§ 4:7.Presence in high crime area as sole factor or..., 11 Fla. Prac., DUI...

15
F.E.A. v. State, 804 So. 2d 528 (Fla. 1st DCA 2002).
16
Rhoden v. State, 941 So. 2d 5 (Fla. 2d DCA 2006).
17
State v. Law, 112 So. 3d 611 (Fla. 3d DCA 2013), review denied, 129 So. 3d 1068 (Fla. 2013).
18
Rhoden v. State, 941 So. 2d 5 (Fla. 2d DCA 2006).
19
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).
20
Sims v. State, 622 So. 2d 180 (Fla. 1st DCA 1993). See also Degnan v. State, 10 Fla. L. Weekly Supp.
991 (Fla. 20th Cir. Ct. Sept 15, 2003)Degnan v. State, 10 Fla. L. Weekly Supp. 991 (Fla. 20th Cir. Ct.
Sept 15, 2003) (no basis for detention where defendant was in a car at 3:40 a.m. with engine running and
lights on in a high crime area, parked next to a business that had previously been burglarized, and drove
away when an officer arrived).
21
Slydell v. State, 792 So. 2d 667 (Fla. 4th DCA 2001). See also Williams v. State, 910 So. 2d 368
(Fla. 5th DCA 2005).
22
Lee v. State, 868 So. 2d 577 (Fla. 4th DCA 2004).
23
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).
24
McMaster v. State, 780 So. 2d 1026 (Fla. 5th DCA 2001). See also Alfonso v. State, 9 Fla. L. Weekly
Supp. 419 (Fla. 5th DCA Cir. Ct. April 5, 2002)Alfonso v. State, 9 Fla. L. Weekly Supp. 419 (Fla. 5th
DCA Cir. Ct. April 5, 2002).
25
Paff v. State, 884 So. 2d 271 (Fla. 2d DCA 2004). See also Hill v. State, 51 So. 3d 649, 651 (Fla. 1st
DCA 2011) (insufficient grounds for stop where defendant was parked at a closed gas station in an area
where there had been several burglaries and suspicious activity, but none that night; defendant entered
his vehicle and drove away “in an unremarkable fashion.”); Doe v. State, 973 So. 2d 682 (Fla. 4th
DCA 2008) (stop was unlawful where vehicle was in an apartment complex parking lot in an area
known for drug deals and drove away as officer approached); Cunningham v. State, 884 So. 2d 1121
(Fla. 2d DCA 2004) (court stressed that it is critical that the evidence show that the driver actually
observed the police before leaving the area).
26
Paff v. State, 884 So. 2d 271, 273 (Fla. 2d DCA 2004).
27
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).
28
State v. Wynn, 948 So. 2d 945, 947 (Fla. 5th DCA 2007).
29
Copeland v. State, 756 So. 2d 180 (Fla. 2d DCA 2000). See also State v. Smith, 850 So. 2d 565 (Fla. 2d
DCA 2003) (Copeland was applied to uphold a stop where the defendant responded to the arrival in a
high drug area of four officers in separate unmarked cars, by walking away from the officers and
forcefully shoving his hand into his pocket).
30
Sinclair v. State, 816 So. 2d 149 (Fla. 1st DCA 2002), review denied, 835 So. 2d 269 (Fla. 2002).
See also J.T. v State, 132 So. 3d 331 (Fla. 4th DCA 2014), review denied, 147 So. 3d 523 (Fla. 2014)
(detention was justified where officers received a dispatch at about 6:35 a.m. that two to three black
males were breaking into an electrical box, a detective in a marked car saw three black males on bicycles
100 feet from the involved residence and they fled; shortly thereafter, about 100 yards from the
residence another officer saw three black males on bicycles, one carrying a black bag which he dropped
upon seeing the officer, and they also fled; officer apprehended the defendant; this took place less than
15 minutes from the time of the dispatch); Parker v. State, 18 So. 3d 555, 558 (Fla. 1st DCA 2008)
(presence in a high crime area is not the only factor that may combine with flight to establish reasonable

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§ 4:7.Presence in high crime area as sole factor or..., 11 Fla. Prac., DUI...

suspicion; report of prowling or other recently committed close-by offense may also be sufficient).
31
Tinson v. State, 650 So. 2d 189 (Fla. 2d DCA 1995). See also Bludsaw v. State, 837 So. 2d 1188,
1190 (Fla. 2d DCA 2003); Ramsey v. State, 766 So. 2d 397 (Fla. 2d DCA 2000); Powell v. State,
649 So. 2d 888 (Fla. 2d DCA 1995) (same ruling for trailer). Compare Saadi v. State, 658 So. 2d 112
(Fla. 2d DCA 1995) (court distinguished Tinson and Powell based on the fact that, unlike those cases, in
Saadi, officers could see movement inside the house suggesting illegal activity).
32
Bartlett v. State, 508 So. 2d 567 (Fla. 2d DCA 1987).
33
State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988) (this opinion goes into detail about suspicion
based on presence in high crime areas and flight and to that extent, is inconsistent with Wardlow). See
also Waddell v. State, 652 So. 2d 917 (Fla. 4th DCA 1995)(deputy’s observation of two African–
American males approaching a vehicle driven by a white male did not establish reasonable suspicion for
a stop); McCreary v. State, 538 So. 2d 1377 (Fla. 1st DCA 1989) (no founded suspicion: two blacks and
two whites in a car with foreign tags, parked in an area known for drug activity); Bartlett v. State, 508
So. 2d 567 (Fla. 2d DCA 1987).
34
Brownstein v. State, 521 So. 2d 371 (Fla. 2d DCA 1988). See also LaFontaine v. State, 749 So. 2d 558
(Fla. 2d DCA 2000) (officer unlawfully stopped white female approached by black males in area known
for drug activity).
35
McCray v. State, 657 So. 2d 1 (Fla. 2d DCA 1994).
36
Ewen v. State, 518 So. 2d 1285 (Fla. 4th DCA 1987), review denied, 528 So. 2d 1881 (Fla. 1988).
37
State v. Renda, 553 So. 2d 373 (Fla. 2d DCA 1989); Piediscalzo v. State, 549 So. 2d 255 (Fla. 2d DCA
1989); Johnson v. State, 537 So. 2d 117 (Fla. 1st DCA 1988); Adams v. State, 523 So. 2d 190 (Fla.
1st DCA 1988).
38
State v. Saums, 633 So. 2d 538 (Fla. 2d DCA 1994).
39
State v. Hankerson, 65 So. 3d 502 (Fla. 2011), as revised on denial of reh’g (June 30, 2011), cert.
denied, 132 S. Ct. 1636, 182 L. Ed. 2d 237 (2012). See also State v. M.R., 100 So. 3d 272 (Fla. 3d DCA
2012).
40
Messer v. State, 609 So. 2d 164 (Fla. 2d DCA 1992). See also Price v. State, 120 So. 3d 198 (Fla. 5th
DCA 2013); Ray v. State, 40 So. 3d 95 (Fla. 4th DCA 2010); Panter v. State, 8 So. 3d 1262 (Fla. 1st
DCA 2009); Santiago v. State, 941 So. 2d 1277 (Fla. 4th DCA 2006); Belsky v. State, 831 So. 2d
803 (Fla. 4th DCA 2002); Ford v. State, 783 So. 2d 284 (Fla. 2d DCA 2001); Bolinger v. State, 576 So.
2d 875 (Fla. 2d DCA 1991).
41
Peabody v. State, 556 So. 2d 826 (Fla. 2d DCA 1990). See also Harris v. State, 761 So. 2d 1186 (Fla.
4th DCA 2000) (picking up pill bottle in narcotics area did not establish grounds for a stop); M.J.S.
v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993) (defendant leaned inside vehicle).
42
Hills v. State, 629 So. 2d 152 (Fla. 1st DCA 1993), review denied, 639 So. 2d 981 (Fla. 1994). See also
Stiffler v. State, 744 So. 2d 1187 (Fla. 2d DCA 1999).
43
Walker v. State, 846 So. 2d 643, 645 (Fla. 2d DCA 2003) (court recognized factors other than an
exchange that would establish reasonable suspicion). See also Ray v. State, 40 So. 3d 95 (Fla. 4th
DCA 2010); Huffman v. State, 937 So. 2d 202 (Fla. 1st DCA 2006).
44
State v. Anderson, 591 So. 2d 611 (Fla. 1992).

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45
Walker v. State, 625 So. 2d 943 (Fla. 4th DCA 1993). See also Hewlett v. State, 599 So. 2d 757 (Fla.
2d DCA 1992).
46
Walker v. State, 625 So. 2d 943 (Fla. 4th DCA 1993).
47
State v. Hankerson, 65 So. 3d 502 (Fla. 2011), as revised on denial of reh’g, (June 30, 2011) and cert.
denied, 132 S. Ct. 1636, 182 L. Ed. 2d 237 (2012).

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§ 4:8.Drug courier profiles, 11 Fla. Prac., DUI Handbook § 4:8 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:8 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:8. Drug courier profiles

West’s Key Number Digest

• West’s Key Number Digest, Arrest 63.5(6)
• West’s Key Number Digest, Automobiles 349(2.1), 349(6), 349(17)

Legal Encyclopedias
• C.J.S., Arrest §§ 38, 40
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

In two cases, the Florida Supreme Court has recognized that the fact that a person matches a drug courier profile
may be sufficient to establish a founded suspicion for an investigatory stop. In Cresswell v. State,1 the Court
upheld the vehicle stop. In State v. Johnson,2 the Court rejected the vehicle stop.

In Cresswell, the officer relied on these facts: (1) the driver was nervous; (2) the driver was driving along a
known drug route; (3) the car had a large trunk; (4) the driver had a Massachusetts driver’s license, but the
vehicle had Maine license plates and New York state insurance and inspection stickers; (5) there was a CB radio
in the car; (6) the ignition key was separate from the other keys; and (7) the back seat contained items normally
found in the trunk. These facts were consistent with a profile that the officer was using. The Court stated that a
trained officer could reasonably suspect that a drug crime was taking place.

In Johnson, the officer relied on these facts: (1) the car was observed on Interstate 95 at 4:15 a.m.; (2) the driver
was alone; (3) the driver was about 30 years old; (4) the car had out-of-state tags; (5) the car was a larger model
type; (6) the driver was male and was wearing casual clothes; (7) the driver was being “overly cautious” by
driving the speed limit; and (8) the highway was a known drug corridor. These facts were consistent with a
profile that the officer was using. The Court found that this profile was insufficient to sustain a stop. 3

These opinions are somewhat confusing, but two principles can be derived from the cases: (1) based on the
totality of the circumstances, matching a profile may be sufficient to establish a reasonable suspicion, if the
elements of the profile constitute articulable facts sufficient to establish reasonable suspicion of criminal
activity; (2) the detention cannot be based solely on nondistinguishing personal physical characteristics typical
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§ 4:8.Drug courier profiles, 11 Fla. Prac., DUI Handbook § 4:8 (2018-2019 ed.)

of a class of people, such as age, race, ethnicity, religious background, or sex, rather than an individual’s
specific conduct. These principles are consistent with the ruling of the United States Supreme Court in United
States v. Sokolow.4

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Cresswell v. State, 564 So. 2d 480 (Fla. 1990).
2
State v. Johnson, 561 So. 2d 1139, 37 A.L.R.5th 743 (Fla. 1990).
3
In Johnson, 561 So. 2d at 1143, the court said that this profile “described conduct that was entirely
unremarkable and completely lawful … [T]he elements of [the] profile do not suggest concealed
criminal conduct … What we require today is that there must be a strong and articulable link—a
‘rational inference’—between the sequence of acts observed by the police and the concealed criminal
conduct believed to exist, whether or not this sequence is described as a ‘profile.’ ” See also State v.
Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015) (Court
considered the Johnson opinion and noted: “The innocent factors within the profile failed to create a
reasonable suspicion.”); Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001); State v. Joy, 637
So. 2d 946 (Fla. 3d DCA 1994).
4
U.S. v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

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§ 4:9.Application of standards for investigatory stops to..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 4:9 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:9. Application of standards for investigatory stops to driving ability or behavior

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6) to 349(8)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Officers frequently stop drivers based on probable cause that they have committed a traffic infraction and then
develop reasonable suspicion for a DUI investigation. Consequently, the officer often discovers grounds for a
DUI arrest after the stop. There is disagreement as to whether the initial stop can be based on only reasonable
suspicion for a traffic infraction rather than probable cause. Some courts have ruled that stops based solely on
reasonable suspicion of an infraction are improper. 1 Others have specifically stated that a stop can be based on
probable cause for a traffic infraction or reasonable suspicion for a crime. 2 And the statutory Stop and Frisk Law
speaks strictly in terms of reasonable suspicion to believe that a person is committing, has committed, or is
about to commit a crime or a violation of a criminal ordinance.3

Nevertheless, a significant number of Florida cases hold that such stops are proper. An officer may make a stop
if that officer has reasonable suspicion of speeding based on the officer’s “visual or aural perception.” 4 In
Department of Highway Safety and Motor Vehicles v. Roberts,5 the court agreed with this principle, but required
more details from the officer to meet the reasonable suspicion standard. The court found that the facts did not
support an investigatory stop because there were “little or no specifics about the officer’s vantage point when he
reached the conclusion that Respondent was speeding.” 6 But in the recent case of Gallardo v. State,7 the court
held that the stop was valid based on reasonable suspicion of speeding and clarified its decision in Roberts.8 The
court explained:
Roberts does not stand for the proposition that an officer’s visual observation of speeding,
uncorroborated by speed detection equipment, is insufficient to justify a traffic stop. Rather, the
Roberts opinion focused on the dearth of evidence regarding the circumstances surrounding the
stop. In the present case, by contrast, Deputy Tucker testified in substantial detail as to her
vantage point and her opportunity to observe Gallardo driving at an excessive speed. 9

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Several other courts have reached the same conclusion as to other traffic infractions. 10 And in State v. Frierson,11
the Florida Supreme writes: “[A] stop for the violation of motor vehicle laws is similar to the investigative
detention in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and may be made when there
is founded suspicion.” (emphasis added) Again, in Hilton v. State,12 the Court says, referring to a windshield
crack: “if the crack as it existed and as it was observed by the officers would have created an objectively
reasonable suspicion that Hilton’s vehicle was unsafe in violation of section 316.610, then the stop would be
valid.” (emphasis added).

The view that a stop for infractions can be based only on probable cause may stem from interpretations of the
decision in Whren v. United States.13 In Whren, the Court ruled that an officer who has probable cause for a
traffic infraction based on objective considerations, may lawfully stop the vehicle even though the officer has
some motive other than enforcing the traffic code. 14 Many decisions have relied on Whren in support of the
proposition that a lawful vehicle stop can be made based on probable cause to believe that the driver has
committed a traffic infraction.15 But the U.S. Supreme Court did not address the issue of whether a stop for a
traffic infraction could be based on reasonable suspicion. In fact, many federal and state courts have ruled that
Whren16 did not alter the principle that an officer may make a stop based on reasonable suspicion of a traffic
infraction.17 And recently, in Heien v. North Carolina,18 the U.S. Supreme Court ruled that an officer can make a
stop for a defective brake light based on reasonable suspicion, even if the stop results from an objectively
reasonable misunderstanding of the law.

The impact of the Heien19 decision is illustrated by Edwards v. Dep’t of Highway Safety & Motor Vehicles.20
There, two of three judges agreed that a trooper had reasonable suspicion to stop a suspect for making an
improper right turn in violation of Fla. Stat. § 316.151(1)(a). The trooper saw the driver make a wide turn and
believed that the statute required the driver to go into the first immediate lane of travel when completing a right
turn.21 But the statute only requires that the right turn be made as “close as practicable to the right-hand curb or
edge of the roadway”22 and the officer could not remember whether there was any traffic. Two judges relied on
Heien23 to uphold the stop, finding that the trooper’s belief that making a wide turn violated the statute even
without evidence as to whether it was practicable to turn into the right lane, was an objectively reasonable
mistake of law.24 The dissenting judge, who wrote a very thorough and detailed opinion, found that the mistake
was not objectively reasonable because the statute unambiguously required proof that it was practicable to turn
into the right lane.25

Regardless of the language of the Stop and Frisk Law, it is clear that an officer can stop a motor vehicle based
on observations indicating that there is a problem with the driver or the vehicle. “[A] stop is permitted even
without a traffic violation, so long as the stop is supported by a reasonable suspicion of impairment, unfitness or
vehicle defects.”26 Bailey v. State27 is the leading case on that point. In Bailey, the Court said: “Because of the
dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle
by a patrolman to determine the reason for its unusual operation.” 28 Based on this principle, the Court found that
it was proper for an officer to stop a vehicle because it was going 45 m.p.h. and weaving within its lane. The
Court noted that the officer observed nothing indicating a traffic violation or commission of a crime. 29

The decision in Bailey30 became the foundation for the important opinion in Dep’t of Highway Safety & Motor
Vehicles v. DeShong.31 There the court ruled that it was proper for a deputy to stop a vehicle because the driver
seemed to be using the lane markers to position his car, slowed abruptly from 55 to 30 m.p.h., and then sped up
rapidly. The deputy stopped the car because he thought that the driver was either impaired or the vehicle was
malfunctioning. In DeShong, the court found:
[e]rratic driving similar to that involved in this case has been held sufficient to establish a founded
suspicion and to validate a DUI stop. . . . Driving behavior need not reach the level of a traffic
violation in order to justify a DUI stop. . . . The courts of this state have recognized that a
legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to
determine whether a driver is ill, tired, or driving under the influence in situations less suspicious

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§ 4:9.Application of standards for investigatory stops to..., 11 Fla. Prac., DUI...

than that required for other types of criminal behavior.32

While the principle set forth in Bailey33 and DeShong34 permits stops for unusual driving, it does not open the
door to detention for every instance of unexpected conduct. Thus, moving from the far left-hand lane without
warning over a solid white line into the right lane without a turn signal, speeding up and then driving slowly,
was insufficient for a stop where no other vehicles were endangered. 35 Driving 15 m.p.h. in a 45 m.p.h. zone for
2/10 of a mile did not establish reasonable suspicion of impairment. 36 Sitting at a railroad crossing for 10
seconds where no train was passing and officer didn’t know whether a train had just gone through did not
justify an investigatory stop.37 Also, sitting at a flashing red light for 41 seconds followed by driving safely
through an intersection did not create a reasonable safety concern under Bailey. 38

The decision of the Second District Court of Appeal in Crooks v. State39 has been construed by some as a
departure from the court’s ruling in DeShong.40 In Crooks, officers observed the vehicle cross over the right-
hand line of the roadway three times. An officer stopped the defendant for violating § 316.089(1), Fla. Stat.,
which requires that a driver operate a vehicle “as nearly as practicable entirely within a single lane,” 41 and that a
driver not move from the lane until the driver has determined that the vehicle can move safely from the lane.
The trial court found that the stop was proper. The appellate court disagreed because the evidence was
insufficient to support a violation of the statute.

The Crooks decision has been clarified. In State v. Davidson,42 the Second District Court of Appeal made its
position clear. There an officer saw a vehicle traveling between 40 and 48 m.p.h. on a highway with a
maximum speed limit of 70 m.p.h. The vehicle continually drifted across the lane and then jerked back in the
opposite direction. The officer said he stopped the defendant because these actions were indicative of an
impaired driver, and he knew something was wrong because people don’t normally drive that way. The trial
judge granted a motion to suppress. On appeal, the court reversed. The Davidson court relied upon the
previously quoted language from DeShong43 and Bailey44 recognizing the legitimacy of a stop to investigate
unusual driving behavior.45 The court distinguished Crooks46 based on the fact that the deputy in that case did not
think the defendant was in any way impaired and the law enforcement personnel in Crooks caused the
defendant to drift over the line. 47 This important distinction is made even clearer by Judge Altenbernd’s
concurring opinion in Harrington v. Dep’t of Highway Safety & Motor Vehicles.48 Judge Altenbernd authored
the opinion in Crooks.49 For that reason, it is appropriate to pay particular attention to this concurring opinion:
A headnote to [the Crooks] opinion overstates and oversimplifies the holding in the case[.] Mr.
Crooks was not stopped on suspicion of driving under the influence when he was weaving in his
lane or otherwise driving in a fashion that suggested he was impaired…. No officer in Crooks
suggested that he or she believed that Mr. Crooks might be intoxicated or otherwise impaired. I do
not regard Crooks as even persuasive precedent in a case where an officer stops a car late at night
because the driver is weaving in a lane and there is no basis to believe that the driver is avoiding
other traffic. Even when a vehicle manages to stay within a single lane, there are patterns of
driving that an experienced officer may rely upon to establish reasonable suspicion that the driver
is impaired. That suspicion allows the officer to conduct a brief traffic stop to determine whether
the officer has probable cause to arrest the driver for DUI.50

As Davidson51 suggests, for an investigatory stop to be lawful when based on unusual driving falling short of a
traffic violation, it is important for the officer to articulate both the facts and the conclusions that the officer
drew from those facts. Thus, in Dobrin v. Dep’t of Highway Safety & Motor Vehicles,52 where there was such
driving, the Court upheld the circuit court’s order finding the stop unlawful because the officers report “did not
indicate that impairment was the reason for the stop.”53

The foregoing cases, and those discussed hereafter, make it clear that unusual driving “may or may not establish
reasonable suspicion for a traffic stop.” 54 In applying these principles, it is important to recognize the proper

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§ 4:9.Application of standards for investigatory stops to..., 11 Fla. Prac., DUI...

standard. In Weiss v. State,55 the court concluded that there was substantial evidence to support suppression in
the county court where the evidence showed that the defendant was weaving from one lane to another at 3 a.m.
and the officer testified that she stopped the vehicle because “the driver ‘could possibly be under the influence
of—she could possibly be sick. You know, there were numerous other things that could be going on.’” 56 The
trial judge granted the motion to suppress because the officer did not specifically suspect DUI and there was no
one else on the road.57 The circuit court reversed. On review, the district court ruled that the circuit court
reversed based on the wrong standard, concluding that there was substantial competent evidence to support the
traffic stop, rather than addressing whether there was substantial competent evidence to support the county
court’s ruling.58

As these decisions clearly indicate, the officer’s impressions are a significant factor. Indeed, in State v. Bean,59
where the officer observed a car continually drifting in and out of its lane and nearly hitting the curb, “[t]he
decisive factor … [supporting the validity of the investigatory stop was] that the police officer who made the
stop testified that, based upon her training and experience, the driver’s behavior was consistent with someone
who was impaired.”60 Similarly, in Bourcier v. Dep’t of Highway Safety & Motor Vehicles,61 the deputy’s
experience and training was controlling. The deputy traveled two car lengths behind the vehicle for five to 10
minutes and observed the vehicle weaving within its lane on four occasions by twice crossing the white line on
the right by about eight to 12 inches and twice crossing the yellow lane marker to the left by about four inches.
Unlike the situation in Dobrin,62 based on the deputy’s experience and training the deputy concluded that the
driver might be sick, injured, or tired. Thus, the court found that the deputy had an objectively reasonable basis
for the stop.63

However, in Patel v. Dep’t of Highway Safety & Motor Vehicles,64 the court specifically rejected the position
that the officer must articulate the basis for the stop. The court said:

Dobrin is sometimes misunderstood as requiring an express statement by the officer that he

suspected that the driver was ill, tired, impaired, etc. Although the Supreme Court noted that the
lack of such a statement was one basis for the lower court’s ruling, this was not the holding of the
case, but merely dicta, and does not stand for the proposition that the record must contain
evidence of the officer’s reason for the stop. See Dobrin at 1174. To require such would be
contrary to the Whren and Holland objective standard since a subjective standard would have to
be applied to consider an officer’s reason for stopping a particular vehicle.

Similarly, in Dep’t of Highway Safety & Motor Vehicles v. Jones,65 the court said, “[i]f … ‘the facts contained in
the arrest report provide any objective basis to justify the stop, even if it is not the same basis stated by the
officer, the stop is constitutional.’ Department of Highway Safety and Motor Vehicles v. Utley, 930 So. 2d 698
(Fla. 1st DCA 2006).” Additionally, in State v. Perez–Garcia,66 the court concluded: “an officer’s state of mind,
motivation, or subjective intent plays no role in the ordinary probable cause analysis under the Fourth
Amendment or Art. I, section 12 of the Florida Constitution.” So to, in State v. Bahouth,67 the trial judge seemed
wary of the emphasis on this factor. In that case, the defendant made a turn without signaling and crossed the
center line three times. Despite the officer’s testimony that he wanted to make sure the defendant was not ill,
tired, or impaired, the trial judge found that the stop was unlawful because the officer had given different
reasons for the stop in an administrative proceeding. Also, the judge observed: “Every police officer knows that
those are in fact the ‘key buzz words’ [as noted by the prosecutor]. In virtually every case the officer testifies
that he was concerned that the driver was sick, injured, or impaired.”68

As in DeShong, many such stops are in some way related to the officer’s suspicion that the driver is driving
while impaired by alcohol and drugs. Thus, a trooper had reasonable suspicion for a stop where the defendant
was seen at 2 a.m. driving his car from the extreme right side of the road to the extreme left side of the road
about five times for about a quarter of a mile.69 Similarly, the court concluded that a trooper lawfully stopped the
defendant’s vehicle because it was going about 45 m.p.h. on an interstate and weaving within its lane for about
a half a mile.70 The court found that this manner of operation was consistent with DUI or falling asleep at the

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wheel.71 One trial judge recognized some of the indicia of DUI not rising to the level of a traffic violation. 72
They included slow driving, multiple lane changes, and erratic driving.73

Furthermore, an officer need not necessarily observe the unusual driving behavior for any particular time or
distance.74 Thus, an officer had reasonable suspicion for a stop where he observed the defendant hit the curb
with the front and back tires of his truck, speed up, and then abruptly stop in quick succession. The officer could
not and was not required to observe the defendant for an extended period or distance before stopping him.
However, there does seem to be a general theme in the cases dealing with erratic and unusual driving. “The
critical factors … revolved around the length of time of the officer’s observation, and whether the driver’s
actions endangered others.”75 “Generally … the driving must have been observed for a sufficient period of time
to support the conclusion of the police that the driving was not just an isolated incident but was approaching a
pattern of unusual driving.”76 But in Jacobson v. State77 the court ruled that the officer had reasonable suspicion
for a DUI investigation even though the officer witnessed no improper or erratic driving. The reason for the stop
was the officer’s observations of the defendant in an intoxicated condition a little over an hour before the
driving. Based on the officer’s training and experience, he knew the defendant could not sober up in that time.

Since actual physical control of a vehicle while impaired by alcohol is sufficient for a charge, reasonable
suspicion of such conduct should justify an investigatory detention. However, in Danielewicz v. State,78 the
court emphasized that conduct consistent with innocent behavior is not sufficient for a stop. At 1:30 a.m. the
officer in that case was in the parking lot of a restaurant and bar. The bar was open. The officer observed the
defendant’s car lawfully parked in the parking lot near the rear of the business, with the headlights on and the
engine running. The officer saw water condensing on the car windows from the air conditioner. He saw the
defendant in the driver’s seat. She appeared to be asleep. The officer knocked on the car window. The defendant
looked at the officer, but did not unlock the door and exit until the officer told her five times to do so. On
appeal, the court ruled that this was an unlawful investigative stop leading to a DUI arrest. The officer did not
express any concern for the defendant’s health. The defendant’s actions “were susceptible of being interpreted
as innocent conduct; therefore, [the officer] needed additional factors before he could validly stop her.” 79 It
should be noted, however, that in Illinois v. Wardlow,80 the Court suggests where conduct is subject to both an
innocent and criminal inference, the officer may detain the individual to resolve the ambiguity. Furthermore,
other courts have ruled that innocent conduct may form the basis for reasonable suspicion under appropriate
circumstances.81 The Florida Supreme Court’s recent decision in State v. Teamer82 suggests that innocence or
guilt is not the point; rather it is “‘the degree of suspicion that attaches to particular types of noncriminal acts.’”

The courts have distinguished Danielewicz. 83 In State v. Jimoh,84 deputies saw the defendant sitting in the
driver’s seat of her car in the parking lot of a convenience store with the engine running and the headlights on.
She seemed to be asleep or looking down at her telephone and had been there for 10 to 15 minutes. Despite two
deputies banging on the car roof and doors, she would not awaken. Through the partially opened driver’s
window a deputy could smell alcohol coming from the vehicle. Finally, a deputy reached into the vehicle, shut
off the engine, opened the door, shook the defendant until she woke, and had her exit the vehicle. This led to an
investigation and the defendant’s arrest for DUI. The court held that Danielewicz 85 did not require suppression
because in Jimoh86 the officers had reasonable suspicion for a DUI investigation before they had the defendant
exit the vehicle.

Many other courts have found the facts sufficient under different circumstances to establish a reasonable
suspicion for detention where the defendant was discovered in a parked or stopped vehicle. 87 Some of these
cases have considered officers’ safety88 or various applications of the community caretaker doctrine.89

In Gentles v. State,90 the court concluded that a deputy could not properly detain the occupant of a vehicle
parked in an empty mall parking lot because there was no reasonable suspicion of criminal activity. However,
the court recognized that the safety of the deputy could provide grounds for detention independent from
suspicion of criminal activity.91 That would require specific facts justifying an officer’s concern. 92 “Here, there
were no furtive movements, nervous reactions, or any circumstances to warrant a belief that the officer’s safety
was in danger, and no facts showing that the order to shut down the engine was reasonably necessary to protect
the officer’s safety.”93 Thus, the detention could not be sustained based on officer’s safety.

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The community caretaker doctrine includes an emergency aid component evident in many of the cases cited in
this section that distinguishes Danielewicz. 94 In State v. Perez,95 the court recognized that difference and upheld
the detention based on the “emergency aid exception of the community caretaker doctrine.” Unlike
Danielewicz,96 in Perez the defendant was not legally in a parking space, but was slumped over the steering
wheel of a vehicle near a gas station fuel pump with the engine running. 97 Furthermore, the door to the car was
not locked nor did the officer repeatedly ask the defendant to exit. 98 Additionally, the officer specifically said
that he was concerned about the driver’s health. 99 In finding this detention lawful, Perez 100 recognized these three
parts to the emergency aid exception: (1) there was “an objectively reasonable basis for a belief in the
immediate need for police assistance for the protection of life or property”; (2) “the officer’s actions [were]
motivated by an intent to aid or protect, rather than solve a crime”; and (3) “the police actions fall within the
scope of the emergency.”101 Also, in Lozano v. Dep’t of Highway Safety & Motor Vehicles, 102 the court upheld a
stop by an emergency rescue team because they observed driving that created a reasonable suspicion of a
medical emergency.

The medical emergency element of community caretaking as grounds for entry into a vehicle was specifically
recognized by the Fourth District in Vitale v. State. 103 In that case, officers received an anonymous tip that a
driver was slumped over the wheel of a car parked in front of a convenience store with the engine running.
Shortly after they received the tip, officers arrived and observed the sole occupant of the vehicle “‘excessively’”
slumped over the wheel. He did not appear to be asleep, but rather, he seemed to be passed out. An officer
opened the door to help the driver and to turn off the car, but the driver wouldn’t react. As a result of this
contact, the officer discovered cocaine. On appeal, the court ruled that the officer properly entered the vehicle
because the officer had an objectively reasonable basis for concluding that there was a medical emergency and
the driver required immediate aid.104

The result was different in the recent case of Gentles v. State. 105 There an officer observed the defendant asleep
in a car with the engine running parked in a mall parking lot at 4:15 a.m. The officer made contact with the
defendant because he was concerned that he might be injured or sick. After he awakened the defendant, he told
him to turn off the engine. The court concluded that this constituted a detention. 106 While recognizing that the
community caretaking function could justify such a contact, the court ruled that it would not justify the
detention in this instance because “the record is devoid of facts showing that the officer’s instruction to shut off
the car was reasonably based on concerns for the defendant’s safety or was necessary to determine if he needed
any aid or assistance …. The order to shut off the car was given after the defendant was awakened and before
the officer had developed any facts indicating whether the defendant was in difficulty or distress.” 107 (Emphasis
by court.)

The district courts have also considered the community caretaking function in other situations. Three such cases
are Castella v. State,108 Shively v. State,109 and Majors v. State.110 In Castella v. State,111 a BUI case, citizens told
deputies that there had been a boating accident with injuries and the defendant’s boat had been involved.
Although they did not provide sufficient facts for an investigatory stop, the detention of the defendant and his
boat was permissible pursuant to the community caretaking doctrine. 112 The court recognized that the doctrine
typically applies to warrantless inventory searches of motor vehicles “that are creating a danger, nuisance, or
invitation to vandalism”;113 however, it could also apply “to the stop of a boat without reasonable suspicion for
purposes of gathering information to provide assistance to those affected by a potentially life-threatening
accident.”114 The court concluded that deputies were justified in stopping the boat “to obtain any information
they could about the accident, its location, and its aftermath in order both to rescue the injured and to protect the
general public from dangers resulting from the damaged vessel.”115

In Shively,116 the court held that detention by directing a driver to pull over next to the wall of a parking garage
was justified by the community caretaker function where the driver tried unsuccessfully to get the token into a
device to exit a parking garage, the garage attendant asked for help, and traffic exiting the garage was blocked.
On the other hand, in Majors v. State, 117 the court commented: “Even a stop pursuant to an officer’s caretaking
responsibilities … must be based on specific articulable facts showing that the stop was necessary for the
protection of the public.”118 The court concluded that the State failed to meet that test in this case where officers

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stopped a car because a bank manager had reported strange behavior by a customer and others in a car creating
the impression that occupants of the car might be forcing the customer to withdraw money from the bank. 119

Public welfare or concerns for public safety have also justified stops for tire problems. In State v. Paul, 120 the
court held that an officer reasonably stopped a vehicle because it was being driven on an interstate with two flat
tires. As another car attempted to pass, the car with the flat tires swerved forcing the passing car off the road.
The officer said he stopped the vehicle for safety reasons.121

The application of the medical emergency or community caretaking doctrine to a motor vehicle stop resulting
ultimately in a DUI arrest is certainly consistent with the legal doctrine established in Bailey v. State122 and
Dep’t of Highway Safety & Motor Vehicles v. DeShong.123 As pointed out earlier in this section, these cases, and
those that have followed them, hold that officers may stop vehicles based on factors indicating that the driver
may be ill, tired, or impaired. Many cases at every level of Florida’s court system rule both ways in such
situations. The subject comes up with such frequency and is so important that many of these cases are collected
here and described briefly.124

There have been other instances where officers have stopped vehicles based on problems with the vehicle
unrelated to a belief that the operator was impaired by alcohol. Thus, it was lawful for an officer to stop a
vehicle because he could not see the license tag 125 or read the expiration date.126 In English v. State,127 the
Supreme Court resolved a conflict among the district courts as to whether an obstruction that was not on the tag
itself violated state law. The Court ruled that any obstructing object, whether actually on the tag or not, was
grounds for a stop.128

Where the expiration date on a temporary tag was obscured because the tag was inside a tinted window, it was
proper for an officer to approach the vehicle to look at the tag. 129 Similarly, the officer could lawfully stop a car
because the tag did not match the vehicle. 130 And when the officer checked the tag number of a vehicle on her
car’s computer system and got a report of “ ‘no record found,’ ” she could lawfully stop the vehicle to
determine the status of the registration.131

However, in such cases, once the officer verifies the validity of the tag, the officer can “lawfully make personal
contact with [the driver] only to explain to him [or her] the reason for the initial stop.” 132 The officer may not
detain the individual for any other reason without independent grounds. 133 The fact that the officer immediately
recognized the driver as being the subject of an outstanding warrant, constituted such independent grounds. 134
Also, evidence discovered as a result of an officer’s detection of the odor of marijuana when the driver opened
the window in response to the officer’s improper request for identification was admissible, because the odor
would have been inevitably detected when the driver opened the window for the officer to explain the purpose
of the stop.135 The officer lawfully stopped the vehicle because he could not see the tag. 136 Upon seeing a
temporary tag, the officer still had the right to ask the driver to roll down his window for the officer to explain
the stop.137 Upon detecting the odor of marijuana, the officer lawfully detained the occupants despite the fact that
he improperly asked for identification when the driver rolled the window down.138

A related issue came up in two conflicting cases. The question was whether officers lawfully detained an
individual based solely on a discrepancy between the vehicle’s color reflected on the registration and the
vehicle’s actual color. The Fourth District ruled that such a stop was valid. 139 The First District disagreed.140 In
State v. Teamer,141 the Florida Supreme Court agreed with the First District. The Court concluded that the stop
was improper because it was based on “one completely noncriminal factor, not several incidents of innocent
activity combining under a totality of circumstances to arouse a reasonable suspicion[.]” And even though the
situation was ambiguous, any detention to resolve the ambiguity cannot be based on a mere suspicion—it must
be based on a reasonable suspicion.142

Officers also commonly stop individuals because of concerns about the status of their licenses. Unusual
behavior by vehicle occupants may be sufficient to justify such an investigatory stop. That was the conclusion
in Tubbs v. State,143 where the driver responded to a marked police car appearing behind him by swerving off the
road and stopping, exchanging places with the passenger, and furtively glancing back at the patrol car. “If a

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Terry-type stop is not justified on these facts, enforcement of statutes relating to driver’s licenses will only be
possible ancillary to investigation of other traffic infractions, accidents, and perhaps roadblocks or the like.” 144

The officer’s knowledge of a driver’s licensing history may also be the basis for an investigatory stop. Thus,
where an officer knew the defendant “all his life” and had previously cited him for having an expired license,
the officer lawfully stopped him for driving two to seven days after the citation was issued. 145 In another case,
the court reached the same conclusion concerning a suspended license. 146 In that case, the officer knew that the
defendant’s license had been suspended at least four or five weeks before the time when the officer saw the
defendant driving. The court found that this knowledge gave rise to at least reasonable suspicion. In such cases,
the prior knowledge that the suspect’s license was suspended must be sufficiently recent to raise a reasonable
suspicion.147 If the information is too old, it is considered stale.

That was the situation in Moody v. State.148 There the defendant was stopped based on an officer’s knowledge
that perhaps three years before the stop the defendant’s license was suspended. The officer knew that the
defendant had been in prison some time before the stop, but he did not know exactly when the defendant was in
prison, for how long, or when he was released. Furthermore, the defendant’s license suspension was not for a
fixed period, and the defendant could have gotten a valid license within a few days. Thus, the officer did not
have fresh knowledge concerning the status of the defendant’s driver’s license at the time of the stop, and the
stop was illegal.

The court considered a different license problem where the officer determined that the registered owner did not
have a valid license.149 Although the officer did not know whether the registered owner was driving, the court
found that the officer had sufficient grounds for a stop. Several courts took the same position where a computer
check revealed that a vehicle owner’s license was suspended. 150 The court reached the same conclusion in a
similar case151 where a probation officer told a police officer that the defendant had been driving on a suspended
license in violation of his community control, and the officer saw a man he could not identify driving a vehicle
owned by a woman who resided with the defendant. The officer confirmed that the defendant’s license was still
suspended. The officer drove by the defendant’s residence, saw the vehicle pull away and engage in evasive
actions.

Another license issue arose where an officer knew a driver had a restricted license that allowed him to drive for
business purposes only.152 It was proper for an officer who learned about this restricted license from another
officer in a BOLO to stop the defendant, because he was driving at a time and location inconsistent with the
restrictions.153

Owners of vehicles are required to have proof of insurance. As in licensing cases, an officer may learn that the
owner has failed to comply with this requirement. That was the case in Simpson v. State.154 When an officer ran
the tag of a passing car, he learned that the female registered owner had a suspended license for failure to
maintain insurance. The officer made a stop to check the insurance status, but he knew before the stop that the
driver was male. It turned out the driver had a revoked license. On appeal, the court ruled there was no objective
basis for concluding the driver was operating the vehicle without insurance and, therefore, the stop was illegal. 155

Suspected equipment problems have also been the basis for stops. Thus, an officer lawfully stopped the
defendant who was driving a car with four mismatched wheels, each held on by a single lug nut. 156 Based on
observation of dark windows, deputy had reasonable suspicion of a violation of the window tinting statute and
lawfully stopped the vehicle.157 Where a taillight lens was broken and emitted a white light, it created a hazard
justifying a stop.158 Similarly, the court ruled that an inoperative left brake light created an unsafe condition and
justified a stop.159 Another district court160 rejected that position based on the Supreme Court decision in Hilton
v. State161 which is discussed in detail hereafter. The court recognized that Hilton requires that the defective
equipment either violate a statute mandating such equipment to be in working order or endanger person or
property.162

The subject of defective equipment was squarely addressed by the Florida Supreme Court in Doctor v. State163
where the Court recognized restrictions on equipment stops. In Doctor, an officer stopped a vehicle because it

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had a cracked rear reflector. The officer believed that it violated the law, but in fact, it did not violate any law.
The Court held that a reasonable officer would have known there was no violation; therefore, the stop was
improper. The Court also addressed the State’s contention that, pursuant to § 316.610, Fla. Stat., an officer can
stop a vehicle for any equipment malfunction even if it does not violate any statute, pose a safety hazard, or
otherwise violate the law. The Court rejected that contention. 164 “Such an interpretation … would allow police to
stop vehicles for malfunctioning air conditioners or even defective radios, a result clearly beyond the statute’s
intended purpose of ensuring the safe condition of vehicles operating on our state’s streets and highways.” 165

Notwithstanding the decision in Doctor v. State,166 in Hilton v. State,167 the court ruled that Florida Statutes
permit an officer who sees a crack in a windshield to stop the vehicle regardless of the size of the crack or any
indication that it creates “any immediate hazard.” The court observed that the decision in Doctor168 predates
Whren v. United States169 and also found that Doctor was factually distinguishable. There was a strong
dissenting opinion in Hilton. In State v. Burke,170 the court disagreed with Hilton, concluding that officers could
not stop a vehicle based solely on a crack in a windshield without any indication that it was unsafe, adopted the
dissenting opinion in Hilton, and concluded that Doctor is still good law.

In Hilton v. State,171 the Florida Supreme Court resolved the conflict between the district courts dealing with
cracked windshields as grounds for stops and confirmed the viability of the rule established in Doctor.172 The
Court quashed the en banc decision of the Second District in Hilton,173 rejected its analysis, and concurred with
the dissenting opinion. The Court ruled that:
A law enforcement officer may [not] stop a vehicle for a windshield crack on the basis that the
crack renders the windshield ‘not in proper adjustment or repair’ under section 310.610 …. [A]
cracked windshield violates section 316.610 only if it renders the vehicle in “such unsafe
condition as to endanger any person or property.”174

Accordingly, in Hilton175 the Supreme Court examined the record to determine whether the State met the burden
recognized in Doctor.176 Specifically, the Court decided the case based on this idea:
[E]ven though [the officers] may have been mistaken in the belief that they could stop Hilton for
the mere existence of a windshield crack, if the crack as it existed and as it was observed by the
officers would have created an objectively reasonable suspicion that Hilton’s vehicle was unsafe
in violation of section 316.610 then the stop would be valid.177

The Court concluded that the record did not sustain an objectively reasonable suspicion that the windshield was
unsafe because: (1) “there was virtually no testimony as to the location or the nature of the crack;” (2) an officer
acknowledged that no glass was falling from the crack and he was not sure whether the crack would obstruct a
driver’s view; and, (3) the trial judge made no findings and reached no conclusions as to whether the windshield
was unsafe.178

Occasionally, in traffic situations, an individual may be subjected to successive stops. One court has developed
special rules for such contacts. In State v. Reynolds,179 a three-judge circuit court appellate panel described those
rules. In that case, the officer observed sufficient facts to establish at least reasonable suspicion for DUI just
after the defendant exited a restaurant. 180 The officer talked to her for twenty minutes and convinced her to get
out of the car and return to the restaurant. Twenty minutes later the officer saw her get in her vehicle and put the
car in reverse. He told the defendant to exit her vehicle, had her perform field sobriety exercises, and arrested
her for DUI. In reversing an order of suppression, the court found both stops lawful.

Reynolds181 is particularly valuable because the court clearly presents the rules that control these situations.
There are two ways that the facts will support reasonable suspicion for successive stops. First, the facts
supporting each stop independently provide reasonable suspicion for that particular stop. For instance, as a
result of the first investigation the officer’s reasonable suspicion is dissipated, and new facts arise to support the

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second stop.182 Second, the facts supporting reasonable suspicion for the first stop are not sufficiently explained
to dissipate the reasonable suspicion for the first stop, and those facts combine with less suspicious facts to
establish reasonable suspicion for the second stop.183 This second principle justified the second stop in
Reynolds.184 The court in Reynolds185 also noted that an investigative stop may become a de facto arrest where
the intrusion upon the individual’s liberty is unreasonable, but that was not the case in Reynolds.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991). See also Hatcher v. State, 834 So. 2d 314 (Fla. 5th
DCA 2003); State v. Villegas, 17 Fla. L. Weekly Supp. 25 (Fla. Leon Cty. Ct. Oct. 30, 2009)
(reasonable suspicion of expired tag not sufficient; probable cause is required, and where officer stopped
vehicle on December 19, 2008, the tag showed that it expired in December, but there was no evidence
that officer determined the exact date that tag expired before stopping car; State’s argument that since
there was only twelve days in the month remaining, it was more likely than not that the tag was expired,
may have been an argument for reasonable suspicion, but not probable cause); State v. Harr, 11 Fla. L.
Weekly Supp. 44 (Fla. Volusia Cty. Ct. Aug. 5, 2003) (officer could not detain an individual based on
reasonable suspicion of a violation of § 316.3045, Fla. Stat., noise violation, a traffic infraction).
2
Baden v. State, 174 So.3d 494 (Fla. 4th DCA 2015); Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA 2007);
Jones v. State, 842 So. 2d 889 (Fla. 2d DCA 2003); Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA
2002); State v. Moore, 791 So. 2d 1246 (Fla. 1st DCA 2001); State v. Grismer, 17 Fla. L. Weekly Supp.
947 (Fla. 6th Cir. Ct. April 21, 2010); State v. Clancey, 16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir. Ct.
Aug. 26, 2009); Moser v. State, 16 Fla. L. Weekly Supp. 156 (Fla. 6th Cir. Ct. Sept 25, 2008); State v.
Henderson, 15 Fla. L. Weekly Supp. 370 (Fla. Volusia Cty. Ct. Feb. 22, 2008).
3
§ 901.151, Fla. Stat.
4
State v. Eady, 538 So. 2d 96, 97 (Fla. 3d DCA 1989). See also State v. Allen, 978 So. 2d 254 (Fla. 2d
DCA 2008) (officer may make a traffic stop based on reasonable suspicion that the vehicle is speeding,
but court found that officer had probable cause of speeding based on officer’s observations of vehicle,
including fact that officer had to “‘accelerate quite a bit’” to catch defendant, speed limit was 25 m.p.h.
and officer had to go well over 50 m.p.h. to catch defendant); State v. Joy, 637 So. 2d 946 (Fla. 3d DCA
1994) (based on his observations, officer developed reasonable suspicion defendant was speeding and
could properly follow defendant outside officer’s jurisdiction and make a stop in another jurisdiction);
Thompson v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 58 (Fla. 13th Cir.
Ct. July 1, 2014) (court recognized that an officer can make a stop based on reasonable suspicion of
speeding where one officer determined with a speed measurement instrument that petitioner was driving
50 m.p.h. in a 30 m.p.h. zone and another officer properly made the stop under the fellow officer rule);
Kennedy v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1110 (Fla. 4th Cir. Ct.
August 2, 2012) (stop was lawful based on officer’s visual and aural perception that defendant was
speeding; because officer noted defendant “was traveling at a high rate of speed while passing other
vehicles, a well-founded, articulable suspicion existed that a traffic offense had occurred.”); Carder v.
Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 547 (Fla. 9th Cir. Ct. Sept 4,
2007) (trooper had reasonable suspicion for stop for speeding where he visually estimated speed to be 90
to 95 m.p.h. in a 55 m.p.h. zone and his laser speed measuring device indicated that the speed was 91
m.p.h.); State v. Tharp, 13 Fla. L. Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005) (stop was lawful
based on officer’s opinion defendant was going over 40 m.p.h. above posted speed limit, “‘traveling at a
high rate of speed’;” “[T]he officer, or any lay person, is permitted to testify to an opinion as to whether
a vehicle is speeding.”); Smith v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp.
390 (Fla. 9th Cir. Ct. Feb. 3, 2004) (stop was lawful where officer had reasonable suspicion for speeding
based on stationary radar showing petitioner was traveling 55 m.p.h. in a 45 m.p.h. zone); State v. Hays,
10 Fla. L. Weekly Supp. 989 (Fla. 18th Cir. Ct. Oct. 20, 2003) (stop was proper based on reasonable
suspicion where officer visually estimated defendant was driving 20 m.p.h. over the speed limit and
officer had 20 years of experience; fact that speedometer was not calibrated did not matter); Paras v.
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2000) (deputy had reasonable suspicion for stop; “deputy also ‘pace clocked’ Paras, which is sufficient
to form the reasonable suspicion necessary for a traffic stop”); Cheatham v. Dep’t of Highway Safety &
Motor Vehicles, 7 Fla. L. Weekly Supp. 154 (Fla. 9th Cir. Ct. March 22, 2000) (a well-founded belief
that a motorist is speeding establishes reasonable suspicion for a stop, and proof of the accuracy of the
officer’s speedometer or speed testing device is irrelevant in making this determination); State v.
Bozeman, 19 Fla. L. Weekly Supp. 56 (Fla. Santa Rosa Cty. Ct. Oct. 19, 2011) (officer’s credible
estimate that the vehicle was going 50 to 55 m.p.h. in a 20 m.p.h. zone created a reasonable suspicion
for traffic stop even though it was not supported by radar); State v. Jatz, 16 Fla. L. Weekly Supp. 204
(Fla. Brevard Cty. Ct. Dec. 1, 2008) (officer had reasonable suspicion of unusual operation of vehicle
and speeding based on officer’s visual speed estimate of about 30 m.p.h. over speed limit, followed by
officer’s pace with uncalibrated speedometer showing 75 m.p.h. in a 45 m.p.h. zone, and defendant
passing cruiser on right and fish tailing making a right turn); State v. Picurro, 7 Fla. L. Weekly Supp.
687 (Fla. Palm Beach Cty. Ct. July 24, 2000) (holding that an officer can establish probable cause for
speeding based on officer’s sensory perception). But see State v. Miller, 17 Fla. L. Weekly Supp. 377
(Fla. Duval Cty. Ct. Dec. 16, 2009) (officer improperly made traffic stop for speeding based on estimate
and subsequent pace of the vehicle going 65 m.p.h. in 45 m.p.h. zone and that ultimately led to DUI
arrest; trial judge found no probable cause for traffic stop because there was no evidence that speed
measuring device was properly tested and operated accurately in accord with statutes and administrative
rules, and the officer never testified that he had a suspicion of impairment prior to stop); State v. Sparks,
17 Fla. L. Weekly Supp. 39 (Fla. Palm Beach Cty. Ct. Oct. 15, 2009) (stop was improper where officer
clocked vehicle’s speed with radar doing 53 m.p.h. in a 35 m.p.h. zone, saw vehicle make a wide left
turn on ramp to an interstate, and go over the white line, but officer testified that stop was for speeding,
no other traffic was affected, and the State failed to prove that the radar met some of the requirements
set forth in Section 316.1906(2)); State v. Paolini, 13 Fla. L. Weekly Supp. 607 (Fla. Duval Cty. Ct.
Mar. 15, 2006); State v. Bowery, 13 Fla. L. Supp. 345 (Fla. Duval Cty. Ct. Dec. 5, 2005) (in Paolini and
Bowery, officers relied on radar as the basis for making a traffic stop that lead to a DUI, but as in
Sparks, the State did not establish the statutory foundation for radar; therefore, the trial judges granted
motions to suppress, but in each case, the judges recognized that the officers could have established
probable cause for speeding in other ways “such as speed pacing testimony.”); State v. Adamosky, 11
Fla. L. Weekly Supp. 566 (Fla. Duval Cty. Ct. April 5, 2004) (where officer observed defendant driving
for about five seconds, officer said vehicle was traveling above the posted speed limit, and defendant
struck curb when he stopped, stop was unlawful because officer was not certified to “gauge vehicle
speed by eye contact,” and officer could not estimate speed).
5
Department of Highway Safety and Motor Vehicles v. Roberts, 938 So. 2d 513 (Fla. 5th DCA 2006),
review denied, 946 So. 2d 1069 (Fla. 2006). See also Miller v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 610 (Fla. 4th Cir. Ct. May 7, 2007); Panjevic v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 415 (Fla. 4th Cir. Ct. March 2, 2007).
6
Department of Highway Safety and Motor Vehicles v. Roberts, 938 So. 2d 513, 515 (Fla. 5th DCA
2006), review denied, 946 So. 2d 1069 (Fla. 2006). See also Owens v. Dep’t of Highway Safety &
Motor Vehicles, 21 Fla. L. Weekly Supp. 613 (Fla. 9th Cir. Ct. Feb. 19, 2014) (officer’s statement
petitioner was traveling at a high rate of speed without any information as to the speed limit or how
officer determined the speed, was insufficient to establish reasonable suspicion or probable cause for
speeding); Zambrana v. State, 17 Fla. L. Weekly Supp. 1180 (Fla. 11th Cir. Ct. Oct. 6, 2010) (court
recognized authority to stop based on reasonable suspicion of speeding, but distinguished Eady, Joy, and
Allen; here the officer said at some point the vehicle went over 30 m.p.h. and he had to go about 35
m.p.h. to catch up; but that was insufficient to establish reasonable suspicion because there was no
evidence as to the posted speed limit, sounds indicating excessive speed, dust flying, unusual
acceleration to catch-up, pace-clock results, tires screeching, gears shifting; or even that defendant was
exceeding the speed limit when the officer flashed his light); Katzman v. Dep’t of Highway Safety &
Motor Vehicles, 17 Fla. L. Weekly Supp. 1006 (Fla. 9th Cir. Ct. June 30, 2010) (officer stopped vehicle
for doing 39 m.p.h. in a 25 m.p.h. zone leading to a DUI arrest, but there was nothing before the hearing
officer explaining how the officer determined the speed; officer only needed reasonable suspicion of
speeding, but due to the absence of any articulable facts the burden was not met).
7
Gallardo v. State, 204 So.3d 979 (Fla. 5th DCA 2016).
8
Department of Highway Safety and Motor Vehicles v. Roberts, 938 So. 2d 513 (Fla. 5th DCA 2006),
review denied, 946 So. 2d 1069 (Fla. 2006).

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9
Gallardo v. State, 204 So.3d 979, 980 (Fla. 5th DCA 2016).
10
State v. English, 148 So. 3d 529 (Fla. 5th DCA 2014), decision approved, 191 So.3d 448 (Fla. 2016)
(court recognized that an officer may lawfully stop a vehicle based on reasonable suspicion that an
individual has violated a traffic ordinance or statute where the stop was for driving with an object
obscuring part of the numbers on the tag, which is an infraction); Carter v. State, 120 So. 3d 207 (Fla.
5th DCA 2013) (court recognized that an officer can make a stop based on reasonable suspicion of a
traffic violation, but here the State failed to show that the officer had reasonable suspicion for running a
stop sign because the officer could not recall if he saw it and he did not testify as to what the other
officer told him); State v. Young, 971 So. 2d 968 (Fla. 4th DCA 2008) (court said when defendant ran a
stop sign, officer “had reasonable suspicion to stop the defendant for the traffic infraction.” 971 So. 2d at
971); State v. Sandrin, 25 Fla. L. Weekly Supp. 156 (Fla. 17th Cir. Ct. May 5, 2016) (court reversed
denial of motion to suppress, finding that the stop was lawful based on reasonable suspicion for the
infraction of failing to obey a traffic device where the officer saw vehicle “make a wide turn onto a
roadway, cross the double yellow lane road markings, and drive for a short distance in the eastbound
lane while traveling westbound.”); Edwards v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L.
Weekly Supp. 313 (Fla. 9th Cir. Ct. 2016) (this was a two to one decision, but all three judges agreed
that a stop could be made based on a reasonable suspicion that the suspect had made an improper right
turn in violation of § 316.151(1)(a), Fla. Stat.; they disagreed as to whether the officers had an
objectively reasonable basis for making the stop); Schenck v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 672 (Fla. 9th Cir. Ct. Jan. 12, 2015) (court held officer could made a
stop based on reasonable suspicion of failure to maintain vehicle in a single lane in violation of §
316.089, Fla. Stat. where vehicle quickly approached another vehicle, changed lane without signaling,
drifted within its lane at least five times, swerved to left and crossed over yellow fog line almost striking
raised concrete median twice and then drifted to right causing another vehicle to brake); State v. Jones,
21 Fla L. Weekly Supp. 860 (Fla. 9th Cir. Ct. April 9, 2014) (the fact that the decal was expired
provided reasonable suspicion for a stop); Kupp v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla.
L. Weekly Supp. 741 (Fla. 9th Cir. Ct. June 10, 2013) (trooper had reasonable suspicion for violations of
sections 316.510, which prohibits operating a “‘passenger type vehicle’” with a load “‘extending beyond
the fenders on the left side of the vehicle,’” and more than six inches on the right side, and 812.014(2)
(c)11., dealing with theft of a stop sign, when the officer saw three people in the vehicle and a stop sign
and several street signs in the bed of the truck with the poles from the signs protruding more than six
inches on the left of the vehicle); Robinson v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 641 (Fla. 9th Cir. Ct. March 26, 2013) (even though petitioner may have had a point
concerning placement of a traffic sign, there was evidence she made an illegal left term in violation of
the posted signs and there were several other violations for which the petitioner could have been cited;
the deputy “had reasonable suspicion that Robinson made the improper left turn and committed a traffic
violation under subsection 316.151(1)(b)”); State v. Timmons, 17 Fla. L. Weekly Supp. 261 (Fla. 17th
Cir. Ct. Dec. 22, 2009) (officer may stop vehicle based on well-founded suspicion of a traffic offense;
here, running a traffic light while turning left); Emminger v. State, 16 Fla. L. Weekly Supp. 827 (Fla.
17th Cir. Ct. June 17, 2009) (trial court did not err in finding that an officer had reasonable suspicion to
make a stop for following too closely in violation of § 316.0895, Fla. Stat. and met the statute’s
“reasonable and prudent” standard, where officer testified that defendant approached the officer’s
unmarked car at a high rate of speed and was so close the officer could not see the headlights of
defendant’s vehicle except when both vehicles hit a speed bump); Darcy v. State, 16 Fla. L. Weekly
Supp. 730 (Fla. 17th Cir. Ct. June 16, 2009) (trial court did not err in finding reasonable suspicion for
disobeying a traffic control device in violation of § 316.074(1), Fla. Stat., where officer saw vehicle
drive over solid white line a couple of times in four or five blocks; there was no requirement that other
traffic be affected as is sometimes required for the offense of failure to maintain a single lane); State v.
Galbreath, 18 Fla. L. Weekly Supp. 478 (Fla. Brevard Cty. Ct. March 3, 2011) (patrol car was on the
shoulder with emergency lights on while officer dealt with a disabled vehicle and defendant came by
without moving over one lane, and according to the experienced officer’s visual estimate, defendant was
driving 60 m.p.h. in a 55 m.p.h. zone; officer had reasonable suspicion for a stop to investigate a
violation of § 316.126, Fla. Stat., which requires a vehicle to move over one lane and to reduce speed to
20 m.p.h. below the posted speed limit); State v. Frye, 15 Fla. L. Weekly Supp. 750 (Fla. Brevard Cty.
Ct. April 24, 2008) (officer had reasonable suspicion for careless driving stop in violation of § 316.1925,
Fla. Stat., based on estimate of qualified officer that defendant was going 65 m.p.h. in a 45 m.p.h. zone,
made a sharp turn into an apartment complex, and almost hit a curb).

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11
State v. Frierson, 926 So. 2d 1139, 1142 (Fla. 2006), cert denied, 549 U.S. 1082, 127 S. Ct. 734, 166 L.
Ed. 2d 570 (2006) (the stop was for failure to use a turn signal while turning and having a cracked tail
light).
12
Hilton v. State, 961 So. 2d 284, 295 (Fla. 2007).
13
Whren v. U.S., 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
14
Whren v. U.S., 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). See also State v. Proctor,
161 So. 3d 409 (Fla. 5th DCA 2014); State v. Daniels, 158 So. 3d 629 (Fla. 5th DCA 2014); State v.
Williams, 119 So. 3d 544 (Fla. 1st DCA 2013).
15
State v. Battle, 232 So.3d 493 (Fla. 2d DCA 2017); State v. Nelson, 183 So.3d 1074, 1076 (Fla. 5th
DCA 2015); Baden v. State, 174 So.3d 494 (Fla. 4th DCA 2015); State v. Proctor, 161 So. 3d 409 (Fla.
5th DCA 2014); State v. Daniels, 158 So. 3d 629 (Fla. 5th DCA 2014); State v. Coley, 157 So. 3d 542
(Fla. 1st DCA 2015); State v. Vinci, 146 So. 3d 1255 (Fla. 2d DCA 2014), review denied, 157 So. 3d
1051 (Fla. 2014); Noto v. State, 42 So. 3d 814 (Fla. 4th DCA 2010), review denied, 56 So. 3d 767 (Fla.
2011) and cert. denied, 132 S. Ct. 105, 181 L. Ed. 2d 32 (2011); Beahan v. State, 41 So. 3d 1000 (Fla.
1st DCA 2010); Young v. State, 33 So. 3d 151 (Fla. 4th DCA 2010), review denied, 77 So. 3d 1256
(Fla. 2011); Davison v. State, 15 So. 3d 34 (Fla. 1st DCA 2009); D.A. v. State, 10 So. 3d 674 (Fla. 3d
DCA 2009), review denied, 49 So. 3d 746 (Fla. 2010); State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA
2008); State v. Tullis, 970 So. 2d 912 (Fla. 5th DCA 2007); Langello v. State, 970 So. 2d 491 (Fla. 2d
DCA 2007); Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA 2007); B.H. v. State, 958 So. 2d 536 (Fla. 4th
DCA 2007); State v. Lee, 957 So. 2d 76 (Fla. 5th DCA 2007).
16
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
17
U.S. v. Stewart, 551 F.3d 187 (2d Cir. 2009); U.S. v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006); U.S.
v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000); State v. Johnson, 370 N.C. 32, 803 S.E.2d 137 (2017);
State v. Houghton, 364 Wis.2d 234, 250, 868 N.W.2d 143, 151 (2015); State v. Starr, 222 Ariz. 65, 213
P.3d 214 (Ariz. App. Div. 1 2009), review denied, (Jan. 5, 2010); Com. v. Chase, 599 Pa. 80, 960 A.2d
108 (2008) (court restricted application of reasonable suspicion standard to cases where there is
something left to investigate at the time of the stop); State v. Styles, 362 N.C. 412, 665 S.E.2d 438
(2008); State v. Stoutes, 980 So. 2d 230 (La. Ct. App. 2d Cir. 2008).
18
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
19
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
20
Edwards v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct.
2016).
21
Edwards v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct.
2016).
22
§ 316.151(1)(a), Fla. Stat.
23
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
24
Edwards v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct.
2016).
25
Edwards v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct.
2016).
26
Hurd v. State, 958 So. 2d 600, 603 (Fla. 4th DCA 2007) (citing Esteen v. State, 503 So. 2d 356 (Fla. 5th
DCA 1987); State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999)). See also Baden v. State, 174
So.3d 494 (Fla. 4th DCA 2015).
27
Bailey v. State, 319 So. 2d 22 (Fla. 1975).

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28
Bailey v. State, 319 So. 2d 22, 26 (Fla. 1975).
29
Bailey v. State, 319 So. 2d 22, 26 (Fla. 1975).
30
Bailey v. State, 319 So. 2d 22 (Fla. 1975).
31
State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).
32
State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA
1992). See also Duke v. State, 82 So. 3d 1155, 1158 (Fla. 2d DCA 2012) (“Case law is clear that a
person’s continual drifting across the line and erratic driving can establish reasonable suspicion for an
investigatory stop based on an officer’s legitimate concern for the safety of the motoring public, such as
where the officer believes the person may be impaired, sick, or tired.”); Department of Highway Safety
and Motor Vehicles v. Ivey, 73 So. 3d 877, 880-81 (Fla. 5th DCA 2011) (“Florida courts have
recognized that valid safety concerns can warrant a brief investigative stop by law enforcement officers
to determine whether a driver is intoxicated using a somewhat more relaxed standard than that required
for other crimes.”).
33
Bailey v. State, 319 So. 2d 22 (Fla. 1975).
34
State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).
35
Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA 2007).
36
Petrick v. State, 16 Fla. L. Weekly Supp. 154 (Fla. 6th Cir. Ct. Nov. 20, 2008).
37
Griffin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 17 (Fla. 17th Cir. Ct.
Nov. 4, 2003).
38
Jones v. State, 8 Fla. L. Weekly Supp. 689 (Fla. 11th Cir. Ct. Aug. 9, 2001).
39
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
40
O’Connell v. State, 7 Fla. L. Weekly Supp. 3 (Fla. 6th Cir. Ct. July 23, 1999) (court found stop invalid
where driver weaving within his lane numerous times, driver failed to stay in a single lane when making
turn, and vehicle matched description in anonymous report of a drunk driver). Distinguished in State v.
Bean, 12 Fla. L. Weekly Supp. 610 (Fla. 6th Cir. Ct. March 4, 2005) (“The testimony of the officer that
based upon her experience and training, she believed the weaving indicated that the defendant was DUI
was not clearly present in either O’Connell or Crooks.”).
41
In Jordan v. State, 831 So. 2d 1241, 1243 (Fla. 5th DCA 2002), the court noted that the involved statute
“recognizes that it is not practicable, perhaps not even possible, for a motorist to maintain a single lane
at all times and that the crucial concern is safety rather than precision.”
42
State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999). See also Yanes v. State, 877 So. 2d 25 (Fla. 5th
DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004) (stop based on officer’s observations of vehicle
crossing the “ ‘fog line’ ” by about one-half of its width three times within a mile was lawful, and
Jordan and Crooks distinguished based on officer’s belief in Yanes that the driver was impaired, sick, or
tired); Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999), review denied, 743 So. 2d 510 (Fla.
1999) (stop based on continuous weaving within lane of travel was lawful and Crooks distinguished
based on officer’s belief in Roberts that defendant was impaired); Mersan v. State, 23 Fla. L. Weekly
Supp. 91 (Fla. 17th Cir. Ct. June 11, 2015); State v. Shea, 10 Fla. L. Weekly Supp. 529 (Fla. Escambia
Cty. Ct. May 15, 2003); State v. Lee, 7 Fla. L. Weekly Supp. 97 (Fla. 15th Cir. Ct. Nov. 22, 1999); State
v. Slattery, 6 Fla. L. Weekly Supp. 400 (Fla. Dade Cty. Ct. March 26, 1999). But see Armstrong v.
State, 9 Fla. L. Weekly Supp. 828 (Fla. 20th Cir. Ct. May 8, 2002) (where defendant was repeatedly
weaving within lane, court found no reasonable suspicion because officer was not permitted to testify
that he suspected the defendant was DUI; therefore, Roberts did not control).
43
State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).

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44
Bailey v. State, 319 So. 2d 22 (Fla. 1975).
45
State v. Davidson, 744 So. 2d 1180, 1181 (Fla. 2d DCA 1999).
46
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
47
State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999).
48
Harrington v. Dep’t of Highway Safety & Motor Vehicles, 136 So. 3d 691 (Fla. 2d DCA 2014) (denying
certiorari).
49
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
50
Harrington v. Dep’t of Highway Safety & Motor Vehicles, 136 So. 3d 691, 691-92 (Fla. 2d DCA 2014)
(J. Altenbernd Concurring). See also Sutton v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L.
Weekly Supp. 170 (Fla. 4th Cir. Ct. August 20, 2014) (stop was proper where defendant was driving
considerably slower than normal speed of traffic and weaving in and out of his traffic lane on a Friday
night).
51
State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999).
52
Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert.
denied, 543 U.S. 957,125 S. Ct. 455, 160 L. Ed. 2d 320 (2004).
53
Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171, 1172 (Fla. 2004), cert.
denied, 543 U.S. 957,125 S. Ct. 455, 160 L. Ed. 2d 320 (2004). See also Duke v. State, 82 So. 3d 1155
(Fla. 2d DCA 2012) (district court reversed circuit court’s order reversing county court’s suppression of
evidence; officer testified that he made the stop because of defendant’s erratic driving which caused him
to believe defendant was impaired; county court concluded that was not the officer’s reason for the stop
based on officer’s failure to mention impairment on video or in his report and the nature of the driving;
district court ruled that circuit court erred in reversing because the county court had made a credibility
determination, but the district court agreed it would have been error for county court to conclude as a
matter of law that officer’s observations could not give rise to a reasonable suspicion); Stone v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 654 (Fla. 4th Cir. Ct. April 10, 2006); State
v. Murphy, 13 Fla. L. Weekly Supp. 218 (Fla. 6th Cir. Ct. April 5, 2005) ; Hernandez v. State, 11 Fla. L.
Weekly Supp. 92 (Fla. 11th Cir. Ct. Sept. 16, 2003); Kent v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 484 (Fla. 17th Cir. Ct. May 21, 2003); Croasmun v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 152 (Fla. 7th Cir. Ct. March 27, 2002). But
see State v. Muniz, 11 Fla. L. Weekly Supp. 281 (Fla. 9th Cir. Ct. Jan. 21, 2004) (prior to the decision in
Dobrin, this appellate panel said, “[I]t is not dispositive that the officer did not specifically testify he
stopped Defendant because of a suspicion of DUI. It is sufficient that the officer stated he believed
something was definitely amiss because of Defendant’s driving pattern, and felt obligated to investigate
the situation.”).
54
Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007).
55
Weiss v. State, 965 So. 2d 842 (Fla. 4th DCA 2007).
56
Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007).
57
Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007).
58
Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007).
59
State v. Bean, 12 Fla. L. Weekly Supp. 610 (Fla. 6th Cir. Ct. March 4, 2005).
60
State v. Bean, 12 Fla. L. Weekly Supp. 610 (Fla. 6th Cir. Ct. March 4, 2005). See also State v. Huckeba,
11 Fla. L. Weekly Supp. 1005 (Fla. Clay Cty. Ct. March 18, 2004).

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61
Bourcier v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 287 (Fla. 9th Cir. Ct.
Sept. 10, 2004).
62
Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert.
denied, 543 U.S. 957,125 S. Ct. 455, 160 L. Ed. 2d 320 (2004).
63
Bourcier v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 287 (Fla. 9th Cir. Ct.
Sept. 10, 2004).
64
Patel v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 997 (Fla. 3d Cir. Ct. Aug.
18, 2005). See also Department of Highway Safety and Motor Vehicles v. Utley, 930 So. 2d 698 (Fla.
1st DCA 2006) (Judge Hawkes concurring); State v. Phillips, 14 Fla. L. Weekly Supp. 1000 (Fla. 6th
Cir. Ct. March 7, 2007) (police officer saw defendant roll through a red light, but officer testified that he
stopped the defendant for violating the “‘no right on red’ sign;” evidence disclosed that the sign was
illegally placed so trial judge granted a motion to suppress; court reversed because officer’s subjective
reason was irrelevant and rolling through the red light was a legitimate reason for the stop); State v.
Douglas, 13 Fla. L. Weekly Supp. 414 (Fla. 4th Cir. Ct. Jan. 30, 2006) (as to the defense argument based
on Dobrin, that the stop was unlawful because the officer did not specifically state that the stop was for
suspicion of impairment, the court said, “[S]uch an exact statement is not required so long as there is not
a statement to the contrary.”).
65
State, Dept. of Highway Safety & Motor Vehicles v. Jones, 935 So. 2d 532 (Fla. 3d DCA 2006), review
denied, 945 So. 2d 1290 (Fla. 2006). See also Davison v. State, 15 So. 3d 34 (Fla. 1st DCA 2009)
(holding stop of vehicle was valid notwithstanding officer’s mistaken belief defendant committed
violation of a particular traffic law, where facts established probable cause to believe defendant
committed violation of a different traffic law); Roldan v. Dep’t of Highway Safety & Motor Vehicles,
22 Fla. L. Weekly Supp. 175 (Fla. 4th Cir. Ct. July 29, 2014) (court is not limited to reason for stop
given by officer; if evidence supports any objectively reasonable basis, the stop is lawful); Hall v. Dep’t
of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 430 (Fla. 4th Cir. Ct. Feb. 15, 2007)
(”Dobrin does not require a court to rely on a stated intention of an officer as the basis for the stop, so
long as the evidence provides an objective basis to support the stop.”); Pagnotto v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 115 (Fla. 4th Cir. Ct. Dec. 4, 2006) (Whren and
Dobrin require objective test); Cowan v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 926 (Fla. 4th Cir. Ct. June 28, 2006) (Whren and Dobrin require objective test); Odom v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 753 (Fla. 4th Cir. Ct. May 10, 2006)
(quoting from Judge Hawkes concurring opinion in Department of Highway Safety and Motor Vehicles
v. Utley, 930 So. 2d 698 (Fla. 1st DCA 2006) where Judge Hawkes acknowledges that the language
from Dobrin is somewhat ambiguous, but states that it cannot create a subjective test permitting a stop to
be upheld based solely on the reason given by the officer, because that would be inconsistent with the
objective test established by the U.S. Supreme Court in Whren, and the Florida Constitution requires that
Florida courts follow decisions of the U. S. Supreme Court interpreting the Fourth Amendment).
66
State v. Perez-Garcia, 917 So. 2d 894, 897 (Fla. 3d DCA 2005), decision quashed on other grounds, 983
So. 2d 578 (Fla. 2008). See also State, Dept. of Highway Safety & Motor Vehicles v. Maggert, 941 So.
2d 431 (Fla. 1st DCA 2006), review denied, 952 So. 2d 1190 (Fla. 2007) (where objective evidence
established probable cause for DUI, absence of statement in arrest report that officer made the stop for
suspicion of impairment, does not negate probable cause).
67
State v. Bahouth, 12 Fla. L. Weekly Supp. 577 (Fla. Palm Beach Cty. Ct. Feb. 14, 2005).
68
State v. Bahouth, 12 Fla. L. Weekly Supp. 577 (Fla. Palm Beach Cty. Ct. Feb. 14, 2005).
69
State v. Carrillo, 506 So. 2d 495 (Fla. 5th DCA 1987). See also State v. Neumann, 567 So. 2d 950 (Fla.
4th DCA 1990), review denied, 576 So. 2d 289 (Fla. 1991); State v. Padilla, 4 Fla. L. Weekly Supp. 866
(Fla. Dade Cty. Ct. July 14, 1997).
70
Esteen v. State, 503 So. 2d 356 (Fla. 5th DCA 1987). See also State v. Frederick, 525 So. 2d 516 (Fla.
4th DCA 1988); Spann v. State, 512 So. 2d 1106 (Fla. 5th DCA 1987); State v. Irvin, 483 So. 2d 461
(Fla. 5th DCA 1986), review denied, 491 So. 2d 279 (Fla. 1986); State v. Albanese, 7 Fla. L. Weekly
Supp. 807 (Fla. Palm Beach Cty. Ct. Aug. 14, 2000) (weaving in and out of lane, several times, driving

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20 m.p.h. in a 45 or 50 m.p.h. zone justified stop).

71
Esteen v. State, 503 So. 2d 356 (Fla. 5th DCA 1987).
72
Sasser v. State, 6 Fla. L. Weekly Supp. 193 (Fla. Orange Cty. Ct. Jan. 19, 1999).
73
Sasser v. State, 6 Fla. L. Weekly Supp. 193 (Fla. Orange Cty. Ct. Jan. 19, 1999).
74
Finizio v. State, 800 So. 2d 347 (Fla. 4th DCA 2001).
75
Seward v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 438 (Fla. 11th Cir. Ct.
Feb. 16, 2005). See also Weber v. State, 11 Fla. L. Weekly Supp. 800 (Fla. 20th Cir. Ct. April 6, 2004).
76
State v. Bean, 12 Fla. L. Weekly Supp. 610 (Fla. 6th Cir. Ct. March 4, 2005) . See also Petrick v. State,
16 Fla. L. Weekly Supp. 154 (Fla. 6th Cir. Ct. Nov. 20, 2008) (officer pacing vehicle doing 15 m.p.h. in
a 45 m.p.h. zone for two-tenths of a mile without weaving or interference with other traffic did not
constitute reasonable suspicion of impairment).
77
Jacobson v. State, 227 So. 3d 712 (Fla. 1st DCA 2017), review denied, 2018 WL 859439 (Fla. Opinion
Filed Feb. 13, 2018) (the court rejected the defense argument that the officer could not rely on his
previous observations because he had not administered field sobriety exercises).
78
Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999). See also G.M. v. State, 19 So. 3d 973 (Fla.
2009) (being legally parked at night in a public park with no posted hours did not establish reasonable
suspicion); Santiago v. State, 133 So. 3d 1159 (Fla. 4th DCA 2014) (no reasonable suspicion to have
defendant exit parked vehicle at 2:00 a.m. where a tip led officers to defendant and a female passenger;
keys in the ignition, music playing and engine off; officer smelled alcohol on defendant’s breath and
defendant said he had a couple of beers, but officer did not think he was under the influence; defendant
explained they “were just ‘hanging out’” and that he lived in a place he pointed to in the middle of the
block); Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011)
(no reasonable suspicion where officer saw defendant asleep in a parked car on the driver’s side with the
engine running in an empty mall parking lot at 4:15 a.m., but observed no other signs of criminal
activity); Rachel v. State, 987 So. 2d 1281 (Fla. 4th DCA 2008) (officer did not have reasonable
suspicion to detain driver who had left a car in the aisle of a parking lot, but was not blocking traffic);
Leroy v. State, 982 So. 2d 1250 (Fla. 1st DCA 2008) (stop was unlawful where defendant was driving
slowing through apartment house parking lot, which was posted with a “‘no trespassing’” sign, at 8 p.m.;
location was a high crime area; but the defendant was not committing any traffic offense and the officer
did not recognize defendant as a previous trespasser); Richardson v. State, 971 So. 2d 295 (Fla. 4th
DCA 2008) (officer did not have reasonable suspicion to detain occupants of vehicle based on
observations of vehicle in an empty parking lot next to a tennis complex and vehicle was swaying back
and forth. “Although this activity is certainly unusual, the location of the vehicle and the non-violent
swaying alone do not justify the stop.”); Delorenzo v. State, 921 So. 2d 873 (Fla. 4th DCA 2006)
(officer did not have legal cause for a detention where the defendant was sitting in the driver’s seat of a
car parked in a shopping center parking lot with the engine running and the lights off, and when the
officer knocked on the window the defendant started digging in his pocket); State v. Taylor, 826 So. 2d
399 (Fla. 3d DCA 2002) (being legally parked on a swale at 4:30 a.m. did not establish reasonable
suspicion); Parsons v. State, 825 So. 2d 406 (Fla. 2d DCA 2002) (officer did not have reasonable
suspicion to detain the defendant, who the officer learned was a sex offender, when the officer saw the
defendant asleep, with binoculars in his lap in a car across from a motel frequented by prostitutes);
Miranda v. State, 816 So. 2d 132 (Fla. 4th DCA 2002), review denied, 832 So. 2d 105 (Fla. 2002) (being
legally parked in an apartment complex’s parking lot at 5 a.m., with the motor turned off and the
driver’s window partially rolled down, did not establish reasonable suspicion); State v. Koehler, 18 Fla.
L. Weekly Supp. 455 (Fla. 17th Cir. Ct. Feb. 23, 2011) (the fact that car was parked at intersection for a
minute and half in a high crime area between 2:00 and 3:00 am did not justify a detention based on
officer’s belief that driver was ill); Phelan v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 1030 (Fla. 4th Cir. Ct. June 26, 2006) (deputy did not have reasonable suspicion where
vehicle drove past him into a closed parking lot, stopped in the driveway, and idled with its headlights
on for about five minutes when deputy detained him in an area where there had been a rash of spray
paintings of buildings); Ben-Asher v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly
Supp. 630 (Fla. 11th Cir. Ct. April 5, 2005) (being asleep in a vehicle parked on the side of the road did

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not establish grounds for detention even if the defendant had an odor of alcohol); Wilson v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 281 (Fla. 9th Cir. Ct. Oct. 12, 2004)
(officer did not have reasonable suspicion to require an individual to exit a vehicle where the person was
behind the wheel of a car parked in a church driveway with the keys in her lap and what appeared to be
vomit on her clothing); Popjoy v. State, 11 Fla. L. Weekly Supp. 538 (Fla. 13th Cir. Ct. March 9, 2004)
(deputy did not have reasonable suspicion to require occupant to exit parked vehicle or to reach in and
turn off vehicle, based on guard’s information that he saw the individual asleep in the vehicle, woke
him, and that the guard saw the individual exit the vehicle, urinate, get back in the vehicle, and go back
to sleep); West v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 955 (Fla. 9th
Cir. Ct. June 25, 2003) (being asleep at night behind wheel of legally parked vehicle on a “ ‘vacant’ or ‘
abandoned’ road,” with key in ignition, engine running, and vehicle in park did not establish reasonable
suspicion); Forte v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 474 (Fla. 11th
Cir. Ct. April 1, 2003) (being asleep at night behind wheel of legally parked vehicle, with engine
running, in front of apartment building did not establish reasonable suspicion); State v. Calonge, 25 Fla.
L. Weekly Supp. 747 (Fla. Polk Cty. Ct. Sept. 13, 2017) (officer did not have reasonable suspicion to
open car door and detain the defendant based solely on the fact that the defendant was sleeping in a car
in his driveway); State v. Young, 25 Fla. L. Weekly Supp. 896 (Fla. Volusia Cty. Ct. March 20, 2015)
(deputy did not have reasonable suspicion to detain defendant based solely on the fact that she was
slumped over in a lawfully parked car completely off the roadway with the engine running and the lights
on); State v, Chapman, 18 Fla. L. Weekly Supp. 232 (Fla. Brevard Cty. Ct. Nov. 18, 2010) (officer did
not have reasonable suspicion to require defendant to exit vehicle parked across two spaces in a condo
lot at 4 a.m. where the vehicle was not blocking or obstructing traffic); State v. Hendrix, 16 Fla. L.
Weekly Supp. 571 (Fla. Pasco Cty. Ct. March 9, 2009) (at about 9:32 p.m., a deputy acting on a tip saw
a person slumped over the wheel of a vehicle in a parking lot; engine, lights, and a turn signal were on;
deputy was concerned about occupant because he was slumped over the wheel and drooling; deputy did
not suspect an infraction or a crime; after knocking on the window for about 45 seconds, the deputy
opened the door, turned off car, and tried to wake the defendant; after shaking the defendant several
times, he woke and deputy ordered him out of the vehicle; this was an unlawful detention); State v.
Perez, 16 Fla. L. Weekly Supp. 432 (Fla. Leon Cty. Ct. March 14, 2008) (no reasonable suspicion where
people were driving around vehicle in a drive-thru lane at a fast food restaurant and officer could not tell
whether Defendant was asleep, unconscious, or sitting in a stalled vehicle); State v. Trauth, 15 Fla. L.
Weekly Supp. 178 (Fla. Dade Cty. Ct. Dec. 7, 2007) (defendant was illegally detained where he was
lawfully parked and officers had no grounds to believe that he was engaged in any past, present, or
future criminal conduct when officers detained him); State v. Barbosa, 14 Fla. L. Weekly Supp. 578
(Fla. Orange Cty. Ct. March 27, 2007) (there was an unlawful detention where the deputy responded to
call by hotel employee reporting a vehicle improperly or illegally parked in the hotel lot with the engine
running and a female in the driver’s seat who would not respond to inquiries about her well being; when
deputy attempted to rouse the woman she looked at the deputy and started to put her seat belt on; based
on deputy’s belief the woman was going to leave the scene, the deputy ordered her to get out of the
vehicle); State v. Sooy, 13 Fla. L. Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 3, 2006) (while it was
proper for officer to knock on truck window to see if occupants who appeared to be sleeping were in
need of medical attention; it was not proper to direct that the driver roll down the window after he was
awake and obviously needed no medical care; the fact that the officer wanted to advise the occupants of
local public sleeping ordinance did not entitle officer to require driver to open window because the
driver was not violating the ordinance); State v. Campbell, 10 Fla. L. Weekly Supp. 46 (Fla. Dade Cty.
Ct. Nov. 21, 2002) (no reasonable suspicion to require occupant to exit parked vehicle where
unidentified woman told officer that the occupant was passed out, officer could not get a response when
knocking on window, entered the vehicle and found that the defendant had a pulse, but officer did not
detect odor of alcohol until the defendant exited the vehicle).
79
Danielewicz v. State, 730 So. 2d 363, 364 (Fla. 2d DCA 1999).
80
Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 677, 145 L. Ed. 2d 570 (2000).
81
U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002); State v. Cruse, 121 So. 3d 91,
97 (Fla. 3d DCA 2013); State v. Jimoh, 67 So. 3d 240 (Fla. 2d DCA 2010), review denied, 64 So. 3d
117 (Fla. 2011); Hernandez v. State, 784 So. 2d 1124 (Fla. 3d DCA 1999), review denied, 763 So. 2d
1043 (Fla. 2000). See also Dixon v. State, 785 So. 2d 615 (Fla. 4th DCA 2001) (trooper had reasonable
suspicion for stop where he stopped defendant for drinking out of brown paper bag as defendant drove,
and based on trooper’s experience, that indicated consumption of alcohol and the fact that the bottle

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could have contained a non-alcoholic liquid did not change result); State v. Newell, 13 Fla. L. Weekly
Supp. 1232 (Fla. Broward Cty. Ct. June 29, 2006) (based on Dixon, court ruled that officer’s observation
of driver drinking from a can contained in a brown paper bag was sufficient to establish a reasonable
suspicion that driver was violating the law by operating the vehicle with an open container of alcohol).
82
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015)
(quoting Sokolow, 490 U.S. at 10, 109 S. Ct. 1581).
83
Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999).
84
State v. Jimoh, 67 So. 3d 240 (Fla. 2d DCA 2010), review denied, 64 So. 3d 117 (Fla. 2011). See also
State v. Lunga, 7 Fla. L. Weekly Supp. 410 (Fla. Broward Cty. Ct. March 7, 2000).
85
Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999).
86
State v. Jimoh, 67 So. 3d 240 (Fla. 2d DCA 2010), review denied, 64 So. 3d 117 (Fla. 2011). See also
Dermio v. State, 112 So. 3d 551, 556 (Fla. 2d DCA 2013), review denied, 137 So. 3d 1019 (Fla. 2014)
(deputy properly approached vehicle parked in a bar parking lot around 3:30 a.m.; vehicle had motor
running and lights on; defendant appeared to be asleep and seemed out of it; despite deputy’s efforts,
defendant would not roll window down so deputy lawfully opened the door because of concern for
defendant’s safety and detected the odor of marijuana; deputy had reasonable suspicion and lawfully
detained defendant); Gardner v. State, 8 Fla. L. Weekly Supp. 350 (Fla. 15th Cir. Ct. April 3, 2001)
(officer properly ordered defendant to exit after officer tapped on windshield of car that was lawfully
parked with engine running and when defendant voluntarily rolled down window officer observed
indicia of impairment); State v. Gentile, 18 Fla. L. Weekly Supp. 244 (Fla. Brevard Cty. Ct. Nov. 18,
2010) (deputy properly approached a vehicle parked in lot of a closed bar with blinker on and engine
running; deputy had reasonable suspicion after defendant rolled down the window when deputy tapped
and deputy noticed an odor of alcoholic beverage and defendant had slurred speech).
87
State v. Gentry, 57 So. 3d 245 (Fla. 5th DCA 2011) (although court reversed on the grounds that the
driver of a stolen vehicle lacked standing to challenge search, court agreed with trial judge that stop to
determine whether driver was impaired or ill was proper where at 4:00 a.m. officer saw vehicle stopped
at a four-way stop with its brake lights engaged for about 20 minutes and the driver’s head down);
Department of Highway Safety and Motor Vehicles v. Ivey, 73 So. 3d 877 (Fla. 5th DCA 2011)
(defendant told one citizen that she had been drinking and was lost and asked if he would lead her to her
home; he told her he could not let her drive, stalled her, and called the second citizen, who called 911 to
report the situation and described the vehicle, including license number; officer acting on dispatch had
reasonable suspicion for detention); Standridge v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla.
L. Weekly Supp. 399 (Fla. 4th Cir. Ct. April 6, 2016) (officer acted properly when he opened a car door
pursuant to his community caretaking function when he approached petitioner’s improperly parked
vehicle in a parking garage with the engine running; windows rolled up; defendant was in the driver’s
seat slumped over towards the passenger seat acting in a way that caused officer concern about his
medical condition and was nonresponsive even when the officer knocked on the window; couldn’t
answer questions, set up but fell back over into passenger’s seat and could not open the door when
asked); State v. Harmon, 24 Fla. L. Weekly Supp. 278 (Fla. 17th Cir. Ct. Feb. 26, 2016) (deputy’s
unsuccessful direction to defendant to roll down window followed by opening the door was a
continuation of medical/welfare check where vehicle was parked at a closed gas station for 3 to 5
minutes; vehicle was running, defendant was in driver’s seat and seemed unconscious; deputy yelled,
banged on window with his hand and then with his flashlight before defendant woke; defendant would
not respond to repeated requests to roll down window and seemed to be in a daze; deputy opened the
unlocked door for safety reasons, to check on medical condition and to do a welfare check, and asked
the defendant if he had any medical problems; when defendant responded negatively, deputy detected
odor of alcohol and other indicators of impairment); Salazar v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 216(Fla. 12th Cir. Ct. June 24, 2016) (contact was justified by the
community care taking doctrine where deputy saw petitioner parked on the side of a busy road with
emergency flashers on; department policy was to render aid to disabled motor vehicles; deputy was not
acting on a tip or other information, petitioner was slumped over the steering wheel and behaved
strangely when deputy roused her from sleep by knocking on the window; deputy saw no blood, vomit,
contraband, or signs of trauma, and, could not tell whether petitioner was breathing before knocking on
the window; deputy was concerned about a possible medical problem); State v. Walton, 18 Fla. L.

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Weekly Supp. 443 (Fla. 6th Cir. Ct. March 4, 2011) (officer had reasonable suspicion that defendant was
impaired and to make stop where at 4:01 a.m. vehicle was parked half on and half off the roadway
facing in the wrong direction with the engine running and lights on; defendant was slumped over in
driver’s seat; vehicle had been there long enough for police to be called and to arrive; officers knocked
on door and window on the driver’s side several times for about five minutes in an unsuccessful effort to
rouse the defendant); Osceola v. State, 18 Fla. L. Weekly Supp. 272 (Fla. 17th Cir. Ct. June 27, 2009)
(officer had reasonable suspicion for stop where he saw vehicle parked or stopped in middle of the road
at 2:30 a.m. for about two minutes, while the traffic lights went through two full cycles; officer saw
defendant with his head slumped over in the driver’s seat with eyes closed, and appeared to be sleeping;
officer was concerned about defendant’s safety and pulled behind vehicle, which moved forward, then
stopped; defendant claimed he was in the middle turn lane for a couple of minutes with his head down
looking for a CD; officer also reasonably believed that emergency aid was needed); State v. Finlayson,
15 Fla. L. Weekly Supp. 678 (Fla. 17th Cir. Ct. April 2, 2008) (officer had right to reach into car, turn
off engine and remove keys where car was parked with the right front tire up against a concrete barrier
so that the left side of the car was lower than the right, engine was running, headlights were on, and
window down; defendant was lying down over front center console, would not respond, smelled of
alcohol, and had a flushed face); Falvo v. State, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 4,
2008) (trooper properly opened car door because of concern for defendant’s safety where he was passed
out on shoulder of the interstate at 6 a.m. in a car with the engine running; trooper had pulled in behind
vehicle and turned on emergency lights; after a couple of minutes second trooper arrived and defendant
had head on steering wheel; two troopers banged on window several times for a while, but defendant
was still passed out before they opened door); State v. Seegobin, 15 Fla. L. Weekly Supp. 33 (Fla. 17th
Cir. Ct. Sept. 18, 2007) (passed out defendant, who was slumped over wheel, was not detained when
officer pulled behind parked vehicle and turned on emergency lights until officer developed reasonable
suspicion and subsequently probable cause for arrest where officer approached vehicle because of
concern for defendant’s health and detected an odor of alcohol coming from the vehicle through an open
window, officer asked if he was okay, he sat up and asked what he was doing wrong, officer noticed that
driver was sweaty and had red eyes, officer then opened the door and asked the defendant to step out,
she then noticed vomit on the floor of the car); Stenmark v. State, 14 Fla. L. Weekly Supp. 1008 (Fla.
6th Cir. Ct. April 23, 2007) (officer lawfully detained defendant where at 2 a.m. officer saw defendant
stopped at a red light, her head was bobbing up and down as if she was falling asleep, and her head
finally slumped over as if she had passed out; officer thought defendant might have medical problem or
be impaired); Ceballos v. State, 14 Fla. L. Weekly Supp. 947 (Fla. 17th Cir. Ct. July 2, 2007) (officer
properly asked defendant to roll down window where vehicle was parked a few inches from the front of
a dumpster behind a business at about 5 a.m., vehicle was running and lights on, defendant was asleep,
officer was concerned for defendant’s welfare, and approached defendant to make sure he was alright);
Avery v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct.
Dec. 7, 2006) (officer had reasonable suspicion for DUI where defendant was in a vehicle parked at
entrance of a country day school at about 3:30 a.m., slumped over wheel with engine running and the
door open and headlights on, had a mild odor of alcohol and red, watery, and bloodshot eyes); State v.
Major, 12 Fla. L. Weekly Supp. 1150 (Fla. 17th Cir. Ct. Nov. 22, 2004) (officer had reasonable
suspicion where officer approached a parked vehicle at a convenient store and observed defendant
slumped over the center arm rest toward the passenger’s side, keys in the ignition, a can of beer on the
floorboard, and the odor of alcohol coming from the open car window); State v. Biglin, 12 Fla. L.
Weekly Supp. 726 (Fla. 17th Cir. Ct. May 9, 2005) (detention was lawful where officer saw defendant in
the driver’s seat of an illegally parked vehicle on a swale with the engine running; defendant had one
arm over the steering wheel, was leaning over, was motionless and disoriented, had a strong odor of
alcohol, and glassy and bloodshot eyes); Sizemore v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 691 (Fla. 7th Cir. Ct. May 12, 2005) (officer had the authority to approach the
vehicle where it was lawfully on private property partially on the lawn and driveway, and it appeared to
have struck the garage door; defendant was slumped over the wheel; upon approaching the vehicle, the
officer detected a strong odor of alcoholic beverages coming from vehicle and defendant was sound
asleep; thus, the officer could properly do a DUI investigation); Keyser v. Dep’t of Highway Safety &
Motor Vehicles, 11 Fla. L. Weekly Supp. 10 (Fla. 15th Cir. Ct. Oct. 28, 2003) and Keyser v. State, 10
Fla. L. Weekly Supp. 982 (Fla. 15th Cir. Ct. Oct. 28, 2003) (detention proper where defendant was
asleep in vehicle, partly on grass and partly on road, facing a busy roadway, with motor running and
lights on; when officer asked defendant to turn off engine, defendant started reaching for different knobs
and officer reached in, turned off car, secured the keys, and smelled alcohol); State v. Logan, 10 Fla. L.
Weekly Supp. 166 (Fla. 18th Cir. Ct. March 8, 2001) (officer had reasonable suspicion where the
defendant was asleep in a parked car, with the engine running and officer detected the odor of alcohol

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§ 4:9.Application of standards for investigatory stops to..., 11 Fla. Prac., DUI...

and slurred speech before ordering the defendant out of the parked vehicle); State v. Cladera, 10 Fla. L.
Weekly Supp. 96 (Fla. 13th Cir. Ct. Nov. 14, 2002) (officer had reasonable suspicion where the officer
smelled alcohol coming from individual who was behind the wheel of a parked vehicle); State v. Garcia,
10 Fla. L. Weekly Supp. 87 (Fla. 17th Cir. Ct. Dec. 1, 2002) (officer lawfully detained individual who
was unconscious or asleep holding an open bottle of beer, in a running car, which was in gear, with one
wheel over a concrete curb); Schaitel v. State, 8 Fla. L. Weekly Supp. 22 (Fla. 17th Cir. Ct. Aug. 14,
2000) (deputy properly directed defendant to exit vehicle where he saw two people in a parking lot
where deputy had made several DUI and drug arrests; brake lights were on and engine running; either
defendant rolled window down or deputy asked her to roll it down, but she voluntarily did so, and
deputy smelled an odor of alcohol coming from her breath, defendant admitted drinking two beers);
State v. Downs, 8 Fla. L. Weekly Supp. 19 (Fla. 17th Cir. Ct. Oct. 17, 2000) (officer acted properly
when he saw a running car in the middle of a parking lot, could not see anyone in it, approached the car,
reached in open window to turn off engine, noticed sleeping driver, and tried to wake her to see if she
was alright); State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017) (deputy
had sufficient grounds to detain defendant for a DUI investigation when at 3:17 a.m. 911 caller reported
that a vehicle had been parked in the roadway for about two hours; deputy saw defendant asleep in
vehicle with lights on and motor running parked in the middle of a lane of traffic; it was difficult to
wake the defendant; defendant smelled of alcohol, had slurred speech and glassy eyes, and had to steady
himself with his vehicle as he exited the car); State v. Buck, 17 Fla. L. Weekly Supp. 1131 (Fla. Brevard
Cty. Ct. June 4, 2010) (officer had reasonable suspicion to stop and check vehicle that he saw parked in
the same spot 45 minutes to an hour earlier just before the railroad tracks with the engine running and a
headlight out; the fact that the headlight was out each time alone would support reasonable suspicion for
the stop); State v. McCollum, 17 Fla. L. Weekly Supp. 490 (Fla. Brevard Cty. Ct. March 17, 2010)
(officer had reasonable suspicion to detain defendant for DUI investigation where defendant was in a car
parked at a closed car dealership at 1:00 a.m.; officer approached vehicle to see if defendant needed help
and observed that defendant had slurred speech, red, watery, glassy and bloodshot eyes and the odor of
an alcoholic beverage, and the car engine was running); State v. Wenners, 13 Fla. L. Weekly Supp. 722
(Fla. Palm Beach Cty. Ct. May 16, 2005) (detention was proper where defendant sat through a green
light twice, was asleep with her head down on her wrist; officer knocked on the window twice before
defendant responded; defendant had her foot on the brake pedal while the vehicle was still in drive; and
officer had to enter the car to turn it off and place it in park, at which time, officer detected an odor of
alcohol); State v. Davis, 13 Fla. L. Weekly Supp. 17 (Fla. Orange Cty. Ct. Aug. 26, 2005) (Officer had
reasonable suspicion of DUI where defendant and passenger were parked in a park after the posted
hours; the window was half way down and keys were in the ignition; after officer told her to leave the
park, she attempted to start the vehicle; officer observed open containers of beer in the vehicle; and
defendant had bloodshot, watery eyes, slurred speech and a “‘thick tongue.’”); State v. Fuerst, 11 Fla. L.
Weekly Supp. 1083 (Fla. Hillsborough Cty. Ct. Nov. 20, 2003) (Danielewicz not controlling and officer
could lawfully detain defendant, where defendant was in a strange, uninvited vehicle parked in the
driveway of a private residence late at night); State v. Lunga, 7 Fla. L. Weekly Supp. 410 (Fla. Broward
Cty. Ct. March 7, 2000) (deputy properly detained defendant where deputy saw defendant get in the car
in a parking lot, but do nothing for five minutes; deputy approached the car, but did not block it; then
before detaining him noticed that defendant had a strong odor of alcohol on his breath, bloodshot eyes,
and a flush face); State v. McHugh, 7 Fla. L. Weekly Supp. 283 (Fla. Palm Beach Cty. Ct. 2000) (it was
proper for an officer to order the defendant out of a parked vehicle where the officer banged on the
window, the defendant woke up and rolled down the window, the officer detected an odor of alcohol,
and the officer was concerned for the individual’s safety).
88
Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
89
Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973) (“Local police
officers … frequently investigate vehicle accidents in which there is no claim of criminal liability and
engage in what, for want of a better term, may be described as community caretaking functions, totally
divorced from the detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.”).
90
Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
91
Gentles v. State, 50 So. 3d 1192, 1198 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
92
Gentles v. State, 50 So. 3d 1192, 1198 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).

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93
Gentles v. State, 50 So. 3d 1192, 1198 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
See also Santiago v. State, 133 So. 3d 1159, 1165 (Fla. 4th DCA 2014).
94
Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999).
95
State v. Perez, 12 Fla. L. Weekly Supp. 35 (Fla. 11th Cir. Ct. Oct. 5, 2004). See also Wiseberg v. State,
12 Fla. L. Weekly Supp. 193 (Fla. 6th Cir. Ct. June 29, 2004) (unlike Danielewicz, court found
defendant was in danger because engine of her car was running and it was parked haphazardly, the
driver’s door was open, and defendant was passed out; police also received an anonymous phone call
reporting person passed out behind wheel of a car at the involved location).
96
Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999).
97
State v. Perez, 12 Fla. L. Weekly Supp. 35 (Fla. 11th Cir. Ct. Oct. 5, 2004).
98
State v. Perez, 12 Fla. L. Weekly Supp. 35 (Fla. 11th Cir. Ct. Oct. 5, 2004).
99
State v. Perez, 12 Fla. L. Weekly Supp. 35 (Fla. 11th Cir. Ct. Oct. 5, 2004).
100
State v. Perez, 12 Fla. L. Weekly Supp. 35 (Fla. 11th Cir. Ct. Oct. 5, 2004). See also Fein v. Dep’t of
Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 1118 (Fla. 9th Cir. Cty. Ct. Sept. 30, 2009)
(deputy received report about a woman passed out in a vehicle in parking lot of bar with engine running
and observed woman in car; she appeared to be shaking and when deputy knocked twice on window
woman woke up, but did not respond when deputy asked her if she was okay; officer reasonably
believed woman had a medical emergency and properly had her exit the car); Moser v. State, 16 Fla. L.
Weekly Supp. 156 (Fla. 6th Cir. Ct. Sept 25, 2008) (officer lawfully opened the car door under the
emergency aid doctrine where deputy received tip person was impaired and vehicle was on the side of
the road with the engine running, person was lying in reclined driver’s seat passed out or asleep, and
deputy knocked on window several times with no response); State v. Torcios, 15 Fla. L. Weekly Supp.
323 (Fla. 11th Cir. Ct. Feb. 14, 2008) (emergency aid doctrine justified officer, whose paramount
concern was defendant-driver’s health and safety, in telling defendant to exit where defendant had head
slumped down inside SUV with engine running and door locked, parked on side of road in a non-
designated parking area at 2:59 a.m.; officer knocked on window with flashlight for two to three minutes
before defendant turned his head; it was necessary to personally observe defendant to see if he was ill or
injured); State v. Buck, 17 Fla. L. Weekly Supp. 1131 (Fla. Brevard Cty. Ct. June 4, 2010) (officer had
sufficient grounds to detain the defendant to render emergency aid where at 4:00 a.m. vehicle had been
parked in the same spot 45 minutes to an hour just before the railroad tracks with the engine running and
a headlight out; defendant was slumped over towards passenger seat, not awake or alert; officer shouted
loudly without response and was concerned about whether defendant was dead, or otherwise in medical
distress or intoxicated; officer got no response until he opened the door, made physical contact with
defendant, and determined defendant was just sleeping; another officer expressed similar concerns);
State v. Ponce, 17 Fla. L. Weekly Supp. 1227 (Fla. Leon Cty. Ct. Aug. 6, 2010) (officer received tip that
individual was passed out behind wheel of vehicle blocking lanes; officer observed that the vehicle was
in drive and was running and called EMS because individual would not wake up despite two officers’
efforts; officer broke passenger’s side window to put car in park and unlocked driver’s side window;
officer then personally helped the individual out of the car into the EMS; officer was focused on welfare
of driver; officer rather than EMS personnel reached into the vehicle because there is a danger that when
a subject becomes conscious they become violent; officer did not have to use least intrusive means; this
contact was proper because the officer had an objectively reasonable basis to believe there was a need
for immediate police assistance, action was to aid the driver rather than solve a crime, and officer was
within the scope of the emergency); State v. Swain, 16 Fla. L. Weekly Supp. 988 (Fla. Brevard Cty. Ct.
July 27, 2009) (officer’s actions were justified by emergency aid doctrine where truck was parked in
median late at night; occupant was leaning back in driver’s seat, his eyes were closed, and he was not
moving; deputy tried unsuccessfully to wake him by making loud sounds for two or three minutes, she
did not intend to search, seize, or make an arrest, but rather she wanted to make sure the driver was
okay; when she said she was from the Sheriff’s department and asked if he was okay, he voluntarily
rolled the window down and said “yeah”; at that point the deputy smelled the odor of alcohol coming
from the truck and observed indicators that defendant might be impaired so that she developed
reasonable suspicion for DUI investigation); State v. Branham, 16 Fla. L. Weekly Supp. 693 (Fla.

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Brevard Cty. Ct. May 4, 2009) (officer lawfully required occupant to exit vehicle based on the
emergency aid exception where responding to homeowner’s report that an unknown person was in truck
in driveway; homeowner could not get person to respond and was concerned that person might have a
gun; truck radio was blaring, but engine was off; officers tried unsuccessfully several times to wake the
person and were concerned about a medical emergency); State v. Porter, 14 Fla. L. Weekly Supp. 776
(Fla. Brevard Cty Ct. May 16, 2007) (deputy properly directed defendant to exit where car was correctly
parked in lot of closed business, defendant-driver was “‘passed out, sleeping’” leaning towards
passenger seat with keys in the ignition, but motor was not running and windows were down; deputy
called out to defendant for about three to five minutes because deputy was concerned about health; he
could see defendant was breathing normally and there was no blood and he did not call for medical
personnel; after a few minutes it became apparent defendant was sleeping, but it was so hard to wake
him the officer was still concerned about possible medical problems; after several minutes, the
defendant responded and the deputy smelled alcohol and observed various signs of impairment, which
was when deputy detained the defendant by telling him to exit); State v. Swartout, 13 Fla. L. Weekly
Supp. 1104 (Fla. Broward Cty. Ct. Aug 21, 2006) (officers acted properly in asking defendant to open
door where he was parked facing gas pump; attendant reported that a man was sitting in a truck parked
at the station for an hour and a half, possibly impaired, sleeping, or injured; defendant appeared to be
asleep, would not respond to officers, and refused to open a window or door; vehicle was still running
and defendant could have put the car in drive, creating a dangerous situation). But see State v. Madzel,
20 Fla. L. Weekly Supp. 501 (Fla. 7th Cir. Ct. March 1, 2013) (trial court ruled that detention could not
be justified based on Perez analysis where vehicle was in drive against median between two gates, front
tire was touching the curb of the median, but vehicle was not obstructing either entrance; driver seemed
asleep or passed out; deputy opened the door and turned ignition off; deputy shook defendant and he
eventually woke up; defendant appeared dazed and confused, was not talking, just looking around;
deputy couldn’t tell whether this involved medical emergency or possible intoxication, so he ordered the
defendant out of the vehicle; this did not meet elements two or three of the test set forth in Perez).
101
State v. Perez, 12 Fla. L. Weekly Supp. 35 (Fla. 11th Cir. Ct. Oct. 5, 2004).
102
Lozano v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 966 (Fla. 9th Cir. Ct.
May 14, 2010) (firefighter and a paramedic in a marked rescue vehicle stopped vehicle because it was
going into the on-coming lane (westbound) several times and off the roadway onto the grass on the east
side of the road; the stop was lawful because those facts established a reasonable suspicion that there
was a medical emergency).
103
Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007).
104
Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007). See also Dermio v. State, 112 So. 3d 551, 556
(Fla. 2d DCA 2013), review denied, 137 So. 3d 1019 (Fla. 2014) (deputy properly entered vehicle under
emergency exception where she approached vehicle parked in a bar parking lot around 3:30 a.m.;
vehicle had motor running and lights on; defendant appeared to be asleep and seemed out of it; despite
deputy’s efforts to communicate with him, defendant would not respond); Bracetty v. Dep’t of Highway
Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 773 (Fla. 6th Cir. Ct. August 14, 2017) (petitioner
was lawfully detained pursuant to the community caretaking doctrine when the officer told her to turn
off the car and exit after the officer received anonymous reports that two people connected with the
vehicle were fighting; the vehicle was stopped in the through lane of a parking lot and the brake lights
were on; two women were yelling at each other; the petitioner would not calm down while in the car and
the officer was concerned that the petitioner might put the car in gear and take off, endangering people
in the area); Standridge v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 399
(Fla. 4th Cir. Ct. April 6, 2016) (officer acted properly when he opened a car door pursuant to his
community caretaking function when he approached petitioner’s improperly parked vehicle in a parking
garage with the engine running; windows rolled up; defendant was in the driver’s seat slumped over
towards the passenger seat acting in a way that caused officer concern about his medical condition and
was nonresponsive even when the officer knocked on the window; couldn’t answer questions, set up but
fell back over into passenger’s seat and could not open the door when asked); State v. Harmon, 24 Fla.
L. Weekly Supp. 278 (Fla. 17th Cir. Ct. Feb. 26, 2016) (deputy’s unsuccessful direction to defendant to
roll down window followed by opening the door was a continuation of medical/welfare check where
vehicle was parked at a closed gas station for 3 to 5 minutes; vehicle was running, defendant was in
driver’s seat and seemed unconscious; deputy yelled, banged on window with his hand and then with his
flashlight before defendant woke; defendant would not respond to repeated requests to roll down

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window and seemed to be in a daze; deputy opened the unlocked door for safety reasons, to check on
medical condition and to do a welfare check, and asked the defendant if he had any medical problems;
when defendant responded negatively, deputy detected odor of alcohol and other indicators of
impairment); Salazar v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 216(Fla.
12th Cir. Ct. June 24, 2016) (contact was justified by the community care taking doctrine where deputy
saw petitioner parked on the side of a busy road with emergency flashers on; department policy was to
render aid to disabled motor vehicles; deputy was not acting on a tip or other information, petitioner was
slumped over the steering wheel and behaved strangely when deputy roused her from sleep by knocking
on the window; deputy saw no blood, vomit, contraband, or signs of trauma, and, could not tell whether
petitioner was breathing before knocking on the window; deputy was concerned about a possible
medical problem); Kamau v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 418
(Fla. 4th Cir. Ct. Dec. 8, 2014) (detention of petitioner could not be justified by the community
caretaking doctrine where he was sitting in driver’s seat of a lawfully parked vehicle with his eyes
closed and head down and officer blocked path of vehicle, but there was nothing indicating he would
drive off or endanger officer); Fulmer v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly
Supp. 43 (Fla. 9th Cir. Ct. July 23, 2014) (it was part of officer’s community caretaking duty to open
unlocked car door where vehicle was on shoulder, driver appeared to be asleep and officer knocked on
the window at least twice but could not rouse driver until the officer shook him); Seybold v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 28 (Fla. 9th Cir. Ct. June 30, 2014)
(petitioner’s head was slumped down to chest and windows were up; officer knocked several times on
window and door before petitioner opened his eyes; it was lawful for officer to ask petitioner to open the
door because the well-being check was incomplete); State v. McIntosh, 21 Fla. Law Weekly Supp. 759
(Fla. 17th Cir. Ct. March 29, 2014) (officer’s removal of keys from ignition of running vehicle did not
transform a lawful investigatory stop into an arrest requiring probable cause where the defendant was
unconscious behind the wheel, blocking left turn lane with vehicles behind him and going around him);
Chun v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 381 (Fla. 9th Cir. Ct.
2013) (troopers lawfully asked a driver to roll down her window and exit her car pursuant to the
community caretaking function where the car was on the shoulder with its engine running; a trooper
couldn’t wake her by repeatedly knocking on windows or by shining a light in her face, she had her
hands in front of her face; when the woman finally responded, she seemed disoriented with red and
bloodshot eyes; when the trooper asked petitioner to exit, the trooper still had a question about her
welfare since she appeared disoriented); State v. Hughley, 21 Fla. L. Weekly Supp. 302 (Fla. 9th Cir. Ct.
Oct. 3, 2013) (deputy lawfully opened door pursuant to the community care taking doctrine where at
about 4:00 a.m. a truck was illegally parked in a driveway into a closed shopping center with its engine
running, lights out, and windows rolled up; defendant was slumped behind the wheel; deputy was
concerned defendant might need help or medical care; defendant did not respond to deputy’s knocks on
the window and when he did, he was in a daze and didn’t comply with deputy’s requests or motioning to
roll down the window; the deputy couldn’t determine defendant’s condition so he opened the car door
and detected the odor of alcohol); Ladd v. State, 20 Fla. L. Weekly Supp. 462 (Fla. 9th Cir. Ct. Jan. 11,
2013) (deputy and fire rescue lawfully removed defendant from vehicle based on “emergency aid
exception of the Community Care-Taking Doctrine” where defendant was in closed Disney parking lot,
several security men pointed to parked car which was running, windows up, radio blaring; defendant
was behind the wheel and appeared to be asleep or dead; defendant did not respond when deputy banged
on window); State v. Roosa, 14 Fla. L. Weekly Supp. 1007 (Fla. 6th Cir. Ct. June 15, 2007) (Officer
properly detained defendant where defendant was parked in hotel parking lot so vehicle protruded into
parking lot traffic; defendant was slumped over wheel causing officer to fear defendant was either ill or
impaired; when officer knocked on window several times, defendant looked up, said, “‘no, no, no,’” and
either passed out or went back to sleep; after several more knocks on window and roof, defendant rolled
the window down and officer noticed strong odor of alcohol and slurred speech; the most important
difference from Danielewicz was that “officer testified that he was concerned that the defendant might
have a medical emergency.”); Ceparano v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L.
Weekly Supp. 529 (Fla. 13th Cir. Ct. March 30, 2007) (trooper dispatched to investigate parked vehicle
in the emergency lane off of I-275, with the engine running and the driver asleep behind the wheel,
properly entered the vehicle when the driver would not respond to his knocks on the window); Hall v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 430 (Fla. 4th Cir. Ct. Feb. 15,
2007) (officer properly stopped vehicle where it was in a church parking lot after midnight with its lights
on and engine running, the defendant was leaning out and back into the vehicle from a seated position,
and the vehicle had made contact with a tree); Larkin v. Dep’t of Highway Safety & Motor Vehicles, 14
Fla. L. Weekly Supp. 235 (Fla. 7th Cir. Ct. Dec. 12, 2006) (officer could lawfully stop defendant based
on a legitimate concern for defendant’s safety where the vehicle was off the road, facing the wrong

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direction, and defendant was slumped over the wheel of his running vehicle with his foot on the brake);
Story v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1129 (Fla. 4th Cir. Ct.
Sept 14, 2006) (officer properly asked the defendant to open the door, where the officer investigated an
SUV parked on shoulder of a busy thoroughfare at 3 a.m., with the engine off, defendant “‘passed out’”
in the driver’s seat and non-responsive to officer’s knocks on the window and calls, and “was only
aroused into consciousness” after the officer rocked the SUV back and forth; officer was concerned
about defendant’s welfare); Ortiz v. State, 13 Fla. L. Weekly Supp. 1064 (Fla. 17th Cir. Ct. Jul 28, 2006)
(requiring driver to exit was proper where officer confirmed anonymous tip reporting a white male
passed out behind the wheel of a black vehicle at a specific location; the vehicle was parked on a
mattress and bushes off the roadway; there was no response to officer’s several knocks on the window
or to the officer’s inquiry, “‘Are you all right?’”); Sweetman v. State, 13 Fla. L. Weekly Supp. 865 (Fla.
17th Cir. Ct. May 31, 2006) (officer properly told defendant to exit vehicle at about 12:30 a.m. after he
saw the vehicle with its lights on and engine running parked across three parking spots in a shopping
center parking lot; the defendant was “‘leaned over or laying’” in the front seat, and the officer tried
unsuccessfully to rouse the defendant by knocking on the window, and finally knocked on the window
one last time as defendant was beginning to stir); State v. Herrera, 13 Fla. L. Weekly Supp. 567 (Fla.
17th Cir. Ct. March 9, 2006) (officer had grounds for an investigatory stop where he saw defendant
slumped over wheel of a running vehicle that was illegally parked in someone else’s back yard, fire-
rescue was there when the officer arrived, defendant had her foot on the brake, the officer was unsure as
to what was wrong with her, and the officer could smell an odor of alcohol coming from the vehicle);
Wallace v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 828 (Fla. 7th Cir. Ct.
May 12, 2005) (officer had a right to check on defendant where defendant was parked on road, appeared
to be unconscious, with his head resting in the window frame and, as a result, officer developed
reasonable suspicion for DUI); Head v. State, 12 Fla. L. Weekly Supp. 824 (Fla. 6th Cir. Ct. May 4,
2005) (officer had grounds for opening car door where he approached a car in a public parking lot
occupied by defendant, who appeared to be asleep or passed out; the car had its lights on, the engine
running, and the windows up; officer here observed what appeared to be vomit on the outside of the
driver’s door and thought defendant was ill, whereas in Danielewicz, there was no evidence of vomit or
testimony that the officer was concerned about defendant’s health; the officer here knocked several
times on the window and shined his light inside the vehicle and defendant only raised his head, whereas
in Danielewicz, the officer only knocked once and defendant appeared to immediately be aware of the
officer; the officer here was responding to a report about a suspicious vehicle with someone inside,
whereas in Danielewicz, there was no such call); State v. Irwin, 12 Fla. L. Weekly Supp. 713 (Fla. 11th
Cir. Ct. May 24, 2005) (officer could properly check to see if defendant was ill, tired, or in need of help
where a car was backed out of a parking space blocking traffic, the driver appeared to be dazed or
passed out, and there was a child in the car); Keller v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 294 (Fla. 9th Cir. Ct. Oct. 12, 2004) (vehicle sitting in median break, with
headlights on and turn signal activated, but no traffic preventing the vehicle from moving, justified
officer in making temporary inquiry to see if driver was ill or in need of medical assistance); State v.
Dittcus, 22 Fla. L. Weekly Supp. 596 (Fla. Duval Cty. Ct. Dec. 2, 2014) (officer did not have reasonable
suspicion to detain defendant who was asleep in the driver’s seat of a lawfully parked vehicle where
officer knocked on the driver’s side window to check medical condition; defendant opened door and told
officer he was not in medical distress or in need of any medical attention and there were no indicators of
medical distress, but officer improperly continued to question defendant); State v. Jones, 21 Fla. L.
Weekly Supp. 600 (Fla. Brevard Cty. Ct. Feb. 24, 2014) (deputy had reasonable suspicion that the driver
was ill, injured or impaired where for no apparent reason a car sat at a stop sign for four to five minutes,
shortly after midnight, with its brakes engaged); State v. Meunier, 21 Fla. L. Weekly Supp. 372 (Fla.
Brevard Cty. Ct. Nov. 25, 2013) (officers were carrying out their community caretaking function when
they observed a man in a car in a parking space at 1:00 a.m. slumped over the wheel with the engine
running; they knocked on the side windows with increasing intensity for two to three minutes and shone
their flashlights around the interior of the vehicle; the officers were about to call the paramedics when
the defendant woke up; at first he was groggy and disoriented, but finally complied with the officer’s
instruction to exit the vehicle; officer noted indications of intoxication resulting in arrest); State v.
Seifrit, 21 Fla. L. Weekly Supp 342 (Fla. Volusia Cty. Ct. Oct. 18, 2013) (officer did not have
reasonable suspicion to detain the defendant who was sleeping in a car parked at 4:30 a.m. on a
residential lawn, there was no complaint and there were some beer bottles nearby, but they were not
linked to the car); State v. Thomas, 21 Fla. L. Weekly Supp. 202 (Fla. Brevard Cty. Ct. Sept. 18, 2013)
(trial judge ruled that officer properly detained defendant by telling him to show his hands, where at
about 1:40 a.m. the defendant was slumped over the steering wheel of a parked car on a dead end street
in a mostly rural area where there was no apparent reason for a vehicle to be parked); State v. Brown, 10

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Fla. L. Weekly Supp. 635 (Fla. Escambia Cty. Ct. June 19, 2003) (detention proper where defendant was
in a parked vehicle with his foot on the brake and the engine running, officer believed defendant had a
medical problem or was impaired because of the lack of movement, and when defendant finally moved,
the vehicle started to go backwards, requiring action by officer, who then smelled alcoholic beverage).
105
Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
106
Gentles v. State, 50 So. 3d 1192 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
107
Gentles v. State, 50 So. 3d 1192, 1199 (Fla. 4th DCA 2010), review denied, 63 So. 3d 750 (Fla. 2011).
See also Grace v. State, 19 Fla. L. Weekly Supp. 702 (Fla. 11th Cir. Ct. May 8, 2012) (detention based
on community caretaking function was not justified where at about 11:26 p.m. officer saw defendant
parked on a swale in front of a residence with vehicle lights on for 15 to 20 minutes; defendant was
sitting in the driver’s seat with seat reclined and keys in ignition, but officer asked no questions about
condition of defendant or the car); State v. Young, 25 Fla. L. Weekly Supp. 896 (Fla. Volusia Cty. Ct.
March 20, 2015) (where deputy observed defendant slumped over in vehicle lawfully parked on the side
of the road at 1:47 a.m. detention was an improper criminal investigation, not a welfare check, because
deputy did not believe there was an emergency and when he saw defendant asleep in the car the deputy
called for back-up, not medical assistance); State v. Calonge, 25 Fla. L. Weekly Supp. 747 (Fla. Polk
Cty. Ct. Sept. 13, 2017) (trial judge ruled that opening the car door of a vehicle in which the defendant
was asleep in his own driveway was a detention and could not be justified by the community caretaking
doctrine where the deputy took pictures of the sleeping defendant from different angles, indicating no
immediate concern, and did not knock on the window or attempt to arouse the defendant in any other
way before opening the door); State v. Birchfield, 19 Fla. L. Weekly Supp. 1093 (Fla. Charlotte Cty. Ct.
Sept. 7, 2012) (entry into vehicle could not be justified based on community caretaking doctrine where
deputy received information suggesting that defendant in parked car might be under the influence, but
was also concerned that the defendant might be suffering from diabetes. “[A]mbiguous evidence, that is,
evidence which equally creates a concern over a suspect’s medical condition as well as supports a
suspicion of the commission of a crime is insufficient to justify [such] an intrusion.”).
108
Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla. 2007).
109
Shively v. State, 61 So. 3d 484 (Fla. 2d DCA 2011).
110
Majors v. State, 70 So. 3d 655 (Fla. 1st DCA 2011), review denied, 79 So. 3d 745 (Fla. 2011).
111
Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla. 2007).
112
Castella v. State, 959 So. 2d 1285 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla. 2007).
113
Castella v. State, 959 So. 2d 1285, 1292 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla.
2007).
114
Castella v. State, 959 So. 2d 1285, 1292 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla.
2007).
115
Castella v. State, 959 So. 2d 1285, 1292 (Fla. 4th DCA 2007), review denied, 968 So. 2d 556 (Fla.
2007).
116
Shively v. State, 61 So. 3d 484 (Fla. 2d DCA 2011). See also Allen v. Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 638 (Fla. 9th Cir. Ct. April 13, 2013) (officer properly
detained defendant for a wellness check when she saw that defendant appeared to have fallen asleep
while waiting to exit a parking garage and the vehicle rolled forward and stopped before almost hitting
the car in front of it); Patel v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 111
(Fla. 9th Cir. Ct. Oct. 12, 2012) (deputy properly stopped defendant and ordered him to turn around
under community caretaking doctrine, when defendant drove towards blocked off area where there were
emergency vehicles and people standing along the side and defendant did not slow down; the deputy
saw significant signs of impairment leading to a DUI investigation).
117
Majors v. State, 70 So. 3d 655 (Fla. 1st DCA 2011), review denied, 79 So. 3d 745 (Fla. 2011).

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118
Majors v. State, 70 So. 3d 655, 661 (Fla. 1st DCA 2011), review denied, 79 So. 3d 745 (Fla. 2011). See
also Agreda v. State, 152 So. 3d 114, 116 (Fla. 2d DCA 2014).
119
Majors v. State, 70 So. 3d 655 (Fla. 1st DCA 2011), review denied, 79 So. 3d 745 (Fla. 2011).
120
State v. Paul, 579 So. 2d 303 (Fla. 4th DCA 1991). See also State v. Tams, 20 Fla. L. Weekly Supp.
1236 (Fla. Manatee Cty. Ct. August 23, 2013) (deputies were performing their community caretaking
functions when they pulled behind a vehicle stopped on the right side of the right lane with four flat tires
and front end damage and activated emergency light).
121
State v. Paul, 579 So. 2d 303 (Fla. 4th DCA 1991). See also Thomas v. Dep’t of Highway Safety &
Motor Vehicles, 17 Fla. L. Weekly Supp. 1073 (Fla. 9th Cir. Ct. May 13, 2010) (officer could make a
stop for public safety reasons where driver struck a median curb resulting in the front driver’s side tire
deflating and continued for ¾ of a mile); State v. Odegard, 17 Fla. L. Weekly Supp. 462 (Fla. Leon Cty.
Ct. March 15, 2010) (officer lawfully stopped vehicle for safety reasons and public welfare where he
saw it was traveling slowly and the front and rear passenger tires were flat).
122
Bailey v. State, 319 So. 2d 22 (Fla. 1975).
123
State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).
124
District Court of Appeal opinions: Baden v. State, 174 So.3d 494 (Fla. 4th DCA 2015) (officer had
reasonable suspicion where defendant was riding a scooter at 2:00 a.m. in a designated roadside parking
area, paying no attention to the parked cars she was approaching, repeatedly hitting the curb with her
front tire and bouncing off while talking to a pedestrian who was walking on the sidewalk; when scooter
hit the curb, the pedestrian would flinch and step further away); Agreda v. State, 152 So.3d 114 (Fla. 2d
DCA 2014) (stop was unlawful where officer stopped vehicle allegedly for impeding flow of traffic,
defendant was driving 45 m.p.h. when the minimum posted speed was 40 m.p.h. and while there were
cars behind him, there was another lane that allowed passing and there was no weaving or anything
indicating a medical or mechanical problem); State v. Vinci, 146 So. 3d 1255 (Fla. 2d DCA 2014),
review denied, 157 So. 3d 1051 (Fla. 2014) (deputy had reasonable suspicion for DUI stop where at
about 11:00 p.m. over the course of about a mile, vehicle consistently drifted to the right side of lane and
hit reflectors and then drifted to the left side of the lane and hit reflectors; then driver turned on his left
turn signal, slowly drifted into the left lane and continued driving with his left turn signal blinking);
Shively v. State, 61 So. 3d 484 (Fla. 2d DCA 2011) (it was a valid investigatory stop where the
defendant failed in several attempts to get a token in the device to exit a parking garage, the garage
attendant asked for help, traffic was backing up, and the defendant had bloodshot eyes and slurred
speech); Kilburn v. State, 54 So. 3d 625 (Fla. 1st DCA 2011) (trial judge upheld in denying motion to
suppress where at about 1:30 a.m. deputy saw defendant weaving and crossing the centerline of the road
several times for about 2½ miles; truck did not immediately stop when deputy activated lights and
defendant almost hit a garbage can sitting near the road); Beahan v. State, 41 So. 3d 1000 (Fla. 1st DCA
2010) (officer’s belief that driver might be under the influence of alcohol or drugs was not supported by
reasonable suspicion where the defendant’s car was the only one on the two-lane street; it went slowly
down the street, stopping in front of several houses, and after passing some homes, made a U-turn by
going over the curb on the opposite side of the street onto the grass about two or three feet from the edge
of the curb); Hurd v. State, 958 So. 2d 600 (Fla. 4th DCA 2007) (moving from far left-hand lane without
warning over a solid white line into the right lane without a turn signal, speeding up and then driving
slowly, was insufficient for stop where no other vehicles were endangered); State, Dept. of Highway
Safety & Motor Vehicles v. Jones, 935 So. 2d 532 (Fla. 3d DCA 2006), review denied, 945 So. 2d 1290
(Fla. 2006) (officer had reasonable suspicion for stop where at about 1 a.m. over a mile, the truck drove
across a broken yellow line into the oncoming lane, swerved back into proper lane to negotiate a curve,
continued to swerve, and again drove across center line into oncoming lane); L.J.S. v. State, 905 So. 2d
222 (Fla. 2d DCA 2005) (starting up parked car as officer approaches, occupants acting like they were
putting things away, stopping in the middle of dead-end road immediately upon leaving parking space
and remaining there for a few minutes, and then driving into a private driveway and stopping did not
establish reasonable suspicion); State v. Rodriguez, 904 So. 2d 594 (Fla. 5th DCA 2005) (officer “would
have been derelict” if he had not stopped the defendant at 2 a.m. where he saw defendant “ ‘bl[o]w’ out
of a driveway or past a stop sign near a bar at an excessive rate of speed, continue to drive down the
wrong side of the road across a double yellow center line, and then take a wide swing into the driveway

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of an apartment complex.”); McDavid v. State, 889 So. 2d 145 (Fla. 1st DCA 2004) (driving vehicle
slowly around the block twice in a residential neighborhood that had experienced burglaries in the past,
and then leaving the neighborhood did not justify stop); Faunce v. State, 884 So. 2d 504 (Fla. 1st DCA
2004) (driving truck about 20 miles per hour below the speed limit in this case was not unusual and was
not sufficient to give rise to a reasonable suspicion where the road was a bumpy dirt road, and it was
dark); Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004)
(stop based on officer’s observations of vehicle crossing the “ ‘fog line’ ” by about one-half of its width
three times within a mile was lawful, and Jordan and Crooks distinguished based on officer’s belief in
Yanes that the driver was impaired, sick, or tired); Ndow v. State, 864 So. 2d 1248 (Fla. 5th DCA 2004)
(at 2 a.m. sitting through entire cycle of green light, making left turn on second green light, proceeding
slowly in left lane, pulling into right lane behind officer’s vehicle, slowing down in an apparent effort
not to pass police car, pulling over, and occupants trading places gave officer reasonable suspicion that
driver was impaired); Nicholas v. State, 857 So. 2d 980 (Fla. 4th DCA 2003) (making a left turn from
the right through lane, rather than the left turn lane when no other vehicle was affected, did not
constitute erratic driving, and did not justify a stop); Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA
2002) (squealing tires without any other erratic driving when there were no other cars on the road or in
the parking lot, was not sufficient for a stop); Miller v. State, 751 So. 2d 131 (Fla. 2d DCA 2000)
(creating cloud of dust in alley did not establish lawful grounds for stop); Roberts v. State, 732 So. 2d
1127, 1128 (Fla. 4th DCA 1999), review denied, 743 So. 2d 510 (Fla. 1999) (“continuous weaving, even
within [lane of travel] … presented an objective basis for suspecting that [the driver] was under the
influence” even though no other vehicle or person was affected); Payne v. State, 654 So. 2d 1252 (Fla.
2d DCA 1995) (an officer did not have grounds to stop a Cadillac where he observed three people in a
convenience store parking lot, who were either arguing or intoxicated, get into the Cadillac and another
car; and after the Cadillac left the parking lot, it spun its tires as it approached and then stopped at a red
light, where the officer could not tell whether one of the three were driving); Estep v. State, 597 So. 2d
870 (Fla. 2d DCA 1992) (driving slowly in a dark commercial area and pulling into and out of a closed
service station did not establish reasonable suspicion for a stop); Brown v. State, 595 So. 2d 270 (Fla. 2d
DCA 1992) (weaving continuously within lane of travel and slowing to 45 m.p.h. and then accelerating
to 55 m.p.h. several times was sufficient to justify a stop based on officer’s concern that the driver was
sleepy or alcohol-impaired).
Circuit court opinions: Flintom v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly
Supp. 400 (Fla. 4th Cir. Ct. May 25, 2017) (there was not competent substantial evidence of a lawful
arrest where the sole basis for the stop was that petitioner was flashing high beams on traffic in front of
him for a block; this was also insufficient for a stop for failing to dim headlamps within 300 feet of
approaching a vehicle from the rear in violation of s. 316.238(1)(b)); Hilton v. Dep’t of Highway Safety
& Motor Vehicles, 24 Fla. L. Weekly Supp. 88 (Fla. 8th Cir. Ct. June 21, 2016) (stop was lawful where
an officer saw a silver truck driving in a parking lot, lost sight of the vehicle; then heard what sounded
like a crash; officer then saw the same vehicle with fresh damage to tail light assembly attempting to
leave the parking lot; another officer made the stop and saw the tail light assembly dangling from the
vehicle before the stop); Sumner v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly
Supp. 16 (Fla. 8th Cir. Ct. March 8, 2016) (officer had grounds to stop vehicle where it was weaving,
crossed the lane marker, and changed speed over a 20 m.p.h. range all within one mile); Zordani, v
Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 665 (Fla. 6th Cir. Ct. Dec. 17,
2015) (deputy had reasonable suspicion where he saw defendant driving at a high rate of speed, twice
cross the yellow line on the outside of the lane, within three miles swerve from side to side within the
lane about every 15 seconds; when deputy activated lights defendant tried to pull into the opposite lane,
stopped car in the middle of the lane and put his left turn signal on); State v. Baba, 23 Fla. L. Weekly
Supp. 410 (Fla. 17th Cir. Ct. Sept. 11, 2015) (deputy had reasonable suspicion for stop where off-duty
officer reported observing erratic or reckless driving and Deputy saw vehicle cross over white marked
lanes on the left and right side of the lane while traveling 20 m.p.h. in a 40 m.p.h. zone); State v.
Thomas, 23 Fla. L. Weekly Supp. 314 (Fla. 17th Cir. Ct. August 14, 2015) (deputy had reasonable
suspicion based on observations of vehicle “weaving out of its lane of traffic, striking the center median,
going up the curb, blowing out its left front tire, coming back onto the roadway, and continuing
northbound on the street.”); State v. Urbina, 23 Fla. L. Weekly Supp. 216 (Fla. 17th Cir. Ct. June 4,
2015) (officer had reasonable suspicion where vehicle was traveling slowly on I-95 in the left inside
lane, “‘swerved hard to the left, coming within about a foot of the median wall, went back to the left
lane and swerved back to the left-hand—to the shoulder, coming real close to the wall again.’”); Mersan
v. State, 23 Fla. L. Weekly Supp. 91 (Fla. 17th Cir. Ct. June 11, 2015) (swerving or weaving in lane
established reasonable suspicion whether or not anyone was endangered); State v. Taveras-Alvarado, 23
Fla. L. Weekly Supp. 84 (Fla. 17th Cir. Ct. June 5, 2015) (trooper acted reasonably in detaining

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defendant for further investigation where defendant was passed out at the wheel at about 1:20 a.m., a
road ranger unsuccessfully tried to wake defendant, EMS was called and told trooper defendant was
medically cleared and that there were several empty beer bottles in the vehicle); Dahhane v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 1004 (Fla. 13th Cir. Ct. March 17, 2015) (a
member of the DUI squad, had reasonable suspicion for a stop where a BOLO reported a white male
who stumbled, appeared to be drunk, and was wearing a tuxedo and masquerade-type mask in a dark
brown Cadillac with a specific tag number; officer determined the owner’s home address and positioned
himself on a likely path; after about five to 10 minutes the officer saw a vehicle matching the
description; in the few miles the officer followed, he saw the car drift on the lane and construction zone
markers and drive more than 10 m.p.h. below speed limit); Harapas v. Dep’t of Highway Safety &
Motor Vehicles, 22 Fla. L. Weekly Supp. 989 (Fla. 7th Cir. Ct. Oct. 6, 2014) (officer did not have
reasonable suspicion for a DUI stop based solely on observations of car weaving within the center lane
three times within 3/4 mile and weaving into the right lane and quickly correcting back into the center
lane); McClemore v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 777 (Fla. 6th
Cir. Ct. March 2, 2015) (deputy did not have reasonable suspicion when he saw defendant in driver’s
seat at 4:22 a.m. parked in front of an opened gas station, defendant moved car from east side to the
south side of the building, the engine was running, when officer asked defendant what he was doing, he
said “‘nothing’” and his eyes were bloodshot and glossy and skin red); Schenck v. Dep’t of Highway
Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 672 (Fla. 9th Cir. Ct. Jan. 12, 2015) (officer could
have lawfully made stop based on reasonable suspicion that driver was ill, tired, in danger, or driving
under the influence where vehicle quickly approached another vehicle, changed lane without signaling,
drifted within its lane at least five times, swerved to left and crossed over yellow fog line almost striking
raised concrete median twice and then drifted to right causing another vehicle to brake); Sutton v. Dep’t
of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 170 (Fla. 4th Cir. Ct. August 20, 2014)
(stop was proper where defendant was driving considerably slower than normal speed of traffic and
weaving in and out of his traffic lane on a Friday night); Gallaher v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 29 (Fla. 9th Cir. Ct. July 1, 2014) (officer had reasonable suspicion
for stop where officer saw vehicle drifting from lane to lane, touching lane lines, and coming to a
complete stop in the median lane); Smith v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L.
Weekly Supp. 6 (Fla. 4th Cir. Ct. June 19, 2014) (anonymous tip vehicle was being driven erratically
combined with deputy’s observations of vehicle speeding up and slowing down, crossing white outside
line once and crossing white dotted lane separation line twice provided reasonable suspicion for DUI);
Vanek v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 544 (Fla. 6th Cir. Ct.
Jan. 13, 2014) (officer had founded suspicion to make a stop to determine whether the driver was ill,
tired, or DUI based on officer’s concern for public safety where during the early morning hours she saw
defendant swerving in and out of the lane to the left and right, crossing over the dashed line to the left
and over the solid white line to the right; such driving continued for about a mile; defendant was very
close to the wheel and grasping it with both hands); State v. McNally, 21 Fla. L. Weekly Supp. 393 (Fla.
12th Cir. Ct. July 12, 2012) (deputy lawfully stopped vehicle to determine whether driver was sick,
tired, injured, or intoxicated based on vehicle weaving within its lane and changing speed without
explanation; law does not require erratic driving only “a ‘founded suspicion’ that the driver is under the
influence, ill, or otherwise unable to drive.”); Wattam v. State, 21 Fla. L. Weekly Supp. 378 (Fla. 6th
Cir. Ct. Dec. 18, 2013) (call by citizen informant to 911 operator provided reasonable suspicion for stop
where the informant told the operator the truck was going about 65 mph, was all over the place, was
weaving in and out of traffic in the emergency lane on the right lane, almost lost it in the right lane;
truck was speeding up, going 70 mph); Mottas v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L.
Weekly Supp. 12 (Fla. 7th Cir. Ct. August 30, 2013) (trooper had reasonable suspicion for a DUI
investigation where subject was sleeping behind the steering wheel in a car stopped in a lane on an
interstate and had an odor of alcohol on his breath and unsteady balance); Dustal v. Dep’t of Highway
Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 12 (Fla. 13th Cir. Ct. Sept. 13, 2012) (officer had
reasonable suspicion for DUI where petitioner was drifting inside his lane, crossing lane markers and
hitting the brakes for no reason; this constituted a pattern of erratic driving regardless of the length of
officer’s observations); State v. Stagg, 21 Fla. L. Weekly Supp. 10 (Fla. 6th Cir. Ct. Sept. 6, 2013) (the
trial judge did not err in finding reasonable suspicion where deputy was concerned about defendant’s
condition based on these 1:00 a.m. observations: vehicle weaved within the lane in front of another
vehicle; remained at green light for six to eight seconds, drifted to the right, almost striking the curb
before jerking vehicle back to the left); Plyant v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 1125 (Fla. 8th Cir. Ct. July 20, 2012) (officer had reasonable suspicion for stop where
vehicle stayed at stop sign 10 to 15 seconds, rapidly accelerated, swerved, and passenger side tires left
the right side of the road); Harrington v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly

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Supp. 1047 (Fla. 13th Cir. Ct. April 18, 2013), cert. denied, 136 So. 3d 691 (Fla. 2d DCA 2014) (there
was reasonable suspicion for a DUI stop where vehicle drifted to the left, almost striking center median
several times, and then swerved back to the right and another vehicle followed closely behind); State v.
Owens, 20 Fla. L. Weekly Supp. 991 (Fla. 7th Cir. Ct. June 11, 2013) (officer had reasonable suspicion
for stop where vehicle make a wide right-hand turn “‘with a jagged movement’” from a parking lot near
a tavern, straddled lane markers a couple of times, followed another vehicle too closely, went pass a stop
bar at a light and pulled into the intersection, but stopped before making a right turn); State v. Banks, 20
Fla. L. Weekly Supp. 985 (Fla. 7th Cir. Ct. July 29, 2013) (deputy did not have sufficient grounds to
suspect defendant was ill, tired, lost or DUI where defendant was driving 25 mph in a 40 mph zone,
other cars came up and braked, but there was another lane for cars to pass; defendant weaved to the right
with both right tires crossing fog line 3 times in a ¼ mile, the third time almost hitting the curb and the
defendant did a “‘quick jerk’” to get the vehicle back into his lane; there was a vehicle in the inside lane,
but there was no evidence that it took evasive action; court found deputy’s testimony as to the need for a
well-being check not credible and to be an attempt to “cloak a DUI investigatory stop”); Dorn v. Dep’t
of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 972 (Fla. 15th Cir. Ct. August 2, 2013)
(evidence that officer stopped vehicle because it had heavy front-end damage without more detail didn’t
establish that stop was proper since there was no evidence vehicle was unsafe); McGrath v. State, 20
Fla. L. Weekly Supp. 957 (Fla. 17th Cir. Ct June 26, 2013) (officer had reasonable suspicion for DUI
stop where between 3:00 and 4:00 a.m. defendant drove at a high rate of speed past a police vehicle that
had its emergency lights on, continued speeding through winding roads and over speed bumps, and
would have hit an officer standing outside a police vehicle, if the officer had not moved); Moorhead v. .
Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 835 (Fla. 4th Cir. Ct. May 2,
2013) (officers properly detained driver of vehicle sitting perpendicular to the road in a ditch where two
witnesses told a dispatcher vehicle was swerving and moving slowly and crashed); Pizio v. Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 750 (Fla. 9th Cir. Ct. May 1, 2013) (officer
had reasonable suspicion where vehicle stopped 50 to 75 yards from an intersection, moved forward and
stopped again when the light was still green for two minutes, and hit the curb when making a U-turn;
officer said driver could have had a medical problem and officer was concerned for driver’s safety);
State v. O’Reilly, 20 Fla. L. Weekly Supp. 663 (Fla. 7th Cir. Ct. April 22, 2013) (running off road and
almost hitting a tree followed by consuming food after stop did not establish reasonable suspicion for a
DUI investigatory detention); Menikheim v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 634 (Fla. 6th Cir. Ct. March 6, 2013) (officer correctly concluded that petitioner was
driving carelessly when he saw petitioner approach an intersection, brake abruptly and skid off the
pavement toward another vehicle and had reasonable suspicion for a stop).
Pappas v. State, 20 Fla. L. Weekly Supp. 554 (Fla. 20th Cir. Ct. Jan. 24, 2013) (court reversed finding of
reasonable suspicion for DUI stop where at about 2:00 a.m. officer saw defendant heading away from a
bar district and defendant drifted from the center lane by hitting the white line and went back into the
center lane, but affected no other traffic; video showed defendant gradually approached right hash lines
on three occasions over seven blocks, and gradually returned to the center of the lane; right tires only
crossed over the hash marks (by about less than the width of the tire) on the second time; defendant
properly changed lanes and made two proper turns before pulling into a parking lot at the side of the
road); Devars v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 541 (Fla. 13th
Cir. Ct. Feb. 5, 2013) (officer had reasonable suspicion for a DUI stop where officer saw petitioner
travel around two cars at a high rate of speed at an intersection and vehicle was drifting and straddling
the lane markers between the two right lanes); Wyatt v. Dep’t of Highway Safety & Motor Vehicles, 20
Fla. L. Weekly Supp. 474 (Fla. 9th Cir. Ct. Feb. 14, 2013) (stop was lawful where officer saw petitioner
drifting in lane for about three or four blocks about three or four times and officer was concerned that
the driver was either distracted or DUI); Waldman v. Dep’t of Highway Safety & Motor Vehicles, 20
Fla. L. Weekly Supp. 460 (Fla. 9th Cir. Ct. Feb. 7, 2012) (officer had reasonable suspicion that driver
was committing an infraction—failure to maintain a single lane in violation of § 316.089(1), was ill,
tired, or DUI where vehicle’s right tires crossed over the solid white fog line twice, left tires crossed into
the median lane of travel once, when officer activated emergency equipment, vehicle moved into median
lane and then back into curb lane, after passing two places to pull over and then made a rapid right);
Padovani v. State, 20 Fla. L. Weekly Supp. 329 (Fla. 9th Cir. Ct. Dec. 12, 2012) (trial judge did not err
in finding reasonable suspicion where at 10:00 p.m. on a Saturday, the officer got a dispatch saying that
an unidentified caller reported a vehicle was in and out of its lane, could not maintain the lane, drove off
the road several times, and stopped at a green light with a lot of people honking for him to move; officer
got to the location within two minutes and saw a vehicle matching the make, color and tag number given
by the caller and the driver of another vehicle immediately behind defendant’s vehicle trying to draw the
officer’s attention to defendant’s vehicle; before stopping defendant’s vehicle it swerved to the right two

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times in an awkward manner on a straight road); Bartholomew v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Jan. 11, 2013) (officer had reasonable suspicion
upon observing at 1:26 a.m. vehicle driving through a dirt railroad lot, swerving and crossing into
opposite lane of traffic almost striking a pedestrian, failing to stop, attempting to turn into a railroad
crossing and then stopping); Ramirez v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly
Supp. 215 (Fla. 9th Cir. Ct. Nov. 6, 2012) (officer had reasonable suspicion upon observing that the
vehicle was not able to maintain a single lane, crossed all lanes of traffic from left to right two to three
times, and failed to use the turn signal); Lamm v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 205 (Fla. 6th Cir. Ct. Dec. 4, 2012) (officer had reasonable suspicion for DUI stop where
officer saw defendant squeal tires moving away from two intersections and failing to maintain a single
lane by drifting, touching the lane lines, and crossing over the fog line); Myers v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 198 (Fla. 4th Cir. Ct. Oct. 10, 2012) (officer had
reasonable suspicion for DUI stop where officer, acting on a BOLO, found a vehicle and saw it
swerving back and forth, speeding up then slowing down); Patel v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 111 (Fla. 9th Cir. Ct. Oct. 12, 2012) (“driving down a lane blocked
by emergency vehicles with pedestrians standing along the side was an unusual operation of a vehicle to
justify the deputy’s actions directing him to stop and turn around”); Long v. Dep’t of Highway Safety &
Motor Vehicles, 19 Fla. L. Weekly Supp. 969 (Fla. 18th Cir. Ct. Aug. 2, 2012) (there was reasonable
suspicion for stop where at 2:58 a.m. in a residential area vehicle was going 40 mph, came to a traffic
light, made an abrupt turn, spun out, fishtailed, and quickly came to a stop with brake squealing and
smoke coming from tires); State v. Pearson, 19 Fla. L. Weekly Supp. 962 (Fla. 17th Cir. Ct. July 16,
2012) (crossing into bike lane three times without touching the curb or affecting any other traffic did not
create reasonable suspicion of a traffic violation); State v. Oakes, 19 Fla. L. Weekly Supp. 813 (Fla.
12th Cir. Ct. June 14, 2012) (trial judge ruled that officer did not have reasonable suspicion for traffic
stop where the officer watched defendant’s car for less than a mile and passenger tires crossed over the
outside line, almost touched the grass, and then the car “‘jerked back;’” car continuously swerved back
and forth in its lane; speed was 40 mph in a 45 mph zone, which was reasonable for that time of night
and conditions; no other driver had to take evasive action); Peterfi v. Dep’t of Highway Safety & Motor
Vehicles, 19 Fla. L. Weekly Supp. 805 (Fla. 6th Cir. Ct. June 14, 2012) (officer reasonably believed the
defendant might be ill, tired, or impaired where vehicle was sitting at a green light for 23 seconds
impeding the flow of traffic while motorists sounded their horns and shouted for the officer positioned
behind petitioner’s vehicle to take action); Carbone v. Dep’t of Highway Safety & Motor Vehicles, 19
Fla. L. Weekly Supp. 682 (Fla. 17th Cir. Ct. April 30, 2012) (stop was lawful where officer saw
petitioner behaving as if he was having difficulty staying awake; he was slapping himself in the face, his
eyes were half shut, and at a red light his head was down as if asleep and then he jerked his head up after
the light turned green).
State v. Romine, 19 Fla. L. Weekly Supp. 349 (Fla. 4th Cir. Ct. Jan. 11, 2012) (weaving in lane of
travel, crossing the outside lane marking and returning to lane of travel did not establish a reasonable
suspicion that the defendant was impaired or that a crime was being committed); State v. Volare, 18 Fla.
L. Weekly Supp. 1104 (Fla. 11th Cir. Ct. Sept. 21, 2011) (although defendant had two brake lights,
which is all that is required, the officer lawfully stopped the defendant because he was straddling the
right lane and his left brake light was out); State v. Dickey, 18 Fla. L. Weekly Supp. 1077 (Fla. 17th Cir.
Ct. July 28, 2011) (officer did not have an objectively reasonable basis for stop where defendant was
driving without headlights for a short period (perhaps a half a second) after midnight at a slow speed
while approaching an intersection to make a right turn, stopping briefly at the intersection when the light
was green with one vehicle behind him who honked; no traffic was obstructed); State v. Rodriguez, 18
Fla. L. Weekly Supp. 940 (Fla. 11th Cir. Ct. July 15, 2011) (reversing trial court’s finding of no
reasonable suspicion where at about 5:10 a.m. officer saw defendant’s tires strike raised reflector lane
markers, move back into lane of travel, after another block hit the lane markers, drift in and out of the
lane for about three blocks, jerk back into lane at one point, after hitting left markers drift to the dotted
white line on the right side of the lane and abruptly move back a second time; but defendant did not drift
into the other lane and no traffic was affected); Billings v. State, 18 Fla. L. Weekly Supp. 767 (Fla. 11th
Cir. Ct. July 14, 2011) (officer did not have reasonable suspicion for a stop based on the fact that the
defendant was stopped at a stop sign 15 to 30 seconds, made a right turn, and pulled off so his car was
half on the swale and half off the roadway); State v. Pena, 18 Fla. L. Weekly Supp. 708 (Fla. 6th Cir. Ct.
June 23, 2011) (officer had reasonable suspicion for stop where he saw truck stopped in the middle of
the street with people behind it and a man in the road in the fetal position with a wet spot on the
pavement, someone pulling the person out of the street, truck accelerating, and truck straddling median
and using it as a guide before stop); Machado v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L.
Weekly Supp. 346 (Fla. 11th Cir. Ct. Feb, 3, 2011) (officer had reasonable suspicion for stop where he

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saw vehicle drift into right lane and come within inches of cars parked by the side of the road, swerve
back into the left lane, turn right and drive onto a sloped curb and the sidewalk); State v. Hicks, 18 Fla.
L. Weekly Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011) (officer had reasonable suspicion that driver was ill,
tired, experiencing mechanical difficulty, or DUI where vehicle crept forward at a red light so it was
over the stop bar and the front tires were in the crosswalk; when light turned green, the vehicle jerked
forward partly into the intersection and stalled; when the vehicle started, it did not move in a straight
path, but moved to the left towards the concrete median and almost hit it; and the driver adjusted by
moving back to the right causing the right front tire to touch the lane divider); McClellan v. Dep’t of
Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 163 (Fla. 14th Cir. Ct. Sept. 8, 2010)
(officer had reasonable grounds for stopping a vehicle for “a welfare check” where identified caller
reported seeing vehicle driving recklessly and pointed out the vehicle to an officer in parking lot as one
running off the road and going all over the road; informant expressed a concern female driver was
intoxicated or having a medical problem; officer saw fresh vomit outside of driver’s door and saw
female put groceries in car and walk away and then drive away); Mora v. Dep’t of Highway Safety &
Motor Vehicles, 18 Fla. L. Weekly Supp. 2 (Fla. 4th Cir. Ct. August 3, 2010) (officer had reasonable
suspicion for DUI investigation where he observed vehicle run a red light and make an illegal U-turn
and a strong odor of alcohol came from the car; driver had glassy eyes and was not able to speak
clearly); Raff v. State, 17 Fla. L. Weekly Supp. 1201 (Fla. 17th Cir. Ct. Aug. 11, 2010) (insufficient
grounds for stop to determine whether driver was ill, tired, or DUI where officer was responding to a
report of problem with juveniles when officer observed two people screaming at each other; one of them
was an impaired woman on foot trying to catch up with the other, who was in a vehicle driving five to
10 m.p.h. where the speed limit was 30 m.p.h.; driver was heard to say to woman, “You just got me
arrested for DUI.”); State v. Gonzalez-Oliva, 17 Fla. L. Weekly Supp. 1084 (Fla. 11th Cir. Ct. July 22,
2010) (officer thought defendant might be impaired and had probable cause for stop where driver
crossed the dashed lane lines four or five times causing two vehicles to back away, even though vehicle
was traveling 35–40 in a 45 m.p.h. zone; stop was lawful even in the absence of a traffic violation).
Comollo v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1068 (Fla. 4th Cir. Ct.
July 20, 2010) (officer had reasonable suspicion for DUI stop where he followed the vehicle for 1½ to
two miles during which the vehicle constantly moved from one lane to another and weaved back and
forth two or three times; the lane changes were not normal, but were like a snake with the vehicle
driving all the way into the bike lane, back into the other lane and back into the lane it started in); State
v. Berkowitz, 17 Fla. L. Weekly Supp. 1065 (Fla. 11th Cir. Ct. Aug. 19, 2010) (trial judge erred in
granting motion to suppress; officer had “reasonable suspicions based upon [officer’s] objective
observations which supported probable cause for the stop” where at 3:02 a.m. he followed a GT Porsche
for several blocks during which the driver revved the engine, made sharp turns into improper lanes of
traffic, punched/accelerated when approaching an intersection, and stalled the car several times causing
the officer to be concerned the driver did not know how to drive the car, was underage, unlicensed, or
intoxicated); Feller v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 863 (Fla.
4th Cir. Ct. April 28, 2010) (officer had reasonable suspicion for a DUI stop where vehicle was weaving
in its lane of travel, went into the parking lane on the right side of the road more than three times,
crossed the lane marker into the parking lane and then drifted back, over a distance of about a ¼ to a ½
mile, and the officer paced vehicle doing 50 to 55 m.p.h. in a 35 m.p.h. zone); State v. Timmons, 17 Fla.
L. Weekly Supp. 261 (Fla. 17th Cir. Ct. Dec. 22, 2009) (Deputy had sufficient facts to initiate an
investigatory stop based on observations of vehicle continuously weaving within lane and running a red
light while turning left; continuously weaving over a period of time would have been sufficient alone for
stop); Maxwell v. State, 17 Fla. L. Weekly Supp. 239 (Fla. 6th Cir. Ct. Jan. 8, 2010) (trial judge did not
err in denying motion to suppress, where at 1:30 a.m. deputy experienced in DUIs and circumstances
indicating impairment or defective vehicles became concerned upon seeing over a ¼ of a mile driver
jerk vehicle once after twice weaving within its lane, which included leaving three to four feet on the
right side of the vehicle and only one foot on the left side); State v. Bishop, 16 Fla. L. Weekly Supp. 933
(Fla. 17th Cir. Ct. Aug. 3, 2009) (officer had reasonable suspicion for stop where defendant was driving
51 m.p.h. in a 25 m.p.h. zone, heavily populated area and defendant had bloodshot and watery eyes,
dilated pupils, flushed face, and an odor of alcohol); Cruz v. State, 16 Fla. L. Weekly Supp. 290 (Fla.
9th Cir. Ct. Feb. 10, 2009) (testimony that defendant drove through an accident scene in a fast and
unsafe manner established reasonable suspicion that a crime had been committed); Gift v. State, 16 Fla.
L. Weekly Supp. 281 (Fla. 9th Cir. Ct. Jan. 30, 2009) (three-judge panel affirmed denial of motion to
suppress, finding that officer had reasonable suspicion of a traffic violation and impairment where
defendant was weaving within lane and crossing yellow line and a double yellow line, causing one
driver to take his foot off the gas); Petrick v. State, 16 Fla. L. Weekly Supp. 154 (Fla. 6th Cir. Ct. Nov.
20, 2008) (officer pacing vehicle doing 15 m.p.h. in a 45 m.p.h. zone for two-tenths of a mile without

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weaving or interference with other traffic did not constitute reasonable suspicion of impairment);
Golden v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 590 (Fla. 9th Cir. Ct.
April 16, 2008) (officer had reasonable suspicion for DUI stop where officer observed defendant driving
with an open rear passenger door and weaving within the lane).
State v. Jackson, 15 Fla. L. Weekly Supp. 586 (Fla. 17th Cir. Ct. March 10, 2008) (officer properly
stopped vehicle because of a concern that driver was a danger and might be impaired where vehicle
moved from far right lane to far left lane with wrong turn signal on, then repeatedly drifted in and out of
left lane for ¼ to ½ a mile with turn signal on); State v. Culpepper, 15 Fla. L. Weekly Supp. 585 (Fla.
17th Cir. Ct. March 4, 2008) (stop was improper where officer observed pickup truck passenger side
tires cross over the right side fog line and then return to lane of travel; within ¼ mile officer saw driver’s
side tires pass slightly over left lane center markings and immediately return to its own lane, but no
traffic was affected); Bakalova v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp.
578 (Fla. 13th Cir. Ct. March 5, 2008) (substantial competent evidence supported hearing officer’s
findings that stop was lawful where evidence showed that officer observed defendant having difficulty
changing gears and failing to maintain a single lane of traffic); Cook v. State, 15 Fla. L. Weekly Supp.
239 (Fla. 6th Cir. Ct. Jan. 24, 2008) (trial court’s findings that stop was reasonable were supported by
substantial competent evidence where at 1 a.m. it appeared vehicle was not going to stop for red light,
which had been red for some time, and it stopped late; vehicle swerved within its lane and at times
crossed into median lane straddling both lanes, then it would go back to the right and nearly strike the
right curb; officer observed vehicle for six tenths of a mile, but no other traffic was affected); State v.
Khan, 15 Fla. L. Weekly Supp. 34 (Fla. 17th Cir. Ct. Sept 19, 2007) (deputy had grounds for stop where
deputy saw defendant driving without headlights for awhile, swerving, and failing to maintain a single
lane); Obidiegwu v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1111 (Fla.
20th Cir. Ct. Sept 19, 2007) (stop was lawful where officer observed defendant straddle lane marker
line, hastily correct that position, pull into left turn lane at an intersection, stop, suddenly jerk forward as
if to go through the red light, and then back up a couple of feet).
Pierre v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1083 (Fla. 9th Cir. Ct.
Sept. 12, 2007) (weaving within lane was sufficient for stop, although officer also paced car at an
excessive speed); Moffat v. State, 14 Fla. L. Weekly Supp. 1079 (Fla. 6th Cir. Ct. July 5, 2007) (deputy
had reasonable suspicion where he followed truck at 1 a.m. for eight blocks and saw it weave within its
lane three times and each time driver made sharp, jerky corrections; based on experience of four years in
DUI unit deputy believed this conduct was consistent with an impaired driver); Boggs v. Dep’t of
Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1025 (Fla. 13th Cir. Ct. Aug. 8, 2007)
(officer had reasonable suspicion for DUI stop where officer observed defendant engage in “‘a
continuous pattern of weaving … over several blocks’ and ‘nearly struck the east curb several times’”
and drove on top of fog line); Duggan v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly
Supp. 916 (Fla. 6th Cir. Ct. Feb. 7, 2007) (officer had reasonable suspicion for DUI stop where officer
paced defendant at 50 m.p.h. in a 35 m.p.h. zone and saw defendant make a turn and then drive in the
middle turn lane for two blocks when there was space to merge into regular lane, and it took defendant
about 2½ blocks to stop after officer activated overhead lights and occasional siren bursts); Bewley v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 900 (Fla. 2d Cir. Ct. May 7, 2007)
(officer had reasonable suspicion for stop where defendant sat through two green arrows, then just
before signal turning red, defendant turned and drove in the marked bike lane for about 10-12 feet);
Mildenberger v. State, 14 Fla. L. Weekly Supp. 829 (Fla. 17th Cir. Ct. April 30, 2007) (stop was proper
where trooper followed defendant for about 1/3 of a mile and saw defendant cross over a solid white line
twice and drive on the shoulder of the road, causing trooper to believe defendant might be sleepy, very
tired, or under the influence of alcohol).
Poore v Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 613 (Fla. 8th Cir. Ct.
April 30, 2007) (officer had sufficient grounds for stop where officers observed vehicle swerve, drift,
tires on center lane or marker, accelerate or decelerate rapidly, fail to maintain single lane, and almost
hit right hand curb); State v. Boos, 14 Fla. L. Weekly Supp. 399 (Fla. 17th Cir. Ct. Feb. 27, 2007) (court
declined to reverse trial judge’s determination that there was not reasonable suspicion for traffic stop,
where the trial judge simply did not believe the trooper as to how he did a pace-clocking, and touching
vehicle to solid white line when making a turn was insufficient); Covard v. State, 14 Fla. L. Weekly
Supp. 338 (Fla. 7th Cir. Ct. Jan 23, 2007) (investigatory stop was proper where officer followed vehicle
for 13 blocks and saw the vehicle with the right side over a lane marker by one tire’s width, traveling 30
m.p.h. in a 45 m.p.h. zone, at an intersection accelerating quickly after light turned green; and officer
believed he had reasonable suspicion for DUI); Rommel v. State, 14 Fla. L. Weekly Supp. 251 (Fla.
13th Cir. Ct. Nov. 27, 2006) (officer did not have grounds for stop where she saw defendant driving 55
m.p.h., about 15 m.p.h. over the limit; defendant subsequently began driving 20 to 25 m.p.h., about 10

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m.p.h. below the speed limit, and gave his right turn signal for about half a mile and slowed to 10
m.p.h.; pulled into a private driveway and turned off his lights; after about a minute and a half, the
defendant pulled back onto the road and headed north and made a U-turn; since officer said she would
not have ticketed the defendant for speeding, court said “driving below the speed limit and sitting in a
private driveway do not give rise to a reasonable suspicion.”).
Zawistoski v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 230 (Fla. 12th Cir.
Ct. Jan. 16, 2007) (officer lawfully stopped defendant for unusual driving and safety concerns where the
defendant failed to use a turn signal, turned widely, crossed the outside lane divider several times, nearly
rear-ended another vehicle, and almost hit a curb); Pagnotto v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 115 (Fla. 4th Cir. Ct. Dec. 4, 2006) (stop was lawful where deputy
saw defendant stop about 40 feet behind the limit line at an intersection, defendant was in driver’s seat
with his head titled towards the window on the driver’s side, and “appeared to ‘pass out’ for a moment,”
then officer observed vehicle cross the center line, go back into his own lane, and then cross into bike
lane; finally defendant used his turn signal and moved properly into the inside lane); State v. Fedor, 14
Fla. L. Weekly Supp. 34 (Fla. 17th Cir. Ct. Sept. 20, 2006) (officer’s testimony that she saw the
defendant driving in the center lane and “‘drifting to the left of the lane four times between the 39 and
4400 block,’” was insufficient to justify a stop); Labrador v. State, 14 Fla. L. Weekly Supp. 22 (Fla.
11th Cir. Ct. Oct. 24, 2006) (officer did not have grounds for stop where he saw person signaling him by
waving his hands and pointing across an intersection; officer saw the defendant and a passenger in a
white van stopped at a light and the defendant made an appropriate right turn but squealed his tires);
State v. Arauz, 14 Fla. L. Weekly Supp. 12 (Fla. 11th Cir. Ct. Nov. 20, 2006) (officer had reasonable
suspicion for DUI stop where the officer saw the vehicle crossing between the lines, in two lanes at
once, bouncing back and forth, and not being operated in one lane; each time the car crossed a lane, it
drifted about 75 to 80% into the other lane); Andrews v. State, 13 Fla. L. Weekly Supp. 1164 (Fla. 6th
Cir. Ct. Oct. 5, 2006) (stop was proper where defendant swerved back and forth between lanes three
times without giving a signal and the last time forced another car to change lanes to avoid an accident
and then went back into the other lane); McNall v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla.
L. Weekly Supp. 1163 (Fla. 20th Cir. Ct. Sept. 11, 2006) (stop was lawful where vehicle made a sudden
jerk movement to the right and then back to the left while going eastbound and during that movement
both left tires crossed the white line into the center eastbound lane; vehicle slowed down and sped up
suddenly and made several drifting movements within the right lane); Bahena v. State, 13 Fla. L.
Weekly Supp. 1158 (Fla. 15th Cir. Ct. Sept. 14, 2006) (vehicle was traveling in unusual manner
justifying stop to check driver welfare where it was weaving from lane to lane, starting in the inside lane
and weaving to the outside lane and back to the inside lane; it was also impeding traffic in right hand
lane and came between one and half to two and a half feet from a vehicle in the right lane).
Thomas v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1145 (Fla. 7th Cir. Ct.
July 15, 2002) (officer did not have reasonable suspicion for DUI stop where officer followed vehicle
for about 50 seconds; 19 seconds the defendant drove in a straight path in the center lane, 31 seconds
vehicle made “non-erratic, correcting maneuvers of short duration, i.e., positioning car in center of lane
after a turn, moving away from approaching vehicles in other lane and intersection, and avoiding a
concave area of the road.”); Anderson v. State, 13 Fla. L. Weekly Supp. 1138 (Fla. 6th Cir. Ct. May 11,
2006) (stop was lawful where at about 1:30 a.m. the defendant was weaving within her lane, touching
the left-side lane marker once, applying her brakes a couple of times for no apparent reason, and
maintaining an erratic speed (speeding up and slowing down)); Butler v. State, 13 Fla. L. Weekly Supp.
1135 (Fla. 6th Cir. Ct. Feb. 28, 2006) (stop was proper where both left and right wheels crossed the lines
and in 2½ miles officer saw the defendant drift outside his lane, abruptly move back into the lane, make
a large looping right turn and come to an abrupt halt to avoid a collision).
State v. Johnson, 13 Fla. L. Weekly Supp. 1133 (Fla. 6th Cir. Ct. May 19, 2006) (where there was no
other traffic around, making left-hand U-turn from the center lane, thereby turning through the left lane
and the left turning lane at about 15 to 20 m.p.h., and then rapidly accelerating so as to briefly brake
traction with rear tires was not erratic and was a one-time event which did not permit a stop); State v.
Frioli, 13 Fla. L. Weekly Supp. 1131 (Fla. 6th Cir. Ct. May 11, 2006) (at 4:30 in the afternoon, an
officer followed the defendant for about four blocks and saw defendant weaving somewhat within his
lane; upon making a right turn, his tires came out of the curb lane and nearly struck the curb; vehicle
then swerved back into the curb lane and the left tires crossed over into the center lane. On appeal, the
court said: “The unusual driving essentially consisted of one sharp turn that was quickly (although
exaggeratedly) corrected. At worst, the driving was only marginally unusual, and not enough to be
considered a pattern, or even approaching a pattern. If the driving were coupled with another factor,
such as it being late at night, the driving might have justified a stop. If the driving were a bit worse or
had continued a bit longer, the driving, even in the afternoon, might have justified a stop. However,

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because the driving was in the afternoon, only slightly unusual, and observed for a brief time, this Court
agrees with the trial court that the stop was not justified under the circumstances.”); State v. Mullinix, 13
Fla. L. Weekly Supp. 965 (Fla. 15th Cir. Ct. July 13, 2006) (officer properly stopped driver where she
was driving on top of the double yellow line, weaving about the lane, she unnecessarily stopped for a
flashing light, proceeded through the light and then stopped in the middle of the road for 20 seconds
without any traffic signal requiring her to stop, and used her right turn signal to make a left turn); Cowan
v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 926 (Fla. 4th Cir. Ct. June 28,
2006) (officer lawfully stopped defendant when she saw defendant drive past her, slow down as if to
stop, suddenly accelerate, spin tires, fishtail, and accelerate through a turn); Daniels v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 855 (Fla. 7th Cir. Ct. 2006) (officer had sufficient
grounds to stop vehicle based on concern that driver might be impaired where the vehicle swerved
within lane, crossed over markers dividing lanes, made a right turn while still swerving in its lane, and
drove into oncoming traffic lane); Allen v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 790 (Fla. 14th Cir. Ct. April 17, 2006) (officer could stop driver who went around
roadblock at a crash scene); Odom v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 753 (Fla. 4th Cir. Ct. May 10, 2006) (officer could properly stop vehicle to see if the driver was
ill, tired, or impaired where officer saw vehicle stop in the middle of road, make a right hand turn from
the middle of the road, and drive over the curb); Stone v. Dep’t of Highway Safety & Motor Vehicles,
13 Fla. L. Weekly Supp. 654 (Fla. 4th Cir. Ct. April 10, 2006) (officer had reasonable suspicion where
driver changed lanes without a turn signal, continuously drifted back and forth in his lane, and hit the
lane markers on both sides).
Pecorelli v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 524 (Fla. 6th Cir. Ct.
Feb. 15, 2006) (stop was unlawful where officers recognized the driver as being one of five people they
had seen 20 minutes before the driving at an apartment complex pool who appeared to have been
drinking, but the officers had not seen any problems with the driving); State v. Johnston, 13 Fla. L.
Weekly Supp. 442 (Fla. 15th Cir. Ct. Feb. 24, 2006) (deputy had reasonable suspicion of impairment
where he saw vehicle make a wide U-turn, cross four lanes of traffic and almost hit the curb, cross back
over two lanes of traffic, and drift to the left about ⅓ of the way); State v. Douglas, 13 Fla. L. Weekly
Supp. 414 (Fla. 4th Cir. Ct. Jan. 30, 2006) (there was reasonable suspicion of impairment where the
vehicle consistently drifted toward the right side of the road, crossed the fog line at least once, and
touched the fog line more than once for about ½ mile); Wideman v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 254 (Fla. 6th Cir. Ct. Aug. 11, 2005) (observing vehicle “acting
suspicious” and driving off road without any indication of length of observations or the distance traveled
did not establish grounds for a stop); State v. Murphy, 13 Fla. L. Weekly Supp. 218 (Fla. 6th Cir. Ct.
April 5, 2005) (there was no reasonable suspicion for stop based solely on the fact that the passenger
side tires went over lane marker twice and the defendant made a U-turn); State v. Tharp, 13 Fla. L.
Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005) (officer could stop vehicle based on reasonable
suspicion of speeding where officer opined that the driver was “ ‘traveling at a high rate of speed’ ” and
“ ‘took a corner fast’ ” and upon detecting odor of alcohol and seeing red and glassy eyes, officer could
conduct DUI investigation); Rosecrans v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 21 (Fla. 9th Cir. Ct. Aug. 8, 2005) (officer had reasonable basis for a stop where at 1:35
a.m. the officer saw vehicle traveling with its right wheel outside lane of travel, make a sudden right turn
into a closed gas station, and park at a 90 degree angle across the parking spaces, occupying a marked
disabled parking space); Douglass v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 3 (Fla. 4th Cir. Ct. Oct. 14, 2005) (continually drifting within a vehicle’s lane of travel,
continually riding on top of the lane dividing line, and crossing that lane and correcting on several
occasions provided reasonable suspicion that the driver might be DUI); Barnett v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1131 (Fla. 14th Cir. Ct. Aug 30, 2005) (stopping
abruptly at a red light without any impact on traffic and moving from an outside straight lane across an
inside straight lane into the right hand lane of two turn lanes without impacting traffic followed by again
stopping at a red light, did not establish grounds for a stop); Patel v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 997 (Fla. 3d Cir. Ct. Aug. 18, 2005) (there was reasonable suspicion
of DUI where at about 9:33 p.m. the officer followed the vehicle for about two miles and saw it cross the
white centerline and yellow inside line several times and jerk the steering wheel to correct for drifting);
State v. Tillman, 12 Fla. L. Weekly Supp. 763 (Fla. 18th Cir. Ct. Jan. 14, 2005) (there were no grounds
for a stop where at 1 a.m. an officer was stopped behind the defendant in the left turn lane at a red light,
the defendant did not move for about 30 seconds after the light turned green, still did not move after
officer pressed her air horn, and did not initially move after the officer pressed the air horn a second
time, but the defendant finally completed his turn); Martinez v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 729 (Fla. 20th Cir. Ct. May 5, 2005) ( officer had reasonable

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suspicion for DUI stop where officer observed vehicle crossing yellow center line once, followed by
drifting over the line again, and then crossing the white line on the shoulder); Schoonard v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 728 (Fla. 18th Cir. Ct. May 3, 2005)
(officer had reasonable suspicion for stop where deputy saw vehicle make two U-turns, speed up causing
the tires to squeal, almost strike the media twice, and make an abrupt stop while going 45 m.p.h.
approaching a red light); State v. Bean, 12 Fla. L. Weekly Supp. 610 (Fla. 6th Cir. Ct. March 4, 2005)
(where the officer observed driver continually drifting in and out of lane and nearly hitting curb, “[t]he
decisive factor … [supporting the validity of the investigatory stop was] that the police officer who
made the stop testified that, based upon her training and experience, the driver’s behavior was consistent
with someone who was impaired.”); Thurston v. State, 12 Fla. L. Weekly Supp. 526 (Fla. 9th Cir. Ct.
March 1, 2005) (moving slowly through an intersection with hazard lights on or stopping with hazard
lights on provided grounds to stop based on reasonable suspicion of an accident or some other
mechanical problem); Kugel v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp.
450 (Fla. 18th Cir. Ct. Feb. 17, 2005) (entering gas station parking lot with tires squealing and car
sliding sideways established a reasonable suspicion and this is more than in Donaldson).
Seward v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 438 (Fla. 11th Cir. Ct.
Feb. 16, 2005) (making a wide right turn and going into the wrong lane of travel for an unspecified
period without any evidence that anyone was endangered did not justify an investigatory stop); Bourcier
v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 287 (Fla. 9th Cir. Ct. Sept. 10,
2004) (stop was lawful where deputy, who concluded based on his experience and training that the
driver might be sick, injured, or tired traveled two car lengths behind the vehicle for five to 10 minutes
and observed the vehicle weaving within its lane on four occasions by twice crossing the white line on
the right by about eight to 12 inches, and twice crossing the yellow lane marker to the left by about four
inches).
Kronz v. State, 12 Fla. L. Weekly Supp. 200 (Fla. 6th Cir. Ct. Sept. 9, 2004) (driving at inconsistent
speeds and weaving from one side of the lane to the other and back for about a mile and half established
a pattern leading to reasonable suspicion of DUI); Patel v. State, 12 Fla. L. Weekly Supp. 193 (Fla. 6th
Cir. Ct. Sept. 23, 2004) (officer had reasonable suspicion for DUI stop where car was at light and when
light turned green the car did not move for about five seconds, prompting trailing vehicle to sound its
horn, and defendant lay on gas pedal causing tires to spin the width of the intersection and the vehicle to
fishtail); Jiles v. State, 12 Fla. L. Weekly Supp. 120 (Fla. 12th Cir. Ct. Oct. 29, 2004) (officer’s
observation of vehicle in right lane, swerving into the bicycle lane by about two or three feet for about
two or three seconds, and again swaying into the bicycle lane for five or six seconds by an unspecified
distance, did not establish reasonable suspicion where it appeared that the officer observed the defendant
for a short time and no one was endangered); State v. Armstrong, 12 Fla. L. Weekly Supp. 61 (Fla. 13th
Cir. Ct. Sept. 8, 2004) (DUI stop lawful where officer observed the defendant for several minutes on
interstate in the center lane, weaving from left to right touching the left and right lines three to four times
and affecting traffic, but not speeding); Brites v. State, 11 Fla. L. Weekly Supp. 896 (Fla. 17th Cir. Ct.
July 22, 2004) (deputy had reasonable suspicion for stop where deputy saw defendant pull into parking
lot behind another vehicle and the driver of the other vehicle complained that the defendant was
following him for no known reason); State v. Ball, 11 Fla. L. Weekly Supp. 799 (Fla. 17th Cir. Ct. June
8, 2004) (officer had reasonable suspicion for DUI investigation where officer heard tires screeching,
saw defendant’s vehicle turn abruptly into driveway and stop, and defendant, who had bloodshot, watery
eyes, stumbled towards officer); Colosimo v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 771 (Fla. 7th Cir. Ct. Feb. 17, 2004) (motorcyclist was lawfully stopped based on
officer’s belief that he was under the influence where defendant made a wide turn from the right lane
into the left lane, pulled into far left lane and then into the center lane, drifted side to side about four
times, drove 30 m.p.h. in 50 m.p.h. zone, impeded traffic, crossed the centerline by a foot, and drifted to
the right side of roadway); Dieterle v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly
Supp. 594 (Fla. 7th Cir. Ct. Feb. 28, 2003) (officer had valid objective basis for stop where in heavy
traffic, defendant drove faster than other traffic, and swerved onto a grassy median twice); Decker v.
State, 11 Fla. L. Weekly Supp. 542 (Fla. 17th Cir. Ct. March 12, 2004) (abrupt, “quick jump, into the
left-turn lane without using a signal,” when there was other traffic in close proximity to the intersection
was sufficient to justify a stop).
Michels v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 529 (Fla. 9th Cir. Ct.
Feb. 25, 2004) (driving vehicle at 2:43 a.m. with an individual on the hood created a sufficient safety
concern and reasonable suspicion for stop); Lorenzo v. Dep’t of Highway Safety & Motor Vehicles, 11
Fla. L. Weekly Supp. 518 (Fla. 9th Cir. Ct. March 4, 2004) (nearly hitting right curb three times and
driving about 500 feet in the wrong direction indicated by solid yellow line in a hotel parking lot
established reasonable suspicion); Hardy v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.

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Weekly Supp. 387 (Fla. 9th Cir. Ct. Feb. 2, 2004) (continually speeding up and slowing down,
exceeding speed limit of 70 m.p.h., swerving in and out of lane of travel, crossing into center turn lane
and back four times, turning into the right center lane three times, all in heavy traffic established
reasonable suspicion); State v. Muniz, 11 Fla. L. Weekly Supp. 281 (Fla. 9th Cir. Ct. Jan. 21, 2004)
(accelerating in an unusual way, going off the road two times, kicking up dirt, hitting the curb
established reasonable suspicion for a stop); Skeadas v. Dep’t of Highway Safety & Motor Vehicles, 11
Fla. L. Weekly Supp. 278 (Fla. 9th Cir. Ct. Jan. 7, 2004) (exiting parking lot at high rate of speed, nearly
striking deputy’s vehicle, causing other vehicles to take evasive action and action to avoid a collision
justified reasonable suspicion); Cutting v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 194 (Fla. 9th Cir. Ct. Nov. 25, 2003) (as vehicles were moving, flashing high-beams from
behind patrol car at 1:50 a.m., subjecting on-coming vehicles to glare from lights, and then keeping
high-beams on as officer approached established reasonable suspicion); Von Bargen v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 949 (Fla. 9th Cir. Ct. Sept. 30, 2003) (lack
of working rear registration plate light and weaving within lane established reasonable suspicion); Jones
v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 948 (Fla. 9th Cir. Ct. Oct. 3,
2003) (driving in fast lane, proceeding on right marker lines, followed by moving into slow lane to the
far right line, then shifting left and driving with tires on white lane dividers, followed by shifting back to
the fast lane and crossing the fast lane left solid yellow line, and finally moving back to the slow lane
established reasonable suspicion); Hilton v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L.
Weekly Supp. 851 (Fla. 6th Cir. Ct. Sept. 23, 2003) (making an abrupt lane change on a bridge at 1:05
a.m., followed by weaving outside of the middle lane to the curb lane and then back to the middle lane
about six times established reasonable suspicion).
State v. Williams, 10 Fla. L. Weekly Supp. 595 (Fla. 17th Cir. Ct. May 23, 2003) (one time drifting from
right lane to the center lane, which did not affect traffic, was insufficient to justify stop); Kent v. Dep’t
of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 484 (Fla. 17th Cir. Ct. May 21, 2003)
(stopping at light after it had turned green, straddling lanes, weaving from one lane to another and then
back, and nearly striking the curb two or three times permitted investigatory stop); Guittar v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 403 (Fla. 9th Cir. Ct. Feb. 7, 2003)
(drifting once within lane of travel “is not sufficiently erratic or atypical to justify stopping” vehicle);
Quick v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 284 (Fla. 9th Cir. Ct.
Feb. 20, 2003) (making an improper U-turn at a busy intersection, while towing a boat created a high
concern for public safety, justifying stop); LaForest v. Dep’t of Highway Safety & Motor Vehicles, 10
Fla. L. Weekly Supp. 282 (Fla. 9th Cir. Ct. Feb. 23, 2003) (stop was lawful where deputy was on I-4
when petitioner “passed him so close … it startled him;” drove too close to another vehicle; was
weaving so that his truck shook; deputy paced petitioner going 60 m.p.h. in a 50 m.p.h. zone); State v.
Hirtzel, 10 Fla. L. Weekly Supp. 239 (Fla. 17th Cir. Ct. Feb. 26, 2003) (coming to a screeching halt
behind a police vehicle at 2 a.m. was sufficient to create a reasonable suspicion that the driver may have
been drinking; continued detention was justified when the officer detected an odor of alcohol coming
from the car and noticed that the driver had blood shot eyes and slurred speech); Croasmun v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 152 (Fla. 7th Cir. Ct. March 27, 2002)
(officer did not have grounds for stopping motorcyclists at 10:15 p.m. where officer saw cyclist strike
curb while cyclist was turning right and “almost” losing control of the motorcycle); Moss v. State, 9 Fla.
L. Weekly Supp. 810 (Fla. 4th Cir. Ct. Oct. 8, 2002) (trying to start car when deputy pulled up across the
median and grinning at deputy did not permit an investigatory stop). State v. Hughes, 9 Fla. L. Weekly
Supp. 677 (Fla. 17th Cir. Ct. July 8, 2002) (stop justified where vehicle initially immobile 100 to 200
feet from intersection at 1:45 a.m., went into closed station when officer flashed emergency lights); State
v. Bright, 9 Fla. L. Weekly Supp. 528 (Fla. 17th Cir. Ct. May 14, 2002) (stopping car about one car
length from stop bar on red light, inching forward when light turned green, turning on left turn signal,
but making no left turn, and stopping in the roadway when deputy turned on lights established
reasonable suspicion for detention); Bell v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L.
Weekly Supp. 354 (Fla. 7th Cir. Ct. April 10, 2002) (tapping brakes, stopping and going, traveling down
the center of an unmarked roadway with no traffic in the vicinity was not sufficient for an investigatory
stop, and court declined to permit “a ‘well being check’ on motorists who simply are lost, unfamiliar
with the vicinity, or pose no danger to surrounding traffic.”); Careaga v. State, 9 Fla. L. Weekly Supp.
168 (Fla. 11th Cir. Ct. Jan. 15, 2001) (a continuous “ ‘wide swerve’ ” within single lane for two blocks
at 4 a.m., without any apparent justification, and the driver apparently being unaware of the officer’s
presence right behind him established reasonable suspicion for stop); Delafe v. State, 8 Fla. L. Weekly
Supp. 594 (Fla. 11th Cir. Ct. July 24, 2001) (weaving within a single lane without touching either side
lane, with no evidence as to degree, severity, or duration did not establish reasonable suspicion for stop);
Rogers v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 300 (Fla. 2d Cir. Ct.

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March 12, 2001) (nearly hitting a curb, weaving within lane, and exceeding speed limit was sufficient
for stop); State v. Cerretani, 8 Fla. L. Weekly Supp. 211 (Fla. 18th Cir. Ct. Dec. 13, 2000) (driving 30
m.p.h. in a 45 m.p.h. zone in front of one car that could have passed did not establish a violation or a
reasonable suspicion of DUI, and alleged concern was not the basis for the stop); State v. Vale, 7 Fla. L.
Weekly Supp. 705 (Fla. 9th Cir. Ct. July 10, 2000) (in a two to one decision, court ruled that officer had
reasonable suspicion for stop where officer followed vehicle within one car length at 55 m.p.h. for about
½ mile; vehicle swayed within lane, crossed over middle line, followed the white fog line, made contact
with shoulder of road about four times and with broken line separating lanes of traffic about two times,
hit the grass shoulder of the road, but vehicle was operated smoothly within the lane. Fact that there
were legitimate explanations for the driving (i.e. wind and presence of officer so close behind) did not
alter results); Noorigan v. State, 7 Fla. L. Weekly Supp. 369 (Fla. 4th Cir. Ct. Feb. 23, 2000) (crossing
line dividing inside lane from the center turn lanes, drifting into the center turn lanes by about one foot,
and then slowly correcting to return to original lane did not permit a stop where no traffic was affected);
Griffin v. Dep’t of Highway Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 161 (Fla. 9th Cir. Ct.
Nov. 4, 1999) (weaving within lane, drifting momentarily into another lane, and driving 10 m.p.h. below
speed limit, causing traffic back up justified traffic stop); Giltner v. Dep’t of Highway Safety & Motor
Vehicles, 7 Fla. L. Weekly Supp. 156 (Fla. 9th Cir. Ct. Nov. 4, 1999) (weaving within lane at 1:30 a.m.,
drifting outside lane more than once, and running off road onto shoulder was sufficient to justify stop).
County court opinions: State v. Ivanova, 25 Fla. L. Weekly Supp. 458 (Fla. Pasco Cty Ct. Oct. 27,
2015) (deputy had probable cause for 3:43 a.m. stop for traffic infractions and reasonable suspicion that
defendant might be ill or impaired based on anonymous reports of impaired driver, including description
of vehicle and tag number; defendant was going 35-45 mph in a 55 mph zone, drifting in the right lane
over the fog line and onto the grass, going left onto and over the dividing line more than once, braking
erratically, and suddenly veering left with the right turn signal on and then the left turn signal, into the
stripped median, but not making a turn); State v. Fletcher, 24 Fla. L. Weekly Supp. 545 (Fla. Volusia
Cty. Ct. June 21, 2016) (officer did not have grounds for stop where at 1:30 am defendant was driving
westbound well below the speed limit, weaving within the lane in “a minor, unremarkable fashion;”
paused in a turn lane when there was no oncoming traffic; made a U-turn, drove eastbound for a quarter
of a mile and made another U-turn, then stopped for a few minutes at a gas station at the next
intersection; left the gas station and drove properly westbound for 9 to 10 miles, although she slowed
below the speed limit; she turned onto a road where there was a closed county recycling facility; officer
stopped her); State v. Pastella, 24 Fla. L. Weekly Supp. 80 (Fla. Monroe Cty. Ct. April 15, 2016) (stop
was unlawful where the only basis was that before officers started following defendant, one of them
claimed defendant’s eyes were dilated based on observations made when he was over 10 feet from the
defendant; the defendant’s driving was proper, except that he drifted within his lane and went over onto
the broken white divider lines); State v. Johnson, 22 Fla. L. Weekly Supp. 1067 (Fla. Putnam Cty. Ct.
March 26, 2015) (officer did not have reasonable suspicion based on a belief defendant was ill, tired or
impaired where officer mentioned that idea for the first time at the suppression hearing; additionally, the
facts did not support the stop on those grounds where officer did not see any traffic law violations or
suspicious driving in two miles of travel except for an inadequately supported conclusion defendant ran
a stop sign; vehicle had one tire in the middle of the double yellow lines for 10 yards and then corrected
to the right so one tire went off the roadway for a brief period, but there was no designated lane); State
v. Rangel, 22 Fla. L. Weekly Supp. 400 (Fla. Brevard Cty. Ct. August 25, 2014) (officer had grounds for
stop for unusual driving where defendant made a left turn, crossed the double yellow line and drove
almost directly at the police car, coming within 10 feet of it; there were no other vehicles around); State
v. Walden, 22 Fla. L. Weekly Supp. 400 (Fla. Brevard Cty. Ct. August 7, 2014) (officer had grounds for
stop to see if driver was ill, injured or impaired where defendant was driving significantly slowly,
weaving and stopped in the middle lane of a six lane highway at midnight); State v. Merchant, 22 Fla. L.
Weekly Supp. 277 (Fla. Sarasota Cty. Ct. April 29, 2014) (deputy had reasonable suspicion to believe
defendant was ill, tired or impaired when deputy saw defendant leave area where there was a number of
bars, defendant was going 20 m.p.h. in a 30 m.p.h. zone, in about ½ mile vehicle twice crossed the fog
line on right coming within about six inches of the curb, which was about three feet from the fog line,
and then overcorrected and swerved over the center line with both driver side tires completely crossing
the center line and it did not matter that no other person was affected); State v. Shier, 21 Fla. Law
Weekly Supp. 843 (Fla. Brevard Cty. Ct. Feb. 19, 2014) (officer had reasonable suspicion for DUI
where citizen reported seeing a specified vehicle with a specified plate number swerve onto the grass
and sidewalk, nearly strike a pedestrian before crossing the northbound lane and turning into apartments;
the white male driver was the only one in the car; 10 minutes later an officer who had that information
saw the defendant exit a parked vehicle with the same plate number at the apartment complex where the
registered owner lived; when defendant exited he pushed the officer, smelled of alcohol and had other

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indicia of impairment, and refused all testing); State v. Cejda, 21 Fla. L. Weekly Supp. 283 (Fla.
Brevard Cty. Ct. Oct. 30, 2013) (trial judge found deputy’s belief that defendant might be ill, injured, or
impaired, a hunch and stop unlawful where it was based solely on defendant traveling 40 mph in a 45
mph zone and touching the line divider 3 times within a ¼ mile); State v. Unson, 21 Fla. L. Weekly
Supp. 179 (Fla. Volusia Cty. Ct. Sept. 19, 2013) (weaving within a lane and a two lane deviation as part
of one continuous movement over a short distance was insufficient for a stop); State v. Tams, 20 Fla. L.
Weekly Supp. 1236 (Fla. Manatee Cty. Ct. August 23, 2013) (deputies had reasonable suspicion for DUI
investigation where vehicle moved slowly down road with hazard lights on and flat tires; came to a stop
in right lane and it had front end damage; defendant voluntarily exited, had a strong odor of alcohol,
admitted drinking two pints and had trouble balancing); State v. Anderson, 20 Fla. Law Weekly Supp.
1099 (Fla. Brevard Cty. Ct. June 17, 2013) (stop was invalid where in a short distance driver crossed the
center line several times, slowed down as if she were going to stop as she approached a green light, and
twice came close to the vehicle in front of her and then slowed down); State v. Folstein, 20 Fla. L.
Weekly Supp. 1098 (Fla. Brevard Cty. Ct. April 16, 2013) (there was reasonable suspicion for stop
where officer estimated defendant was going 55 mph in a 45 mph zone, which was supported by a pace
of the car, vehicle passed police car while speeding and swerving within its lane and crossed the line in
the lane of traffic, and another citizen had pointed the vehicle out to the officer); State v. Perkins, 20 Fla.
Law Weekly Supp. 1074 (Fla. Volusia Cty. Ct. August 29, 2013) (stop was improper where at about
1:47 a.m. pick-up truck came to a “‘jerky’” stop at a stop sign in a residential area, made wide turn onto
another street into another lane; made another “‘jerky’” stop at another stop sign; there were no other
problems for seven blocks; vehicle then made a wide turn onto another residential road and went an
unspecified distance into a yard; no traffic was affected); State v. Carpenter, 20 Fla. Law Weekly Supp
1009 (Fla. Brevard Cty. Ct., June 18, 2013) (driving was “not normal and [was] beyond what is
practicable” and stop was lawful where defendant drove slower than speed limit and went over lane
marker by ½ tire width four times in ¼ of a mile and officer felt driver may have been ill, injured,
impaired, or distracted by something going on inside the truck); State v. Darby, 20 Fla. Law Weekly
Supp. 927 (Fla. Polk Cty. Ct. June 27, 2013) (stop was unjustified where video evidence showed vehicle
on a road with narrow lanes drive on top of the broken white line separating the left and right lanes 3 or
4 times in about 6 blocks; that was not “‘swerving;’” rather, it was more like a “slight drift”; because of
the width of the lanes “any deviation from the center by just a few inches would result in the tires
touching or riding on top of the lane marker.”); State v. Pasha, 20 Fla. Law Weekly Supp. 827 (Fla.
Brevard Cty. Ct. May 15, 2013) (weaving within lane prior to stopping for a red light and stopping over
the solid white stop bar but not in the crosswalk did not constitute sufficient erratic driving for a stop
even if the officer said she was concerned about whether the driver might be “ ‘ill, injured or impaired’”
where the officer’s concerns were not in her police report and she gave no facts supporting this
conclusion); State v. Barton, 20 Fla. L. Weekly Supp. 720 (Fla. Volusia Cty. Ct. April 30, 2013) (officer
did not have reasonable suspicion for a traffic stop to ascertain if the driver was ill, tired or impaired
when he heard defendant riding on the reflectors to the left of the yellow line in the turning lane for
some unspecified period and defendant corrected by turning to the right entering the left lane, and as he
did so, he crossed slightly into the right lane and then returned to the left lane; this was done as one
movement in three minutes and one and a half miles; no traffic or pedestrians were affected).
State v. Lakeman, 20 Fla. L. Weekly Supp. 601 (Fla. Monroe Cty. Ct. Nov. 27, 2012) (officer had
reasonable suspicion for stop where at about 1:00 a.m. officer saw vehicle weaving within its lane,
blinker briefly come on for no apparent reason where there was no place to turn; vehicle lights go
completely off and then come back on); State v. Lewis, 20 Fla. L. Weekly Supp. 589 (Fla. Brevard Cty.
Ct. Feb. 26, 2013) (no grounds for stop where at 5 a.m. officer saw vehicle going 22 to 30 mph in a 45
mph zone for one to two miles where there was no posted minimum speed; no other traffic was
blocked); State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19, 2012) (stop proper
because of concerns that defendant might be ill, tired, or impaired where vehicle drifted to the left and
the right a couple times on each side; each time, tires left the center lane, and about one quarter width of
the car went into the adjoining lane of traffic and then each time vehicle moved back to its own lane of
travel); State v. Gross, 19 Fla. L. Weekly Supp. 894 (Fla. Brevard Cty. Ct. July 3, 2012) (touching fog
line five times and the center line once without crossing them over five miles without endangering other
drivers did not justify a traffic stop); State v. Santos, 19 Fla. L. Weekly Supp. 867 (Fla. Brevard Cty. Ct.
July 8, 2012) (officer had reasonable suspicion for stop or grounds to believe defendant was committing
an infraction or vehicle was having difficulties where truck was dragging muffler, smoke was coming
from the vehicle and sparks were flying, and the headlight was out); State v. Martin, 19 Fla. L. Weekly
Supp. 852 (Fla. Brevard Cty. Ct. June 20, 2012) (deputy had reasonable suspicion where at about 12:50
a.m. he saw a motorcycle weave four times within its lane over a half-mile; it came within six inches of
the fog line and a foot of the center line; deputy was concerned that defendant might weave into

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oncoming lane or crash into the adjacent ditch); State v. Mullins, 19 Fla. L. Weekly Supp. 747 (Fla.
Brevard Cty. Ct. May 15, 2012) (going over fog line once with no indication that it was a great distance
did not establish reasonable suspicion of impairment); State v. Lolley, 19 Fla. L. Weekly Supp. 592 (Fla.
Lake Cty. Ct. March 14, 2012) (officer did not have reasonable suspicion for DUI where in 1.2 miles,
the officer saw the defendant straddle the white line once, fail to use his turn signal, drive 15 mph in a
25 mph zone, make four turns, navigate a winding road through a neighborhood, and try to “‘ditch’” the
officer by driving into a convenient store parking lot); State v. Buhring, 19 Fla. L. Weekly Supp. 296
(Fla. Leon Cty. Ct. Nov. 3, 2011) (officer did not have reasonable suspicion that defendant was impaired
based on leaving a blinker on for one block, pausing at a yellow light, and merging into another lane of
traffic followed by a return to the original lane without affecting any other traffic); State v. Nazco-
Hernandez, 18 Fla. L. Weekly Supp. 1182 (Fla. Brevard Cty. Ct. Aug. 30, 2011) (officer had reasonable
suspicion for stop where vehicle swerved two or three times and caused another vehicle to take evasive
action); State v. Starck, 18 Fla. L. Weekly Supp. 1058 (Fla. Brevard Cty. Ct. Aug. 15, 2011) (stop was
unlawful where driving consisted of one sharp turn that was quickly corrected by going through a very
short yellow striped area; driving was only slightly unusual and was not a pattern); State v. Alvarado, 18
Fla. L. Weekly Supp. 1010 (Fla. Manatee Cty. Ct. April 5, 2011) (officer had sufficient facts indicating
defendant was ill, tired, or impaired when at 10:30 p.m. vehicle was going slowly; after about eight
blocks, defendant stopped at a red light in the left turn lane and when the light turned green defendant
made a turn, but cut corner short on his left and then about one-quarter of the passenger side of his
vehicle went off the shoulder of the road; defendant corrected path; as defendant continued to travel, the
officer followed and once again saw vehicle go off right shoulder in the same way, then the vehicle
drifted within its lane, going first to the left, then the right and then to the left again); State v. Pharr, 18
Fla. L. Weekly Supp. 904 (Fla. Brevard Cty. Ct. Aug. 11, 2011) (drifting within lane about five times
and the fact that if the driver continued on course, she would go into a busy traffic area gave officer
sufficient grounds to make a stop); State v. Johnsen, 18 Fla. L. Weekly Supp. 478 (Fla. Brevard Cty. Ct.
March 4, 2011) (officer did not have reasonable suspicion to make a stop where video showed defendant
drove onto the fog line twice in about a one-half mile where no other traffic was affected even though
officer suspected defendant was ill, injured, or impaired); State v. Taylor, 18 Fla. L. Weekly Supp. 397
(Fla. Volusia Cty. Ct. Jan. 13, 2011) (officer did not have reasonable suspicion for DUI investigation
where at a roundabout officer observed vehicle move from travel lane into center lane, back to the travel
lane and into the bike lane, and continue in the bike lane for several blocks, but there was no evidence of
other traffic, bicycles, or pedestrians being present and officer expressed no suspicion that driver might
be impaired before stop); State v. Schaeffer, 18 Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Nov.
23, 2010) (officer did not have reasonable suspicion to make a stop where defendant drove over fog line
two times by about six to 12 inches plus the tire width and officer did not say he suspected defendant
was ill, tired, impaired, or experiencing mechanical problems nor was any other traffic affected); State v.
Olivo, 18 Fla. L. Weekly Supp. 236 (Fla. Brevard Cty. Ct. Nov. 16, 2010) (officer had reasonable
suspicion of impairment and to make stop where defendant drove over fog line four times in one-half
mile and just before stop he drove on fog line for about 200 feet; deputy thought defendant might be
impaired); State v. Brock, 18 Fla. L. Weekly Supp. 233 (Fla. Brevard Cty. Ct. May 19, 2010)
(experienced DUI deputy had reasonable suspicion to believe defendant might be ill, injured, or
impaired and to make a stop where over 2½ minutes vehicle crossed towards, onto, and over the right
fog line on many occasions, several of which were on a bridge close to the right guard rail); State v.
Keith, 18 Fla. L. Weekly Supp. 114 (Fla. Brevard Cty. Ct. Sept. 28, 2010) (officer had reasonable
suspicion for stop because he thought driver might be ill, injured, or impaired where within one minute
vehicle crossed fog line once by a tire width and rode the center line two more times and another vehicle
moved to avoid the suspect vehicle).
State v. Morley, 18 Fla. L. Weekly Supp. 110 (Fla. Brevard Cty. Ct. August 10, 2010) (deputy did not
have reasonable suspicion to make a stop where defendant drove over fog line twice in less than a mile
even though deputy believed driver may have been, ill, injured, or impaired); State v. Ortiz-Ramirez, 18
Fla. L. Weekly Supp. 99 (Fla. Monroe Cty. Ct. Aug. 2, 2010) (anonymous tip of reckless driving
combined with observation of vehicle leaving its lane three times by no more than a foot over 1½ miles
was insufficient for a stop even though the officer said based on training and experience he thought the
driver might be impaired); State v. Gordon, 17 Fla. L. Weekly Supp. 1268 (Fla. Brevard Cty. Ct. August
12, 2010) (deputy did not have reasonable suspicion where passenger side tires crossed completely over
the fog line at least once, deputy believed vehicle crossed fog line at least twice; there was a two foot
shoulder in that area; deputy believed driver was impaired based on the driving, the time of day, the
number of bars and impaired drivers in that area, and the fact that a majority of drivers are impaired that
time of day); State v. Esparza, 17 Fla. L. Weekly Supp. 1033 (Fla. Sarasota Cty. Ct. June 8, 2010)
(deputy did not have reasonable suspicion notwithstanding his expressed belief that the driver was

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impaired, sick, or tired based solely on the observation of vehicle drifting over the center lane once and
then making a wide turn into a driveway); State v. Williams, 17 Fla. L. Weekly Supp. 852 (Fla. Brevard
Cty. Ct. March 24, 2010) (officer had reasonable suspicion for a traffic stop where she saw vehicle cross
fog line leaving the roadway twice and that developed into reasonable suspicion for DUI when the
officer noted that the defendant had an odor of alcoholic beverage, bloodshot, watery eyes and denied
drinking); State v. Torpy, 17 Fla. L. Weekly Supp. 847 (Fla. Brevard Cty. Ct. May 7, 2010) (officer had
reasonable suspicion for DUI stop where motorist reported that the vehicle was swerving all over the
road, officer observed that vehicle was all over the road, crossing both center line and fog line during
one-half mile even though no other traffic was affected; but the reasonable suspicion was gone when
after investigation the officer told dispatch that the defendant did not look like he was drunk and during
investigation, defendant admitted drinking but not the amount or the time, was speaking normally, did
not have bloodshot, watery eyes, nor apparent mental impairment); State v. Campbell, 17 Fla. L. Weekly
Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010) (officer had reasonable suspicion for DUI stop where in
the early morning hours the officer saw vehicle stop at a green light, make a wide right turn and cross
into the left turn lane for oncoming traffic; vehicle weaved in and out of its lane multiple times; it then
made a second wide right turn, nearly striking the center media and again weaved outside of it lane,
almost striking the median again); State v. Flint, 17 Fla. L. Weekly Supp. 489 (Fla. Brevard Cty. Ct.
Feb. 28, 2010) (officer had reasonable suspicion for stop based on his belief that driver might be
impaired where he saw defendant weaving within lane, crossing over fog lines several times, traveling
15 m.p.h. below the posted speed limit, and crossing over the solid yellow lines when turning right);
State v. Maxwell, 17 Fla. L. Weekly Supp. 487 (Fla. Brevard Cty. Ct. Feb. 28, 2010) (officer had
reasonable suspicion based on his belief that the defendant might be impaired and his observations of
vehicle weaving within lane, crossing over right fog line and crossing over the left lane lines several
times, even though no other traffic was affected); State v. Schaefer, 17 Fla. L. Weekly Supp. 302 (Fla.
Brevard Cty. Ct. Feb. 10, 2010) (trooper lawfully stopped defendant where defendant drove three feet
over fog line, straddled the line between the inside and the outside lane, and did not use his directional
signal when he changed lanes, causing trooper to suspect driver was impaired or otherwise unfit to
drive); State v. Nagy, 17 Fla. L. Weekly Supp. 145 (Fla. Brevard Cty. Ct. Oct. 21, 2009) (officer had
reasonable suspicion where he saw vehicle cross the fog line, go onto the concrete, the grassy area, and
the dirt area; when vehicle returned to lane, vehicle wove back and forth in the center lane; this
happened in a short period, but no one was endangered); State v. Brown, 16 Fla. L. Weekly Supp 987
(Fla. Brevard Cty. Ct. July 15, 2009) (officer had reasonable suspicion where vehicle was moving 5
m.p.h. in a 40 m.p.h. zone on a main road, turned and continued at the slow speed for a significant
distance; after turn, vehicle swerved to right and almost hit curb and corrected into traffic lane.); State v.
Parker, 16 Fla. L. Weekly Supp. 785 (Fla. Brevard Cty. Ct. May 28, 2009) (officer had received reports
defendant was frequently DUI; while the officer was investigating that matter and a fight in a bar,
defendant offered the officer a beer and officer observed defendant had a strong odor of alcohol, red-
eyes and slurred speech and seemed impaired; later that night, officer saw defendant and others leave in
defendant’s car, officer observed the vehicle travel onto the shoulder once; when vehicle came to a stop,
the officer determined defendant was the driver and when defendant exited the vehicle, the officer asked
for his license; the court held that the defendant’s behavior at the bar and his driving pattern established
reasonable suspicion for DUI); State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard Cty. Ct. April
14, 2009) (officer had reasonable suspicion because when he got behind the vehicle he observed it pass
over the double line three times with the driver side front and rear tires, vehicle going to the left and then
to the right three times); State v. Cameron, 16 Fla. L. Weekly Supp. 574 (Fla. Volusia Cty. Ct. April 8,
2009) (two u-turns, stopping in turn lane before making the u-turn, and crossing the center turn lane for
one or two seconds, did not support reasonable suspicion for stop).
State v. Mathis, 16 Fla. L. Weekly Supp. 570 (Fla. Duval Cty. Ct. April 23, 2009) (drifting to right, tires
riding the fog line for a maximum of 50 feet while driving correctly in every other away, did not
establish reasonable suspicion to believe a crime had occurred, was occurring, or was about to occur);
State v. Iler, 16 Fla. L. Weekly Supp. 568 (Fla. Duval Cty. Ct. Oct. 17, 2007) (officer did not see any
traffic infraction and did not have reasonable suspicion for a stop where the officer witnessed car make a
legal U-Turn, right rear wheel catch the curb when defendant made a right turn, weave within lane
without affecting any other traffic (officer was aware of reasonable explanations for these actions); over
three miles car safely and lawfully negotiate several major intersections and a construction area,
properly exit a limited access highway and stop in a parking lot in response to officer’s lights); State v.
Shaw, 16 Fla. L. Weekly Supp. 567 (Fla. Gadsden Cty. Ct. April 23, 2008) (driving with two wheels on
double centerline and making a wide right turn with half of vehicle in the oncoming lane for 25 to 35
yards without affecting other traffic, did not establish reasonable suspicion of DUI); State v. Carey, 16
Fla. L. Weekly Supp. 477 (Fla. Dade Cty. Ct. Feb. 25, 2009) (officer did not have reasonable suspicion

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where defendant was driving below the speed limit of 30 to 35 m.p.h., stopped at green light and then
moved from center to the right lane, and half way into right lane almost made contact with an
approaching car and abruptly moved back to the center lane; court concluded that “[t]here is a very large
difference between continuous weaving and one slow movement from a center lane to a right lane;”
defendant had a right to move into right lane and may merely have wanted to turn right); State v.
Berkowitz, 16 Fla. L. Weekly Supp. 184 (Fla. Dade Cty. Ct. Nov. 25, 2008) (driving around a
construction barrier and having vehicle stall at two intersections as vehicle attempted to accelerate after
the light turned from red to green, did not constitute sufficient facts for reasonable suspicion); State v.
Gonzalez, 16 Fla. L. Weekly Supp. 180 (Fla. Lake Cty. Ct. Dec. 17, 2008) (gradually crossing white line
on right side three times over five miles plus slow speed, did not establish grounds for stop); State v.
Hofman, 15 Fla. L. Weekly Supp. 1233 (Fla. Brevard Cty. Ct. Oct. 8, 2008) (officer had reasonable
suspicion for DUI stop where defendant continuously drifted from the left to the right side of the lane
and was traveling 20 m.p.h. in a 35 m.p.h. zone); Valladares v. State, 15 Fla. L. Weekly Supp. 1040
(Fla. Duval Cty. Ct. July 2, 2008) (crossing the solid white right lane marker twice and the inside lane
marker once in about two miles at 2:30 a.m. created an objectively reasonable basis for a stop); State v.
McClure, 15 Fla. L. Weekly Supp. 1008 (Fla. Manatee Cty. Ct. Aug 4, 2008) (officer had reasonable
suspicion for DUI stop where defendant drove through a valid DUI checkpoint and before he exited the
vehicle the officer observed bloodshot, glassy, and watery eyes; defendant had a strong odor of alcohol
on his breath and admitted drinking); State v. Riley, 15 Fla. L. Weekly Supp. 850 (Fla. Brevard Cty. Ct.
May 23, 2008) (investigative stop was proper where officer saw defendant drifting back and forth (at
least 3 large drifts and 8 to 10 smaller drifts) within his lane, constantly changing speed and going 52
m.p.h. in a 45 m.p.h. zone over ½ mile); State v. Klimezky, 15 Fla. L. Weekly Supp. 737 (Fla. Palm
Beach Cty. Ct. April 10, 2008) (officer had reasonable suspicion of traffic offense or impairment where
vehicle fish tailed, almost hit another vehicle in the parking lot, and accelerated rapidly for no apparent
reason). State v. Rohaidy, 15 Fla. L. Weekly Supp. 736 (Fla. Palm Beach Cty. Ct. April 10, 2008) (stop
was proper where officer saw defendant in right lane cross over the fog line at least two times and
officer believed the driver might be impaired); State v. Schulze, 15 Fla. L. Weekly Supp. 725 (Fla.
Sarasota Cty. Ct. April 28, 2008) (no reasonable suspicion where deputy followed vehicle at a distance
of two to three car lengths and when deputy attempted to pass on the right, vehicle briefly crossed over
right lane markers and into right lane and then returned to original lane and no other traffic was affected.
“Swerving or weaving between the lines is not a valid basis for stopping an automobile unless other
vehicular traffic is affected and created a reasonable safety concern.”); State v. Dominquez, 15 Fla. L.
Weekly Supp. 622 (Fla. Dade Cty. Ct. April 7, 2008) (no grounds for stop where right rear tire of pick-
up, which had dual rear wheels, crossed over the right fog line by about 12 inches and the inside right
rear tire drove on top of the right fog line for about eight feet for two seconds, but neither the right front
tire nor the inside right rear tire crossed over fog line and no other traffic was affected); State v.
McKinnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard Cty. Ct. Feb 17, 2008) (deputy had reasonable
suspicion for stop where law enforcement had been told about a vehicle that was driving recklessly and
the deputy found such a vehicle and saw it run off the road, come within inches of hitting another car
that was stopped at a traffic light, swerve to the right into the turn lane causing right tires to go off road,
and when the vehicle stopped in the turn lane, other traffic was affected).
State v. Fritts, 15 Fla. L. Weekly Supp. 397 (Fla. Brevard Cty. Ct. Jan. 30, 2008) (stop was reasonable
where officer said he was concerned that the “‘S’ shape driving pattern” indicated an impaired or ill
driver); State v. Lundelius, 15 Fla. L. Weekly Supp. 289 (Fla. Brevard Ct. Ct. Jan. 17, 2008) (officer had
reasonable suspicion that defendant might be impaired where vehicle broke center plane and crossed
over the center line several times, both driver’s side tires crossed completely over the line into the other
lane of traffic and vehicle was weaving in an “‘S’ pattern” for over ½ mile; defendant-driver was
moving his hands around and seemed to be arguing with passengers); State v. Werling, 15 Fla. L.
Weekly Supp. 165 (Fla. Brevard Cty. Ct. Oct. 12, 2007) (officer had objectively reasonable concern for
defendant’s and public’s safety where vehicle crossed center line and came into officer’s lane of traffic,
almost striking officer; in next two miles vehicle crossed fog line two or three more times; although no
traffic was affected, the officer was concerned about what might happen as vehicle got into heavier
traffic); State v. Love, 14 Fla. L. Weekly Supp. 1168 (Fla. Brevard Cty Ct. Oct. 3, 2007) (officer had
reasonable suspicion for stop based on observations of vehicle swerving over center line and back to fog
line and estimate that vehicle was traveling about 55 m.p.h. in a 40 m.p.h. zone); State v. Johnsen, 14
Fla. L. Weekly Supp. 1151 (Fla. Palm Beach Cty Ct. Oct. 16, 2007) (squealing tires in a parking lot was
not sufficient for investigative stop); State v. Muse, 14 Fla. L. Weekly Supp. 890 (Fla. Volusia Cty. Ct.
June 26, 2007) (officer had reasonable suspicion driver was impaired where vehicle served from one
side of lane to the other, crossing the dividing line by several inches each time; overcame another car
and suddenly changed lane without signaling; as she changed lanes to the passing lane, defendant

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crossed the white line nearest median and then returned to right lane); State v. Williams, 14 Fla. L.
Weekly Supp. 300 (Fla. Marion Cty. Ct. Dec. 28, 2006) (officer could stop a vehicle to check the
condition of the operator where he saw the vehicle drifting and/or weaving within its lane of travel, but
the vehicle did not leave its lane by striking either the outside or inside lane markers nor was the
defendant going an excessive speed or a low speed); State v. Pigott, 13 Fla. L. Weekly Supp. 1215 (Fla.
Bay Cty. Ct. July 28, 2006) (officer had reasonable suspicion for stop where during one minute and 12
seconds observation the defendant repeatedly hit the right edge of her lane, swerved either to the middle
of the lane or to the left edge, drove very slowly, and then went over the left side double yellow line
several times); State v. O’Donnell, 12 Fla. L. Weekly Supp. 1189 (Fla. Bay Cty. Ct. March 15, 2005)
(driving over center line once and touching the fog line twice over about a mile and a minute of travel
did not establish grounds for a stop); State v. Puckett, 12 Fla. L. Weekly Supp. 1073 (Fla. Alachua Cty.
Ct. Feb. 18, 2005) (stop was lawful where at 11 p.m. trooper followed defendant for 1.4 miles and
during that time, saw the truck cross the center line at least five times, weave within its lane, and drive
below the speed limit); State v. Bahouth, 12 Fla. L. Weekly Supp. 577 (Fla. Palm Beach Cty. Ct. Feb.
14, 2005) (making a turn without signaling and crossing the center line three times did not establish
grounds for a stop, despite officer’s testimony that he wanted to make sure the defendant was not ill,
tired, or impaired where the officer had previously given different reasons for stop); State v. Locke, 12
Fla. L. Weekly Supp. 398 (Fla. Broward Cty. Ct. Nov. 10, 2004) (drifting twice about ¼ over the
dividing lane marker that separated left and right lanes over ½ a mile did not establish basis for stop);
State v. Fisher, 11 Fla. L. Weekly Supp. 1089 (Fla. Hillsborough Cty. Ct. April 9, 2003) (making a wide
turn did not create a reasonable suspicion); State v. Williams, 11 Fla. L. Weekly Supp. 1069 (Fla. Leon
Cty. Ct. Aug. 11, 2004) (stopping at flashing yellow light while another car passes and goes through
light, going through intersection as officer approaches from rear, making sharp move from the outside
lane into the right turn lane, and making an abrupt move to straighten up in the turn lane did not justify
investigatory stop).
State v. Lankford, 11 Fla. L. Weekly Supp. 911 (Fla. Duval Cty. Ct. Aug. 16, 2004) (going over right
lane marker onto shoulder of the road twice and weaving within the lane without affecting traffic did not
establish reasonable suspicion where officer did not say he suspected defendant was impaired or
committing another crime); State v. Alayon, 11 Fla. L. Weekly Supp. 830 (Fla. Dade Cty. Ct. April 13,
2004) (making a right turn into the exit lane of a Home Depot parking lot without affecting any other
traffic did not give an officer reasonable suspicion); State v. Holman, 11 Fla. L. Weekly Supp. 725 (Fla.
Escambia Cty. Ct. May 14, 2004) (reasonable suspicion arose where car swerved to the right, went into
oncoming lane, made a hard right, was going 15 m.p.h. under speed limit, rolled through a red right,
turned into apartment complex and cul-de-sac and merged onto a road, and at some point swerved in and
out of a convenience store parking lot; all without directly endangering other traffic); State v. Croasmun,
11 Fla. L. Weekly Supp. 448 (Fla. Volusia Cty. Ct. March 4, 2004) (trial judge held 12:55 a.m. stop
improper, even though officer suspected that driver was impaired based on having observed the vehicle
for 1 to 1.5 minutes over about .5–.75 miles; during which time and distance the officer observed the
vehicle make a wide left turn, move from inner to outer lane with right turn signal on, while straddling
the center lane for two to three seconds and then returning to inner lane with signal off, again changing
lanes with right turn signal on, touching the centerline for two to three seconds, the double yellow
centerline by about a foot for two to three seconds); State v. Earle, 11 Fla. L. Weekly Supp. 236 (Fla.
Wakulla Cty. Ct. Dec. 23, 2003) (no objectively reasonable basis for stop where officer followed
defendant for about ¼ of a mile on a road that was in disrepair, during which defendant’s passenger side
tire slipped onto the pavement of the shoulder once, and defendant quickly corrected, touching the
yellow center line once); State v. Littlejohn, 10 Fla. L. Weekly Supp. 111 (Fla. Duval Cty. Ct. Nov. 8,
2002) (smooth, (rather than jerky or zig zaggy) weaving within lane more than once over four or five
blocks was insufficient to establish a reasonable suspicion that the individual was impaired or in need of
assistance); State v. Gschwendtner, 9 Fla. L. Weekly Supp. 626 (Fla. Dade Cty. Ct. July 18, 2002)
(stopping in crosswalk at traffic light when officer could not say whether the light had changed from
yellow to red, drifting within lane without any indication by officer as to the number of times or degree,
and tapping brakes as the driver traveled immediately below signs indicating an expressway entrance
with police car behind him did not cumulatively establish grounds for a stop); State v. Crawford, 9 Fla.
L. Weekly Supp. 562 (Fla. Palm Beach Cty. Ct. June 25, 2002) (driving 25 m.p.h. in a 45 m.p.h. zone at
12:35 a.m., twice abruptly applying brakes, drifting within lane of travel, hugging the right side of lane,
once going from extreme right side of lane to the left side of the lane, but not affecting any other traffic
did not establish reasonable suspicion for a stop); State v. Schulze, 7 Fla. L. Weekly Supp. 481 (Fla.
Palm Beach Cty. Ct. April 30, 2000) (the stop was unlawful where officer thought defendant’s
motorcycle was going to tip over, but could not say how close it came to doing that, there was no
evidence officer had any experience with motorcycles and the officer witnessed no traffic infractions);

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State v. Kopec, 7 Fla. L. Weekly Supp. 480 (Fla. Palm Beach Cty. Ct. May 2, 2000) (officer had
founded suspicion to stop defendant for erratic driving where officer saw vehicle swerving within the
middle of three lanes on two occasions and hugging the white line separating the middle and right lane,
and officer believed the driver was impaired); State v. Jaigobind, 7 Fla. L. Weekly Supp. 291 (Fla.
Brevard Cty. Ct. Jan. 6, 2000) (gradual movement to and away from lane markers creating an S shape
causing officer to believe that defendant might be impaired, was sufficient for lawful stop); State v.
Brickman, 7 Fla. L. Weekly Supp. 225 (Fla. Broward Cty. Ct. Dec. 14, 1999) (drifting once slightly into
oncoming traffic lane without affecting any other traffic did not authorize a stop under DeShong); State
v. Sherman, 7 Fla. L. Weekly Supp. 51 (Fla. Manatee Cty. Ct. Feb. 18, 1999) (Deputy had reasonable
suspicion for DUI investigation where he saw vehicle doing 50 in a 70 m.p.h. zone and veer into both
lanes of traffic, other vehicles were honking horns, vehicle slowed to about 20 m.p.h. crossing three
lanes of traffic); State v. Garman, 7 Fla. L. Weekly Supp. 45 (Fla. St. Johns Cty. Ct. Sept. 3, 1999)
(weaving within lane by going over the center line about one foot with his wheels on two different
occasions was insufficient to establish reasonable suspicion even though officer testified he was
concerned that defendant was impaired); State v. Hinojosa, 6 Fla. L. Weekly Supp. 99 (Fla. Palm Beach
Cty. Ct. Nov. 5, 1998) (three lane changes was not sufficient for stop).
125
State v. Bentley, 596 So. 2d 773 (Fla. 2d DCA 1992). See also State v. Tullis, 970 So. 2d 912 (Fla. 5th
DCA 2007); Powell v. State, 649 So. 2d 888 (Fla. 2d DCA 1995); Myer v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 754 (Fla. 4th Cir. Ct. April 26, 2006) (officer lawfully stopped
vehicle where reflection from plastic covering resulting from the headlights of the police car prevented
him from reading the tag until he got well within 100 feet of car, and this constituted a violation of §
316.605(1), Fla. Stat., which prohibits anything on face of the plate unless permitted by law); State v.
Inwang, 8 Fla. L. Weekly Supp. 300 (Fla. 2d Cir. Ct. March 12, 2001).
126
Palmer v. State, 753 So. 2d 679 (Fla. 2d DCA 2000). See also State v. Sosa, 932 So. 2d 582 (Fla. 5th
DCA 2006); Borys v. State, 824 So. 2d 204 (Fla. 2d DCA 2002). Diaz v. State, 800 So. 2d 326 (Fla. 2d
DCA 2001), decision approved, 850 So. 2d 435 (Fla. 2003), cert. denied, 540 U.S. 1075, 124 S. Ct. 936,
157 L. Ed. 2d 745 (2003); State v. Moose, 14 Fla. L. Weekly Supp. 671 (Fla. Volusia Cty. Ct. May 15,
2007) (officer lawfully stopped motorcycle where decorative bracket around the tag obscured the state
of issuance and the expiration date in violation of § 316.605, Fla. Stat.).
127
English v. State, 191 So.3d 448 (Fla. 2016).
128
English v. State, 191 So.3d 448 (Fla. 2016) (the court found that the statute was violated where the tag
was partially obscured by a tag light hanging down).
129
State v. Bentley, 596 So. 2d 773 (Fla. 2d DCA 1992). See also State v. Tullis, 970 So. 2d 912 (Fla. 5th
DCA 2007) (stop was lawful where temporary tag was illegible because of a tinted license plate cover;
court rejected argument that section 320.131(4) does not require that tag be legible); State v. Heinmiller,
15 Fla. L. Weekly Supp. 445 (Fla. 17th Cir. Ct. Feb 5, 2008) (stop was lawful where tinted tag cover
prevented officer from reading tag until officer was within 20 to 25 feet, and § 316.605, Fla. Stat.
requires that it be legible 100 feet from rear).
130
State v. S.P., 580 So. 2d 216 (Fla. 4th DCA 1991), review denied, 592 So. 2d 682 (Fla. 1991).
131
Ellis v. State, 935 So. 2d 29 (Fla. 2d DCA 2006), review denied, 949 So. 2d 197 (Fla. 2007).
132
State v. Diaz, 850 So. 2d 435, 440 (Fla. 2003), cert. denied, 540 U.S. 1075, 124 S. Ct. 936, 157 L. Ed.
2d 745 (2003). See also State v. Godard, 202 So.3d 144 (Fla. 2d DCA 2016) (officer who stopped car to
check on well being of two dogs reported to have been left in a hot car could approach the driver to
explain the reason for the stop after he determined the dogs were okay, but he could not ask for
identification); Sowerby v. State, 73 So. 3d 329 (Fla. 5th DCA 2011) (when officer made stop to check
tag, which turned out to be a dealer tag, he should have stopped asking for additional information when
he found that the plate was properly placed).
133
State v. Diaz, 850 So. 2d 435, 440 (Fla. 2003), cert. denied, 540 U.S. 1075, 124 S. Ct. 936, 157 L. Ed.
2d 745 (2003).
134
State v. Rivers, 861 So. 2d 1208 (Fla. 2d DCA 2003).

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135
Zeigler v. State, 922 So. 2d 384 (Fla. 1st DCA 2006), review dismissed, 955 So. 2d 532 (Fla. 2007).
136
Zeigler v. State, 922 So. 2d 384 (Fla. 1st DCA 2006), review dismissed, 955 So. 2d 532 (Fla. 2007).
137
Zeigler v. State, 922 So. 2d 384 (Fla. 1st DCA 2006), review dismissed, 955 So. 2d 532 (Fla. 2007).
138
Zeigler v. State, 922 So. 2d 384 (Fla. 1st DCA 2006), review dismissed, 955 So. 2d 532 (Fla. 2007).
139
Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011).
140
Van Teamer v. State, 108 So. 3d 664 (Fla. 1st DCA 2013).
141
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015).
142
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015).
143
Tubbs v. State, 897 So. 2d 520 (Fla. 3d DCA 2005).
144
Tubbs v. State, 897 So. 2d 520, 522 (Fla. 3d DCA 2005).
145
State v. Carrs, 568 So. 2d 120 (Fla. 5th DCA 1990).
146
State v. Pugh, 635 So. 2d 999 (Fla. 2d DCA 1994). See also Stone v. State, 856 So. 2d 1109, 1112 (Fla.
4th DCA 2003); State v. Wade, 673 So. 2d 906 (Fla. 3d DCA 1996); State v. Leyva, 599 So. 2d 691
(Fla. 3d DCA 1992); State v. J.D.M., 8 Fla. L. Weekly Supp. 787 (Fla. Lee Cty. Ct. Sept. 19, 2001).
147
Moody v. State, 842 So. 2d 754 (Fla. 2003), cert. denied, 540 U.S. 939, 124 S. Ct. 181, 157 L. Ed. 2d
252 (2003). See also State v. Galindo, 21 Fla L. Weekly Supp. 1005 (Fla. 17th Cir. Ct. May 19, 2014);
Foley v. State, 38 Fla. Supp. 2d 1 (Fla. 12th Cir. Ct. 1989).
148
Moody v. State, 842 So. 2d 754 (Fla. 2003), cert. denied, 540 U.S. 939, 124 S.Ct. 181, 157 L.Ed.2d 252
(2003). See also W.B. v. State, 179 So.3d 411 (Fla. 3d DCA 2015) (officer did not believe that the
defendant was old enough to have a license; the evidence indicated “the officer’s knowledge about
W.B.’s eligibility to hold a driver’s license was more than nine months old. Therefore, … the officer’s
knowledge was stale.”); Foley v. State, 38 Fla. Supp. 2d 1 (Fla. 12th Cir. Ct. 1989) (the officer’s
information was considered stale where the officer did not know the date of the suspension, whether the
license was still suspended, or the reason for the suspension). But see Tucker v. State, 174 So.3d 485
(Fla. 4th DCA 2015) (knowledge as to description of car and license tag number was 40 days old, but it
was durable; therefore, it was not stale).
149
Smith v. State, 574 So. 2d 300 (Fla. 5th DCA 1991). See also State v. Liana, 175 So.3d 897 (Fla. 5th
DCA 2015); State v. Hunter, 14 Fla. L. Weekly Supp. 280 (Fla. 13th Cir. Ct. Aug. 16, 2006).
150
State v. Scott, 22 Fla. L. Weekly Supp. 682 (Fla. 17th Cir. Ct. Jan, 12, 2015); State v. Goodier, 15 Fla.
L. Weekly Supp. 678 (Fla. 17th Cir. Ct. April 21, 2008); State v. York, 14 Fla. L. Weekly Supp. 1006
(Fla. 6th Cir. Ct. June 11, 2007); State v. Presha, 20 Fla. L. Weekly Supp. 1089 (Fla. Manatee Cty. Ct.
July 26, 2013); State v. Murphy, 18 Fla. L. Weekly Supp. 99 (Fla. Palm Beach Cty. Ct. Aug. 18, 2010) .
Contra State v. Mendez, 14 Fla. L. Weekly Supp. 1038 (Fla. 17th Cir. Ct. July 27, 2007) (deputy ran tag
number and discovered that the owner of the vehicle had a suspended license, but the stop was unlawful
because deputy had too limited a description (date of birth, race, gender) of owner to establish
reasonable suspicion owner was driving).
151
State v. Lopez, 923 So. 2d 584 (Fla. 5th DCA 2006). See also State v. Clark, 13 Fla. L. Weekly Supp.
852 (Fla. 6th Cir. Ct. June 20, 2006)(although officer could see only that a male was driving, officer had
reasonable suspicion for valid investigatory stop of vehicle at place where male defendant worked and
time defendant was to arrive; where a citizen informant provided defendant’s name, type of vehicle,
address of place of work, when defendant went to work, and that the defendant had been driving without
a license; and officer confirmed that the defendant’s license was suspended). But see State v. Phelps, 13
Fla. L. Weekly Supp. 221 (Fla. 6th Cir. Ct. Oct. 25, 2005) (officer did not have reasonable suspicion to

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stop the defendant where a license tag check revealed that one of the two owners (a male) had a
suspended license, but before making the stop the officer determined that the male driving the car was a
different person from the registered owner).
152
Green v. State, 743 So. 2d 1233 (Fla. 5th DCA 1999). See also Pickenpaugh v. State, 15 Fla. L. Weekly
Supp. 238 (Fla. 6th Cir. Ct. Jan. 24, 2008) (stop was proper where deputy determined owner of vehicle
had a business purposes only restriction before the stop, and based on experience, knew such people
usually own the car they are driving and at 2:30 a.m. are generally not coming from a school, a church, a
hospital, or a job).
153
Green v. State, 743 So. 2d 1233 (Fla. 5th DCA 1999).
154
Simpson v. State, 970 So. 2d 463 (Fla. 2d DCA 2007).
155
Simpson v. State, 970 So. 2d 463 (Fla. 2d DCA 2007). See also Zambrana v. State, 17 Fla. L. Weekly
Supp. 1180 (Fla. 11th Cir. Ct. Oct. 6, 2010) (§ 316.211, Fla. Stat., authorizes a person over 21 to
operator or ride a motorcycle without a helmet if the person is covered by an insurance policy providing
at least $10,000 in medical benefits for injuries resulting from a crash on the motorcycle; but in the
absence of additional information establishing a reasonable suspicion, an officer does not have the
authority to stop the motorcycle to check coverage).
156
State v. Rodriguez, 542 So. 2d 454 (Fla. 3d DCA 1989).
157
State v. Dunfee, 15 Fla. L. Weekly Supp. 501 (Fla. Brevard Cty. Ct. Feb. 25, 2008).
158
Lemon v. State, 580 So. 2d 292 (Fla. 2d DCA 1991). See also Paul v. State, 991 So. 2d 404 (Fla. 2d
DCA 2008) (post-Florida Supreme Court Hilton decision, the court concluded stop for taillamp violation
was lawful because there was substantial competent evidence that one of two taillamps emitted only
white light, and section 316.217 requires that they emit a plainly visible red light). State v. Schuck, 913
So. 2d 69 (Fla. 4th DCA 2005) (officer properly stopped a vehicle for having a hole the size of a fist in
the taillight lens, causing it to emit white light instead of red light as required by statute). Compare State
v. Terzado, 513 So. 2d 741 (Fla. 3d DCA 1987) (court upheld trial court’s ruling that stop for having a
broken right taillight was improper, where defendant backed his car into a restaurant parking lot and
went inside the restaurant, and the officer detained him when he came out).
159
State v. Perez–Garcia, 917 So. 2d 894 (Fla. 3d DCA 2005), decision quashed, 983 So. 2d 578 (Fla.
2008) (in State v. Perez-Garcia, 987 So. 2d 814 (Fla. 3d DCA 2008) court remanded to trial court for
further consideration in light of Supreme Court’s decision in Hilton).
160
Zarba v. State, 993 So. 2d 1000 (Fla. 2d DCA 2007), review denied, 977 So. 2d 577 (Fla. 2008).
161
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
162
Zarba v. State, 993 So. 2d 1000 (Fla. 2d DCA 2007), reviewed denied, 977 So. 2d 577 (Fla. 2008).
163
Doctor v. State, 596 So. 2d 442 (Fla. 1992). See also Frierson v. State, 851 So. 2d 293 (Fla. 4th DCA
2003), decision quashed on other grounds, 926 So. 2d 1139, 1142 (Fla. 2006); Leslie v. State, 108 So. 3d
722 (Fla. 5th DCA 2013) (officer did not have reasonable suspicion for stop where he made a mistake of
law based on his erroneous belief that a center view mirror is required whether or not there are adequate
side view mirrors); State v. Frioli, 13 Fla. L. Weekly Supp. 1131 (Fla. 6th Cir. Ct. May 11, 2006) (stop
for defective taillight in violation of 316.221(1) was improper where the red lens covering a taillight was
cracked, with the middle and part of the lower piece of the right lens missing that would cover the
reverse indicator light bulb and part of the red reflector, but this would not affect traffic); State v.
Blanks, 11 Fla. L. Weekly Supp. 121 (Fla. Lee Cty. Ct. Dec. 19, 2003).
164
To the extent that Doctor and other cases stand for the proposition that an objectively reasonable
mistake of law is not grounds for upholding a stop, the recent decision in Heien v. North Carolina, 135
S.Ct. 530, 190 L.Ed.2d 475 (2014) must be considered. There the U.S. Supreme Court held that a stop is
valid even if the officer’s view of the law is wrong, as long as that view is objectively reasonable. Thus,
the court upheld a stop for having only one operational brake light based on the officer’s mistaken belief

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that two were required.

165
Doctor v. State, 596 So. 2d 442, 447 (Fla. 1992). See also Hilton v. State, 961 So. 2d 284 (Fla. 2007)
(confirmed Doctor and applied test to windshield cracks); Swagerty v. State, 982 So. 2d 19 (Fla. 1st
DCA 2008); Langello v. State, 970 So. 2d 491 (Fla. 2d DCA 2007) (stop for having tag light out was
unlawful because there were two lights on the tag and one was functioning; so there was no evidence the
tag was not legible as required by statute and no attempt was made to show the defect created an unsafe
condition); Stone v. State, 856 So. 2d 1109, 1112 (Fla. 4th DCA 2003) (where officer detained
defendant for not wearing a helmet or eye protection, the stop was without probable cause on that
charge, because the defendant was riding a scooter for which there was no such requirement); Guittar v.
Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 403 (Fla. 9th Cir. Ct. Feb. 7,
2003) (stop could not be upheld where the officer said defendant’s right brake light was out, but
defendant said that he had two other working stop lights (i.e. left and middle) as the statute required).
166
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
167
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla. 2007). See
also State v. Howard, 909 So. 2d 390 (Fla. 1st DCA 2005), decision quashed, 979 So. 2d 953 (Fla. 2008)
(in State v. Howard, 983 So. 2d 671 (Fla. 1st DCA 2008) court set aside original decision and remanded
to trial court for further consideration in light of Supreme Court’s decision in Hilton).
168
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
169
Whren v. U.S., 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
170
State v. Burke, 902 So. 2d 955 (Fla. 4th DCA 2005), review dismissed, 979 So. 2d 952 (Fla. 2008)
(court concluded Hilton decision was controlling and jurisdiction was improvidently granted).
171
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
172
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
173
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla. 2007).
174
Hilton v. State, 961 So. 2d 284, 286 (Fla. 2007).
175
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
176
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
177
Hilton v. State, 961 So. 2d 284, 295 (Fla. 2007).
178
Hilton v. State, 961 So. 2d 284, 297 (Fla. 2007).
179
State v. Reynolds, 6 Fla. L. Weekly Supp. 241 (Fla. 9th Cir. Ct. 1999).
180
A valet reported the defendant’s condition to the officer. The officer saw the defendant behind the wheel
with the engine running. The defendant had red, watery eyes, slurred speech, and a strong odor of
alcohol about her person. During a 20-minute discussion with the officer, the defendant exhibited poor
balance and unsteadiness.
181
State v. Reynolds, 6 Fla. L. Weekly Supp. 241 (Fla. 9th Cir. Ct. 1999).
182
State v. Reynolds, 6 Fla. L. Weekly Supp. 241 (Fla. 9th Cir. Ct. 1999).
183
State v. Reynolds, 6 Fla. L. Weekly Supp. 241 (Fla. 9th Cir. Ct. 1999).
184
State v. Reynolds, 6 Fla. L. Weekly Supp. 241 (Fla. 9th Cir. Ct. 1999).
185
State v. Reynolds, 6 Fla. L. Weekly Supp. 241 (Fla. 9th Cir. Ct. 1999). See also State v. Campbell, 17

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Fla. L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010) (removing the key from the ignition
does not make a temporary detention a de facto arrest).

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Works.

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:10. The duration of detention

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(10), 349(17)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Once a motor vehicle has been lawfully detained for investigation or a traffic violation, officers may order the
driver to exit the vehicle,1 but this is a seizure.2 That is important because when an individual exits, the officer
may make observations that support the conclusion that the driver is impaired.

Additional observations may be made during detention. Some of these observations may be important in the
development of probable cause for arrest. Accordingly, the length of permissible detention is significant.

An officer, who has lawfully stopped a citizen, may detain that person long enough to accomplish the legitimate
purpose of the stop. If it is based on reasonable suspicion and is for investigative purposes, it may last long
enough for the officer to diligently pursue an investigation to confirm or dispel the suspicion. 3 In DUI cases,
that may include certain testing procedures or waiting for other officers to arrive. Thus, where a trooper saw the
defendant driving at a high rate of speed, smelled alcohol when he pulled him over, and saw that the defendant
had bloodshot eyes, the officer had reasonable suspicion for a DUI investigation. 4 And it was not unreasonable
to detain the defendant for the 10 minutes it took a member of the DUI task force to arrive. 5

If the stop is to issue a traffic citation, the detention may continue long enough to write the citation, unless the
officer develops a reasonable suspicion of criminal activity based on articulable facts 6 or the defendant freely
and voluntarily consents to continued detention.7 But in Rodriguez,8 the U.S. Supreme Court makes it clear there
are things besides issuing a citation that the officer can do and detention can lawfully continue until those things
are done or reasonably should be done. Such tasks include, checking the driver’s license, 9 tag,10 registration,11
ownership interest,12 insurance,13 and active warrants14 for both driver and passengers. 15 If the stop is for some
other legitimate traffic related matter, the detention may continue just long enough to deal with that matter,

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

unless additional articulable facts develop.16

Recently, in Presley v. State17 the Florida Supreme Court recognized that if the mission of the traffic stop is
extended as a result of conduct unrelated to any delay caused by the officers, the detention is reasonable. In
Presley, the Court ruled that officers had a right to require that the passenger remain at the scene of the traffic
stop and the passenger’s behavior resulted in a delay of the stop. 18 So that the extended detention was
reasonable. In making this ruling the Court concluded: “During a routine traffic stop, [the reasonable duration of
the stop] is the length of time necessary for law enforcement to check the driver license, the vehicle registration,
and the proof of insurance; to determine whether there are outstanding warrants; to write any citation or
warning; to return the documents; and to issue the warning or citation.”19

In Rodriguez,20 the U.S. Supreme Court made it clear that there is no de minimis rule. In that case, after the
officer completed the mission related to issuance of the citation, the officer detained the occupants of the
vehicle for another seven to eight minutes to do a walk around with a canine. The Federal Court of Appeals,
found that this was a de minimis infringement on liberty and was proper. The United States Supreme Court
firmly rejected that proposition—the authority to detain the occupants of a vehicle stopped for issuance of a
traffic citation ceases when the mission related to the citation is completed or reasonably should be completed
unless the officer develops reasonable suspicion for some other matter.21

Stops to inspect tags have created a particular problem. The district courts have disagreed on the standards. The
Second District ruled that where an officer stops a vehicle because of a problem with the tag, the officer has no
right to detain the driver once he or she has determined that the tag is valid. 22 The Fourth and Fifth Districts
ruled that the officer may engage in other activities even after the officer has determined that the tag is valid,
such as asking the driver to exit the vehicle 23 and asking for the operator’s license and registration. 24 The
Supreme Court resolved that conflict in State v. Diaz.25 In that case, the Court ruled that once the officer verifies
the validity of the tag, the officer can “lawfully make personal contact with [the driver] only to explain to him
[or her] the reason for the initial stop.”26

Once the officer verifies that the tag is valid and advises the driver of the reason for the stop, the detention must
be concluded unless the officer develops independent grounds to continue the detention. 27 The fact that the
officer immediately recognized the driver as being the subject of an outstanding warrant provided such
grounds.28 Evidence discovered as a result of the officer’s detection of the smell of marijuana when the driver
opened the window in response to the officer’s improper request for identification was admissible, because the
odor would have been inevitably detected when the driver opened the window for the officer to explain the
purpose of the stop.29 Similarly, where a deputy stopped a vehicle because the tag light was out, the deputy
could detain the driver based on the odor of marijuana coming from the vehicle as he approached it. 30

The decision in Bozeman v. State31 is particularly significant because it dealt with the officer’s concern that the
defendant might be impaired. There, an officer noticed that the defendant was slumped over a steering wheel in
the drive-through of a restaurant. The officer was able to wake the defendant with difficulty. The defendant
provided a proper driver’s license and registration, and the officer administered field sobriety exercises. The
defendant successfully completed all the assigned tasks. The officer acknowledged at that point that the
defendant was alright; nevertheless, the officer continued to detain the defendant. On appeal, the court ruled that
once the defendant successfully completed the field sobriety exercises, the defendant should have been allowed
to leave.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Benjamin,
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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

229 So.3d 442 (Fla. 5th DCA 2017); State v. Olave, 948 So. 2d 995 (Fla. 4th DCA 2007); Reid v. State,
898 So. 2d 248 (Fla. 4th DCA 2005), review denied, 917 So. 2d 195 (Fla. 2005); Mendez v. State,
678 So. 2d 388 (Fla. 4th DCA 1996); State v. Bernard, 650 So. 2d 100 (Fla. 2d DCA 1995); State v.
Mahoy, 575 So. 2d 779 (Fla. 5th DCA 1991); State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990);
Stanley v. State, 559 So. 2d 460 (Fla. 4th DCA 1990); State v. Lynch, 13 Fla. L. Weekly Supp. 1053
(Fla. 9th Cir. Ct. July 17, 2007); State v. Exler, 13 Fla. L. Weekly Supp. 763 (Fla. 6th Cir. Ct. May 10,
2006)State v. Exler, 13 Fla. L. Weekly Supp. 763 (Fla. 6th Cir. Ct. May 10, 2006); State v. Lowe, 9 Fla.
L. Weekly Supp. 6 (Fla. 9th Cir. Ct. Oct. 22, 2001)State v. Lowe, 9 Fla. L. Weekly Supp. 6 (Fla. 9th Cir.
Ct. Oct. 22, 2001); State v. Kettelle, 7 Fla. L. Weekly Supp. 309 (Fla. 9th Cir. Ct. Feb. 17, 2000)State v.
Kettelle, 7 Fla. L. Weekly Supp. 309 (Fla. 9th Cir. Ct. Feb. 17, 2000); State v. Serrano, 10 Fla. L.
Weekly Supp. 56 (Fla. Palm Beach Cty. Ct. Nov. 26, 2002)State v. Serrano, 10 Fla. L. Weekly Supp. 56
(Fla. Palm Beach Cty. Ct. Nov. 26, 2002).
2
Popple v. State, 626 So. 2d 185 (Fla. 1993); R.H. v. State, 671 So. 2d 871 (Fla. 3d DCA 1996),
review denied, 677 So. 2d 841 (Fla. 1996).
3
Zukor v. State, 488 So. 2d 601 (Fla. 3d DCA 1986), review denied, 496 So. 2d 144 (Fla. 1986).
4
Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005). See also State v. Castaneda, 79 So. 3d 41 (Fla. 4th
DCA 2011), review denied, 76 So. 3d 937 (Fla. 2011) (officer had reasonable suspicion for DUI
investigation where he clocked vehicle doing 60 in a 40 m.p.h. zone, and after stopping vehicle, officer
smelled odor of alcoholic beverage on defendant’s breath and noticed defendant had bloodshot, watery
eyes; the absence of other signs of impairment such as staggering did not justify the trial court’s
conclusion that there was no reasonable suspicion); State v. Ameqrane, 39 So. 3d 339 (Fla. 2d DCA
2010), review denied, 67 So. 3d 198 (Fla. 2011) (officer had reasonable suspicion for DUI investigation,
including requesting field sobriety exercises, where at 4 a.m. he saw defendant speeding and after stop
smelled alcohol and saw that defendant had glassy, bloodshot eyes); State v. Moore, 25 Fla. L. Weekly
Supp. 227 (Fla. 17th Cir. Ct. April 28, 2017)State v. Moore, 25 Fla. L. Weekly Supp. 227 (Fla. 17th Cir.
Ct. April 28, 2017) (court reversed order finding stop unlawful; deputy had reasonable suspicion for
DUI when she seized keys after hearing screeching tires; defendant failed to see illuminated lights of
two patrol cars and a tow truck in the roadway; defendant yelled at deputy; had slurred speech, an odor
of alcohol and bloodshot eyes; defendant’s vehicle came within inches of parked patrol car); State v.
Watson, 20 Fla. L. Weekly Supp. 964 (Fla. 17th Cir. Ct. June 27, 2013)State v. Watson, 20 Fla. L.
Weekly Supp. 964 (Fla. 17th Cir. Ct. June 27, 2013) (“traveling at a high rate of speed, odor of alcohol,
and bloodshot eyes give police sufficient suspicion to justify detaining a person for a DUI
investigation.”); Warren v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 555
(Fla. 12th Cir. Ct. Sept. 25, 2013)Warren v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L.
Weekly Supp. 555 (Fla. 12th Cir. Ct. Sept. 25, 2013) (deputy had reasonable suspicion for a DUI
investigation even though petitioner did not have many of the indicators of impairment, where petitioner
was speeding, had an odor of alcohol, shaky hands when producing documents, was vague explaining
where he had been and said he had pulled over to check on a friend in a furniture store parking lot as if
he didn’t notice the blue light and siren); Kehl v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 253 (Fla. 17th Cir. Ct. Nov. 13, 2012)Kehl v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 253 (Fla. 17th Cir. Ct. Nov. 13, 2012) (officer had reasonable
suspicion for DUI investigation where the officer saw defendant’s northbound car stop in the
southbound lane of travel and the defendant had red and glassy eyes and an odor of an alcoholic
beverage on his breath).
Beloff v. State, 16 Fla. L. Weekly Supp. 148 (Fla. 17th Cir. Ct. Oct. 20, 2008)Beloff v. State, 16 Fla. L.
Weekly Supp. 148 (Fla. 17th Cir. Ct. Oct. 20, 2008) (deputy had reasonable suspicion to detain
defendant beyond issuance of citation where he saw vehicle moving without headlights on; driver
continued for about a block after officer activated emergency lights and hit curb before stopping;
defendant gave officer extraneous paperwork when asked for license, registration, and insurance;
defendant had indicia of impairment and odor of alcoholic beverage); Akmakjian v. State, 15 Fla. L.
Weekly Supp. 978 (Fla. 17th Cir. Ct. July 15, 2008)Akmakjian v. State, 15 Fla. L. Weekly Supp. 978
(Fla. 17th Cir. Ct. July 15, 2008) (officer had reasonable suspicion to detain defendant for 17 minutes
between issuance of traffic citations and arrest where officer observed vehicle move at an excessive
speed and cross over lane dividers; after traffic stop officer smelled an odor of alcohol on defendant’s
breath and noticed that he had glassy, bloodshot eyes, and slurred speech); Mildenberger v. State, 14
Fla. L. Weekly Supp. 829 (Fla. 17th Cir. Ct. April 30, 2007)Mildenberger v. State, 14 Fla. L. Weekly

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Supp. 829 (Fla. 17th Cir. Ct. April 30, 2007) (record supported trial judge’s ruling that stop and
detention for DUI investigation was proper where trooper followed defendant for about 1/3 of a mile,
saw defendant cross over a solid white line twice and drive on the shoulder of the road; causing trooper
to believe defendant might be sleepy, very tired, or under the influence of alcohol; and defendant had
droopy, bloodshot eyes, and difficulty finding license); Lynn v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 710 (Fla. 9th Cir. Ct. May 30, 2007)Lynn v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 710 (Fla. 9th Cir. Ct. May 30, 2007) , order on
rehearing and correction of Final Judgment, 14 Fla. L. Weekly Supp. 1015 (Fla. 9th Cir. Ct. Aug. 8,
2007) (officers had reasonable suspicion for continued detention and DUI investigation where officer
saw driver going in the wrong direction, after stop another officer smelled a strong odor of alcohol on
the driver, and driver admitted having four to five drinks); Fewell v. State, 14 Fla. L. Weekly Supp. 704
(Fla. 9th Cir. Ct. May 14, 2007)Fewell v. State, 14 Fla. L. Weekly Supp. 704 (Fla. 9th Cir. Ct. May 14,
2007) (officer who made lawful traffic stop for running a stop sign, could detain driver for DUI
investigation based on driving, slight odor of alcoholic beverage, bloodshot eyes, and sunburn observed
by officer who made stop when he approached vehicle, and strong odor of alcoholic beverage detected
within two minutes of stop by another officer); Lynch v. State, 14 Fla. L. Weekly Supp. 407 (Fla. 17th
Cir. Ct. Jan. 11, 2007)Lynch v. State, 14 Fla. L. Weekly Supp. 407 (Fla. 17th Cir. Ct. Jan. 11, 2007)
(officer had reasonable suspicion for continued detention on DUI where the defendant was speeding,
wasn’t wearing his seatbelt, had difficulty finding documents, was hesitant and quiet when he spoke, had
some slurred speech, glassy and bloodshot eyes, flushed face, and an odor of alcoholic beverage); Lynch
v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 328 (Fla. 9th Cir. Ct. Feb. 8,
2007)Lynch v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 328 (Fla. 9th Cir.
Ct. Feb. 8, 2007) (combination of sluggish movements, sluggish speech, and speeding established
reasonable suspicion for DUI investigation); Brush v. Dep’t of Highway Safety & Motor Vehicles, 14
Fla. L. Weekly Supp. 2 (Fla. 4th Cir. Ct. Sept. 7, 2006)Brush v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 2 (Fla. 4th Cir. Ct. Sept. 7, 2006) (officer had reasonable suspicion of
DUI based on odor of alcohol about defendant’s person, flushed face, and watery, blood shot eyes along
with knowledge from another officer that the defendant had run a stop sign); Andrews v. State, 13 Fla.
L. Weekly Supp. 1164 (Fla. 6th Cir. Ct. Oct. 5, 2006) (officer had reasonable suspicion of DUI where
defendant swerved back and forth between lanes three times without giving a signal and the last time
forced another car to change lanes to avoid an accident and then went back into the other lane; after stop
officer saw an open bottle of liquor in the car and the defendant told the officer he had stopped drinking
when the officer stopped him); State v. Jakob, 13 Fla. L. Weekly Supp. 1161 (Fla. 17th Cir. Ct. Aug. 14,
2006) (officer properly detained driver based on reasonable suspicion of DUI where the officer stopped
the driver for a tag violation and the driver had an odor of alcohol and bloodshot eyes); Hamlin v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1028 (Fla. 4th Cir. Ct. Aug. 14, 2006)
(deputy had reasonable suspicion to detain defendant for DUI and request FSTs after traffic stop where
driver crossed the center lane on one occasion by a foot, drove off road onto the grass shoulder on two
other occasions by a foot each, failed to stop when deputy put on overhead lights, had a moderate odor
of alcoholic beverage, and slow speech); State v. Arellano, 13 Fla. L. Weekly Supp. 952 (Fla. 9th Cir.
Ct. June 7, 2006)State v. Arellano, 13 Fla. L. Weekly Supp. 952 (Fla. 9th Cir. Ct. June 7, 2006) (officer
had reasonable suspicion of DUI where officer saw the defendant driving vehicle in the eastbound lane
of a four lane highway, drive into westbound lane, jerk the vehicle back into the eastbound median lane,
swerve within his lane three times within ½ mile; and, after the stop, the officer detected a strong odor of
alcoholic beverage coming from defendant’s breath, observed that defendant’s eyes were red, glassy,
and droopy, and his speech was slurred and thick-tongued); Langford v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006)Langford v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006)
(officer had reasonable suspicion for DUI detention and FSTs where officer pace-clocked truck for
about ¼ of a mile at 44 m.p.h. in a 35 m.p.h. zone, the truck made a sudden unsignaled sharp left turn
without slowing very much, truck proceeded to accelerate; and officer pace-clocked truck for about
three tenths of a mile at 38 m.p.h. in a 25 m.p.h. zone; the driver had an odor of alcohol and, when
asked, told the officer he had consumed a keg of beer in three hours).
State v. Sookdeo, 13 Fla. L. Weekly Supp. 872 (Fla. 17th Cir. Ct. May 22, 2006)State v. Sookdeo, 13
Fla. L. Weekly Supp. 872 (Fla. 17th Cir. Ct. May 22, 2006) (officer had reasonable suspicion to detain
the defendant after a stop for driving the wrong way down the street where the defendant had a strong
odor of alcoholic beverage and bloodshot eyes); State v. Kuhn, 13 Fla. L. Weekly Supp. 782 (Fla. 6th
Cir. Ct. May 12, 2006)State v. Kuhn, 13 Fla. L. Weekly Supp. 782 (Fla. 6th Cir. Ct. May 12, 2006)
(officer had reasonable suspicion of DUI sufficient to justify continued detention where the defendant
ran a stop sign, had a strong odor of alcohol, watery eyes, and an open bottle on the floorboard); State v.

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Exler, 13 Fla. L. Weekly Supp. 763 (Fla. 6th Cir. Ct. May 10, 2006)State v. Exler, 13 Fla. L. Weekly
Supp. 763 (Fla. 6th Cir. Ct. May 10, 2006) (officer had reasonable suspicion of DUI sufficient to justify
continued detention where the defendant was speeding, had a strong odor of alcohol, bloodshot and
watery eyes, and was swaying; the court noted that the officer could require defendant to exit based
solely on traffic infraction); Miller v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 751 (Fla. 4th Cir. Ct. April 19, 2006)Miller v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla.
L. Weekly Supp. 751 (Fla. 4th Cir. Ct. April 19, 2006) (court had reasonable suspicion and probable
cause to detain the defendant for DUI where officer saw vehicle cross the center line of a service road,
drift across the lane, and nearly strike a parked car; and, after stop noted an odor of alcohol, slurred
speech, watery eyes, and swaying); Sterbenz v. State, 12 Fla. L. Weekly Supp. 612 (F1a. 6th Cir. Ct.
March 4, 2005)Sterbenz v. State, 12 Fla. L. Weekly Supp. 612 (F1a. 6th Cir. Ct. March 4, 2005) (officer
had reasonable suspicion for DUI where officer saw bar employees escort the defendant out of a bar at
about 1:00 A.M.; he appeared intoxicated, was staggering, stumbling, and leaning; he told officer he
wasn’t going to drive, then drove; the fact that the officer did not smell alcohol, hear slurred speech, and
see bloodshot or watery eyes did not require a different conclusion; “[a]ll of the classic signs of
impairment do not need to be present in order for the police to reasonably suspect an individual is
DUI”); State v. Seguna, 26 Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017)State v.
Seguna, 26 Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017) (officer had reasonable
suspicion for DUI investigation based on her DUI training and experience where defendant drove off
road into a tree, had bloodshot eyes and an odor of alcohol that became stronger when he spoke); State
v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017) State v. Hart, 25 Fla. L.
Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017) (deputy had sufficient grounds to detain
defendant and conduct a DUI investigation when at 3:17 a.m. 911 caller reported that a vehicle had been
parked in the roadway outside the caller’s home for about two hours; deputy saw defendant asleep in
vehicle with lights on and motor running parked in the middle of a lane of traffic; it was difficult to
wake the defendant; defendant smelled of alcohol, had slurred speech and glassy eyes, and had to steady
himself with his vehicle as he exited the car); State v. Ivanova, 25 Fla. L. Weekly Supp. 458 (Fla. Pasco
Cty. Ct. Oct. 27, 2015)State v. Ivanova, 25 Fla. L. Weekly Supp. 458 (Fla. Pasco Cty. Ct. Oct. 27, 2015)
(where deputy lawfully stopped vehicle at 3:43 a.m. based on anonymous report of an impaired driver,
including description of the vehicle and tag number corroborated by deputy’s experience and training
and observations of erratic driving, deputy had reasonable suspicion for further DUI investigation even
though he did not detect the odor of alcohol or other classic signs of alcohol impairment; where, after
defendant was told to stop, the vehicle went forward and she was slow to respond to commands, had
difficulty putting the vehicle in park and in removing the keys); State v. Folstein, 20 Fla. L. Weekly
Supp. 1098 (Fla. Brevard Cty. Ct. April 16, 2013) (trial judge found reasonable suspicion for DUI where
officer estimated and paced defendant going 55 in a 45 mph zone; vehicle passed police car while
speeding and swerving within its lane and crossed the line in the lane of traffic, and another citizen
pointed vehicle out to the officer; defendant smelled of alcohol, had glassy red eyes, couldn’t find
clothing to cover the bikini she was wearing, and admitted to consuming alcohol); State v. Mattingly, 20
Fla. L. Weekly Supp. 591 (Fla. Brevard Cty Ct. Feb. 26, 2013)State v. Mattingly, 20 Fla. L. Weekly
Supp. 591 (Fla. Brevard Cty Ct. Feb. 26, 2013) (officer had reasonable suspicion for DUI investigation
where about half the truck was over the fog line and at least the tires were on the fog line for most of the
video and speed varied from 45 to 60 mph in a 55 zone; defendant said she had been at a bar and had
one or two drinks; she had an odor of an alcoholic beverage coming from her person and breath, watery
and glassy eyes, flush face, mumbled, and fumbled); State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla.
Duval Cty. Ct. Nov. 19, 2012)State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19,
2012) (officer had reasonable suspicion for DUI where vehicle drifted to the left and right a couple times
on each side; each time, tires left the center lane, and about one quarter width of the car went into the
adjoining lane of traffic and then each time vehicle moved back to its own lane of travel; after the stop
defendant admitted to consuming alcohol; the defendant’s breath had an odor of alcohol and the
defendant had watery, glassy eyes and fumbled for his registration); State v. Neniskis, 20 Fla. L. Weekly
Supp. 81 (Fla. Monroe Cty. Ct. Oct. 24, 2012)State v. Neniskis, 20 Fla. L. Weekly Supp. 81 (Fla.
Monroe Cty. Ct. Oct. 24, 2012) (officer had reasonable suspicion for DUI investigation where defendant
was speeding and at one point was going 87 mph in a 35 mph zone, had an odor of alcohol, flush face,
bloodshot watery eyes, and difficulty producing documents); State v. Moose, 14 Fla. L. Weekly Supp.
671 (Fla. Volusia Cty. Ct. May 15, 2007)State v. Moose, 14 Fla. L. Weekly Supp. 671 (Fla. Volusia Cty.
Ct. May 15, 2007) (after officer lawfully stopped motorcycle for an obscured tag the officer had
reasonable suspicion for a DUI investigation and to order FSTs based on strong odor of alcohol,
bloodshot and glassy eyes, an admission of having had a few alcoholic drinks, and information from
another officer that the defendant and his passenger had been in a loud verbal argument; court called this

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

“a close case”). But see State v. Keys, 19 Fla. L. Weekly Supp. 518 (Fla. 17th Cir. Ct. March 5,
2012)State v. Keys, 19 Fla. L. Weekly Supp. 518 (Fla. 17th Cir. Ct. March 5, 2012) (while the traffic
stop was lawful, the subsequent detention for a DUI investigation was unlawful because it was based
solely on the odor of alcohol on defendant’s breath); State v. Bithell, 15 Fla. L. Weekly Supp. 137 (Fla.
17th Cir. Ct. Dec. 17, 2007)State v. Bithell, 15 Fla. L. Weekly Supp. 137 (Fla. 17th Cir. Ct. Dec. 17,
2007) (deputy stopped defendant because one of her headlights was out and she drifted into another
lane; after stop officer noticed defendant’s eyes were red, her breath smelled of alcohol, and she
admitted having one drink; circuit court affirmed trial judge’s ruling that the deputy lacked reasonable
suspicion to detain her longer than required to write traffic citation); Suntich v. Dep’t of Highway Safety
& Motor Vehicle, 14 Fla. L. Weekly Supp. 326 (Fla. 17th Cir. Ct. Feb. 13, 2007)Suntich v. Dep’t of
Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 326 (Fla. 17th Cir. Ct. Feb. 13, 2007) (tip
that officer did not know came from a citizen informant was treated as an anonymous tip and stop was
unlawful where officer presented no independent observations that corroborated the tip).
State v. Wicker, 14 Fla. L. Weekly Supp. 325 (Fla. 17th Cir. Ct. Feb. 12, 2007)State v. Wicker, 14 Fla.
L. Weekly Supp. 325 (Fla. 17th Cir. Ct. Feb. 12, 2007) (no reasonable suspicion where vehicle was
stopped in traffic lane outside a video store and officer could not get around it; vehicle did not move
when officer honked his horn; officer approached to see what was wrong and could “‘see and smell that
he was under the influence of an alcoholic beverage,’” meaning the defendant “‘was fumbling around,
the things he was saying, his speech being slurred, and his eyes being bloodshot. That type of stuff.’”;
court found officer’s testimony insufficient because it was conclusory); Egierski v. Dep’t of Highway &
Motor Vehicles, 13 Fla. L. Weekly Supp. 1148 (Fla. 7th Cir. Ct. Sept 12, 2006) (officer did not have
reasonable suspicion of DUI based solely on the fact that tag light was out, defendant had an odor of
alcoholic beverage and was disoriented, but the officer did not indicate in what way she was
disoriented); State v. Bertoni, 13 Fla. L. Weekly Supp. 568 (Fla. 17th Cir. Ct. March 14, 2006)State v.
Bertoni, 13 Fla. L. Weekly Supp. 568 (Fla. 17th Cir. Ct. March 14, 2006) (officer who stopped
defendant for expired tag, but not for any unusual driving, did not have reasonable suspicion for DUI
investigation and to order FSTs based on odor of alcoholic beverage, red and watery eyes, and flushed
face); State v. Willert, 24 Fla. L. Weekly Supp. 54 (Fla. Pasco Cty. Ct. April 22, 2016) State v. Willert,
24 Fla. L. Weekly Supp. 54 (Fla. Pasco Cty. Ct. April 22, 2016) (speeding, smell of alcohol and
bloodshot eyes were insufficient to create reasonable suspicion); State v. Ramirez, 23 Fla. L. Weekly
Supp. 259 (Fla. Volusia Cty. Ct. July 31, 2015)State v. Ramirez, 23 Fla. L. Weekly Supp. 259 (Fla.
Volusia Cty. Ct. July 31, 2015) (speeding, odor of alcohol and difficulty sliding license out of wallet did
not establish reasonable suspicion for a DUI investigation); State v. Jacobs, 22 Fla. L. Weekly Supp. 831
(Fla. Volusia Cty. Ct. Dec. 19, 2014)State v. Jacobs, 22 Fla. L. Weekly Supp. 831 (Fla. Volusia Cty. Ct.
Dec. 19, 2014) (officer did not have reasonable suspicion for DUI, allowing him to detain the defendant
for 20 minutes after traffic stop based on the fact that defendant was driving without headlights, had
slightly slurred speech and there was an odor of alcohol coming from the vehicle); State v. Stackhouse,
20 Fla. L. Weekly Supp. 431 (Fla. Volusia Cty. Ct. Nov. 30, 2012)State v. Stackhouse, 20 Fla. L.
Weekly Supp. 431 (Fla. Volusia Cty. Ct. Nov. 30, 2012) (officer did not have reasonable suspicion for
DUI based on speed of 61 mph in a 50 mph zone, slight odor of alcohol coming from vehicle, dazed
expression, red and glassy eyes (he was dazed and had red eyes at the hearing); produced documents
without difficulty, no slurred speech, no difficulty walking); State v. Morrison, 19 Fla. L. Weekly Supp.
664 (Fla. Palm Beach Cty. Ct. April 30, 2012)State v. Morrison, 19 Fla. L. Weekly Supp. 664 (Fla. Palm
Beach Cty. Ct. April 30, 2012) (scraping vehicle on median due to texting coupled with odor of alcohol
and no other signs of impairment did not establish reasonable suspicion for DUI); State v. Leonard, 19
Fla. L. Weekly Supp. 58 (Fla. Monroe Cty. Ct. Oct. 20, 2011)State v. Leonard, 19 Fla. L. Weekly Supp.
58 (Fla. Monroe Cty. Ct. Oct. 20, 2011) (speeding and odor of alcoholic beverage did not establish
reasonable suspicion for DUI); State v. Williams, 17 Fla. L. Weekly Supp. 852 (Fla. Brevard Cty. Ct.
March 24, 2010)State v. Williams, 17 Fla. L. Weekly Supp. 852 (Fla. Brevard Cty. Ct. March 24, 2010)
(officer had reasonable suspicion for traffic stop where she saw vehicle cross fog line leaving the
roadway twice and that developed into reasonable suspicion for DUI when the officer noted that the
defendant had an odor of alcoholic beverage, bloodshot, watery eyes and denied drinking); State v.
Torpy, 17 Fla. L. Weekly Supp. 847 (Fla. Brevard Cty. Ct. May 7, 2010) State v. Torpy, 17 Fla. L.
Weekly Supp. 847 (Fla. Brevard Cty. Ct. May 7, 2010) (officer had reasonable suspicion for DUI stop
where motorist reported that vehicle was swerving all over the road, officer observed that vehicle was all
over the road, crossing both center line and fog line during one-half mile even though no other traffic
was affected; but the reasonable suspicion was gone when after investigation the officer told dispatch
that defendant did not look like he was drunk and during investigation, defendant admitted drinking but
not the amount or the time, was speaking normally, did not have bloodshot, watery eyes, nor apparent
mental impairment); State v. Iler, 16 Fla. L. Weekly Supp. 568 (Fla. Duval Cty. Ct. Oct. 17, 2007) State

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

v. Iler, 16 Fla. L. Weekly Supp. 568 (Fla. Duval Cty. Ct. Oct. 17, 2007) (detention for 30 minutes while
waiting for another officer was improper where stopping officer detected no odor of alcohol or evidence
of a controlled substance and did not see any traffic infraction and witnessed car make a legal U-Turn,
right rear wheel catch the curb when defendant made a right turn, weave within lane without affecting
any other traffic (officer was aware of reasonable explanations for these actions); over three miles car
safely and lawfully negotiate several major intersections and a construction area, properly exit a limited
access highway and stop in a parking lot in response to officer’s lights); State v. Negron, 15 Fla. L.
Weekly Supp. 727 (Fla. Hillsborough Cty. Ct. April 14, 2008)State v. Negron, 15 Fla. L. Weekly Supp.
727 (Fla. Hillsborough Cty. Ct. April 14, 2008) (detention for DUI investigation was improper were
officer followed defendant for 2/10 of a mile, defendant exceeded speed limit and drove within two feet
of vehicle in front of her; officer stopped defendant, but did not indicate she suspected defendant was
impaired; officer smelled odor of alcoholic beverage coming from vehicle and defendant’s person;
defendant’s eyes were bloodshot and watery; officer testified that there were no factors indicating
impairment before she told defendant to exit); State v. Littlefield, 13 Fla. L. Weekly Supp. 1000 (Fla.
Osceola Cty. Ct. July 11, 2006) (officer who stopped defendant for defective tail light, but not for any
unusual driving, did not have reasonable suspicion for DUI investigation based on odor of alcoholic
beverage and glassy and watery eyes) [for more opinions on reasonable suspicion for DUI detention
see section 7:2].
5
Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005). See also State v. Hall, 25 Fla. L. Weekly Supp. 408
(Fla. 6th Cir. Ct. Dec.16, 2015)State v. Hall, 25 Fla. L. Weekly Supp. 408 (Fla. 6th Cir. Ct. Dec.16,
2015) (trial judge suppressed evidence based on one hour and 10 minute delay in starting accident
investigation when any of the deputies at the scene could have done it; the court reversed finding that the
delay was not unreasonable; the first deputy observed signs of impairment; deputies contacted FHP to
do the accident investigation as was the policy, but FHP was delayed; after about an hour, a supervisor
called another deputy to conduct the accident investigation due to the delay; that deputy arrived about an
hour and 10 minutes after the accident, completed the accident investigation and began an investigation
for DUI; in reversing, the three judge panel noted: “The question before the Court is not whether it
was possible for the officers on the scene to accomplish the objectives by alternative means, but
whether the officers’ actions were unreasonable.” The court found that the policy and delay waiting
for FHP was not unreasonable.); Bartholomew v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 312 (Fla. 9th Cir. Ct. Jan. 11, 2013)Bartholomew v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Jan. 11, 2013) (where officer had reasonable
suspicion for DUI stop, 28 minute delay waiting for DUI investigator was not unreasonable; petitioner
was not handcuffed or placed in patrol car, but rather she sat on the curb); Norton v. Dep’t of Highway
Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011)Norton v. Dep’t
of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011)
(officer had reasonable suspicion for DUI investigation where officer observed petitioner speeding,
petitioner had bloodshot watery eyes, flush face, and an odor of alcohol on her breath); State v. Diaz, 13
Fla. L. Weekly Supp. 565 (Fla. 17th Cir. Ct. March 16, 2006)State v. Diaz, 13 Fla. L. Weekly Supp. 565
(Fla. 17th Cir. Ct. March 16, 2006) (officer properly detained the defendant until the DUI task force
arrived where the officer observed an unusual driving pattern, bloodshot and watery eyes, slurred
speech, poor balance, and an odor of alcohol, and the defendant admitted recently drinking two beers);
Sterbenz v. State, 12 Fla. Law Weekly Supp. 612 (Fla. 6th Cir. Ct. March 4, 2005) (where defendant had
many of the indicia of impairment, it was proper for the officer to detain him for 25 to 30 minutes for the
arrival of the DUI unit); State v. Cage, 25 Fla. L. Weekly Supp. 668 (Fla. Volusia Cty. Ct. Jan. 21,
2016)State v. Cage, 25 Fla. L. Weekly Supp. 668 (Fla. Volusia Cty. Ct. Jan. 21, 2016) (after witnessing
the defendant crash into the rear of a van, deputy had reasonable suspicion for a DUI investigation
immediately on contacting the defendant; delay in starting DUI invest was not unreasonable; where
during 24 minutes after accident deputy called dispatch, contacted FHP to send a trooper pursuant to
policy, checked defendant’s license, allowed paramedics to clear the scene; trooper arrived and started
the accident investigation about 24 minutes after the accident and apparently also did the report on the
scene and began the DUI investigation almost 90 minutes after the accident); State v. Ivanova, 25 Fla. L.
Weekly Supp. 458 (Fla. Pasco Cty. Ct. Oct. 27, 2015)State v. Ivanova, 25 Fla. L. Weekly Supp. 458
(Fla. Pasco Cty. Ct. Oct. 27, 2015) (after finding that the deputy had reasonable suspicion for stop and
DUI investigation, the trial judge concluded that it was not unreasonable for the officer to wait 17
minutes for a more experienced officer to do the DUI investigation); State v. Hart, 25 Fla. L. Weekly
Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017)State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia
Cty. Ct. June 15, 2017) (after concluding that deputy had sufficient grounds to detain defendant for a
DUI investigation, the trial judge ruled that a 15 minute delay for DUI investigator to arrive was

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

reasonable); State v. Tams, 20 Fla. L. Weekly Supp. 1236 (Fla. Manatee Cty. Ct. August 23, 2013)
(where officers lawfully detained the defendant for a DUI investigation, 15 minute delay for arrival of
DUI unit was not unreasonable); State v. Heckel, 19 Fla. L. Weekly Supp. 584 (Fla. Sarasota Cty. Ct.
March 20, 2012)State v. Heckel, 19 Fla. L. Weekly Supp. 584 (Fla. Sarasota Cty. Ct. March 20, 2012)
(defendant was not unlawfully detained where the officers had a reasonable suspicion of DUI and they
waited a few minutes for a DUI officer); But see State v. Swick, 25 Fla. L. Weekly Supp. 995 (Fla. 7th
Cir. Ct. Dec. 18, 2017)State v. Swick, 25 Fla. L. Weekly Supp. 995 (Fla. 7th Cir. Ct. Dec. 18, 2017)
(where there was a lawful traffic stop and reasonable suspicion for a DUI investigation, in a two to one
decision, the court found that a 27 to 28 minute delay in starting the DUI investigation was unreasonable
because three officers at the scene could have done the investigation rather than waiting for a fourth with
a video camera; no officer wrote a citation, but the stopping deputy ran a computer check; the dissenting
judge concluded the delay waiting for the other officers was reasonable and that the stopping officer
began conducting the DUI investigation by speaking to and observing the Defendant, securing his
license and vehicle registration, checking the computer and writing a report related to the DUI
investigation); State v. Townley, 25 Fla. L. Weekly Supp. 547 (Fla. Orange Cty. Ct. August 16,
2017)State v. Townley, 25 Fla. L. Weekly Supp. 547 (Fla. Orange Cty. Ct. August 16, 2017) (defendant
was unlawfully detained where, while on his way to a reported burglary, officer saw defendant commit a
traffic infraction by cutting another vehicle off; called for back-up because he thought the driver might
be involved in the burglary and made him wait for 30 minutes until he was told defendant had nothing to
do with the burglary; officer observed indicators of DUI but did nothing connected with the infraction or
a DUI investigation while waiting); State v. Freeman, 21 Fla. L. Weekly Supp. 680 (Fla. Volusia Cty.
Ct. March 24, 2014)State v. Freeman, 21 Fla. L. Weekly Supp. 680 (Fla. Volusia Cty. Ct. March 24,
2014) (officer stopped defendant to investigate reported domestic disturbance and developed grounds for
DUI investigation; officer did nothing for ½ hour while waiting for another officer to report on the
disturbance; only then did the stopping officer conduct a DUI investigation; trial judge concluded delay
was unreasonable); State v. Nicholson, 21 Fla. L. Weekly Supp. 582 (Fla. Sarasota Cty. Ct. Sept. 20,
2013)State v. Nicholson, 21 Fla. L. Weekly Supp. 582 (Fla. Sarasota Cty. Ct. Sept. 20, 2013) (officer
made a lawful stop and developed grounds for a DUI investigation but waited about 6 to 17 minutes for
another officer to arrive to do the investigation and the stopping officer apparently did nothing during
that time; the trial judge ruled “once the investigation stopped, the Defendant’s detention became
unlawful.”); State v. Barron, 18 Fla. L. Weekly Supp. 99 (Fla. Monroe Cty. Ct. Sept. 1, 2010)State v.
Barron, 18 Fla. L. Weekly Supp. 99 (Fla. Monroe Cty. Ct. Sept. 1, 2010) (trooper detained defendant for
an unreasonable time where trooper was investigating one crash when he observed defendant leave his
lane and hit objects; trooper noticed signs of impairment, but had defendant wait from 6:36 p.m. to 8:18
p.m. before FSEs until trooper finished first investigation and there was no evidence the trooper
contacted other officers); State v. Schepp, 16 Fla. L. Weekly Supp. 766 (Fla. Sarasota Cty. Ct. Dec. 12,
2008)State v. Schepp, 16 Fla. L. Weekly Supp. 766 (Fla. Sarasota Cty. Ct. Dec. 12, 2008) , affirmed, 16
Fla. L. Weekly Supp. 733 (Fla. 12th Cir. Ct. May 14, 2009)16 Fla. L. Weekly Supp. 733 (Fla. 12th Cir.
Ct. May 14, 2009) (where deputy who lawfully made stop for DUI did not make an arrest or conduct
any investigation for two to five minutes while waiting for another deputy, who did not witness driving
or actual physical control, to do the investigation and make the arrest, the detention from the time of the
stop was unlawful); State v. Niehans, 15 Fla. L. Weekly Supp. 365 (Fla. Escambia Cty. Ct. Jan. 15,
2008)State v. Niehans, 15 Fla. L. Weekly Supp. 365 (Fla. Escambia Cty. Ct. Jan. 15, 2008) (30 to 35
minute delay for arrival of officer to conduct field sobriety exercises was unreasonable); State v.
Nesseler, 12 Fla. L. Weekly Supp. 966 (Fla. Dade Cty. Ct. May 20, 2005)State v. Nesseler, 12 Fla. L.
Weekly Supp. 966 (Fla. Dade Cty. Ct. May 20, 2005) (where officer lawfully stopped boat and had
reasonable suspicion for BUI, it was improper to detain the defendant for two hours for the arrival of
another officer when other officers could have carried out the investigation).
6
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015); Cresswell v. State, 564 So.
2d 480 (Fla. 1990). See also Thomas v. State, 614 So. 2d 468 (Fla. 1993); Wooden v. State, 244
So.3d 1170 (Fla. 1st DCA 2018) (court remanded case for determination of whether officer had
reasonable suspicion, where the stop was for improper lane change, officer called for narcotics dog
immediately, and the dog alerted about 20 minutes into the stop; but trial judge ruled that if there was
any delay it was slight, which met the use of the dog added some time to the stop; thus there had to be a
finding of reasonable suspicion); Vangansbeke v. State, 223 So. 3d 384 (Fla. 5th DCA 2017) (canine
unit leading to reasonable suspicion didn’t unnecessarily delay 20 minute traffic stop under unique
circumstances where four people were in the car; no computer in police car because they were a tactical
unit so they had to radio information to the dispatcher, who had to take earlier calls; 10 minutes into stop
officers asked for canine; one officer did background checks for two passengers in backseat, the other
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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

officer radioed vehicle info and asked for a citation number; 16 minutes into stop, officer received all of
the needed info and began citation; canine arrived about 19 minutes into stop; citation was still in
officer’s hand when the canine alerted to drugs in the car; “officers were scrupulous in performing their
duties and did not act to prolong the encounter.”); Underhill v. State, 197 So. 3d 90 (Fla. 4th DCA 2016)
(facts and ruling essentially the same as in Jones, summarized hereafter, except in this case the deputy
issued the seat belt citation after discovering contraband; court reiterated that whether the citation is
issued is not the concern—rather it is whether the dog sniff prolonged the detention for reasons
unrelated to the traffic stop); Jones v. State, 187 So.3d 346, 348 (Fla. 4th DCA 2016) (detention was
unlawful where officer stopped vehicle for seat belt violation; but instead of issuing a citation, did a
search without reasonable suspicion with a dog, which resulted in a hit within three minutes; “Once the
officer decided against writing the citation, the purpose for the stop was complete and the justification
for the stop was no longer valid.”); Vaughn v. State, 176 So.3d 354 (Fla. 1st DCA 2015) (officer had
reasonable suspicion to detain the defendant beyond what was necessary to process citation where when
asked for license, registration and home address the defendant gave three different addresses); Noto v.
State, 42 So. 3d 814 (Fla. 4th DCA 2010), review denied, 56 So. 3d 767 (Fla. 2011), cert. denied, 132 S.
Ct. 105, 181 L. Ed. 2d 32 (2011) (detention of traffic offender went beyond what was necessary where
officer stopped defendant for running a red light, retrieved license and registration, defendant admitted
picking up cocaine, and an additional 15 to 20 minutes elapsed before canine unit arrived; but officer
had reasonable suspicion to detain defendant based on information about drug transactions in the area,
observations of defendant, and the defendant’s admission to picking up cocaine); Whitfield v. State,
33 So. 3d 787 (Fla. 5th DCA 2010) (officer improperly delayed by asking questions having nothing to
do with the event so that canine unit could arrive; there was no basis for believing rental car was stolen,
stop was for speeding, routine investigation completed in about 12 minutes after stop; time reasonably
required to do the necessary license/warrant checks and issue the citation-even including several minutes
spent on verifying defendant’s authority to drive the rental car-was significantly less than 29 minutes
actually expended; fact that defendant was driving car not rented to him, contract did not contain his
name, he was nervous, did not fully disclose his prior criminal record, and his story about his business
was not credible did not establish reasonable suspicion); Maldonado v. State, 992 So. 2d 839 (Fla. 2d
DCA 2008) (officer did not properly detain defendant after traffic stop where claim of reasonable
suspicion was based on deputy’s hunch that defendant had drugs because defendant lied about where he
was coming from, was nervous, and was driving on I-75, a known drug corridor); Napoleon v. State, 985
So. 2d 1170 (Fla. 1st DCA 2008) (defendant was unlawfully detained where officer stopped vehicle for
traffic infraction, never issued traffic citation, detained defendant for 20 minutes for canine unit to
arrive); State v. Villate, 901 So. 2d 953 (Fla. 3d DCA 2005) (officer improperly detained defendant for
30 minutes after issuing a citation for riding a bicycle with no headlight at 2 a.m. because the officer did
not have any facts creating a reasonable suspicion that the defendant was involved in criminal activity);
Poliar v. State, 898 So. 2d 1013 (Fla. 4th DCA 2005), review dismissed, 924 So. 2d 809 (Fla. 2005)
(officer properly detained the defendant for 20 minutes after writing citation for window tinting problem
where defendant was excessively nervous, couldn’t answer simple questions about his birth date and
home address, and was deceitful); State v. Stone, 889 So. 2d 999 (Fla. 5th DCA 2004) (asking a single
question about whether the individual had any weapons or drugs after identification was returned did not
constitute continued detention); Hoover v. State, 880 So. 2d 710 (Fla. 5th DCA 2004) (where officer
stopped vehicle because a check revealed that the registered owner had a suspended license, once the
officer determined that the driver was not the registered owner and had a valid license, the officer was
not permitted to detain driver based on the fact that this was a high drug area, the driver was nervous,
and the officer was concerned for his safety); Williams v. State, 869 So. 2d 750 (Fla. 5th DCA 2004) (35
minutes to issue partially filled out citation for window tinting violation was unreasonable, and
continued detention without additional grounds was unlawful, where a minute-and-a-half after stop,
officer called for back-up; four minutes after stop, officer requested a drug dog; and 10 minutes after
stop, officer ran defendant’s date of birth through teletype with negative results); Marshall v. State,
864 So. 2d 1139 (Fla. 1st DCA 2003) (appellate court rejected trial court’s finding that continued
detention after issuance of citation was permissible because search with drug dog occurred “ ‘at almost
the same instant;’ ” the appellate court found that the only evidence was that it took place over 10
minutes, and the officer continued to question the driver after issuance of the citation); Brown v. State,
863 So. 2d 459 (Fla. 5th DCA 2004) (delay in completing issuance of citation for making a right turn on
a red light was justified where the passenger began to act as if he were hiding something); Sanchez v.
State, 847 So. 2d 1043 (Fla. 4th DCA 2003), review denied, 860 So. 2d 978 (Fla. 2003) (delay was not
unreasonable where officer was attempting to determine whether defendant was complying with the “
‘business use’ ” only restriction on his driver’s license, and was still writing the ticket when the canine

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

officer arrived); Nulph v. State, 838 So. 2d 1244 (Fla. 2d DCA 2003) (delay for canine unit to arrive
after all traffic related checks done and officer hadn’t even starting writing citation was improper);
Bludsaw v. State, 837 So. 2d 1188 (Fla. 2d DCA 2003) (where officers lawfully detained the defendant
for traffic violations, but then continued the detention based solely on the fact that the defendant had
visited a place where drug activity was suspected, the detention was unlawful); Lecorn v. State, 832
So. 2d 818 (Fla. 5th DCA 2002) (delay of four minutes in arrival of canine unit after officer asked
defendant to exit vehicle for purpose of writing a warning ticket as to window tinting was not
unreasonable); Eldridge v. State, 817 So. 2d 884 (Fla. 5th DCA 2002) (delay caused by dealing with
erroneous DMV information was improper); K.G.M. v. State, 816 So. 2d 748 (Fla. 4th DCA 2002)
(officer lawfully continued detention based on observation of what he believed to be a marijuana seed
based on his particularized experience and training); Maxwell v. State, 785 So. 2d 1277 (Fla. 5th
DCA 2001) (delay by asking many irrelevant questions was improper); Summerall v. State, 777 So. 2d
1060 (Fla. 2d DCA 2001) (delay by engaging defendant in conversation to keep him there after citation
was issued was improper); Gilchrist v. State, 757 So. 2d 582 (Fla. 1st DCA 2000); (asking the
defendant to exit vehicle after citation was issued without any other basis for continued detention was
improper); Welch v. State, 741 So. 2d 1268 (Fla. 5th DCA 1999) (there were no grounds for detaining
the passenger once the citation was issued to driver); E.H. v. State, 593 So. 2d 243 (Fla. 5th DCA 1991)
(officer could not continue detention to pat down and search passenger solely because defendant kept
sticking his hand in his pocket); Blackmon v. State, 570 So. 2d 1074 (Fla. 1st DCA 1990) (it was
proper to have dog do exterior search of vehicle while citation was being issued and officer was
checking identification and rental agreement that did not have driver’s name on it); McDonald v. Dep’t
of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 71 (Fla. 7th Cir. Ct. June 18,
2016)McDonald v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 71 (Fla. 7th
Cir. Ct. June 18, 2016) (one hour and nine minute delay after stop for infraction before DUI
investigation was improper); State v. Fox, 22 Fla. L. Weekly Supp. 1009 (Fla. 17th Cir. Ct. April 13,
2015) (court upheld trial judge’s conclusion that delay was unreasonable where K-9 officer lawfully
stopped defendant for expired tag, but after defendant refused to consent, officer waited for back-up
pursuant to policy and while waiting officer checked defendant’s license and paperwork; but when
backup arrived, officer required occupants to exit vehicle, stopped processing citation and used the dog,
resulting in discovery of marijuana; the officer estimated from time of the stop to finding the cannabis
was about eight to 10 minutes, admitted he had no reasonable suspicion of criminal activity and that this
took longer than it would have had he just started writing a traffic citation); State v. Owens, 20 Fla. L.
Weekly Supp. 991 (Fla. 7th Cir. Ct. June 11, 2013)State v. Owens, 20 Fla. L. Weekly Supp. 991 (Fla.
7th Cir. Ct. June 11, 2013) (where officer lawfully stopped defendant for traffic violations and erratic
driving, all observations and statement from time officer ordered defendant to exit were suppressed
because the detention was too long; officer called for a DUI unit, but did not begin the DUI investigation
or write any citations and it took about 25 minutes for the unit to arrive; that unit’s camera did not work
and it may have taken another unit up to an hour and five minutes to arrive); State v. Lynch, 13 Fla. L.
Weekly Supp. 1053 (Fla. 9th Cir. Ct. July 17, 2007) (noting that defendant looked “‘real sluggish’”
when giving officer his license after traffic stop, did not give officer reasonable suspicion to detain the
defendant); State v. Dulian, 13 Fla. L. Weekly Supp. 331 (Fla. 17th Cir. Ct. Dec. 13, 2004) State v.
Dulian, 13 Fla. L. Weekly Supp. 331 (Fla. 17th Cir. Ct. Dec. 13, 2004) (where officer lawfully stopped
the defendant for speeding, continued detention was unlawful where the officer did not notice anything
unusual about the way the defendant produced documents or any of the other indicia of impairment,
except the defendant made a concentrated effort to walk and admitted having two beers); State v.
Kennedy, 25 Fla. L. Weekly Supp. 362 (Fla. Volusia Cty. Ct. March 10, 2017)State v. Kennedy, 25 Fla.
L. Weekly Supp. 362 (Fla. Volusia Cty. Ct. March 10, 2017) (once officer completed investigation of
one car accident and writing citation it was an unlawful detention based on a hunch for the officer to
deliberately delay giving defendant the citation so officer could have additional time to develop
reasonable suspicion for a DUI detention); State v. Miller, 24 Fla. L. Weekly Supp. 149 (Fla. Volusia
Cty. Ct. April 6, 2016)State v. Miller, 24 Fla. L. Weekly Supp. 149 (Fla. Volusia Cty. Ct. April 6, 2016)
(defendant was lawfully stopped for an infraction, but the trial judge suppressed all the evidence after
defendant was ordered out of the vehicle because three deputies who could have done a DUI
investigation waited for over 40 minutes for a fourth deputy to show up to do the investigation); State v.
Kerr, 22 Fla. L. Weekly Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015)State v. Kerr, 22 Fla. L. Weekly
Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015) (where officer said he saw signs of impairment when he
first contacted the defendant, a 30 minute delay to research racing violation and wait for a back-up
without writing a citation, running a warrant check or starting a DUI investigation was unreasonable);

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

State v. Lakeman, 20 Fla. L. Weekly Supp. 601 (Fla. Monroe Cty. Ct. Nov. 27, 2012) State v. Lakeman,
20 Fla. L. Weekly Supp. 601 (Fla. Monroe Cty. Ct. Nov. 27, 2012) (officer observed driving
establishing reasonable suspicion for making a stop to determine whether the defendant might be
impaired, sick, tired, or having mechanical problems; but the 24-minute delay waiting for a DUI
investigator to arrive was excessive where the defendant admitted to drinking three beers at dinnertime
and it was 1:00 a.m. and there was no other evidence that defendant was impaired by alcohol; stopping
officer was capable of doing the DUI investigation, but the officer did not even ask the defendant to exit
the vehicle or give the defendant the infraction citation he had prepared until after the DUI investigator
had arrived); State v. Mennens, 19 Fla. L. Weekly Supp. 1038 (Fla. Marion Cty. Ct. Dec. 7, 2011)
(detention was unlawful where officer stopped defendant for speeding, but called for a DUI investigator,
during the 10 minutes for the investigator to arrive the officer did nothing connected to the traffic stop);
State v. Campbell, 17 Fla. L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010)State v. Campbell,
17 Fla. L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010) (where officer had reasonable
suspicion for DUI investigation, five minute wait for back-up to conduct investigation was reasonable;
but alternatively, the time was reasonable because officer had not yet written the citation and was
checking for warrants and license validity during the five minutes and there was no evidence that this
was not reasonably necessary); State v. Amdor, 15 Fla. L. Weekly Supp. 1002 (Fla. Osceola Cty. Ct.
Aug. 5, 2005) (34 minutes to make a traffic stop, explain the reason for the stop, talk with defendant
about his documentation, prepare four citations, and return to defendant’s vehicle to explain citations
was not unreasonable) [for more opinions on reasonable suspicion for DUI detention see section
7:2].
7
State v. Nash, 957 So. 2d 1266 (Fla. 4th DCA 2007). See also Crist v. State, 98 So. 3d 81 (Fla. 2d DCA
2012) (after traffic citation was issued, defendant consented to search of his person, but the officer
waited for back-up and never told the defendant he was free to go; therefore, the State failed to produce
clear and convincing evidence that the consent was voluntary); State v. Boles, 952 So. 2d 586 (Fla. 4th
DCA 2007); State v. Castles, 13 Fla. L. Weekly Supp. 1045 (Fla. 6th Cir. Ct. July 31, 2006).
8
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).
9
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015); Whitfield v. State, 33 So.
3d 787, 790 (Fla. 5th DCA 2010); D.A. v. State, 10 So. 3d 674, 676 (Fla. 3d DCA 2009), review denied,
49 So. 3d 746 (Fla. 2010); Blackmon v. State, 570 So. 2d 1074 (Fla. 1st DCA 1990); Castillo v.
State, 536 So. 2d 1134 (Fla. 2d DCA 1988) (where officer had reason to believe driver was in
possession of fictitious license detention could continue until validity of license was determined);
Stafford v. State, 532 So. 2d 1361 (Fla. 1st DCA 1988); State v. Kettelle, 7 Fla. L. Weekly Supp. 309
(Fla. 9th Cir. Ct. Feb. 17, 2000)State v. Kettelle, 7 Fla. L. Weekly Supp. 309 (Fla. 9th Cir. Ct. Feb. 17,
2000).
10
Whitfield v. State, 33 So. 3d 787, 790 (Fla. 5th DCA 2010); D.A. v. State, 10 So. 3d 674, 676 (Fla.
3d DCA 2009), review denied, 49 So. 3d 746 (Fla. 2010).
11
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015); Whitfield v. State, 33 So.
3d 787 (Fla. 5th DCA 2010); D.A. v. State, 10 So. 3d 674, 676 (Fla. 3d DCA 2009), review denied, 49
So. 3d 746 (Fla. 2010).
12
Whitfield v. State, 33 So. 3d 787 (Fla. 5th DCA 2010); D.A. v. State, 10 So. 3d 674, 676 (Fla. 3d
DCA 2009), review denied, 49 So. 3d 746 (Fla. 2010); Watson v. State, 689 So. 2d 1090 (Fla. 5th DCA
1997), as corrected on reh’g, (Mar. 7, 1997), review denied, 697 So. 2d 513 (Fla. 1997); Blackmon
v. State, 570 So. 2d 1074 (Fla. 1st DCA 1990) (court concluded that a delay to verify I.D. and
lawfulness of possession of rental car was proper where the driver was not on rental agreement).
13
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015); Whitfield v. State, 33 So.
3d 787 (Fla. 5th DCA 2010); D.A. v. State, 10 So. 3d 674, 676 (Fla. 3d DCA 2009), review denied, 49
So. 3d 746 (Fla. 2010).
14
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015); Whitfield v. State, 33 So.
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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

3d 787 (Fla. 5th DCA 2010); D.A. v. State, 10 So. 3d 674, 676 (Fla. 3d DCA 2009), review denied, 49
So. 3d 746 (Fla. 2010).
15
Vangansbeke v. State, 223 So. 3d 384 (Fla. 5th DCA 2017).
16
Bozeman v. State, 603 So. 2d 585 (Fla. 2d DCA 1992). See also McKnight v. State, 972 So. 2d 247 (Fla.
1st DCA 2007) (officer had reasonable suspicion for detention when officer approached stopped vehicle
at apartment complex while investigating complaints about drug dealing and when officer asked for
identification, driver produced an I.D. card, rather than a driver’s license, and officer knew from
experience that people with such cards often do not have driver’s license); Simpson v. State, 970 So. 2d
463 (Fla. 2d DCA 2007) (officer determined that female registered owner’s license was suspended
because of no insurance, but before approaching vehicle officer determined driver was male and there
was no reason to believe he was uninsured; therefore, the officer had no authority to approach vehicle);
Lanier v. State, 936 So. 2d 1158 (Fla. 2d DCA 2006) (officer who stopped vehicle to arrest passenger
could ask for identification from the driver and check it until the process of investigating the arrest of the
passenger was completed); Fernandez v. State, 917 So. 2d 1022 (Fla. 1st DCA 2006) (officer who
stopped car because female owner’s license was suspended, should have immediately allowed the male
driver to go without asking for his license, because when officer determined that the driver was not a
female, the purpose was accomplished); State v. Dye, 17 Fla. L. Weekly Supp. 480 (Fla. Brevard Cty Ct.
Feb. 28, 2010)State v. Dye, 17 Fla. L. Weekly Supp. 480 (Fla. Brevard Cty Ct. Feb. 28, 2010) (deputy
lawfully stopped motorcycle because records check showed that registered owner did not have a
motorcycle endorsement; defendant told deputy he was not the owner and defendant said it should have
been obvious that he was not the owner, so the detention should have ended at that point; the trial judge
concluded that continued detention was proper because the driver was the owner’s son and had the same
name as his father, the circumstances justified deputy’s belief that he may have been dealing with the
owner and the deputy rightfully detained the defendant to resolve the matter).
17
Presley v. State, 227 So.3d 95 (Fla. 2017).
18
Presley v. State, 227 So.3d 95 (Fla. 2017).
19
Presley v. State, 227 So.3d 95, 107 (Fla. 2017).
20
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).
21
Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). See also Vangansbeke v. State,
223 So. 3d 384 (Fla. 5th DCA 2017); Underhill v. State, 197 So. 3d 90 (Fla. 4th DCA 2016); Foley v.
State, 188 So.3d 930 (Fla. 5th DCA 2016); Jones v. State, 187 So.3d 346, 348 (Fla. 4th DCA 2016);
Whitfield v. State, 33 So. 3d 787 (Fla. 5th DCA 2010).
22
Borys v. State, 824 So. 2d 204 (Fla. 2d DCA 2002); Palmer v. State, 753 So. 2d 679 (Fla. 2d DCA
2000); Powell v. State, 649 So. 2d 888 (Fla. 2d DCA 1995).
23
State v. Wikso, 738 So. 2d 390 (Fla. 4th DCA 1999), disapproved of by State v. Diaz, 850 So. 2d
435 (Fla. 2003).
24
State v. Bass, 609 So. 2d 151 (Fla. 5th DCA 1992), disapproved of by State v. Diaz, 850 So. 2d
435 (Fla. 2003).
25
State v. Diaz, 850 So. 2d 435 (Fla. 2003), cert. denied, 540 U.S. 1075, 124 S. Ct. 936, 157 L. Ed. 2d
745 (2003). See also Sowerby v. State, 73 So. 3d 329 (Fla. 5th DCA 2011); State v. Tullis, 970 So. 2d
912 (Fla. 5th DCA 2007); State v. Rivers, 861 So. 2d 1208 (Fla. 2d DCA 2003); Blackwelder v. State,
853 So. 2d 479 (Fla. 2d DCA 2003).
26
State v. Diaz, 850 So. 2d 435 (Fla. 2003), cert. denied, 540 U.S. 1075, 124 S. Ct. 936, 157 L. Ed. 2d
745 (2003). See also State v. Godard, 202 So.3d 144 (Fla. 2d DCA 2016) (officer stopped car to check

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§ 4:10.The duration of detention, 11 Fla. Prac., DUI Handbook § 4:10 (2018-2019 ed.)

on well being of two dogs who had been reported to be left in a hot car; the officer could approach the
driver after he determined that the dogs were okay, but could not ask for identification).
27
State v. Diaz, 850 So. 2d 435 (Fla. 2003), cert. denied, 540 U.S. 1075, 124 S. Ct. 936, 157 L. Ed. 2d
745 (2003).
28
State v. Rivers, 861 So. 2d 1208 (Fla. 2d DCA 2003). See also State v. Maldonado, 11 Fla. L. Weekly
Supp. 406 (Fla. 12th Cir. Ct. Feb. 4, 2004)State v. Maldonado, 11 Fla. L. Weekly Supp. 406 (Fla. 12th
Cir. Ct. Feb. 4, 2004).
29
Zeigler v. State, 922 So. 2d 384 (Fla. 1st DCA 2006), review dismissed, 955 So. 2d 532 (Fla. 2007).
30
State v. Lee, 957 So. 2d 76 (Fla. 5th DCA 2007). See also State v. Tullis, 970 So. 2d 912 (Fla. 5th DCA
2007) (stop was lawful and approach to vehicle was lawful where temporary tag was illegible from four
to five feet away because of a tinted license plate cover; detention was proper where officer smelled
odor of marijuana while approaching vehicle to determine validity of tag; court rejected argument that
section 320.131(4) does not require that the tag be legible).
31
Bozeman v. State, 603 So. 2d 585 (Fla. 2d DCA 1992). See also Cooper v. State, 654 So. 2d 229
(Fla. 1st DCA 1995).

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Works.

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11 Fla. Prac., DUI Handbook § 4:11 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:11. Stops to issue citations or make arrests on other traffic charges

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6) to 349(8), 351.1

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335, 1344, 1365 to 1371, 1397 to 1400, 1442 to
1443, 1473, 1486 to 1487, 1496, 1508, 1518, 1526, 1532, 1543 to 1547, 1550

Many of the previously mentioned cases illustrate the relatively common occurrence of an officer stopping a
vehicle on reasonable suspicion of criminal activity, unusual driving or other problems and developing probable
cause for a DUI arrest. That pattern also applies to stops solely to issue traffic citations or to make arrests for
some traffic charge other than DUI.

Obviously, the standard to be applied by the trial court is critical. That is well illustrated by State v. Hebert.1 In
that case, a trooper stopped the defendant for turning left in front of traffic that had a green light, but the trooper
could not tell if the defendant had a green arrow because he could not see the light. The trooper relied on the
fact that the light for oncoming traffic was green. But the defendant and his wife testified that they had a green
light. The trial judge granted a motion to suppress because there was an “‘honest doubt as to whether or not the
defendant violated’” the statute.2 On appeal, the court reversed because the trial judge did not apply the proper
test—“‘whether the particular officer who initiated the traffic stop had an objectively reasonable basis for
making the stop.’” (quoting State v. Young, 971 So. 2d 968, 971 (Fla. 4th DCA 2008) quoting Dobrin v.
Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171, 1174 (Fla. 2004)).3

There are many such cases, but some of the more common ones relate to vehicle lights. The importance of
Doctor v. State4 was made clear earlier. In Doctor, one of the points the Court made was that officers could not
lawfully stop drivers under § 316.221, Fla. Stat., merely for having a cracked rear reflector. Another court ruled
that officers unlawfully stopped the defendant for having a taillight out in violation of § 316.221, Fla. Stat.,
because that section only requires two operable taillights, and the defendant had four taillights and only one was
out.5 Similarly, having one taillight dimmer than the other was insufficient for a citation or a stop. 6 In contrast to

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these rulings, another court ruled that officers could properly issue a citation where a taillight lens was broken
and emitted a white light that created a hazard. 7 It is clear that if one of only two taillights is operable, an officer
may lawfully stop the vehicle.8 It is also proper for an officer to detain a vehicle for not having a tag light on
when the headlights are operating.9 This happened during daylight hours; however, § 316.217, Fla. Stat.,
requires that the tag light be on whenever the headlight or auxiliary driving lamps are lighted. However, it was
improper to stop a vehicle for having a tag light out where there were two lights on the tag, one was
functioning, and there was no evidence the tag was not legible as required by statute or attempt made to show
the defect created an unsafe condition.10 However the stop was lawful where no light at all illuminated the tag,
despite the officer’s mistaken belief that the statute required that the tag be legible from 100 feet. 11

Brake lights also may result in issues. Where the right brake light was stuck on, an officer properly stopped the
vehicle because Florida Statutes 12 require that the brake lights “ ‘be actuated upon application of the service
(foot) brake, . . . .’ ”13 On the other hand, circuit and county court decisions have ruled that a stop for having a
brake light out on one side of the rear of the vehicle was invalid, if the brake lights on the other side and in the
middle were still operational, because the statute only requires two functioning brake lights. 14 However, the
district courts appeared to be in conflict on this issue. In State v. Burger,15 the second district agreed with the
lower court decisions and held that the statute only requires two operational brake lights in the rear; it does not
require that they be on each side. In State v. Perez-Garcia,16 the court ruled differently. There the court ruled
that such a stop was valid because the vehicle was in an “ ‘unsafe condition’ within the meaning of the
unnumbered paragraph of Fla. Stat. § 316.610.”17 The opinion in Perez-Garcia does not state whether the same
ruling would apply where only the middle light was out. However, in State v. Sanders,18 the court held that a
defective brake light on the spoiler did not give officers reasonable suspicion for a stop where the other brake
lights were operational.

There have been other brake light issues. Section 316.221(1), Fla. Stat., requires that when the brake is
depressed red light be visible for 1000 feet behind the vehicle, but an officer could not lawfully stop a vehicle
solely because white light was also visible. 19 And it was improper for an officer to detain an individual for
stopping his vehicle without giving a proper signal in violation of § 316.155(3), Fla. Stat., where the officer
determined after the stop that the brake lights were on, and the officer was not behind the vehicle when it came
to a stop.20

The courts have considered the impact of defective headlights in several cases. Driving without headlights or
taillights for 200 feet was a violation of § 316.217, Fla. Stat., which requires functioning lights at the time of
day the officer observed the defect. 21 This is a violation whether or not other traffic is affected. 22 The same is
true of driving without activating headlines in violation of § 316.217(1), Fla. Stat. even if it is for only a brief
time.23 Such conduct was a violation even where the defendant was driving through a well lighted public
parking lot.24 Even driving with one headlight at 6:50 p.m., justified a stop for a violation of § 316.610, Fla. Stat.
because § 316.220(1), Fla. Stat., requires a functioning headlamp showing white light on each side of the front
of the car.25 Failure to have two such lights meant as a matter of law that the vehicle violated the safety
requirement of § 316.610, Fla. Stat.26

The courts have considered the validity of stops for other types of defective equipment. One of the most
controversial of those areas has involved defective windshields. There was a conflict in the district courts on
this subject.

In Hilton v. State,27 an officer stopped the defendant for having a seven-inch crack in the upper part of his
windshield on the passenger’s side. The officer could not tell before making the stop whether it made the
windshield unsafe. The court upheld this stop and concluded that a stop for a cracked windshield that creates no
immediate hazard is valid based on two theories. 28 First, having a cracked windshield is a noncriminal traffic
infraction pursuant to § 316.2952, Fla. Stat., which requires a windshield.29 Second, since a windshield is
required, an officer has authority pursuant to § 316.610, Fla. Stat., to stop and inspect a vehicle that appears to
have a cracked windshield.30 The court noted that subsection one of this provision permits stops where the
officer reasonably believes the equipment is unsafe, not consistent with the law, or not in proper adjustment or
repair.31 The court concluded that subsection two permits stops for equipment problems that are not unduly

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hazardous in that it prescribes a procedure for the officer to follow to give the individual time to fix such
problems.32 Thus, the court found that it is consistent with the statute for officers to make stops for equipment
defects that are not unduly hazardous, and this does not constitute an unreasonable seizure. 33

In State v. Burke,34 the court considered the issue examined in Hilton35 and reached a different conclusion. In
fact, the court adopted the dissenting opinion in Hilton and certified conflict. The court concluded that the State
must demonstrate that the cracked windshield is a safety problem. 36 The decision in Doctor v. State37 was critical
to this determination. The court noted that in Hilton38 the majority recognized the significance of the decision in
Doctor in such cases, but the majority also observed that Doctor39 was decided before Whren v. United States.40
In Burke,41 the court concluded that Doctor42 is still good law and that the majority opinion in Hilton43 is
inconsistent with Doctor.44

In Hilton v. State,45 the Florida Supreme Court resolved the conflict between the district courts dealing with
cracked windshields as grounds for stops and confirmed the viability of the rule established in Doctor.46 The
Court quashed the en banc decision of the Second District in Hilton,47 rejected its analysis, and concurred with
the dissenting opinion. The Court ruled:
A law enforcement officer may [not] stop a vehicle for a windshield crack on the basis that the
crack renders the windshield ‘not in proper adjustment or repair’ under section 310.610 …. [A]
cracked windshield violates section 316.610 only if it renders the vehicle in ‘such unsafe
condition as to endanger any person or property.’ § 316.610, Fla. Stat. (2001).48

Thus, for there to be probable cause that a cracked windshield violates § 316.610, Fla. Stat., officers must have
objectively reasonable grounds for believing the crack creates a condition that endangers person or property. 49 In
fact, the Court concluded that the record did not support the conclusion that the officers had reasonable
suspicion, an even lower standard than probable cause.50

The courts have also considered other windshield problems. In one such case, 51 an officer stopped the defendant
for a cracked windshield. By law, the defendant had 30 days to fix the crack, but the court concluded that the
officer could lawfully stop the defendant again for the cracked windshield before the 30 days expired. 52
Improper tinting poses a separate problem, and it is proper for an officer to make a stop based on the officer’s
observation that vehicle windows are too dark, in violation of § 316.2956, Fla. Stat.53 Tinted windows did not
provide grounds for stop where there was no evidence that the officer reasonably believed that the windows
were excessively tinted or violated section 316.2956.54

The courts have made it clear that if the officer knows what the rules on tint are, but makes a reasonable mistake
of fact in accessing the darkness of the tint, the officer may still have probable cause. 55 Recently, in Heien v.
North Carolina,56 the Court held that the same is true of a reasonable mistake of law.

A related issue involves violations of §§ 316.2004 and 316.2952, Fla. Stat., which both deal with certain items
being on the windshield. Deputies relied on these provisions to justify stopping a vehicle based on observations
of two five inch long air fresheners hanging from the rear view mirror. 57 The court concluded that these statutes
prohibit certain items from being attached to or upon the windshield, but that does not mean near the
windshield.58 Thus, the statute does not prohibit things hanging from the rearview mirror.59

Officers have also made stops based on alleged deficiencies in mirrors. In two circuit court cases, 60 officers
made stops pursuant to § 316.294, Fla. Stat., which requires motor vehicles to have a mirror located so that the
driver can see at least 200 feet to the rear. One stop was for having only a passenger side mirror 61 and the other
was for not having a side mirror.62 In both cases, the courts found no probable cause.

Recently, in Springer v. State,63 the Fourth District cited Veltri64 and Chancey65 in reversing denial of a motion to
suppress evidence secured as a result of a stop for a mirror violation. The court held that a stop for violation of §
316.294, Fla. Stat. and § 316.610 was improper because the lack of one exterior mirror doesn’t violate the

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statute nor does it make the vehicle “unsafe by an objectively reasonable standard without proof there was no
other sideview or rearview mirror.”66

Section 316.610, Fla. Stat. has been the cause for stops in other situations. In one of those cases, the court ruled
that a stop for not having a rear bumper was valid. 67 The opinion notes that § 316.251, Fla. Stat. makes it a
moving violation not to have a front or rear bumper on a vehicle weighing less than 5000 pounds, and pursuant
to § 316.610, Fla. Stat., the officer could detain the vehicle for inspection. 68 However, another court held that a
wooden bumper did not violate § 316.251, Fla. Stat., because it does not require that bumpers be made out of
any particular material.69

In another case,70 the court relied on § 316.610, Fla. Stat. to justify a stop for not having illuminated taillights.
The court said that this statutory provision makes it a violation for anyone to drive a vehicle that is in an unsafe
condition so as to endanger people or property. Additionally, the court noted that §§ 316.221 and 316.217(1),
Fla. Stat. require that vehicles have two tail lamps illuminated from sunset to sunrise.

The condition of tires has also been a source of police action. In one such case, the court concluded that hearing
a noise coming from the road and observing a vehicle being operated on a suspected flat tire for one-tenth to
one-eighth of a mile before the driver pulled into a driveway, was insufficient to constitute a violation of §
316.2051, Fla. Stat., which makes it unlawful for a vehicle to damage a hard surface road. 71 On the other hand,
another court72 reached the opposite conclusion and found the stop lawful based on essentially the same facts,
but the court decided the case pursuant to § 316.610, Fla. Stat., which permits an officer to stop a vehicle to
inspect unsafe equipment. The court distinguished the facts in Doctor73—“Driving on a flat tire is quite different
than driving with a cracked reflective covering a light.” Similarly, in another case where the defendant’s tires
were completely separated from the rims, the court concluded that an officer had probable cause to believe that
the defendant was creating a safety hazard, and the officer had a right to inspect the vehicle pursuant to §
316.610, Fla. Stat.74

As noted, the foregoing cases involved issues other than the application of § 316.610, Fla. Stat. However, to the
extent that they involved that provision, the impact of the Supreme Court’s decision in Hilton v. State75 must be
considered. It would have compelled different results as to the analysis under § 316.610, Fla. Stat., only if there
was insufficient evidence that the conditions leading to the stops endangered person or property. 76

There are also decisions dealing with the validity of stops involving use of high beams. In one such case, the
court ruled that where the defendant was driving on a highway with a 55-foot-wide grassy median, it was not
unlawful for him to fail to dim his headlights for on-coming traffic. 77 The court concluded that the requirement
of dimming headlights applies only to vehicles on the same roadway, and by statute, each side of a divided
highway is considered a separate roadway. Another case seems to take the opposite position, but it is unclear. 78
While the case seems to hold that for there to be a violation of § 316.238, Fla. Stat., the cars need not be on the
same roadway, the facts involved one vehicle with high beams approaching another vehicle from the rear. Thus,
the value of the decision is questionable. It is clear, however, that if a vehicle is within 300 feet or less from the
rear of another vehicle, it is a violation to fail to dim the car’s bright lights. 79 Thus, where the evidence
established that one car was about two car lengths behind another, it was a violation for the driver to fail to dim
the car’s bright lights.80 One circuit court has also concluded that the requirement to dim lights for on-coming
traffic does not apply to drivers who are in stationary vehicles.81

Florida courts at every level have focused on whether various traffic infraction statutes require that the driver’s
conduct interfere with others before there can be a stop. In State v. Riley,82 the Supreme Court considered the
statutory requirement that a signal be given pursuant to § 316.155, Fla. Stat., before making a turn. The Court
ruled that a signal is required only if another vehicle would be affected by the turn. The statutory requirement
that a signal be given for the last 100 feet before the turn, only defines the distance that a signal is required if
another vehicle would be affected. In Riley, the stop was unlawful because there was no reason to believe
another vehicle would be affected by the turn.

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In Crooks v. State,83 the court took the same position as to failure to drive in a single lane in violation of §
316.089, Fla. Stat. However, there is no requirement that the evidence show that the operator of the endangered
vehicle took evasive action or was aware of the danger.84

One trial court85 applied the ruling in Crooks86 to a charge of improper change of lane; therefore, the court ruled
that a stop for such a charge was unlawful where the lane change did not create a safety problem to any other
traffic. This decision is consistent with the Supreme Court’s position in Dobrin v. Dep’t of Highway Safety &
Motor Vehicles.87 In Dobrin, the Court found that the circuit court correctly rejected the contention that the
officer properly stopped the driver for an improper lane change, because there was insufficient evidence that the
driver actually improperly changed lanes.

There is no doubt that the impact on traffic must be real and not speculative. Thus, in S.A.S. v. State,88 the court
rejected the trial court’s reliance on the possibility that someone in the adjoining lane might have been affected,
to justify a stop to issue a citation for making a left turn without giving a signal. The defendant was making a
left turn from the left lane at a T-intersection so that there was no on-coming traffic and there was an adjoining
right lane. “[T]here must actually be other vehicles affected by the turn.” 89 However, the officer may be
operating the vehicle that is affected by the unsignaled turn.90

The foregoing cases stressed the statutory requirement that other traffic be affected by the allegedly improper
operation of the vehicle. However, as to lane changes, in Yanes v. State,91 the court recognizes that the infraction
may be based on the way the change is made as well as the effect that it has on others. Although no other traffic
is affected, there may still be a violation if the lane departure is more than is practicable. 92 In Yanes,93 the
defendant driver crossed the “ ‘fog line,’ ” which is the white line on the side of the road, three times within a
mile. “Each time, the vehicle crossed the line by approximately one-half of its width.” 94 The court distinguished
this case from Jordan v. State,95 and Crooks v. State.96 The court noted that § 316.089(1), Fla. Stat. provides: “
‘A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from
such lane until the driver has first ascertained that such movement can be made with safety.’ ” 97 The court said,
unlike Jordan and Crooks, the evidence supported the conclusion that Yanes had “deviated from his lane by
more than what was practicable. To do so is a violation of the statute, irrespective of whether anyone is
endangered.”98

In Walsh v. Dep’t of Highway Safety & Motor Vehicles,99 the court concluded that Yanes100 conflicts with
Crooks,101 but, as pointed out above, the court in Yanes102 distinguishes Crooks103 and does not certify conflict. In
Walsh, the court adopted this definition of “practicable” from another jurisdiction: “ ‘the statute without
question mandates drivers to maintain their vehicle within a lane without some kind of exigent circumstances
forcing the vehicle operator to do otherwise.’ ” 104 The court concluded that driving off the paved portion of the
roadway with both passenger side wheels and driving partially in the grassy border met this definition. And
driving partially onto the median is a violation separate from failure to maintain a single lane. 105

Many cases considering other statutes have made it clear that the language of a statute determines whether there
is any requirement that other traffic be affected. Some have been mentioned throughout this section. The most
significant of these cases is the Second District decision in State v. Y.Q.R. 106 In that case, the court ruled that
making a left turn from the center lane constitutes a violation of § 316.151(1)(b), Fla. Stat. whether or not it
affects other traffic. “This section does not condition the lawfulness of a left turn on whether the turn impacts
traffic.”107

The courts have considered the significance of a U-turn in different situations. In Bender v. State,108 the court
reviewed the validity of stops for making improper U-turns. Where there was no evidence that the U-turn
interfered with traffic or violated a posted sign, the court found that detention for making an improper U-turn in
violation of § 316.1515, Fla. Stat. could not be justified.109 In the same case, however, the court held that the
officer had probable cause for a U-turn violation because the officer believed that the U-turn was unsafe due to
the width of the road, the close proximity to a curve, and the manner of the turn. 110 In State v. Orozco,111 the court
concluded that an officer had probable cause for reckless driving where the officer witnessed the defendant
make a U-turn and drive over 80 m.p.h. through a residential neighborhood.

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Several cases have involved failure to stop. In State v. Robinson,112 the court ruled that an officer properly
detained the defendant for failure to stop at a marked stop line before moving forward in violation of §
316.123(2), Fla. Stat. Similarly, another court ruled that an officer properly stopped a driver for exiting a
business parking lot without stopping, in violation of § 316.125(2), Fla. Stat., notwithstanding the absence of
any threat to approaching traffic or pedestrians. 113 However, a trial court ruled that an officer unlawfully held the
defendant for leaving the scene of an accident where the defendant struck a pole, but it caused only a “little
chip” and no actual loss.114

In a preceding section of this chapter, the issue of whether unusual or potentially unsafe driving behavior was
sufficient to establish reasonable suspicion, justifying an investigatory stop was examined. However, a number
of cases have gone beyond reasonable suspicion and considered whether such behavior rises to the level of
probable cause. Thus, a three-judge circuit court appellate panel ruled that weaving within a lane, nearly going
over the painted line in a left turn lane, and nearly hitting a concrete median established probable cause for
careless driving or DUI, despite the absence of interference with any other traffic. 115 In another case, the court
ruled that making a left turn within an intersection so that oncoming traffic had to brake hard established
probable cause for a violation of § 316.122, Fla. Stat.116 Where an officer observed a car moving at about 45
m.p.h. less than three feet behind another vehicle, the officer had probable cause for a stop for following too
closely in violation of § 316.0895, Fla. Stat.117 On the other hand, one trial court ruled that spinning the rear
wheel of a motorcycle for about five seconds, which produced a white cloud of smoke without damaging any
person or property, did not permit a stop for careless driving. 118 Similarly, backing up two feet and immediately
stopping two feet from an officer’s cruiser that appeared to be parked, when the officer turned on his emergency
lights, did not constitute improper backing. 119 Additionally, driving around a construction barrier followed by
stalling at two intersections as the vehicle attempted to accelerate from a light that had turned from red to green,
did not constitute probable cause for improperly driving on the wrong half of the roadway in violation of §
316.081, Fla. Stat.120

The speed with which a vehicle is moving has generated a number of issues. In Johnson v. State,121 the court
considered the conduct of a driver who was going too slowly, and ruled that an officer properly detained the
individual for obstructing the flow of traffic when the person stopped in the roadway and then moved slowly
along. The required quality of proof has been another issue in speeding cases. Some courts have concluded that
probable cause can be established based solely on the officer’s senses, and need not be based on a precise speed
measuring device.122 In contrast, a trial judge concluded that the estimate of an officer trained in the use of radar,
is a good starting point, but the estimate alone could not support a stop. 123 Other courts have concluded that the
officer’s sensory perceptions of excess speed are sufficient to establish a reasonable suspicion, justifying a
stop.124 However, the State cannot establish that an officer had probable cause for a speeding violation by
showing merely that the officer observed the vehicle moving “at a high rate of speed,” without presenting
evidence that the speed exceeded the posted speed limit. 125 Additionally, some trial judges have ruled that a stop
for speeding was unlawful, if the officer relied on a device for determining speed, but the evidence did not
establish the statutory and administrative foundation for the accuracy of the device. 126 The authority of the
officer to issue the citation is another issue in such cases. One court ruled that municipal officers may issue
speeding tickets on Federal or State highways running through the city, even though the city has not annexed
the highway.127

Excessive speed may come into play in an even more serious way. Section 316.191, Fla. Stat. prohibits drag
racing. There had been some uncertainty as to whether that statute requires proof the alleged offender was
actually competing against someone else. In Reaves v. State,128 the court made it clear that there must be such
proof for there to be a violation of the statute.

Several cases have addressed the significance of little or no vehicular movement. These cases have made clear
the principles applying to § 316.2045, Fla. Stat.129 Where an officer observes a vehicle stopped in the
roadway, but there is nothing indicating that the vehicle is interfering with traffic, there is no basis for a stop to
issue a citation.130 Potential interference is insufficient to justify a stop.131

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Section 316.2045, Fla. Stat. also requires that the accused willfully obstruct traffic. That means that there
must be probable cause to believe not only that the driver intended to stop the car in the middle of the road, but
also that the driver had “the specific intent to impede or hinder traffic.” 132 Thus, the court found that the stop was
unlawful where the defendant’s vehicle was stopped in the middle of the road, but there were no vehicles
waiting to pass, and as soon as the officer approached, the driver moved forward, allowing the officer to pass
without having to stop or drive around the defendant’s vehicle. “Although the deputy had to slow down, there is
no indication that his ‘normal use’ of the street was hindered or endangered by appellant’s conduct.” 133 In
contrast, there was sufficient indication of specific intent to impede traffic to establish probable cause where the
defendant parked his vehicle in the roadway near an intersection and caused another vehicle to drive around it. 134

Even parking on the side of some roadways may establish grounds for a stop. Section 316.1945, Fla. Stat.
makes it illegal to park on an interstate except for an emergency. Since the defendant was parked on the
interstate with a flat tire and was passed out in his car, troopers had a right to do an investigation for the
infraction or the emergency.135 Additionally, it was a violation of § 316.1945 to park where signs prohibit
parking and the observing officer did not have to leave the citation, but could require the defendant to return to
the vehicle.136 And recently, a court upheld a stop for parking a vehicle facing in the wrong direction in violation
of Fla. Stat § 316.195(2).137

A charge similar to obstructing traffic is traveling too slowly, in violation of Florida Statutes, section
316.183(5). That provision prohibits driving so slowly as “to impede or block the normal and reasonable
movement of traffic” except when such speed is necessary. There was no violation of this provision where a
vehicle was going 45 m.p.h. where the minimum posted speed was 40 m.p.h. and there were cars behind the
vehicle, but there was another lane that allowed passing.138

It is a matter of common sense that an officer may lawfully make a stop and issue a citation for disregarding
traffic control devices. This comes up in different ways. In State v. Osuji,139 the court ruled that an officer
properly stopped a vehicle for making an abrupt turn without a signal and driving through a parking lot just
before reaching a traffic checkpoint. This conduct violated § 316.074(2), Fla. Stat., which prohibits driving
from one roadway to another to avoid a traffic control device, and § 316.155, Fla. Stat., which requires a turn
signal.140 In Lomax v. State,141 an officer had probable cause for stopping the defendant for violating a traffic
control device under a different provision. § 316.0875, Fla. Stat. prohibits “‘driv[ing] … on the left side of any
pavement striping designed to mark such no-passing zone.’” 142 Accordingly, when a vehicle’s front and back
driver’s side tires went over the solid double yellow lines so that the vehicle was partially in the oncoming lane
of traffic, the officer had probable cause even though no one else was placed in jeopardy. 143

In Lima v. State,144 the Court treated weaving over the lane markers as a traffic control device issue. Initially, the
officer issued a citation for failure to maintain a single lane in violation of § 316.089, Fla. Stat., as in Crooks v.
State,145 but changed the charge to disobeying a traffic control device in violation of § 316.074, Fla. Stat. The
circuit court in its appellate capacity, ruled that swerving over the line three times constituted failure to obey a
traffic control device and the stop was lawful, despite the lack of any effect on others. 146 Similarly, in Jarrett v.
Dep’t of Highway Safety & Motor Vehicles,147 the court ruled that a driver can be lawfully stopped for being half
in one lane and half in the other even though no other traffic is affected. This charge is pursuant to Florida
Statutes, section 316.089(3), rather than section 316.089(1). Subsection three permits the erection of traffic
control devices, which would include lane markings, and requires that drivers obey the directions of such
devices regardless of whether any other traffic is affected. Thus, the court concluded that the ruling in Crooks v.
State148 would not apply to subsection three charges.

However, in another case,149 the trial judge found that the officer did not have probable cause to issue a citation
for violation of § 316.075(1)(c), Fla. Stat., which requires that “a vehicle facing a steady red signal” (emphasis
by the court) stop “before entering the pedestrian crosswalk or, if none, then before entering the intersection.”
The defendant stopped his car as the traffic light changed from yellow to red, and the officer could not tell the
court where the car was in relationship to the stop bar or crosswalk when the light changed from yellow to red.
Similarly, an officer did not have probable cause to stop a vehicle for violating a traffic control device pursuant
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to § 316.074, Fla. Stat. based on speed of 60 m.p.h. in a 35 m.p.h. zone because there was no evidence that the
officer knew the placement and location of speed limit signs. 150 However, an officer had probable cause to stop
defendant for violating § 316.1235, Fla. Stat. dealing with vehicles approaching intersections with inoperative
traffic lights where a traffic light was out at an intersection, and defendant stopped in the middle of the
intersection rather than before entering the intersection.151

The positioning of traffic control devices may be critical. Accordingly, where a driver made a right turn at a red
light contrary to a posted sign, the officer could not lawfully stop her because the sign was not properly
positioned and legible.152 § 316.074(3), Fla. Stat., specifically precludes enforcement under those
circumstances.153 As a result, the court excluded evidence in a DUI case. 154 However, in another case,155 the court
found that the officer had probable cause for such an infraction even though the officer focused on the presence
of a defective sign that prohibited turns on red. The court concluded that the officer could, nevertheless, make
the stop for running a red light because the defendant slowed down for the red light, but did not stop. 156

Where an officer signals an intention to stop a driver, that person must stop. Thus, where an officer activated his
blue emergency lights the defendant’s failure to stop violated § 316.1935, Fla. Stat. That is true even if the
officer does not have reasonable suspicion for the stop. 157 In a similar situation the court held that it constitutes a
violation of § 316.072(3), Fla. Stat., prohibiting willful failure or refusal to comply with a lawful order by an
officer, for a driver to fail to stop at a roadblock despite clear instructions to do so. 158

In the previous section on investigatory stops, several cases were presented that dealt with questions concerning
tags. An officer can certainly make such a stop and issue a citation based on an expired tag. 159 Similarly, an
officer could make a stop and issue a citation for an improperly displayed permanent tag where the tag could
not be seen until the officer was about ten feet from the vehicle and it was placed inside the rear window on the
right-hand bottom side.160

There are several important warnings as to stops for tag violations. 161 First, while some of the district courts
disagreed as to whether the statute only outlaws obstructions that are actually on the tag, 162 the Supreme Court
resolved the conflict and held that any obstruction violates the statute. 163 Second, there is some confusion as to
what may or may not be obscured. In State v. St. Jean,164 a district court ruled that it is not a violation to obscure
the name of the county. And a trial judge concluded that it is not an offense to obscure the words, “‘My Florida.
Com’ across the top of the tag.” 165 However, those decisions were called into doubt when the statute was
changed to specifically prohibit obscuring the word, “Florida.” 166 Now, it appears that effective January 1, 2016,
the statute has been changed once again to remove the prohibition against obscuring the word, “Florida.” 167 In
fact, in the recent case of State v. Pena,168 the court specifically found that the decision in St. Jean is no longer
good law because the statute had changed to prohibit obscuring the word, “Florida” on the license plate. Third,
an officer cannot arrest a defendant for having the wrong tag on his car unless the officer sees the defendant
attach it or the officer has a warrant.169 Last, the fact that a vehicle has a dealer tag does not justify a stop. 170

The law on temporary tags has varied. In 1995, the statutes authorized temporary tags, 171 but did not set forth
any rules as to how they were to be displayed. 172 An administrative rule required that temporary tags be taped to
the rear window.173 That rule was repealed in March of 1996. 174 Thereafter, until October 1, 1997, a reasonable
interpretation of the law was that a temporary tag had to be displayed like a regular tag. 175 As of October 1,
1997, it became proper for temporary tags to be “displayed in the rear license plate bracket or attached to the
inside of the rear window in an upright position so as to be clearly visible from the rear of the vehicle.” 176 Thus,
an officer lawfully stopped a vehicle where the window tinting obscured the properly positioned tag so the
officer could not recognize it until he was within five feet of the car. 177 Similarly, an officer lawfully stopped a
truck because the temporary tag was not visible from 100 feet because things in the truck bed obscured the
tag.178 As of June 17, 2008, the law was changed again so that a temporary tag must be “displayed in the rear
license plate bracket” unless the vehicle requires front display of the plates. 179 Thus, the temporary tag can’t be
displayed inside the rear window.

Some cases have dealt with a completely different subject—noise. In Long v. Dep’t of Highway Safety & Motor
Vehicles,180 a three judge circuit panel considered the lawfulness of a stop pursuant to Fla. Stat. § 316.271(3) for
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blowing the horn just for the fun of it. There, the petitioner blew the horn in a parking space and then blew it
four or five times at a stop light when there were no cars in front of the vehicle. Prior to 2013 the statute
required that drivers use the horn “when reasonably necessary to ensure safe operation,” but not otherwise.
The prohibition against using the horn except when reasonably necessary for safe operation was eliminated;
therefore, the court ruled the stop was unlawful.181

Two other noise cases had a major impact. Section 316.3045, Fla. Stat. regulated the volume at which a car
stereo can be played. In State v. Catalano182 and Montgomery v. State,183 the courts declared the noise regulating
statutes unconstitutional. Any stop for violation of the statute prior to Catalano,184 which was the first of the two
decisions, would still be valid because of the good faith exception to the exclusionary rule. 185

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Hebert, 8 So. 3d 393 (Fla. 4th DCA 2009).
2
State v. Hebert, 8 So. 3d 393, 395 (Fla. 4th DCA 2009).
3
State v. Hebert, 8 So. 3d 393, 395 (Fla. 4th DCA 2009)
4
Doctor v. State, 596 So. 2d 442 (Fla. 1992). See also Frierson v. State, 851 So. 2d 293 (Fla.
4th DCA 2003), decision quashed on other grounds, State v. Frierson, 926 So. 2d 1139 (Fla. 2006);
State v. Burke, 902 So. 2d 955, 956 (Fla. 4th DCA 2005), review dismissed, 979 So.2d 952 (Fla.
2008) (“[A]lthough there was a crack in the red lens which was emitting white light, the red lens still
partially covered the taillight and the stop for the cracked taillight was improper under Frierson.”); State
v. Frioli, 13 Fla. L. Weekly Supp. 1131 (Fla. 6th Cir. Ct. May 11, 2006) (stop for defective taillight in
violation of 316.221(1) was improper where the red lens covering a taillight was cracked, with the
middle and part of the lower piece of the right lens missing that would cover the reverse indicator light
bulb and part of the red reflector, but this would not affect traffic); State v. Brown, 22 Fla. L. Weekly
Supp. 1074 (Fla. Volusia Cty. Ct. March 24, 2015) (there was no violation of § 316.221, Fla. Stat. where
left rear taillight wrapped around 90 degrees onto the side of the vehicle, there was a hole in the red
plastic housing on the driver’s side, but the part facing the rear was unbroken and emitted only red
light).
5
Wilhelm v. State, 515 So. 2d 1343 (Fla. 2d DCA 1987). See also McBroom v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 343 (Fla. 18th Cir. Ct. Sept. 1, 2004)McBroom v.
Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 343 (Fla. 18th Cir. Ct. Sept. 1,
2004) (court distinguished Wilhelm based on the officer’s statement that one of the petitioner’s brake
lights failed to illuminate and the court’s view that the officer would have a right, pursuant to § 316.610,
Fla. Stat., to detain the vehicle for inspection); Dwelly v. State, 12 Fla. L. Weekly Supp. 198 (Fla. 6th
Cir. Ct. Sept. 8, 2004)Dwelly v. State, 12 Fla. L. Weekly Supp. 198 (Fla. 6th Cir. Ct. Sept. 8, 2004)
(there was no infraction where three of four taillights were illuminated); State v. Dilks, 18 Fla. L.
Weekly Supp. 75 (Fla. Duval Cty. Ct. August 9, 2010)State v. Dilks, 18 Fla. L. Weekly Supp. 75 (Fla.
Duval Cty. Ct. August 9, 2010) (stop for having taillight out in violation of § 316.221, Fla. Stat., was
improper because two taillights were functioning); State v. Albee, 14 Fla. L. Weekly Supp. 74 (Fla.
Leon Cty. Ct. Nov. 9, 2006)State v. Albee, 14 Fla. L. Weekly Supp. 74 (Fla. Leon Cty. Ct. Nov. 9,
2006) (no infraction where three of four taillights were operable, and the stop was improper).
6
State v. Hodges, 6 Fla. L. Weekly Supp. 665 (Fla. Lee Cty. Ct. July 26, 1999)State v. Hodges, 6 Fla. L.
Weekly Supp. 665 (Fla. Lee Cty. Ct. July 26, 1999).
7
Lemon v. State, 580 So. 2d 292 (Fla. 2d DCA 1991). See also State v. Schuck, 913 So. 2d 69 (Fla. 4th

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DCA 2005) (stop was lawful where hole in taillight was the size of a fist and emitted white light); Harris
v. State, 14 Fla. L. Weekly Supp. 845 (Fla. 13th Cir. Ct. April 16, 2007)Harris v. State, 14 Fla. L.
Weekly Supp. 845 (Fla. 13th Cir. Ct. April 16, 2007) (officer had reasonable cause to believe vehicle
was unsafe based on emission of white light from one of the three functional tail lights that indicates
reverse mode); Millard v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 636
(Fla. 13th Cir. Ct. April 27, 2005)Millard v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 636 (Fla. 13th Cir. Ct. April 27, 2005) (stop was lawful where passenger side rear
tail/brake assembly was broken, with half of the red cover broken off, permitting a bright white light
when the brakes were activated). But see State v. Kight, 20 Fla. L. Weekly Supp. 523 (Fla. Brevard Cty.
Ct. Jan. 30, 2013)State v. Kight, 20 Fla. L. Weekly Supp. 523 (Fla. Brevard Cty. Ct. Jan. 30, 2013)
(officer stopped vehicle because tail light was emitting a small amount of white light; court found that
the stop was improper; the light “did not mimic a back-up light and would not confuse other drivers
especially during the day” and was not unsafe).
8
Williams v. State, 640 So. 2d 1206 (Fla. 2d DCA 1994); Joseph v. State, 588 So. 2d 1014 (Fla. 2d DCA
1991).
9
Andrews v. State, 540 So. 2d 210 (Fla. 4th DCA 1989). See also Indialantic Police Dept. v.
Zimmerman, 677 So. 2d 1307, 1309 (Fla. 5th DCA 1996); Day v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 478 (Fla. 17th Cir. Ct. Feb. 26, 2013)Day v. Dep’t of Highway Safety
& Motor Vehicles, 20 Fla. L. Weekly Supp. 478 (Fla. 17th Cir. Ct. Feb. 26, 2013) (deputy had probable
cause for violation of section 316.221(2) where deputy was traveling about four to five car lengths
behind car and couldn’t read license tag because there was no tag light; statute requires sufficient white
light that plate is “clearly legible from a distance of 50 feet to the rear.”); Myer v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 754 (Fla. 4th Cir. Ct. April 26, 2006) Myer v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 754 (Fla. 4th Cir. Ct. April 26, 2006)
(officer lawfully stopped vehicle where reflection from plastic covering resulting from the headlights of
the police car prevented him from reading the tag until he got well within 100 feet of car, and this
constituted a violation of § 316.605(1), Fla. Stat., which prohibits anything on face of the plate unless
permitted by law); Von Bargen v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp.
949 (Fla. 9th Cir. Ct. Sept 30, 2003)Von Bargen v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla.
L. Weekly Supp. 949 (Fla. 9th Cir. Ct. Sept 30, 2003) (lack of working rear registration plate light,
which is the same as a tag light, is a violation); State v. Murray, 17 Fla. L. Weekly Supp. 1043 (Fla.
Brevard Cty. Ct. May 26, 2010) (officer properly stopped a vehicle for violation of § 316.221(2), Fla.
Stat., where there was no light on the tag and he could not read it from 50 feet); State v. Henderson, 15
Fla. L. Weekly Supp. 370 (Fla. Volusia Cty. Ct. Feb. 22, 2008)State v. Henderson, 15 Fla. L. Weekly
Supp. 370 (Fla. Volusia Cty. Ct. Feb. 22, 2008) (there are two ways an officer may stop a vehicle: first,
based on objective considerations, the facts establish probable cause for a traffic infraction, second, the
facts show reasonable suspicion for a crime; here the officer had probable cause for a traffic infraction
because the tag light was inoperable in violation of § 316.221, Fla. Stat.); State v. Moose, 14 Fla. L.
Weekly Supp. 671 (Fla. Volusia Cty. Ct. May 15, 2007)State v. Moose, 14 Fla. L. Weekly Supp. 671
(Fla. Volusia Cty. Ct. May 15, 2007) (officer lawfully stopped motorcycle where decorative bracket
around the tag obscured the state of issuance and the expiration date in violation of § 316.605, Fla.
Stat.); State v. Erdmann, 9 Fla. L. Weekly Supp. 807 (Fla. Palm Beach Cty. Ct. Sept. 10, 2002)State v.
Erdmann, 9 Fla. L. Weekly Supp. 807 (Fla. Palm Beach Cty. Ct. Sept. 10, 2002) (having one of two tag
light bulbs out so that the officer could not read the numbers and letters from a distance of at least fifty
feet, constituted a violation of § 316.221(2), Fla. Stat.).
10
Langello v. State, 970 So. 2d 491 (Fla. 2d DCA 2007). See also State v. Marino, 17 Fla. L. Weekly
Supp. 117 (Fla. Duval Cty. Ct. Sept. 30, 2009)State v. Marino, 17 Fla. L. Weekly Supp. 117 (Fla. Duval
Cty. Ct. Sept. 30, 2009)(Pursuant to § 316.221(2), Fla. Stat. it is a violation for tag light not to be lighted
and not to be clearly legible from 50 feet to the rear or for the tag light not to be lighted when the
headlights or auxiliary driving lamps are on; officer unlawfully stopped defendant when neither of these
conditions were established based on the mistaken belief that it was a violation for tag light not to be
lighted regardless of the distance).
11
Davison v. State, 15 So. 3d 34 (Fla. 1st DCA 2009).
12
§§ 316.222 and 316.234, Fla. Stat.

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13
State v. Saunders, 11 Fla. L. Weekly Supp. 86 (Fla. 9th Cir.Ct. Oct. 15, 2003)State v. Saunders, 11 Fla.
L. Weekly Supp. 86 (Fla. 9th Cir.Ct. Oct. 15, 2003).
14
State v. Doby, 13 Fla. L. Weekly Supp. 58 (Fla. 13th Cir. Ct. April 25, 2005) State v. Doby, 13 Fla. L.
Weekly Supp. 58 (Fla. 13th Cir. Ct. April 25, 2005); Guittar v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 403 (Fla. 9th Cir. Ct. Feb. 7 2003)Guittar v. Dep’t of Highway Safety
& Motor Vehicles, 10 Fla. L. Weekly Supp. 403 (Fla. 9th Cir. Ct. Feb. 7 2003); State v. Duncan, 8 Fla.
L. Weekly Supp. 843 (Fla. Manatee Cty. Ct. Oct. 26, 2001)State v. Duncan, 8 Fla. L. Weekly Supp. 843
(Fla. Manatee Cty. Ct. Oct. 26, 2001).
15
State v. Burger, 921 So. 2d 847 (Fla. 2d DCA 2006). See also Zarba v. State, 993 So. 2d 1000 (Fla. 2d
DCA 2007), review denied, 977 So. 2d 577 (Fla. 2008); State v. Volare, 18 Fla. L. Weekly Supp. 1104
(Fla. 11th Cir. Ct. Sept. 21, 2011) (officer could not legally stop the defendant for having a broken brake
light pursuant to § 316.234(1) where the left brake light was broken, but there was still a brake light in
the center and on the right; only two brake lights are required).
16
State v. Perez-Garcia, 917 So. 2d 894, 897 (Fla. 3d DCA 2005), decision quashed, 983 So. 2d 578
(Fla. 2008) (in State v. Perez-Garcia, 987 So. 2d 814 (Fla. 3d DCA 2008), court remanded to trial court
for further consideration in light of Supreme Court’s decision in Hilton v. State, 901 So. 2d 155 (Fla.
2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla. 2007)).
17
State v. Perez-Garcia, 917 So. 2d 894, 897 (Fla. 3d DCA 2005), decision quashed, 983 So. 2d 578
(Fla. 2008) (in State v. Perez-Garcia, 987 So. 2d 814 (Fla. 3d DCA 2008), court remanded to trial court
for further consideration in light of Supreme Court’s decision in Hilton v. State, 901 So. 2d 155 (Fla.
2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla. 2007)).
18
State v. Sanders, 9 Fla. L. Weekly Supp. 697 (Fla. 13th Cir. Ct. Aug. 12, 2002)State v. Sanders, 9 Fla. L.
Weekly Supp. 697 (Fla. 13th Cir. Ct. Aug. 12, 2002).
19
State v. Blanks, 11 Fla. L. Weekly Supp. 121 (Fla. Lee Cty.Ct. Dec. 19, 2003)State v. Blanks, 11 Fla. L.
Weekly Supp. 121 (Fla. Lee Cty.Ct. Dec. 19, 2003).
20
Bowling v. State, 779 So. 2d 613 (Fla. 2d DCA 2001).
21
State v. Starkey, 18 Fla. L. Weekly Supp. 175 (Fla. 20th Cir. Ct. June 16, 2010)State v. Starkey, 18 Fla.
L. Weekly Supp. 175 (Fla. 20th Cir. Ct. June 16, 2010). See also State v. Baratta, 19 Fla. L. Weekly
Supp. 13 (Fla. 9th Cir. Ct. Oct. 17, 2011)State v. Baratta, 19 Fla. L. Weekly Supp. 13 (Fla. 9th Cir. Ct.
Oct. 17, 2011).
22
State v. Starkey, 18 Fla. L. Weekly Supp. 175 (Fla. 20th Cir. Ct. June 16, 2010)State v. Starkey, 18 Fla.
L. Weekly Supp. 175 (Fla. 20th Cir. Ct. June 16, 2010).
23
State v. Proctor, 161 So. 3d 409 (Fla. 5th DCA 2014). See also State v. Robinson, 20 Fla. L. Weekly
Supp. 719 (Fla. Lee Cty. Ct. June 26, 2012)State v. Robinson, 20 Fla. L. Weekly Supp. 719 (Fla. Lee
Cty. Ct. June 26, 2012) (officer made a stop for driving in the dark without headlights even though the
defendant’s vehicle had fog lights on, which the defendant maintained covered the same area as
headlights and was the functional equivalent of headlights; even if the defendant was correct, the stop
was still lawful because the officer made a reasonable mistake of fact).
24
State v. Knuth, 18 Fla. L. Weekly Supp. 470 (Fla. Volusia Cty. Ct. Jan. 24, 2011) State v. Knuth, 18 Fla.
L. Weekly Supp. 470 (Fla. Volusia Cty. Ct. Jan. 24, 2011).
25
State v. Packard, 18 Fla. L. Weekly Supp. 544 (Fla. Palm Beach Cty. Ct. April 1, 2011)State v. Packard,
18 Fla. L. Weekly Supp. 544 (Fla. Palm Beach Cty. Ct. April 1, 2011).
26
State v. Packard, 18 Fla. L. Weekly Supp. 544 (Fla. Palm Beach Cty. Ct. April 1, 2011)State v. Packard,
18 Fla. L. Weekly Supp. 544 (Fla. Palm Beach Cty. Ct. April 1, 2011). See also Velte v. Dep’t of
Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 235 (Fla. 13th Cir. Ct. Oct. 4, 2013) Velte

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v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 235 (Fla. 13th Cir. Ct. Oct. 4,
2013) (stop for having only one operable headlight in violation of section 316.2396(1) was lawful;
presence of functioning fog lights was irrelevant); Rice v. Dep’t of Highway Safety & Motor Vehicles,
20 Fla. L. Weekly Supp. 1036 (Fla. 8th Cir. Ct. March 2, 2012) (officer properly stopped petitioner who
was operating a golf cart at 10:30 p.m. on a municipal street without illuminated headlights; a golf cart is
a vehicle pursuant to § 316.003(75)).
27
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007) (Two judges in the District Court joined in a strong dissent and the court certified this issue as a
question of great public interest.). See also State v. Howard, 909 So. 2d 390 (Fla. 1st DCA 2005),
decision quashed, 979 So. 2d 953 (Fla. 2008) (in State v. Howard, 983 So. 2d 671 (Fla. 1st DCA 2008)
court set aside original decision and remanded to trial court for further consideration in light of Supreme
Court’s decision in Hilton); State v. Breed, 917 So. 2d 206 (Fla. 5th DCA 2005); Ivory v. State, 898
So. 2d 184 (Fla. 5th DCA 2005) (court upheld trial court’s conclusion that stop was lawful where officer
observed a crack in the windshield while driving behind the car and determined after the stop that the
crack was unsafe).
28
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
29
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007). The court concluded that the legislature intended a windshield without cracks.
30
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
31
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
32
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
33
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
34
State v. Burke, 902 So. 2d 955, 957 (Fla. 4th DCA 2005), review dismissed, 979 So. 2d 952 (Fla.
2008)(Court concluded Hilton decision was controlling and jurisdiction was improvidently granted).
35
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
36
State v. Burke, 902 So. 2d 955, 957 (Fla. 4th DCA 2005) (Court concluded Hilton decision was
controlling and jurisdiction was improvidently granted).
37
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
38
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
39
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
40
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

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41
State v. Burke, 902 So. 2d 955, 957 (Fla. 4th DCA 2005), review dismissed, 979 So. 2d 952 (Fla.
2008)(Court concluded Hilton decision was controlling and jurisdiction was improvidently granted).
42
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
43
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
44
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
45
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
46
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
47
Hilton v. State, 901 So. 2d 155 (Fla. 2d DCA 2005), decision quashed, 961 So. 2d 284 (Fla.
2007).
48
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
49
Hilton v. State, 961 So. 2d 284 (Fla. 2007). See also Swagerty v. State, 982 So. 2d 19 (Fla. 1st DCA
2008).
50
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
51
State v. Roundtree, 8 Fla. L. Weekly Supp. 272 (Fla. 9th Cir. Ct. Jan. 22, 2001)State v. Roundtree, 8 Fla.
L. Weekly Supp. 272 (Fla. 9th Cir. Ct. Jan. 22, 2001).
52
State v. Roundtree, 8 Fla. L. Weekly Supp. 272 (Fla. 9th Cir. Ct. Jan. 22, 2001)State v. Roundtree, 8 Fla.
L. Weekly Supp. 272 (Fla. 9th Cir. Ct. Jan. 22, 2001).
53
Davis v. State, 788 So. 2d 308 (Fla. 5th DCA 2001), review dismissed, 905 So. 2d 892 (Fla. 2005). See
also State v. Coley, 157 So. 3d 542 (Fla. 1st DCA 2015) (officer had probable cause to stop vehicle for
excessive tint where he knew what the statute required, based on eight years experience, he knew that if
he could not see the driver in daylight, the tint violated the statute, and in this instance, the “side
windows were so heavily tinted that he could not see the occupant in broad daylight”); State v. Thomas,
109 So. 3d 814 (Fla. 5th DCA 2013) (when officer noticed that the defendant’s windows were unusually
dark, causing the officer to believe that the defendant was driving with illegal window tint, the officer
could make a stop pursuant to §§ 316.2951-316.2956); State v. Sarria, 97 So. 3d 282, 284 (Fla. 4th DCA
2012) (stop for excessive tinting of rear window in violation of Section 316.2954 was lawful); State
v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) (stop was not improper solely because the evidence
established that the tint was not unlawful, where two officers believed the tint was too dark; officers’
mistake of fact did not necessarily render their conduct unreasonable, but court did not resolve issue of
whether the officers had probable cause and remanded to trial court); Lopez v. Dep’t of Highway Safety
& Motor Vehicles, 10 Fla. L. Weekly Supp. 295 (Fla. 11th Cir. Ct. March 11, 2003) Lopez v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 295 (Fla. 11th Cir. Ct. March 11, 2003).
54
Richardson v. State, 971 So. 2d 295 (Fla. 4th DCA 2008).
55
State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008). See also State v. Coley, 157 So. 3d 542
(Fla. 1st DCA 2015) (court discussed the effect of mistakes, but concluded since the tint actually
violated the statute, there was no mistake).
56
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (The Court held that a stop is valid
even if the officer’s view of the law is wrong, as long as that view is objectively reasonable). Author’s
observation: if the law is clear on its face or the courts have made it clear before the event, it is difficult

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to see how a mistake of law could be reasonable.

57
Gordon v. State, 901 So. 2d 399 (Fla. 2d DCA 2005).
58
Gordon v. State, 901 So. 2d 399 (Fla. 2d DCA 2005).
59
Gordon v. State, 901 So. 2d 399 (Fla. 2d DCA 2005).
60
Veltri v. State, 17 Fla. L. Weekly Supp. 435 (Fla. 17th Cir. Ct. Dec. 28, 2009)Veltri v. State, 17 Fla. L.
Weekly Supp. 435 (Fla. 17th Cir. Ct. Dec. 28, 2009); State v. Clancey, 16 Fla. L. Weekly Supp. 1112
(Fla. 6th Cir. Ct. Aug. 26, 2009).
61
Veltri v. State, 17 Fla. L. Weekly Supp. 435 (Fla. 17th Cir. Ct. Dec. 28, 2009)Veltri v. State, 17 Fla. L.
Weekly Supp. 435 (Fla. 17th Cir. Ct. Dec. 28, 2009) (there was no evidence that the passenger mirror
did not comply with the 200 feet requirement).
62
State v. Clancey, 16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir. Ct. Aug. 26, 2009) (lack of a side mirror is
not a violation of § 316.294, Fla. Stat.).
63
Springer v. State, 125 So. 3d 271 (Fla. 4th DCA 2013). See also Leslie v. State, 108 So. 3d 722 (Fla.
5th DCA 2013) (officer improperly stopped vehicle for not having a center mirror because of the
officer’s mistaken belief that one was required even if there were side mirrors that met the statutory
requirement).
64
Veltri v. State, 17 Fla. L. Weekly Supp. 435 (Fla. 17th Cir. Ct. Dec. 28, 2009)Veltri v. State, 17 Fla. L.
Weekly Supp. 435 (Fla. 17th Cir. Ct. Dec. 28, 2009).
65
State v. Clancey, 16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir. Ct. Aug. 26, 2009).
66
Springer v. State, 125 So. 3d 271 (Fla. 4th DCA 2013) (the court also rejected the State’s argument
that there was a violation of § 316.2954(2), which requires two side mirrors when the rear window is
nontransparent because there was no evidence that the window was nontransparent).
67
Dombrowski v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 605 (Fla. 9th Cir.
Ct.)Dombrowski v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 605 (Fla. 9th
Cir. Ct.).
68
Dombrowski v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 605 (Fla. 9th Cir.
Ct.)Dombrowski v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 605 (Fla. 9th
Cir. Ct.).
69
State v. Clancey, 16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir. Ct. Aug. 26, 2009).
70
Wacker v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 489 (Fla. 9th Cir. Ct.
Feb. 18, 2004)Wacker v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 489 (Fla.
9th Cir. Ct. Feb. 18, 2004).
71
State v. Williams, 7 Fla. L. Weekly Supp. 425 (Fla. 9th Cir. Ct. April 7, 2000) State v. Williams, 7 Fla.
L. Weekly Supp. 425 (Fla. 9th Cir. Ct. April 7, 2000). See also Ciresi v. Dep’t of Highway Safety &
Motor Vehicles, 19 Fla. L. Weekly Supp. 690 (Fla. 7th Cir. Ct. April 19, 2011)Ciresi v. Dep’t of
Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 690 (Fla. 7th Cir. Ct. April 19, 2011)
(driving with a flat tire on the rim is not a violation of § 316.2051, which prohibits: “operating upon any
hard-surfaced road … any log cart, tractor or well machine; any steel tired vehicle other than the
ordinary farm wagon or buggy; or other vehicle or machine that is likely to damage a hard-surface road
except to cause ordinary wear and tear on same.”); State v. Henderson, 13 Fla. L. Weekly Supp. 193
(Fla. Broward Cty. Ct. Oct. 21, 2005)State v. Henderson, 13 Fla. L. Weekly Supp. 193 (Fla. Broward
Cty. Ct. Oct. 21, 2005) (stop for driving on a flat tire was unlawful where officer did not see any sparks,
noise, or road damage and no other traffic was affected).
72
State v. Walker, 11 Fla. L. Weekly Supp. 1014 (Fla. Palm Beach Cty. Ct. Aug. 31, 2004). See also
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Delaney v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 890 (Fla. 6th Cir. Ct.
Jan. 6, 2016)Fla. Palm Beach Cty. Ct. Aug. 31, 2004). See also Delaney v. Dep’t of Highway Safety &
Motor Vehicles, 23 Fla. L. Weekly Supp. 890 (Fla. 6th Cir. Ct. Jan. 6, 2016).
73
Doctor v. State, 596 So. 2d 442 (Fla. 1992).
74
Dunning v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 205 (Fla. 9th Cir. Ct.
Nov. 1, 2004)Dunning v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 205
(Fla. 9th Cir. Ct. Nov. 1, 2004). See also Schmidt v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla.
L. Weekly Supp. 381 (Fla. 4th Cir. Ct. March 25, 2004)Schmidt v. Dep’t of Highway Safety & Motor
Vehicles, 11 Fla. L. Weekly Supp. 381 (Fla. 4th Cir. Ct. March 25, 2004) (stop was based on
“objectively reasonable concern for the safety” of the driver and others where officer saw defendant
driving on a flat tire, regardless of whether the tire was damaging the roadway or the officer actually felt
such a concern).
75
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
76
Hilton v. State, 961 So. 2d 284 (Fla. 2007).
77
State v. Clark, 511 So. 2d 726 (Fla. 1st DCA 1987). See also State v. Shumaker, 846 So. 2d 1199 (Fla.
2d DCA 2003) (not unlawful to fail to dim lights as traffic approaches on a divided highway); Johnson
v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 429 (Fla. 19th Cir. Ct. Oct. 27,
2016)Johnson v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 429 (Fla. 19th
Cir. Ct. Oct. 27, 2016).
78
Hester v. State, 563 So. 2d 191 (Fla. 4th DCA 1990), decision quashed on other grounds, 618 So. 2d
1365 (Fla. 1993).
79
State v. Shumaker, 846 So. 2d 1199 (Fla. 2d DCA 2003).
80
State v. Shumaker, 846 So. 2d 1199 (Fla. 2d DCA 2003). See also Cutting v. Dep’t of Highway Safety
& Motor Vehicles, 11 Fla. L. Weekly Supp. 194 (Fla. 9th Cir. Ct. Nov. 25, 2003)Cutting v. Dep’t of
Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 194 (Fla. 9th Cir. Ct. Nov. 25, 2003)
(flashing high beam headlights numerous times from behind officer’s vehicle and eventually leaving
them on, constituted erratic driving pattern justifying stop). But see Flintom v. Dep’t of Highway Safety
& Motor Vehicles, 25 Fla. L. Weekly Supp. 400 (Fla. 4th DCA Cir. Ct. May 25, 2017) Flintom v. Dep’t
of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 400 (Fla. 4th DCA Cir. Ct. May 25,
2017) (there was not competent substantial evidence of a lawful arrest where the sole basis for the stop
was that the petitioner was flashing high beams on traffic in front of him for a block; this was not
sufficient for a stop for failing to dim headlamps within 300 feet of approaching a vehicle from the rear
in violation of s. 316.238(1)(b)).
81
Hendrixson v. State, 18 Fla. L. Weekly Supp. 1090 (Fla. 5th Cir. Ct. Sept. 6, 2011) (where stationary
vehicle did not dim lights as officer approached to within 100 feet, officer did not have probable cause
to stop defendant for violation of § 316.238, which requires that an approaching vehicle dim light within
500 feet).
82
State v. Riley, 638 So. 2d 507 (Fla. 1994). See also Hurd v. State, 958 So. 2d 600, 603 (Fla. 4th
DCA 2007); Frierson v. State, 851 So. 2d 293 (Fla. 4th DCA 2003), decision quashed on other
grounds, State v. Frierson, 926 So. 2d 1139 (Fla. 2006); Cooks v. State, 901 So. 2d 963 (Fla. 2d
DCA 2005) (it is improper for an officer to stop a vehicle for failure to use a turn signal unless another
driver is affected by the failure to give the signal; but in this case, the officer had probable cause because
the officer testified he would have had an accident had he not slowed when the car turned in front of
him); Owens v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 613 (Fla. 9th Cir.
Ct. Feb. 19, 2014)Owens v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 613
(Fla. 9th Cir. Ct. Feb. 19, 2014) (officer properly stopped vehicle for a violation of Section 316.155(1)
where it turned left without giving a left turn signal and there was other traffic in the area); State v.

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Darden, 20 Fla. L. Weekly Supp. 233 (Fla. 11th Cir. Ct. Nov. 2, 2012)State v. Darden, 20 Fla. L.
Weekly Supp. 233 (Fla. 11th Cir. Ct. Nov. 2, 2012) (officer had grounds (characterized by court as
reasonable suspicion) for stop for violation of § 316.155 where defendant signaled right turn and moved
into lane to his left without ever signaling left or turning off his right turn signal and officer had to brake
to avoid collision); McBride v. State, 17 Fla. L. Weekly Supp. 238 (Fla. 5th Cir. Ct. Jan. 8,
2010)McBride v. State, 17 Fla. L. Weekly Supp. 238 (Fla. 5th Cir. Ct. Jan. 8, 2010) (stop for not giving
a turn signal before exiting a parking lot into a road in violation of § 316.155, Fla. Stat. was unlawful
where no other traffic was affected); Michels v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L.
Weekly Supp. 544 (Fla. 1st Cir. Ct. Sept. 1, 2006)Michels v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 544 (Fla. 1st Cir. Ct. Sept. 1, 2006); Wilker v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 34 (Fla. 17th Cir. Ct. Sept. 25, 2006)Wilker v. Dep’t
of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 34 (Fla. 17th Cir. Ct. Sept. 25, 2006) ;
Odom v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 753 (Fla. 4th Cir. Ct.
May 10, 2006)Odom v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 753 (Fla.
4th Cir. Ct. May 10, 2006); State v. Shaw, 16 Fla. L. Weekly Supp. 567 (Fla. Gadsden Cty. Ct. April 23,
2008)State v. Shaw, 16 Fla. L. Weekly Supp. 567 (Fla. Gadsden Cty. Ct. April 23, 2008) (driving with
two wheels on double centerline and making a wide right turn with half of vehicle in the oncoming lane
for 25 to 35 yards without affecting other traffic, did not constitute failure to drive in a single lane in
violation of § 316.151, Fla. Stat.); State v. Wilson, 16 Fla. L. Supp. 334 (Fla. Osceola Cty. Ct. March 6,
2008) (stop for making a turn without using a turn signal in violation of § 316.155, Fla. Stat., was
invalid where there was no evidence as to how the car behind the defendant or any other car was
affected); State v. Lebron, 16 Fla. L. Weekly Supp. 94 (Fla. Volusia Cty. Ct. Oct. 7, 2008)State v.
Lebron, 16 Fla. L. Weekly Supp. 94 (Fla. Volusia Cty. Ct. Oct. 7, 2008) (no probable cause for failure to
yield the right of way and to give a signal because no other traffic was present); State v. Flassig, 15 Fla.
L. Weekly Supp. 717 (Fla. Volusia Cty. Ct. May 12, 2008)State v. Flassig, 15 Fla. L. Weekly Supp. 717
(Fla. Volusia Cty. Ct. May 12, 2008) (officer did not have probable cause to stop defendant for violating
§ 316.155, Fla. Stat.; where beat up scooter was weaving, but not committing an infraction; it made a U-
turn without giving a signal causing one driver following very closing to tap brakes; it then traveled one
to two blocks without weaving and made a right turn without signaling, and another vehicle turning left
stopped its turn in the intersection two to three to let scooter complete its turn, but officer could not tell
who had the right of way; no other traffic was affected by either turn; neither turn caused a safety risk; §
316.155(11), Fla. Stat. prohibits turns without reasonable safety, and then adds a signal requirement if
the turn would affect other vehicles (and presumably their safety) “As the Court said in State v.
Riley, 638 So. 2d 507 (1994) the two sections of F.S. 316.155 must be read in pari materia. The Court
feels that without a safety issue, no violation occurred.”); State v. Dyett, 15 Fla. L. Weekly Supp. 617
(Fla. Volusia Cty. Ct. April 7, 2008)State v. Dyett, 15 Fla. L. Weekly Supp. 617 (Fla. Volusia Cty. Ct.
April 7, 2008) (stop for not giving a turn signal before exiting a parking lot into a road in violation of §
316.155, Fla. Stat. was unlawful where no other traffic was affected); State v. Pierce, 15 Fla. L. Weekly
Supp. 614 (Fla. Volusia Cty. Ct. April 14, 2008)State v. Pierce, 15 Fla. L. Weekly Supp. 614 (Fla.
Volusia Cty. Ct. April 14, 2008) (officer did not have grounds for stop for violation of § 316.089, Fla.
Stat. where defendant made right turn from middle lane when it would have been appropriate to make
right turn from right lane; tires crossed right lane marker by two feet and the left lane marker by one foot
then turned right; right tires went off pavement onto grassy shoulder of street into which defendant
turned; there was no evidence as to how far the tires went onto grass shoulder or whether that street was
narrow, winding, or had a fog line); State v. Debose, 15 Fla. L. Weekly Supp. 288 (Fla. Brevard Cty. Ct.
Nov. 16, 2007)State v. Debose, 15 Fla. L. Weekly Supp. 288 (Fla. Brevard Cty. Ct. Nov. 16, 2007)
(officer saw vehicle make a U turn, hitting the curb and almost hitting another car; vehicle then changed
lanes without using its turn signal, and the vehicle with which it almost collided had to apply its brakes
and take evasive action; vehicle that made U-turn then pulled over the fog line before correcting; officer
had probable cause for making an improper turn contrary to § 316.155, Fla. Stat. and failure to maintain
a single lane in violation § 316.089, Fla. Stat.).
83
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998). See also Hurd v. State, 958 So. 2d 600,
603 (Fla. 4th DCA 2007); Williamson v. Department of Highway Safety and Motor Vehicles, 933 So.
2d 665 (Fla. 1st DCA 2006); Jordan v. State, 831 So. 2d 1241 (Fla. 5th DCA 2002); Radeka v. State,
25 Fla. L. Weekly Supp. 422 (Fla. 13th Cir. Ct. June 1, 2017)Radeka v. State, 25 Fla. L. Weekly Supp.
422 (Fla. 13th Cir. Ct. June 1, 2017) (stop for violation of § 316.089 was unlawful where at about 11:00
p.m. officers observed the defendant jump the median with at least two tires while making a left hand
turn, move into the right hand lane, then back into the left hand lane; no other vehicles were affected; the

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evidence did not reflect probable cause for the “safety concern required to stop someone for failing to
maintain a lane” and “running over the curb, over-correcting, and then coming back into the left-hand
land before making another left-hand turn does not amount to an ‘unusual’ or erratic driving pattern.”);
Harapas v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 989 (Fla. 7th Cir. Ct.
Oct. 6, 2014)Harapas v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 989 (Fla.
7th Cir. Ct. Oct. 6, 2014) (officer did not have probable cause for a charge of failure to maintain a single
lane in violation of § 316.089(1), Fla. Stat. where he saw a car weave within the center lane three times
within 3/4 mile and weave into the right lane and quickly correct back into the center lane, but there was
nothing indicating that the conduct affected the safety of anyone); Harrington v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1047 (Fla. 13th Cir. Ct. April 18, 2013), cert. denied,
136 So. 3d 691 (Fla. 2d DCA 2014) (officer had probable cause for infraction of failing to maintain a
single lane in violation of Section 316.089 where vehicle drifted to the left, almost striking center
median several times, and then swerved back to the right and another vehicle followed closely behind;
vehicle traveled outside lane more than was practicable; additionally, both the petitioner’s car and the
car behind was endangered); State v. Banks, 20 Fla. L. Weekly Supp. 985 (Fla. 7th Cir. Ct. July 29,
2013)State v. Banks, 20 Fla. L. Weekly Supp. 985 (Fla. 7th Cir. Ct. July 29, 2013) (deputy did not have
probable cause for a violation of § 316.089, requiring a driver to maintain a single lane, because there
was no objective evidence that a crash might occur or that any other driver was affected); Sanchez v.
Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 231 (Fla. 11th Cir. Ct. Dec. 20,
2012)Sanchez v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 231 (Fla. 11th
Cir. Ct. Dec. 20, 2012) (officer did not have probable cause or reasonable suspicion for stop for failure
to maintain a single lane in violation of § 316.089 because there was no evidence that it was unsafe
where the officer saw the vehicle exit a parking lot and start to drive in the center of the center lane and
the outside lane); State v. Alberti, 19 Fla. L. Weekly Supp. 333 (Fla. 17th Cir. Ct. Jan. 12, 2012)State v.
Alberti, 19 Fla. L. Weekly Supp. 333 (Fla. 17th Cir. Ct. Jan. 12, 2012) (a little after 4:00 a.m. trooper
saw a vehicle in right center lane of a five lane highway drift from the right lane to the center lane four
times, and use three lanes; trooper made a stop for violation of § 316.089 (failure to maintain a single
lane) and § 316.155 (failure to give a signal); stop was unlawful because no traffic was affected);
Jackson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 136 (Fla. 4th Cir. Ct.
Sept. 23, 2010)Jackson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 136
(Fla. 4th Cir. Ct. Sept. 23, 2010) (test for probable cause on traffic infraction is objective and not based
on officer’s subjective motivation; officer had probable cause for stop for failing to maintain a single
lane in violation of § 316.089(1), Fla. Stat., where vehicle swerved to the right about three times causing
a semi-tractor trailer to swerve to avoid a collision); Comollo v. Dep’t of Highway Safety & Motor
Vehicles, 17 Fla. L. Weekly Supp. 1068 (Fla. 4th Cir. Ct. July 20, 2010) (officer did not have probable
cause for a stop for failure to maintain single lane in violation of § 316.089, Fla. Stat. because no other
traffic was affected, but did have reasonable suspicion where for 1½ to two miles vehicle was constantly
moving from one lane to another and weaved back and forth two or three times; the lane changes were
not normal, but were like a snake with the vehicle driving all the way into the bike lane, back into the
other lane, and back into the lane it started in).
Feller v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 863 (Fla. 4th Cir. Ct.
April 28, 2010)Feller v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 863 (Fla.
4th Cir. Ct. April 28, 2010) (officer did not have probable cause for failure to maintain single lane in
violation of § 316.089, Fla. Stat. because no other traffic was affected, but did have reasonable suspicion
where vehicle was weaving in its lane of travel, went into the parking lane on the right side of the road
more than three times, crossed the lane marker into the parking lane and then drifted back over a
distance of about ¼ to ½ mile); Nieves v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.
Weekly Supp. 343 (Fla. 20th Cir. Ct. Feb. 16, 2010)Nieves v. Dep’t of Highway Safety & Motor
Vehicles, 17 Fla. L. Weekly Supp. 343 (Fla. 20th Cir. Ct. Feb. 16, 2010) (officer had probable cause for
a stop for failure to maintain single lane in violation of § 316.089, Fla. Stat. where vehicle was in
median lane and crossed the right dotted line three times); Goodkin v. State, 15 Fla. L. Weekly Supp.
656 (Fla. 11th Cir. Ct. May 23, 2008)Goodkin v. State, 15 Fla. L. Weekly Supp. 656 (Fla. 11th Cir. Ct.
May 23, 2008) (objectively, facts must support probable cause for stop for failure to maintain a single
lane in violation of section 316.089; probable cause not established where defendant did not stay in
center of lane, but did not hit lane line, drove at speed limit, did not have any near misses with parked
cars, did not require any pedestrian or other car to take evasive maneuvers, and obeyed signals); State v.
Culpepper, 15 Fla. L. Weekly Supp. 585 (Fla. 17th Cir. Ct. March 4, 2008)State v. Culpepper, 15 Fla. L.
Weekly Supp. 585 (Fla. 17th Cir. Ct. March 4, 2008) (stop pursuant to § 316.089 was improper where
officer observed pickup truck passenger side tires cross over the right side fog line and then return to
lane of travel; within ¼ mile officer saw driver’s side tires pass slightly over left lane center markings

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and immediately return to its own lane, but no traffic was affected); State v. Arauz, 14 Fla. L. Weekly
Supp. 12 (Fla. 11th Cir. Ct. Nov. 20, 2006)State v. Arauz, 14 Fla. L. Weekly Supp. 12 (Fla. 11th Cir. Ct.
Nov. 20, 2006) (where no other traffic was affected, officer did not have probable cause for a charge of
failure to maintain a single lane in violation of § 316.089(1) where the officer saw the vehicle crossing
between the lines, in two lanes at once, bouncing back and forth, and not being operated in one lane;
each time the car crossed a lane, it drifted about 75 to 80 percent into the other lane); State v. Cole, 24
Fla. L. Weekly Supp. 632 (Fla. Volusia Cty. Ct. Nov. 17, 2016)State v. Cole, 24 Fla. L. Weekly Supp.
632 (Fla. Volusia Cty. Ct. Nov. 17, 2016) (stop for failure to drive in a single lane in violation of §
316.089, Fla. Stat. was unlawful where vehicle stopped at a stop sign then traveled about 30 feet in the
eastbound lane crossing over a painted double yellow line until it returned to the westbound lane; no
evidence of weaving or that any other vehicle was affected); State v. Johnson, 22 Fla. L. Weekly Supp.
1067 (Fla. Putnam Cty. Ct. March 26, 2015) (officer did not have probable cause for failure to maintain
single lane in violation of §§ 316.089 or 316.0875, Fla. Stat. where left rear tire was between the double
yellow line for about 10 yards, but did not actually cross line and there was an oncoming vehicle;
defendant’s vehicle swerved back to the right where his right rear tire went off the roadway and
corrected back to the center of the roadway; “reason for this is … there were no white lines on the right
side of the roadway indicating where a lane would be on the road and this also was only a minor
deviation from the road and the oncoming vehicle was not endangered.”); State v. Kerr, 22 Fla. L.
Weekly Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015)State v. Kerr, 22 Fla. L. Weekly Supp. 602 (Fla.
Volusia Cty. Ct. Nov. 25, 2015) (officer did not have probable cause for a traffic stop for failure to
maintain a single lane in violation of § 316.089, Fla. Stat. based on hearing an engine revving and tires
squealing and seeing vehicle fishtailing, which met going from side to side in one lane at an allegedly
excessive speed, where there was no evidence that anyone else was affected or that defendant went
outside of his lane more than was practicable); State v. Barton, 20 Fla. L. Weekly Supp. 720 (Fla.
Volusia Cty. Ct. April 30, 2013)State v. Barton, 20 Fla. L. Weekly Supp. 720 (Fla. Volusia Cty. Ct.
April 30, 2013) (officer did not have probable cause for a traffic stop when he heard defendant riding on
reflectors to the left of the yellow line in the turning lane and defendant corrected by turning to the right
entering the left lane and as he did so he crossed slightly into the right lane and then returned to the left
lane; this was done as one movement; officer watched defendant for three minutes and for 1½ miles; no
traffic or pedestrians were affected); State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct.
Nov. 19, 2012)State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19, 2012) (no
probable cause for failure to maintain a single lane where vehicle drifted to the left and the right a
couple times on each side; each time, tires left the center lane, and about one quarter width of the car
went into the adjoining lane of traffic and then each time vehicle moved back to its own lane of travel
without affecting any other traffic); State v. Gomez, 18 Fla. L. Weekly Supp. 1026 (Fla. Brevard Cty.
Ct. Aug. 11, 2011) (crossing fog line four times, hitting the curb once, and riding the center line, which
affected other traffic established probable cause for failure to maintain a single lane); State v. Ralph, 18
Fla. L. Weekly Supp. 900 (Fla. Duval Cty. Ct. June 14, 2011)State v. Ralph, 18 Fla. L. Weekly Supp.
900 (Fla. Duval Cty. Ct. June 14, 2011) (touching the fog line without affecting any other vehicle did
not constitute failure to maintain a single lane or violation of a traffic control device); State v. Taylor, 18
Fla. L. Weekly Supp. 397 (Fla. Volusia Cty. Ct. Jan. 13, 2011)State v. Taylor, 18 Fla. L. Weekly Supp.
397 (Fla. Volusia Cty. Ct. Jan. 13, 2011) (where there was no evidence of other traffic, bicycles, or
pedestrians being present there was not probable cause for failure to maintain a single lane in violation
of § 316.089, Fla. Stat. where at a roundabout officer observed vehicle move from travel lane into center
lane, back to the travel lane and into the bike lane, and continue in the bike lane for several blocks);
State v. Schaeffer, 18 Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Nov. 23, 2010) State v. Schaeffer,
18 Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Nov. 23, 2010) (driver did not commit traffic
infraction where she drove over fog line two times by about 6 to 12 inches plus the tire width and no
other traffic was affected).
State v. Huzinec, 17 Fla. L. Weekly Supp. 463 (Fla. Leon Cty. Ct. March 4, 2010)State v. Huzinec, 17
Fla. L. Weekly Supp. 463 (Fla. Leon Cty. Ct. March 4, 2010) (stop for failure to maintain a single lane
in violation of § 316.089(1), Fla. Stat. was improper where defendant was in far right turn lane and came
over lane dividing the right turn lane and the lane in which deputy was traveling one car length behind
defendant, but the deputy did not have to take evasive action nor was any other traffic affected; nothing
indicated that the defendant’s conduct created a safety concern and the deputy did not suggest that the
defendant was impaired); State v. Hayward, 17 Fla. L. Weekly Supp. 60 (Fla. Brevard Cty Ct. July 15,
2009)State v. Hayward, 17 Fla. L. Weekly Supp. 60 (Fla. Brevard Cty Ct. July 15, 2009) (officer did not
have probable cause for stop for failure to maintain a single lane in violation of § 316.089(1), Fla. Stat.
where vehicle was driving at midnight for about 100 yards with left tire over double yellow line on a
two lane straight roadway with no traffic, no other traffic was affected, and there were no reasonable

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safety concerns; the fact that this may have been considered a violation of a traffic control device
contrary to § 316.074, Fla. Stat. did not make the stop lawful because the lane statute is more specific,
the specific controls over the general, and the lane violation was the reason the officer gave for the stop);
State v. Arney, 16 Fla. L. Weekly Supp. 749 (Fla. Santa Rosa Cty Ct. April 16, 2009)State v. Arney, 16
Fla. L. Weekly Supp. 749 (Fla. Santa Rosa Cty Ct. April 16, 2009) (citizen informant was reliable, but
tip that driver could not maintain his lane was insufficient because there was no testimony driver created
a danger to himself or other traffic); State v. Albarran, 16 Fla. L. Weekly Supp. 183 (Fla. Orange Cty Ct.
Oct. 20, 2008)State v. Albarran, 16 Fla. L. Weekly Supp. 183 (Fla. Orange Cty Ct. Oct. 20, 2008) (stop
for failure to maintain a single lane was unlawful where officers observed vehicle in rear view mirror
consistently weaving from right to left within its lane, but there was no evidence any other traffic was
affected and there was no testimony that Defendant was being stopped on reasonable suspicion); State v.
Schulze, 15 Fla. L. Weekly Supp. 725 (Fla. Sarasota Cty. Ct. April 28, 2008)State v. Schulze, 15 Fla. L.
Weekly Supp. 725 (Fla. Sarasota Cty. Ct. April 28, 2008) (no reasonable suspicion where deputy
followed vehicle at a distance of two to three car lengths and when deputy attempted to pass on the right,
vehicle briefly crossed over right lane markers and into right lane and then returned to original lane and
no other traffic was affected. “Swerving or weaving between the lines is not a valid basis for stopping an
automobile unless other vehicular traffic is affected and created a reasonable safety concern.”); State v.
Dominquez, 15 Fla. L. Weekly Supp. 622 (Fla. Dade Cty. Ct. April 7, 2008)State v. Dominquez, 15 Fla.
L. Weekly Supp. 622 (Fla. Dade Cty. Ct. April 7, 2008) (no objective grounds for stop based on a
violation of § 316.089, Fla. Stat. (failure to maintain a single lane) where right rear tire of pick-up,
which had dual rear wheels, crossed over the right fog line by about 12 inches and the inside right rear
tire drove on top of the right fog line for about eight feet for two seconds, but neither the right front tire
nor the inside right rear tire crossed over fog line and there was no movement into oncoming lanes of
traffic and no other traffic was affected); State v. Parra, 14 Fla. L. Weekly Supp. 986 (Fla. Broward Cty.
Ct. July 18, 2007)State v. Parra, 14 Fla. L. Weekly Supp. 986 (Fla. Broward Cty. Ct. July 18, 2007)
(officer saw vehicle traveling slower than normal flow; while in the center lane vehicle jerked left twice,
breaking the line, then drifted from inner most left lane into the emergency lane and back, but no other
traffic was affected; officer did not have probable cause for failure to maintain a single lane in violation
of § 316.089, Fla. Stat. because no other traffic was affected; officer did not have probable cause for
failure to obey a traffic control device in violation of § 316.074, Fla. Stat. because it was unclear as to
what the officer maintained was the device; if it was suppose to be the lane lines, there was insufficient
information as to the nature of the lines (i.e. dotted, broken, or solid and whether they were permissive
or prohibitive); officer never said they were traffic control devices or that was the reason for stop); State
v. Lankford, 11 Fla. L. Weekly Supp. 911 (Fla. Duval Cty. Ct. Aug. 16, 2004) State v. Lankford, 11 Fla.
L. Weekly Supp. 911 (Fla. Duval Cty. Ct. Aug. 16, 2004) (Trial judge noted as to decisions on failure to
remain in a single lane: “Those decisions hold that in order for such a stop to be valid other traffic must
be affected by the movement of the accused’s vehicle out of its lane. That logic is based on the plain
meaning of the statute. Interestingly, the legislature has not amended the failure to maintain a single lane
statute in light of these decisions. Therefore, based on the plain meaning of the failure to maintain a
single lane statute as it has been applied by various appellate courts this Court is required to follow said
precedent.”); State v. Alayon, 11 Fla. L. Weekly Supp. 830 (Fla. Dade Cty. Ct. April 13, 2004) State v.
Alayon, 11 Fla. L. Weekly Supp. 830 (Fla. Dade Cty. Ct. April 13, 2004) (making a right turn into the
exit lane of a Home Depot parking lot without affecting any other traffic did not constitute a traffic
infraction); State v. Brickman, 7 Fla. L. Weekly Supp. 225 (Fla. Broward Cty. Ct. Dec. 14, 1999)State v.
Brickman, 7 Fla. L. Weekly Supp. 225 (Fla. Broward Cty. Ct. Dec. 14, 1999).
84
Williamson v. Department of Highway Safety and Motor Vehicles, 933 So. 2d 665 (Fla. 1st DCA 2006).
85
State v. Akullian, 11 Fla. L. Weekly Supp. 355 (Fla. Monroe Cty. Ct. Feb. 6, 2004)State v. Akullian, 11
Fla. L. Weekly Supp. 355 (Fla. Monroe Cty. Ct. Feb. 6, 2004) (court rejected argument that officer was
interfered with by defendant’s lane change, which according to the officer, required that he lightly apply
his brakes when he was 100 feet behind the defendant’s vehicle).
86
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
87
Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert.
denied, 543 U.S. 957, 125 S. Ct. 455, 160 L. Ed. 2d 320 (2004).
88
S.A.S. v. State, 884 So. 2d 1167 (Fla. 2d DCA 2004).

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Fla. L. Weekly Supp. 664 (Fla. 9th Cir. Ct. Feb. 20, 2006)Werle v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 664 (Fla. 9th Cir. Ct. Feb. 20, 2006); State v. Kendrick, 13 Fla. L.
Weekly Supp. 342 (Fla. Duval Cty. Ct. Dec. 28, 2005)State v. Kendrick, 13 Fla. L. Weekly Supp. 342
(Fla. Duval Cty. Ct. Dec. 28, 2005). But see Fernandes v. State, 16 Fla. L. Weekly Supp. 729 (Fla. 17th
Cir. Ct. June 4, 2009)Fernandes v. State, 16 Fla. L. Weekly Supp. 729 (Fla. 17th Cir. Ct. June 4, 2009)
(trial court did not err in finding stop for failure to maintain a single lane lawful where deputy saw
vehicle drift from one lane to another, straddle two lanes, and entire right side of vehicle go on to
emergency part of road; several cars behind vehicle could not safely pass and deputy believed those cars
would have been affected if they tried to pass).
90
Cooks v. State, 901 So. 2d 963 (Fla. 2d DCA 2005) (court ruled that the stop was lawful where
vehicle made a left turn directly in front of officer without signaling and unlike the facts in Frierson,
another vehicle was affected as indicated by the officer’s testimony that he would have had an accident
had he not slowed down when the car in which the defendant was riding turned in front of him).
91
Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004). See
also Tomblin v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1039 (Fla. 20th
Cir. Ct. Aug. 4, 2005).
92
Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
93
Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
94
Yanes v. State, 877 So. 2d 25, 26 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
95
Jordan v. State, 831 So. 2d 1241 (Fla. 5th DCA 2002).
96
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
97
Yanes v. State, 877 So. 2d 25, 26 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
98
Yanes v. State, 877 So. 2d 25, 26-27 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
See also State, Dept. of Highway Safety and Motor Vehicles v. Jones, 935 So. 2d 532, 535 (Fla. 3d DCA
2006), review denied, 945 So. 2d 1290 (Fla. 2006) (in addition to finding that the officer had probable
cause to make a stop for improper deviation from a lane pursuant to section 316.089, the court also
concluded that driving into the oncoming traffic lane violated section 316.081, which required that
drivers stay on the right half of the road, except for inapplicable circumstances).
99
Walsh v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 901 (Fla. 4th Cir. Ct.
July 1, 2005)Walsh v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 901 (Fla.
4th Cir. Ct. July 1, 2005). See also Odom v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 753 (Fla. 4th Cir. Ct. May 10, 2006)Odom v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 753 (Fla. 4th Cir. Ct. May 10, 2006); Miller v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 751 (Fla. 4th Cir. Ct. April 19, 2006)Miller v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 751 (Fla. 4th Cir. Ct. April 19, 2006).
100
Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
101
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
102
Yanes v. State, 877 So. 2d 25 (Fla. 5th DCA 2004), review denied, 889 So. 2d 73 (Fla. 2004).
103
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
104
Walsh v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 901 (Fla. 4th Cir. Ct.

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July 1, 2005)Walsh v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 901 (Fla.
4th Cir. Ct. July 1, 2005) (citing State v. Hodge, 147 Ohio App. 3d 550, 2002-Ohio-3053, 771
N.E.2d 331 (7th Dist. Mahoning County 2002)). See also Baxivanakis v. Dep’t of Highway Safety &
Motor Vehicles, 19 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. Aug. 13, 2012)Baxivanakis v. Dep’t of
Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. Aug. 13, 2012) (there
was an objectively reasonable basis for stop for failure to maintain lane where one third of vehicle
crossed over lane markers several times, crossed from center lane to the left lane and from the left lane
to center lane without signaling, vehicles would not pass; no requirement that driver create a risk to
others); State v. Montjoy-Jaramillo, 19 Fla. L. Weekly Supp. 613 (Fla. 11th Cir. Ct. April 17, 2012)State
v. Montjoy-Jaramillo, 19 Fla. L. Weekly Supp. 613 (Fla. 11th Cir. Ct. April 17, 2012) (officer had
probable cause for stop for failure to maintain a single lane in violation of § 316.089 where defendant
drifted over the double yellow line into the lane for oncoming traffic for no apparent reason, but did not
affect any traffic; crossing a double yellow line into the oncoming traffic lane can never be done safely
and is generally not practicable); State v. Cochran, 14 Fla. L. Weekly Supp,. 1037 (Fla. 17th Cir. Ct.
Aug. 16, 2007) (deputy had reasonable belief that defendant violated § 316.089(1), Fla. Stat. where
defendant’s vehicle began to drift towards deputy’s vehicle, which was in adjoining lane; vehicle
crossed center lane, and ultimately caused deputy to take evasive action and speed up to avoid collision);
Bewley v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 900 (Fla. 2d Cir. Ct.
May 7, 2007)Bewley v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 900 (Fla.
2d Cir. Ct. May 7, 2007) (officer had probable cause for failure to maintain a single lane in violation of
§ 316.089, Fla. Stat. where officer observed vehicle driving in marked bicycle lane; defendant “deviated
from his lane by more than what was practicable;” this also was a violation of § 316.1995, Fla. Stat.,
prohibiting driving a vehicle other than by human power on a bicycle path); Parker v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 331 (Fla. 4th Cir. Ct. Feb. 5, 2007) Parker v. Dep’t of
Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 331 (Fla. 4th Cir. Ct. Feb. 5, 2007) (there
was probable cause for failing to maintain a single lane in violation of § 316.089(1), Fla. Stat. where
defendant drifted back and forth within her lane and on one occasion left the lane entirely and was
traveling in the opposite lane); Bahena v. State, 13 Fla. L. Weekly Supp. 1158 (Fla. 15th Cir. Ct. Sept.
14, 2006) (officer had probable cause for an improper lane change in violation of § 316.089(1), Fla. Stat.
where vehicle was weaving from lane to lane, starting in the inside lane and weaving to the outside lane
and back to the inside lane; it was also impeding traffic in the right lane and came between 1½ to 2½
feet from a vehicle in the right lane, regardless of whether the other driver was aware of danger); Hamlin
v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1028 (Fla. 4th Cir. Ct. Aug. 14,
2006) (deputy had probable cause to stop the defendant for failure to drive within a single lane where the
defendant crossed the center lane on one occasion by a foot, and drove off the road onto the grass
shoulder on two other occasions by a foot each); Miller v. Dep’t of Highway Safety & Motor Vehicles,
13 Fla. L. Weekly Supp. 751 (Fla. 4th Cir. Ct. April 19, 2006)Miller v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 751 (Fla. 4th Cir. Ct. April 19, 2006) (officer had probable
cause to stop the defendant for failure to drive within a single lane even though no other traffic was
affected where officer saw vehicle cross the center line of a service road, drift across the lane, and nearly
strike a parked car); Stone v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 654
(Fla. 4th Cir. Ct. April 10, 2006)Stone v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 654 (Fla. 4th Cir. Ct. April 10, 2006) (there was probable cause for a lane change infraction where
the vehicle continuously drifted back and forth in the lane and hit the lane markers on both sides); Allen
v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 230 (Fla. 7th Cir. Ct. Oct. 25,
2005)Allen v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 230 (Fla. 7th Cir.
Ct. Oct. 25, 2005) (driving in the center of the road without reason such as avoidance of an accident,
small animal or pothole establishes prima facie endangerment and that the driver exceeded his lane by
more than what was practicable); Boston v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 1109 (Fla. 4th Cir. Ct. Sept. 27, 2005) (there was probable cause for failure to maintain a
single lane where the defendant left the right hand side of the road, drove onto the grass, and then veered
back into the road two times over 30 minutes); Patel v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 997 (Fla. 3d Cir. Ct. Aug. 18, 2005)Patel v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 997 (Fla. 3d Cir. Ct. Aug. 18, 2005) (crossing the white line and the
center line several times without any exigent circumstances constituted a violation of section
316.089(1)); State v. Posada, 20 Fla. L. Weekly Supp. 1244 (Fla. Brevard Cty. Ct. August 21, 2013)
(trial judge found that stop for failure to maintain a single lane in violation of Section 316.089 was
lawful where the vehicle crossed over the centerline by half of the car 4 times within a ½ mile even
though no other traffic was affected); State v. Mattingly, 20 Fla. L. Weekly Supp. 591 (Fla. Brevard Cty
Ct. Feb. 26, 2013)State v. Mattingly, 20 Fla. L. Weekly Supp. 591 (Fla. Brevard Cty Ct. Feb. 26, 2013)
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(officer had probable cause for failure to maintain single lane and erratic driving on the grounds that the
vehicle deviated from its lane of travel by more than practicable even though it did not endanger anyone
else where about half the truck was over the fog line and at least the tires were on the fog line for most
of the video and speed varied from 45 to 60 mph in a 55 zone); State v. Nagy, 17 Fla. L. Weekly Supp.
145 (Fla. Brevard Cty. Ct. Oct. 21, 2009)State v. Nagy, 17 Fla. L. Weekly Supp. 145 (Fla. Brevard Cty.
Ct. Oct. 21, 2009) (it was a violation of the requirement to maintain a single lane even no other vehicle
was endangered for vehicle to cross the fog line, go on to the concrete, the grassy area, and the dirt area;
upon returning to lane, weave back and forth in the center lane); State v. Boase, 16 Fla. L. Weekly Supp.
691 (Fla. Brevard Cty. Ct. April 14, 2009)State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard
Cty. Ct. April 14, 2009) (officer could make a stop for an infraction where driver deviated from lane of
travel by more than what was practicable even if no one was endangered where officer observed vehicle
pass over the double line three times with the driver side front and rear tires going over the line, vehicle
going to the left and then to the right three times); State v. Michael, 15 Fla. L. Weekly Supp. 1230 (Fla.
Brevard Cty Ct. Sept. 30, 2008) (it was a violation of the requirement to maintain a single lane to go up
on the right curb near the grass and sidewalk and back onto the roadway while making a left turn). But
see Connell v. State, 25 Fla. L. Weekly Supp. 692 (Fla. 8th Cir. Ct. Oct. 4, 2017)Connell v. State, 25
Fla. L. Weekly Supp. 692 (Fla. 8th Cir. Ct. Oct. 4, 2017) (conviction for failing to drive in a single lane
in violation of Fla. Stat Ann. § 316.089(1), based on finding that defendant failed to drive as near as
practicable within a single lane and changed lane without first ascertaining that it was safe, was reversed
where defendant crossed into another lane of traffic to avoid an obstruction in the roadway before safely
returning to his original lane of travel).
105
State v. Thomas, 21 Fla. L. Weekly Supp. 314 (Fla. 17th Cir. Ct. August 14, 2015)State v. Thomas, 21
Fla. L. Weekly Supp. 314 (Fla. 17th Cir. Ct. August 14, 2015) (driving up the curb onto the center
median for even a moment is a violation of § 316.090(2), Fla. Stat.).
106
State v. Y.Q.R., 50 So. 3d 751 (Fla. 2d DCA 2010).
107
State v. Y.Q.R., 50 So. 3d 751, 753 (Fla. 2d DCA 2010). See also Hassee v. State, 22 Fla. L Weekly
Supp. 1147 (Fla. 17th Cir. Ct. April 24, 2015) (officer had probable cause for violation of § 316.151(1)
where defendant made right turn from the right lane, but after entering the street into which he turned, he
crossed the lane of opposing traffic and onto the opposite side curb and grass; it didn’t matter that he did
not affect any other traffic); State v. Carter, 18 Fla. L. Weekly Supp. 1136 (Fla. 7th Cir. Ct. May 13,
2011) (court rejected argument that stop for running a stop sign in violation of § 316.074 was invalid
because no other traffic was affected; the safety element is not in this statute); State v. Starkey, 18 Fla.
L. Weekly Supp. 175 (Fla. 20th Cir. Ct. June 16, 2010)State v. Starkey, 18 Fla. L. Weekly Supp. 175
(Fla. 20th Cir. Ct. June 16, 2010) (driving without headlights or taillights for 200 feet was a violation of
§ 316.217, Fla. Stat. which requires functioning lights at that time of day, whether or not other traffic
was affected because, unlike the situation in State v. Riley, the statute contains no language suggesting
such a requirement); Skinner v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp.
400 (Fla. 4th Cir. Ct. Feb. 25, 2010)Skinner v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.
Weekly Supp. 400 (Fla. 4th Cir. Ct. Feb. 25, 2010) (driver violated § 316.088(2), Fla. Stat., by driving
the wrong direction on a one-way street and stop was lawful regardless of whether other traffic was
affected and that driver only went one block); State v. Rangel, 22 Fla. L. Weekly Supp. 400 (Fla.
Brevard Cty. Ct. August 25, 2014)State v. Rangel, 22 Fla. L. Weekly Supp. 400 (Fla. Brevard Cty. Ct.
August 25, 2014) (officer had probable cause for traffic infraction of making an improper turn in
violation of § 316.151, Fla. Stat. where defendant made a left turn, crossed the double yellow line and
drove almost directly at the police car, coming within 10 feet of it; there were no other vehicles around);
State v. Packard, 18 Fla. L. Weekly Supp. 544 (Fla. Palm Beach Cty. Ct. April 1, 2011)State v. Packard,
18 Fla. L. Weekly Supp. 544 (Fla. Palm Beach Cty. Ct. April 1, 2011) (stop for driving at 6:50 p.m. with
only one headlight was lawful; this was a violation of § 316.610, Fla. Stat. because § 316.220(1), Fla.
Stat., requires a functioning headlamp showing white light on each side of the front of the car; the court
rejected the argument that the stop was unlawful because the officer did not see anyone placed at risk or
require an inspection or repair; failure to have the headlamps as required by a specific statute means as a
matter of law that the vehicle met the unsafe condition element of § 316.610, Fla. Stat.); State v.
Campbell, 17 Fla. L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010)State v. Campbell, 17 Fla.
L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010) (Officer had probable cause to make a stop
for making a wide right turn in violation of § 316.151(1)(a), Fla. Stat., which requires a right turn to be
made as close as practicable to the right curb or edge of the roadway, whether or not other traffic was
endangered by the turn where the defendant make a wide right turn and crossed into the left lane for

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oncoming traffic; the “statute does not require that other traffic be affected before a violation occurs.”).
108
Bender v. State, 737 So. 2d 1181 (Fla. 1st DCA 1999), review denied, 744 So. 2d 452 (Fla.1999), cert.
denied, 529 U.S. 1029, 120 S.Ct. 1443, 146 L.Ed.2d 331 (2000). See also State v. Johnson, 13 Fla. L.
Weekly Supp. 1133 (Fla. 6th Cir. Ct. May 19, 2006) (where there was no other traffic around, making
left-hand U-turn from the center lane, thereby turning through the left lane and the left turning lane at
about 15 to 20 m.p.h., and then rapidly accelerating so as to briefly brake traction with rear tires was a
one-time event which did not permit a stop; furthermore, there was no clear cut violation of the U-turn
statute § 316.089(3); no other traffic was affected).
109
Bender v. State, 737 So. 2d 1181 (Fla. 1st DCA 1999), review denied, 744 So. 2d 452 (Fla.1999), cert.
denied, 529 U.S. 1029, 120 S.Ct. 1443, 146 L.Ed.2d 331 (2000). See also Blakely v. State, 19 Fla. L.
Weekly Supp. 540 (Fla. 9th Cir. Ct. April 2, 2012)Blakely v. State, 19 Fla. L. Weekly Supp. 540 (Fla.
9th Cir. Ct. April 2, 2012) (stop for making a U-Turn at a traffic light intersection was unlawful where
the only sign prohibited a left turn and there was no objective evidence that turn was made unsafely,
interfered with traffic, or was prohibited by a sign in violation of § 316.1515).
110
Bender v. State, 737 So. 2d 1181 (Fla. 1st DCA 1999), review denied, 744 So. 2d 452 (Fla.1999), cert.
denied, 529 U.S. 1029, 120 S. Ct. 1443, 146 L. Ed. 2d 331 (2000).
111
State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992), review denied, 614 So. 2d 503 (Fla. 1993). See
also Washington v. State, 811 So. 2d 724 (Fla. 3d DCA 2002) (traveling at a highly excessive speed and
forcing another vehicle to veer out of the way when the defendant’s vehicle went airborne after crossing
railroad tracks, established probable cause for reckless driving). But see State v. Kerr, 22 Fla. L. Weekly
Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015)State v. Kerr, 22 Fla. L. Weekly Supp. 602 (Fla. Volusia
Cty. Ct. Nov. 25, 2015) (officer did not have probable cause for a traffic stop for reckless driving in
violation of § 316.192(l)(a), Fla. Stat. based on hearing an engine revving and tires squealing and
seeing vehicle fishtailing, which met going from side to side in one lane at an allegedly excessive speed
(71 in a 45 m.p.h. zone without sufficient details as to how officer arrived at speed) where no one else
was affected).
112
State v. Robinson, 756 So. 2d 249 (Fla. 5th DCA 2000). See also State v. Daniels, 158 So. 3d 629 (Fla.
5th DCA 2014) (court concluded that statute requires vehicle to stop before the “front bumper reaches”
the stop bar); State v. Ward, 24 Fla. L. Weekly Supp. 27 (Fla. 7th Cir. Ct. April 22, 2016) State v. Ward,
24 Fla. L. Weekly Supp. 27 (Fla. 7th Cir. Ct. April 22, 2016) (there was no violation where defendant
stopped vehicle so that front was past stop sign, but not into the intersection and after stopping, driver
completed turn; there was no stop bar, crosswalk or side walk; therefore, driver was required to stop
near the entrance to the intersecting roadway to provide the driver with a view of approaching traffic);
State v. Owens, 20 Fla. L. Weekly Supp. 991 (Fla. 7th Cir. Ct. June 11, 2013)State v. Owens, 20 Fla. L.
Weekly Supp. 991 (Fla. 7th Cir. Ct. June 11, 2013) (officer had probable cause to stop defendant for
failure to obey a traffic control signal in violation of Section 316.075(C)(1), where officer saw defendant
following another vehicle too closely and defendant passed a stop bar at a light and pulled into the
intersection, but stopped before making a right turn); State v. Hicks, 18 Fla. L. Weekly Supp. 248 (Fla.
6th Cir. Ct. Jan. 4, 2011)State v. Hicks, 18 Fla. L. Weekly Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011)
(where vehicle went past the stop bar into the pedestrian crosswalk and into the intersection while light
was still red, officer had probable cause for charge of stopping on crosswalk in violation of §
316.1945(1)(a) 4., Fla. Stat., even though there was no evidence of a reasonable safety concern); State v.
Hicks, 18 Fla. L. Weekly Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011)State v. Hicks, 18 Fla. L. Weekly
Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011) (officer had probable cause for improper stop in violation of §
316.075, Fla. Stat. where vehicle went past the stop bar into the pedestrian crosswalk and into the
intersection while light was still red); State v. Grismer, 17 Fla. L. Weekly Supp. 947 (Fla. 6th Cir. Ct.
April 21, 2010)State v. Grismer, 17 Fla. L. Weekly Supp. 947 (Fla. 6th Cir. Ct. April 21, 2010) (officer
had probable cause for stop for failure to obey a traffic control device in violation of § 316.074, Fla.
Stat., where officer observed vehicle stopped completely past the stop bar in the crosswalk; the trial
judge’s concern that there was no evidence that the driver had not already stopped and then moved past
the stop bar was irrelevant because there was no evidence that this had occurred, there was no authority
that it would change the result, and what the officer observed provided probable cause); State v.
Abrams, 26 Fla. L. Weekly Supp. 43 (Fla. Palm Beach Cty. Ct. Jan. 4, 2018) State v. Abrams, 26 Fla. L.
Weekly Supp. 43 (Fla. Palm Beach Cty. Ct. Jan. 4, 2018) (trial court granted motion to suppress in DUI
because officer did not have probable cause where defendant partially crossed stop bar at an intersection

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controlled by a light; defendant did not violate § 316.075(1)(c) 1 where there was no crosswalk or
pedestrians and defendant remained at intersection until light turned green, and while the statute requires
driver to stop at bar before turning right on red, the defendant was not turning right; defendant did not
violate § 316.123(2)(a), requiring stop at bar, because it applies only to intersections controlled by stop
signs; defendant did not violate § 316.074(1) dealing with failure to comply with a traffic control device,
because for the reasons previously stated, the rules on stop bars did not apply); State v. Pasha, 20 Fla.
Law Weekly Supp. 827 (Fla. Brevard Cty. Ct. May 15, 2013) (stopping at a stop bar where there is a
traffic signal is not required; it is only recommended and stopping over such a stop bar is not a violation
of Section 316.075 unless there is a sign telling driver’s to stop behind the stop bar); State v. Zarem, 11
Fla. L. Weekly Supp. 136 (Fla. Sarasota Cty. Ct. Nov. 20, 2003)State v. Zarem, 11 Fla. L. Weekly Supp.
136 (Fla. Sarasota Cty. Ct. Nov. 20, 2003) (stop was lawful where defendant was detained for stopping
on crosswalk in violation of § 316.1945(1)(a) 4., Fla. Stat. even though there was no evidence that the
conduct created a reasonable safety concern). But see Catlett v. State, 17 Fla. L. Weekly Supp. 1168
(Fla. 7th Cir. Ct. Aug. 5, 2010) (officer did not have probable cause for stop for violating a traffic
control device in violation of § 316.074(1), Fla. Stat., where vehicle approached a red light, stopped
beyond the stop line but before the crosswalk; the requirement to stop before the stop line applies to
intersections controlled by stop signs as set forth in § 316.123(2)(a), Fla. Stat., but not to intersections
controlled by lights, where according to § 316.075(1)(c) 1., Fla. Stat., the driver must stop before the
crosswalk or, if none, the intersection).
113
State v. Witherington, 8 Fla. L. Weekly Supp. 281 (Fla. 10th Cir. Ct. Jan. 18, 2001) State v.
Witherington, 8 Fla. L. Weekly Supp. 281 (Fla. 10th Cir. Ct. Jan. 18, 2001). See also State v. Nelson,
183 So.3d 1074 (Fla. 4th DCA 2015) (trial court erroneously concluded that § 316.125(2), Fla. Stat.
does not require a vehicle to stop before entering a highway from a driveway in a business district unless
there is vehicular or pedestrian traffic); Goodie v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla.
L. Weekly Supp. 6 (Fla. 6th Cir. Ct. April 1, 2016)Goodie v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 6 (Fla. 6th Cir. Ct. April 1, 2016) (§ 316.125, Fla. Stat. applies when
a driver is entering highway from a private road, driveway, alley or building; it does not limit which lane
a driver may turn into when making a right-hand turn; thus, there was no violation when defendant
exited restaurant by making a wide right-hand turn); Folkes v. State, 18 Fla. L. Weekly Supp. 766 (Fla.
5th Cir. Ct. July 6, 2011)Folkes v. State, 18 Fla. L. Weekly Supp. 766 (Fla. 5th Cir. Ct. July 6, 2011)
(right turn from an extrance/exit of a plaza parking lot by going into the left lane was a violation of §
316.151(1)(a), requiring that a right turn at an intersection be made as close as practicable to the right
hand curb or edge of the roadway; this meets the definition of an intersection as set forth in §
316.003(17)(a)); State v. Reid, 20 Fla. L. Weekly Supp. 590 (Fla. Brevard Cty Ct. Feb. 26, 2013)State v.
Reid, 20 Fla. L. Weekly Supp. 590 (Fla. Brevard Cty Ct. Feb. 26, 2013) (officer had grounds for stop for
violation of § 316.121, dealing with the duty to yield the right of way when entering a state-maintained
road from an uncontrolled road, where vehicle exiting a parking lot entered and blocked the right hand
turn lane and an approaching vehicle applied it’s brakes a number of times as it came up to the vehicle
blocking the turn lane). But see Spooner v. State, 19 Fla. L. Weekly Supp. 776 (Fla. 18th Cir. Ct. July
19, 2012)Spooner v. State, 19 Fla. L. Weekly Supp. 776 (Fla. 18th Cir. Ct. July 19, 2012) (stop for
entering highway from gas station without stopping in violation of § 316.125 was improper because
neither of the two ways of violating the statute applied: (1) there was no approaching traffic to yield to
and (2) as a matter of law, the area did not meet the definition of business or residence district set forth
in § 316.003).
114
State v. Hill, 7 Fla. L. Weekly Supp 220 (Fla. Broward Cty. Ct. Dec. 17, 1999) State v. Hill, 7 Fla. L.
Weekly Supp 220 (Fla. Broward Cty. Ct. Dec. 17, 1999).
115
State v. Sill, 6 Fla. L. Weekly Supp. 76 (Fla. 11th Cir. Ct. Sept. 22, 1998)State v. Sill, 6 Fla. L. Weekly
Supp. 76 (Fla. 11th Cir. Ct. Sept. 22, 1998). See also Baden v. State, 174 So.3d 494 (Fla. 4th DCA
2015) (officer had probable cause for a careless driving citation pursuant to § 316.1925(1), Fla. Stat.
where he saw defendant riding a scooter at 2:00 a.m. in a designated roadside parking area, paying no
attention to the parked cars she was approaching, repeatedly hitting the curb with her front tire and
bouncing off while talking to a pedestrian who was walking on the sidewalk; when scooter hit the curb,
the pedestrian would flinch and step further away); Roldan v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 175 (Fla. 4th Cir. Ct. July 29, 2014)Roldan v. Dep’t of Highway
Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 175 (Fla. 4th Cir. Ct. July 29, 2014) (officer had
probable cause for stop for careless driving in violation of § 316.1925, Fla. Stat. even though no one else
was present, where vehicle swerved in center lane, struck right and left lane divider six times and slowed
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down to 35 m.p.h. at an intersection only to accelerate through the intersection; this endangered life,
limb and property of the driver); Kehl v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly
Supp. 253 (Fla. 17th Cir. Ct. Nov. 13, 2012)Kehl v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla.
L. Weekly Supp. 253 (Fla. 17th Cir. Ct. Nov. 13, 2012) (officer had probable cause to stop a northbound
car for stopping in the southbound lane in violation of §§ 316.081(1) and 316.194(1)); State v. Hicks,
18 Fla. L. Weekly Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011)State v. Hicks, 18 Fla. L. Weekly Supp. 248
(Fla. 6th Cir. Ct. Jan. 4, 2011) (officer saw vehicle stall at a stop light, engine restart, vehicle buck and
go forward, and almost hit median; court found that trial court had substantial evidence that officer did
not have probable cause for charge of making an improper start in violation of § 316.154, Fla. Stat.,
which requires proof that vehicle was moved before it could be done with reasonable safety, where the
officer admitted he didn’t know whether the driving was safe until he talked to the defendant); Cruz v.
State, 16 Fla. L. Weekly Supp. 290 (Fla. 9th Cir. Ct. Feb. 10, 2009)Cruz v. State, 16 Fla. L. Weekly
Supp. 290 (Fla. 9th Cir. Ct. Feb. 10, 2009) (testimony that defendant drove through an accident scene in
a fast and unsafe manner established probable cause for a traffic violation); State v. Brous, 15 Fla. L.
Weekly Supp. 586 (Fla. 17th Cir. Ct. March 7, 2008)State v. Brous, 15 Fla. L. Weekly Supp. 586 (Fla.
17th Cir. Ct. March 7, 2008) (officer had probable cause to make stop for improper backing where the
defendant backed out of her 7-11 parking space at about two to four m.p.h. and hit the cement base of
the 7-11 sign); State v. Reveron, 14 Fla. L. Weekly Supp. 383 (Fla. 7th Cir. Ct. Feb. 6, 2007) State v.
Reveron, 14 Fla. L. Weekly Supp. 383 (Fla. 7th Cir. Ct. Feb. 6, 2007) (officer did not have probable
cause where the officer estimated the defendant was traveling at a high rate of speed when he started a
turn, defendant’s tires squealed, and he broke traction for about 25 feet, but no traffic was affected nor
did defendant lose control of vehicle); Howard v. State, 13 Fla. L. Weekly Supp. 1064 (Fla. 17th Cir. Ct.
July 24, 2006) (officer did not have probable cause for an improper turn in violation of 316.151(1)(b),
where the defendant lawfully made a left turn but went into the right hand lane of travel); State v.
Arellano, 13 Fla. L. Weekly Supp. 952 (Fla. 9th Cir. Ct. June 7, 2006) State v. Arellano, 13 Fla. L.
Weekly Supp. 952 (Fla. 9th Cir. Ct. June 7, 2006) (officer had probable cause to stop vehicle for driving
in the wrong lane of a four lane road in violation of § 316.081, Fla. Stat., when the officer saw the
defendant drive in the eastbound lane of a four lane highway, drive into westbound lane, jerk the vehicle
back into the eastbound median lane); Odom v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 753 (Fla. 4th Cir. Ct. May 10, 2006)Odom v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 753 (Fla. 4th Cir. Ct. May 10, 2006) (officer had probable cause to
stop vehicle occupied by driver and passengers for careless driving in violation of § 316.1925, Fla. Stat.
where officer saw vehicle stop in the middle of road, make a right hand turn from the middle of the road,
and drive over the curb; language in statute requiring injury or damage includes driver and passengers in
subject vehicle); Rodriguez v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 418
(Fla. 6th Cir. Ct. March 7, 2006)Rodriguez v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 418 (Fla. 6th Cir. Ct. March 7, 2006) (drifting from median lane to center lane and back
to median lane twice, causing a truck to slow down to avoid being hit, established probable cause for
careless driving); State v. Roark–Conner, 13 Fla. L. Weekly Supp. 251 (Fla. 6th Cir. Ct. Jan. 31,
2006)State v. Roark–Conner, 13 Fla. L. Weekly Supp. 251 (Fla. 6th Cir. Ct. Jan. 31, 2006) (there was
probable cause for careless driving where defendant was driving under speed limit with traffic backed
up behind her, defendant was drifting, driving off the shoulder, nearly hitting road sticks, braking
without reason, and failing to yield and to stop for traffic); Skidmore v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 231 (Fla. 7th Cir. Ct. Oct. 25, 2005)Skidmore v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 231 (Fla. 7th Cir. Ct. Oct. 25, 2005)
(officer had probable cause for a violation of § 316.154, Fla. Stat., which prohibits a motorist from
starting a stopped, standing, or parked vehicle unless and until it can be done reasonably safely; where
the officer saw the vehicle start from a stopped position, heard the tires squeal, and saw the vehicle
fishtail out of control); Bogdan v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp.
298 (Fla. 9th Cir. Ct. Oct. 27, 2004)Bogdan v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 298 (Fla. 9th Cir. Ct. Oct. 27, 2004) (swerving severely during turn, nearly rolling over,
and squealing tires established probable cause for careless driving); Murray v. Dep’t of Highway Safety
& Motor Vehicles, 12 Fla. L. Weekly Supp. 187 (Fla. 6th Cir. Ct. Aug. 24, 2004)Murray v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 187 (Fla. 6th Cir. Ct. Aug. 24, 2004)
(squealing tires, power braking (i.e. accelerating the vehicle and hitting the brakes) over four times while
stopped at an intersection 10 feet behind another car, accelerating at a high rate of speed, spinning rear
tires for six to 10 seconds, and then driving off at a high rate of speed constituted probable cause for
careless driving); State v. Haskins, 18 Fla. L. Weekly Supp. 75 (Fla. Leon Cty. Ct. Oct 1, 2010)State v.
Haskins, 18 Fla. L. Weekly Supp. 75 (Fla. Leon Cty. Ct. Oct 1, 2010) (stop was lawful where officer
observed defendant fail to yield the right of way, pull out in front of and swerve into oncoming traffic,

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and overcorrect his vehicle); State v. Glass, 15 Fla. L. Weekly Supp. 625 (Fla. Bay Cty. Ct. March 13,
2008)State v. Glass, 15 Fla. L. Weekly Supp. 625 (Fla. Bay Cty. Ct. March 13, 2008) (officer had
probable cause to make stop for careless driving in violation of § 316.1925, Fla. Stat. where he saw
motorcycle accelerate so that the steering wheel left the ground in heavy traffic). But see State v.
Merchant, 22 Fla. L. Weekly Supp. 277 (Fla. Sarasota Cty. Ct. April 29, 2014)State v. Merchant, 22 Fla.
L. Weekly Supp. 277 (Fla. Sarasota Cty. Ct. April 29, 2014) (trial judge held deputy did not have
probable cause for careless driving because no other person was affected when deputy saw defendant
going 20 m.p.h. in a 30 m.p.h. zone, in about ½ mile vehicle twice crossing fog line on right coming
within about six inches of the curb, which was about three feet from the fog line, and then
overcorrecting and swerving over center line with both driver side tires completely crossing the center
line).
116
Poston v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 61 (Fla. 9th Cir. Ct. Oct.
16, 1998)Poston v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 61 (Fla. 9th Cir.
Ct. Oct. 16, 1998). See also Jamison v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly
Supp. 792 (Fla. 13th Cir. Ct. Feb. 2, 2017)Jamison v. Dep’t of Highway Safety & Motor Vehicles, 24
Fla. L. Weekly Supp. 792 (Fla. 13th Cir. Ct. Feb. 2, 2017) (record did not support the validity of the stop
where the officer testified only that petitioner made a left turn and violated an on-coming driver’s right
of way, but said nothing about the other driver having to brake or any other details; officer’s report said
turn caused the other driver to brake, but there was no evidence eliminating other things that may have
caused that driver to brake); State v. Jamison, 24 Fla. L. Weekly Supp. 873 (Fla. Hillsborough Cty. Ct.
Nov. 10, 2016)State v. Jamison, 24 Fla. L. Weekly Supp. 873 (Fla. Hillsborough Cty. Ct. Nov. 10, 2016)
(stop for violating right-a-way when making a left turn in violation of § 316.122, Fla. Stat. was improper
where defendant made a left turn in front of an on-coming driver who applied the brakes, but the driver
took no evasive action as a result of the left turn and did not apply “the brakes in an extreme fashion
resulting in the vehicle dipping forward;” officer could not tell distance between the on-coming vehicle
and defendant’s vehicle when defendant made the left turn; no evidence that the on-coming vehicle
“took any action indicating the necessity to avoid an immediate hazard.”).
117
State v. Nagata, 10 Fla. L. Weekly Supp. 915 (Fla. Volusia Cty. Ct. Sept. 12, 2003) State v. Nagata, 10
Fla. L. Weekly Supp. 915 (Fla. Volusia Cty. Ct. Sept. 12, 2003). See also State v. Berry, 18 Fla. L.
Weekly Supp. 487 (Fla. Brevard Cty. Ct. Feb. 28, 2011)State v. Berry, 18 Fla. L. Weekly Supp. 487
(Fla. Brevard Cty. Ct. Feb. 28, 2011) (officer had probable cause for traffic stop for following too
closely in violation of § 316.0895, Fla. Stat. where at 2 a.m. traffic was light and the officer saw
vehicle traveling at 45 m.p.h., the posted speed limit, one car length behind another car); State v.
Negron, 15 Fla. L. Weekly Supp. 727 (Fla. Hillsborough Cty. Ct. April 14, 2008)State v. Negron, 15
Fla. L. Weekly Supp. 727 (Fla. Hillsborough Cty. Ct. April 14, 2008) (officer had probable cause to stop
vehicle for following too closely in violation of § 316.0895, Fla. Stat. where officer followed
defendant for 2/10 of a mile, defendant exceeded speed limit and drove within two feet of vehicle in
front of her).
118
State v. Fuller, 10 Fla. L. Weekly Supp. 1020 (Fla. Volusia Cty. Ct. Sept. 17, 2003). See also State v.
Moore, 15 Fla. L. Weekly Supp. 1101 (Fla. Pasco Cty. Ct. Sept. 4, 2008) (deputy did not have probable
cause for improper start in violation of § 316.154, Fla. Stat. where he heard squealing tires and observed
the defendant doing a four to five second “‘burnout’”).
119
Nelson v. State, 922 So. 2d 447 (Fla. 2d DCA 2006) (§ 316.1985(1), Fla. Stat. provides: “ ‘The driver of
a vehicle shall not back the same unless such movement can be made with safety and without interfering
with other traffic.’ ”). See also Choi v. State, 18 Fla. L. Weekly Supp. 1076 (Fla. 17th Cir. Ct. Aug. 5,
2011) (officer did not have probable cause for improper backing in violation of § 316.1985(1) where no
other traffic was around to interfere with, but the defendant backed out of a space to within an inch or
half inch of a police car and officer had to scream and slap the car to get it to stop).
120
State v. Berkowitz, 16 Fla. L. Weekly Supp. 184 (Fla. Dade Cty. Ct. Nov. 25, 2008)State v. Berkowitz,
16 Fla. L. Weekly Supp. 184 (Fla. Dade Cty. Ct. Nov. 25, 2008).
121
Johnson v. State, 537 So. 2d 117 (Fla. 1st DCA 1988).
122
State v. Allen, 978 So. 2d 254 (Fla. 2d DCA 2008) (officer may make a traffic stop based on

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reasonable suspicion that the vehicle is speeding, but court found that officer had probable cause of
speeding based upon officer’s observation of vehicle, including fact that officer had to “‘accelerate quite
a bit’” to catch defendant, speed limit was 25 m.p.h. and officer had to go well over 50 m.p.h. to catch
defendant). See also Young v. State, 33 So. 3d 151 (Fla. 4th DCA 2010), review denied, 77 So. 3d
1256 (Fla. 2011) (speeding sufficed to provide probable cause for stop; court relied on Allen as support
for holding that speeding violation may be based on officer’s visual or aural perceptions alone); Byrd v.
State, 964 So. 2d 806 (Fla. 4th DCA 2007) (late at night roads were desolate due to a hurricane, officer
could stop vehicle where based on her observations of the approaching vehicle through her rear view
mirror and her training and experience, she estimated vehicle’s speed at 60 to 65 m.p.h. in a 50 m.p.h.
zone); Sinns v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 17 (Fla. 9th Cir.
Ct. March 8, 2016)Sinns v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 17
(Fla. 9th Cir. Ct. March 8, 2016) (in administrative proceedings it is not necessary to show that radar
was calibrated because the proceeding is not based on speeding; therefore, officer could establish
probable cause for speeding stop based on radar without proof of calibration); Fleisher v. Dep’t of
Highway Safety & Motor Vehicle, 23 Fla. L. Weekly Supp. 659 (Fla. 4th Cir. Ct. Nov. 18,
2015)Fleisher v. Dep’t of Highway Safety & Motor Vehicle, 23 Fla. L. Weekly Supp. 659 (Fla. 4th Cir.
Ct. Nov. 18, 2015) (trooper’s testimony that he visually determined defendant was speeding was
sufficient to show probable cause for speeding violation; calibrated radar was not required); Geyer v.
Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 670 (Fla. 6th Cir. Ct. Jan. 5,
2015)Geyer v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 670 (Fla. 6th Cir.
Ct. Jan. 5, 2015) (officer made a lawful stop based on a visual estimate that petitioner was driving 65 to
70 m.p.h. in a 25 m.p.h. residential area; officer “set out his location and vantage point when he
observed the Petitioner’s vehicle;” petitioner was cited for driving too fast for conditions—a residential
area); Warren v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 555 (Fla. 12th
Cir. Ct. Sept. 25, 2013)Warren v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp.
555 (Fla. 12th Cir. Ct. Sept. 25, 2013) (deputy had probable cause for stop for speeding based on his
observations confirmed by radar speed-checking device; the statutory predicate for radar only applies in
speeding cases); Kennedy v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1110
(Fla. 4th Cir. Ct. August 2, 2012) (stop was lawful based on officer’s visual and aural perception that
defendant was speeding; because officer noted defendant “was traveling at a high rate of speed while
passing other vehicles, a well-founded, articulable suspicion existed that a traffic offense had
occurred.”); Norton v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla.
4th Cir. Ct. March 3, 2011)Norton v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly
Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011) (officer may stop vehicle for speeding based on officer’s
“visual or oral perceptions” and “verification of actual speed by use of radar equipment or clocking is
not necessary.”); State v. Sparks, 17 Fla. L. Weekly Supp. 1193 (Fla. 15th Cir. Ct. Aug. 17, 2010)
(holding same as Norton); Stahl v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp.
944 (Fla. 4th Cir. Ct. April 6, 2009)Stahl v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.
Weekly Supp. 944 (Fla. 4th Cir. Ct. April 6, 2009) (it was lawful for officer to stop vehicle based on
clocking the vehicle exceeding the speed limit by at least 18 m.p.h.; this was sufficient for probable
cause that driver was speeding); Chetek v. State, 17 Fla. L. Weekly Supp. 95 (Fla. 17th Cir. Ct. Nov. 23,
2009)Chetek v. State, 17 Fla. L. Weekly Supp. 95 (Fla. 17th Cir. Ct. Nov. 23, 2009) (stop for speeding
was proper because officer had probable cause where officer noticed speed and noise of tire and
estimated speed based on pace at 60 m.p.h. in a 40 m.p.h. zone; defense argument that officer lacked
probable cause because the accuracy of speedometer was not established was rejected because the issue
was not actual speed, but rather probable cause (i.e. what was objectively reasonable)); State v.
Claiborne, 15 Fla. L. Weekly Supp. 532 (Fla. 5th Cir. Ct. March 20, 2008)State v. Claiborne, 15 Fla. L.
Weekly Supp. 532 (Fla. 5th Cir. Ct. March 20, 2008) (officer had probable cause to make stop for
speeding where the officer paced the car doing 65 m.p.h. in a 40 m.p.h. speed zone and the fact that the
evidence was not sufficient to convict for speeding didn’t matter); Palladini v. Dep’t of Highway Safety
& Motor Vehicles, 14 Fla. L. Weekly Supp. 599 (Fla. 13th Cir. Ct. May 3, 2007) Palladini v. Dep’t of
Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 599 (Fla. 13th Cir. Ct. May 3, 2007)
(officer had probable cause to stop the defendant for speeding where the officer clocked the defendant
with a laser at 75 m.p.h. in a 55 m.p.h. zone); Langford v. Dep’t of Highway Safety & Motor Vehicles,
13 Fla. L. Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006)Langford v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006) (officer properly stopped
truck where the officer pace-clocked truck for about ¼ of a mile at 44 m.p.h. in a 35 m.p.h. zone, the
truck made a sudden unsignaled sharp left turn without slowing very much, truck proceeded to
accelerate and officer pace-clocked truck for about three tenths of a mile at 38 m.p.h. in a 25 m.p.h.
zone); Truxton v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 851 (Fla. 6th

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Cir. Ct. June 30, 2006)Truxton v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp.
851 (Fla. 6th Cir. Ct. June 30, 2006) (officer properly stopped the defendant where the officer saw the
defendant drive on the wrong side of the road, and the officer paced the vehicle doing 62 m.p.h. in a 45
m.p.h. zone); State v. Picurro, 7 Fla. L. Weekly Supp. 687 (Fla. Palm Beach Cty. Ct. July 24, 2000)State
v. Picurro, 7 Fla. L. Weekly Supp. 687 (Fla. Palm Beach Cty. Ct. July 24, 2000) (officer could make
stop on estimate of speed based on officer’s senses).
123
State v. Nagata, 10 Fla. L. Weekly Supp. 915 (Fla. Volusia Cty. Ct. Sept. 12, 2003) State v. Nagata, 10
Fla. L. Weekly Supp. 915 (Fla. Volusia Cty. Ct. Sept. 12, 2003). See also Owens v. Dep’t of Highway
Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 613 (Fla. 9th Cir. Ct. Feb. 19, 2014)Owens v. Dep’t
of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 613 (Fla. 9th Cir. Ct. Feb. 19, 2014)
(Officer’s statement petitioner was traveling at a high rate of speed without any information as to the
speed limit or how the officer determined the speed was insufficient to establish reasonable suspicion or
probable cause for speeding); Feller v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly
Supp. 863 (Fla. 4th Cir. Ct. April 28, 2010)Feller v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla.
L. Weekly Supp. 863 (Fla. 4th Cir. Ct. April 28, 2010) (officer did not establish probable cause for
speeding where he paced the vehicle doing between 50 and 55 m.p.h. in a 35 m.p.h. zone, but did not
produce any of the required documentation as to calibration of the speedometer at the hearing); State v.
Kerr, 22 Fla. L. Weekly Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015)State v. Kerr, 22 Fla. L. Weekly
Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015) (officer did not have probable cause for a traffic stop
for speeding based on claim that defendant was going 71 m.p.h. in a 45 m.p.h. zone without any details
as to how the officer arrived at that speed); State v. Miller, 17 Fla. L. Weekly Supp. 377 (Fla Duval Cty.
Ct. Dec. 16, 2009)State v. Miller, 17 Fla. L. Weekly Supp. 377 (Fla Duval Cty. Ct. Dec. 16, 2009)
(officer improperly made traffic stop for speeding based on estimate and subsequent pace of the vehicle
going 65 m.p.h. in 45 m.p.h. zone and that ultimately led to DUI arrest; trial judge found no probable
cause for traffic stop because there was no evidence that speed measuring device was properly tested
and operated accurately in accord with statutes and administrative rules, and the officer never testified
that he had a suspicion of impairment prior to stop).
124
State v. Joy, 637 So. 2d 946 (Fla. 3d DCA 1994). See also Gallardo v. State, 204 So.3d 979 (Fla. 5th
DCA 2016) (deputy had reasonable suspicion for stop based on deputy’s visual perception that
defendant was doing 60 m.p.h. in a 45 m.p.h.; deputy “testified in substantial detail as to her vantage
point and her opportunity to observe Gallardo driving at an excessive speed.”); State v. Allen, 978
So. 2d 254 (Fla. 2d DCA 2008) (officer may make a traffic stop based on reasonable suspicion that the
vehicle is speeding, but court found that officer had probable cause of speeding based upon officer’s
observation of vehicle, including fact that officer had to “‘accelerate quite a bit’” to catch defendant,
speed limit was 25 m.p.h. and officer had to go well over 50 m.p.h. to catch defendant); Palladini v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 599 (Fla. 13th Cir. Ct. May 3,
2007)Palladini v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 599 (Fla. 13th
Cir. Ct. May 3, 2007); Truxton v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp.
851 (Fla. 6th Cir. Ct. June 30, 2006)Truxton v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 851 (Fla. 6th Cir. Ct. June 30, 2006); State v. Smith, 13 Fla. L. Weekly Supp. 765 (Fla.
6th Cir. Ct. May 16, 2006)State v. Smith, 13 Fla. L. Weekly Supp. 765 (Fla. 6th Cir. Ct. May 16, 2006);
Hastings v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 828 (Fla. 7th Cir. Ct.
May 24, 2005)Hastings v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 828
(Fla. 7th Cir. Ct. May 24, 2005); Paras v. Dep’t of Highway Safety & Motor Vehicles, 7 Fla. L. Weekly
Supp. 490 (Fla. 9th Cir. Ct. March 22, 2000)Paras v. Dep’t of Highway Safety & Motor Vehicles, 7 Fla.
L. Weekly Supp. 490 (Fla. 9th Cir. Ct. March 22, 2000); Cheatham v. Dep’t of Highway Safety &
Motor Vehicles, 7 Fla. L. Weekly Supp. 154 (Fla. 9th Cir. Ct. March 22, 2000)Cheatham v. Dep’t of
Highway Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 154 (Fla. 9th Cir. Ct. March 22, 2000).
125
Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert.
denied, 543 U.S. 957, 125 S. Ct. 455, 160 L. Ed. 2d 320 (2004). See also Palladini v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 599 (Fla. 13th Cir. Ct. May 3, 2007)Palladini v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 599 (Fla. 13th Cir. Ct. May 3,
2007) (unlike Dobrin, the record showed that the defendant was speeding, the speed limit, a statement
that defendant was driving in excess of speed limit, and a reason that the officer’s stop was for
speeding); Heidrich v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 288 (Fla.
9th Cir. Jan. 13, 2004)Heidrich v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp.

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288 (Fla. 9th Cir. Jan. 13, 2004); State v. Badran, 15 Fla. L. Weekly Supp. 86 (Fla. Volusia Cty. Ct.
Nov. 14, 2007)State v. Badran, 15 Fla. L. Weekly Supp. 86 (Fla. Volusia Cty. Ct. Nov. 14, 2007)
(officer did not have probable cause to stop vehicle for violating a traffic control device pursuant to §
316.074 based on 60 m.p.h. in a 35 m.p.h. zone because there was no evidence as to the officer’s
knowledge of placement and location of speed limit signs).
126
State v. Sparks, 17 Fla. L. Weekly Supp. 39 (Fla. Palm Beach Cty. Ct. Oct. 15, 2009)State v. Sparks, 17
Fla. L. Weekly Supp. 39 (Fla. Palm Beach Cty. Ct. Oct. 15, 2009) (stop was improper where officer
clocked vehicle’s speed with radar doing 53 m.p.h. in a 35 m.p.h. zone, saw vehicle make a wide left
turn on the ramp to an interstate, and go over the white line, but officer testified that stop was for
speeding, no other traffic was affected, and the State failed to prove that the radar met some of the
requirements set forth in Section 316.1906(2)). See also State v. Paolini, 13 Fla. L. Weekly Supp. 607
(Fla. Duval Cty. Ct. Mar. 15, 2006)State v. Paolini, 13 Fla. L. Weekly Supp. 607 (Fla. Duval Cty. Ct.
Mar. 15, 2006); State v. Bowery, 13 Fla. L. Weekly Supp. 345 (Fla. Duval Cty. Ct. Dec. 5, 2005)State v.
Bowery, 13 Fla. L. Weekly Supp. 345 (Fla. Duval Cty. Ct. Dec. 5, 2005) (in Paolini and Bowery,
officers relied on radar as the basis for making a traffic stop that lead to a DUI, but as in Sparks, the
State did not establish the statutory foundation for radar; therefore, the trial judges granted a motion to
suppress, but in each case, the judges recognized that the officers could have established probable cause
for speeding in other ways “such as speed pacing testimony.”).
127
State v. Thurber, 7 Fla. L. Weekly Supp. 129 (Fla. Highlands Cty. Ct. Oct. 27, 1999)State v. Thurber, 7
Fla. L. Weekly Supp. 129 (Fla. Highlands Cty. Ct. Oct. 27, 1999).
128
Reaves v. State, 979 So. 2d 1066, 1072 (Fla. 1st DCA 2008). See also Ramputi v. Dep’t. of Highway
Safety and Motor Vehicles, 15 Fla. L. Weekly Supp. 1040 (Fla. 5th Cir. Ct. Sept. 16, 2008) (officer had
probable cause for stop for drag racing in violation of § 316.191, Fla. Stat. when the officer saw two
vehicles accelerating quickly from a point of no movement from a traffic light); State v. Kerr, 22 Fla. L.
Weekly Supp. 602 (Fla. Volusia Cty. Ct. Nov. 25, 2015)State v. Kerr, 22 Fla. L. Weekly Supp. 602 (Fla.
Volusia Cty. Ct. Nov. 25, 2015) (officer did not have probable cause for a traffic stop for drag racing in
violation of § 316.191, Fla. Stat. based on hearing an engine revving and tires squealing and seeing
vehicle fishtailing at an allegedly excessive speed of 71 m.p.h. in a 45 m.p.h. zone where there was no
evidence that anyone else was involved in the alleged race); State v. Hagedorn, 14 Fla. L. Weekly Supp.
666 (Fla. Volusia Cty. Ct. April 16, 2007)State v. Hagedorn, 14 Fla. L. Weekly Supp. 666 (Fla. Volusia
Cty. Ct. April 16, 2007) (defendant was not guilty of drag racing when he accelerated at a high rate of
speed from a traffic light after it turned green, causing his tires to spin and smoke for a few seconds and
there was a “‘box truck’” stopped at the light next to defendant’s vehicle heading in the same direction,
but there was no evidence of an agreement to engage in a race).
129
The treatment of this section is confusing. While the cases discussed here treat Section 316.2045 as
regulating vehicular traffic, the statute specifically says that it deals with a pedestrian violation.
Furthermore, in Bischoff v. Florida, 242 F.Supp.2d 1226 (M.D. Fla. 2003), the court found the statute
unconstitutional. The provision is designed to regulate expression and the court found that it is vague
and overbroad. Yet, none of the state district and most circuit courts that have applied the statute
mention this case. Exceptions are the decisions in Marsh v. City of West Palm Beach, 11 Fla. L. Weekly
Supp. 13 (Fla. 15th Cir. Ct. Nov. 14, 2003)Marsh v. City of West Palm Beach, 11 Fla. L. Weekly Supp.
13 (Fla. 15th Cir. Ct. Nov. 14, 2003) and Bishop v. State, 11 Fla. L. Weekly Supp. 3 (Fla. 10th Cir. Ct.
Nov. 7, 2003)Bishop v. State, 11 Fla. L. Weekly Supp. 3 (Fla. 10th Cir. Ct. Nov. 7, 2003) where the
courts recognize the Bischoff decision.
130
L.J.S. v. State, 905 So. 2d 222 (Fla. 2d DCA 2005) (remaining in a dead-end road for a few minutes,
then driving into a private driveway and stopping did not constitute an infraction where there was no
interference with traffic); Koppelman v. State, 876 So. 2d 618, 622 (Fla. 4th DCA 2004), abrogated
on other grounds by G.M. v. State, 19 So. 3d 973 (Fla. 2009) (sitting in a running pick-up truck with
lights on in a dirt road with no other cars around and no signs prohibiting parking was not an infraction);
Jones v. State, 842 So. 2d 889 (Fla. 2d DCA 2003) (defendant was on horseback, which means that he
was treated as a pedestrian); Underwood v. State, 801 So. 2d 200 (Fla. 4th DCA 2001); State v.
Clancey, 16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir. Ct. Aug. 26, 2009) (defendant did not commit a
violation where the officer said he was stopped mostly in his lane of travel and wasn’t obstructing

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traffic, there was no other traffic and no one was impeded except for the officer; “the mere potential to
block or interfer with traffic is insufficient to justify a traffic stop.”); State v. Joseph, 15 Fla. L. Weekly
Supp. 588 (Fla. 17th Cir. Ct. March 11, 2008)State v. Joseph, 15 Fla. L. Weekly Supp. 588 (Fla. 17th
Cir. Ct. March 11, 2008) (trial judge did not err in finding stop for obstructing in violation of § 316.071,
Fla. Stat. unlawful where defendant was stopped at an angle in right hand lane, officer was three cars
behind, two cars in front of officer pulled into left lane to pass and after about a minute defendant drove
away after one passenger exited and another got into the car); State v. Cuenca, 15 Fla. L. Weekly Supp.
988 (Fla. 11th Cir. Ct. Aug. 26, 2008)State v. Cuenca, 15 Fla. L. Weekly Supp. 988 (Fla. 11th Cir. Ct.
Aug. 26, 2008) (a circuit judge sitting in trial court capacity ruled that officer did not have probable
cause for obstructing traffic where midday the defendant was stopped in a van in the middle of the road
about two feet from the side of the street, looking at a house, but no other cars were traveling in either
direction; good discussion of the law on this subject); State v. Lanciloti, 11 Fla. L. Weekly Supp. 342
(Fla. Polk Cty. Ct. Jan. 30, 2004)State v. Lanciloti, 11 Fla. L. Weekly Supp. 342 (Fla. Polk Cty. Ct. Jan.
30, 2004) (holding that being stopped in middle of road where no traffic was in fact obstructed was not a
violation even though a parking space was available).
131
L.J.S. v. State, 905 So. 2d 222 (Fla. 2d DCA 2005); Koppelman v. State, 876 So. 2d 618, 622 (Fla.
4th DCA 2004), abrogated on other grounds by G.M. v. State, 19 So. 3d 973 (Fla. 2009); Jones v.
State, 842 So. 2d 889 (Fla. 2d DCA 2003); State v. Clancey, 16 Fla. L. Weekly Supp. 1112 (Fla. 6th Cir.
Ct. Aug. 26, 2009).
132
Underwood v. State, 801 So. 2d 200, 203 (Fla. 4th DCA 2001). See also Billings v. State, 18 Fla. L.
Weekly Supp. 767 (Fla. 11th Cir. Ct. July 14, 2011)Billings v. State, 18 Fla. L. Weekly Supp. 767 (Fla.
11th Cir. Ct. July 14, 2011) (the defendant did not commit the crime of willfully impeding traffic in
violation of § 316.2045(1) when he was half on the roadway and half on the swale; “this offense is a
specific intent crime and there is no evidence that the defendant had the specific intent to impede traffic”
and there was no other traffic in the area).
133
Underwood v. State, 801 So. 2d 200, 203 (Fla. 4th DCA 2001).
134
Reid v. State, 898 So. 2d 248 (Fla. 4th DCA 2005), review denied, 917 So. 2d 195 (Fla. 2005). See also
State v. White, 17 Fla. L. Weekly Supp. 388 (Fla. Palm Beach Cty. Ct. Feb. 8, 2010) State v. White, 17
Fla. L. Weekly Supp. 388 (Fla. Palm Beach Cty. Ct. Feb. 8, 2010)(there was probable cause for traffic
infraction where defendant was stopped in roadway causing at last two vehicles to drive around him
after waiting until traffic in oncoming lane cleared). But see State v. Banks, 20 Fla. L. Weekly Supp.
985 (Fla. 7th Cir. Ct. July 29, 2013)State v. Banks, 20 Fla. L. Weekly Supp. 985 (Fla. 7th Cir. Ct. July
29, 2013) (deputy did not have probable cause for a charge of blocking traffic because there was another
lane that cars could use to pass, where defendant was driving 25 mph in a 40 mph zone and other cars
came up behind him and braked).
135
Falvo v. State, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 4, 2008)Falvo v. State, 15 Fla. L.
Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 4, 2008). See also Fulmer v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 43 (Fla. 9th Cir. Ct. July 23, 2014)Fulmer v. Dep’t of Highway
Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 43 (Fla. 9th Cir. Ct. July 23, 2014) (where vehicle
was parked on the shoulder of the interstate, the officer had the authority to issue a citation for a traffic
infraction pursuant to § 316.1945, Fla. Stat. and to tell the driver to exit); Deokisingh v. Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. Law Weekly Supp. 779 (Fla. 17th Cir. Ct. April 17, 2013)
(Deputy had probable cause for a violation of Section 316.1945(1) prohibiting stopping, standing or
parking in prohibited areas where the vehicle was stopped in the middle of the road blocking traffic;
deputy also could stop the vehicle to find out the reason for its unusual operation).
136
State v. Arevalo, 112 So. 3d 529 (Fla. 4th DCA 2013). But see State v. Stone, 18 Fla. L. Weekly Supp.
617 (Fla. Marion Cty. Ct. April 1, 2011)State v. Stone, 18 Fla. L. Weekly Supp. 617 (Fla. Marion Cty.
Ct. April 1, 2011) (officer did not have probable cause for improper parking in violation of §
316.1945(1)(c)(2), which forbids parking where there is an official sign prohibiting it, where defendant
parked in part of a 7-11 parking lot marked with yellow stripes and paint on the curb).
137
State v. Battle, 232 So.3d 493 (Fla. 2d DCA 2017) (the statute requires that vehicles be parked in the

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direction of authorized traffic movement; the court recognized the minor nature of the offense, but found
that the stop was valid because the officer had probable cause).
138
Agreda v. State, 152 So.3d 114 (Fla. 2d DCA 2014); Gentilella v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 305 (Fla. 9th Cir. Ct. Oct. 7, 2004) Gentilella v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 305 (Fla. 9th Cir. Ct. Oct. 7, 2004) (there was no
violation where driver was going 30 m.p.h. in a 45 m.p.h. zone in the left lane of one side of a four lane
divided highway and nothing prevented vehicles from passing in the right lane); State v. Schiessle, 25
Fla. L. Weekly Supp. 561 (Fla. Hillsborough Cty. Ct. July 18, 2017)State v. Schiessle, 25 Fla. L.
Weekly Supp. 561 (Fla. Hillsborough Cty. Ct. July 18, 2017) (stop for obstructing flow of traffic in
violation of Fla. Stat. Ann. § 316.183(5) was unlawful where it was based solely on these observations:
vehicle entered the right lane as it approached an intersection, slowed down, came to a stop at the green
light, then accelerated through the light as it went from green to yellow; one vehicle behind it moved
from the right lane to the middle lane and passed; and another vehicle remained behind the defendant’s
vehicle).
139
State v. Osuji, 804 So. 2d 501 (Fla. 2d DCA 2001), review denied, 828 So. 2d 388 (Fla. 2002).
140
State v. Osuji, 804 So. 2d 501 (Fla. 2d DCA 2001), review denied, 828 So. 2d 388 (Fla. 2002). But see
State v. Smith, 16 Fla. L. Weekly Supp 408 (Fla. 17th Cir. Ct. Feb. 11, 2009) State v. Smith, 16 Fla. L.
Weekly Supp 408 (Fla. 17th Cir. Ct. Feb. 11, 2009) (no err in finding no reasonable suspicion for
infraction of going through parking lot to avoid light where officer saw defendant avoid a light by going
into church parking lot and stopped him in the parking lot before he attempted to move onto adjoining
roadway; church had open day care facility and the officer had no way of knowing why defendant was
going into parking lot); Sandoz v. State, 15 Fla. L. Weekly Supp. 211 (Fla. 6th Cir. Ct. Nov. 30,
2007)Sandoz v. State, 15 Fla. L. Weekly Supp. 211 (Fla. 6th Cir. Ct. Nov. 30, 2007) (path was blocked,
and sign warned that the road was closed; defendant turned into and drove through parking lot and was
about to leave the lot and enter another roadway when she was stopped; officer did not have probable
cause for failing to obey a traffic control device in violation of § 316.074(2), Fla. Stat. because action
was not to avoid traffic control device, but rather to obey the traffic control device indicating the road
was closed); State v. Sestilio, 15 Fla. L. Weekly Supp. 60 (Fla. Leon Cty. Ct. Oct. 8, 2007)State v.
Sestilio, 15 Fla. L. Weekly Supp. 60 (Fla. Leon Cty. Ct. Oct. 8, 2007) (officer did not have probable
cause to stop vehicle for violating a traffic control device pursuant to § 316.074, Fla. Stat. where
defendant drove around a speed bump; it is not an official traffic control device and the defendant did
not drive from one roadway to another to avoid it).
141
Lomax v. State, 148 So. 3d 119 (Fla. 1st DCA 2014), review denied, 2017 WL 727177 (Fla. Opinion
Filed Feb. 24, 2017).
142
Lomax v. State, 148 So. 3d 119, 121 (Fla. 1st DCA 2014), review denied, 2017 WL 727177 (Fla.
Opinion Filed Feb. 24, 2017).
143
Lomax v. State, 148 So. 3d 119 (Fla. 1st DCA 2014), review denied, 2017 WL 727177 (Fla. Opinion
Filed Feb. 24, 2017).
144
Lima v. State, 10 Fla. L. Weekly Supp. 876 (Fla. 17th Cir. Ct. Sept. 3, 2003)Lima v. State, 10 Fla. L.
Weekly Supp. 876 (Fla. 17th Cir. Ct. Sept. 3, 2003).
145
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
146
Lima v. State, 10 Fla. L. Weekly Supp. 876 (Fla. 17th Cir. Ct. Sept. 3, 2003)Lima v. State, 10 Fla. L.
Weekly Supp. 876 (Fla. 17th Cir. Ct. Sept. 3, 2003). See also State v. Burrows, 22 Fla. L. Weekly Supp.
75 (Fla. 17th Cir. Ct. July 14, 2014)State v. Burrows, 22 Fla. L. Weekly Supp. 75 (Fla. 17th Cir. Ct. July
14, 2014) (right tire of vehicle crossing solid white line next to sidewalk three times over four or five
blocks established probable cause for disobeying a traffic control device in violation of § 316.074, Fla.
Stat. even though no other traffic was affected); State v. Livingston, 21 Fla. L. Weekly Supp. 1011 (Fla.
17th Cir. Ct. May 15, 2014) (deputy had probable cause for a violation of § 316.074, Fla. Stat. where
defendant made too wide a left turn causing another car to slow down); State v. Leary, 20 Fla. L.
Weekly Supp. 641 (Fla. 17th Cir. Ct. April 23, 2013)State v. Leary, 20 Fla. L. Weekly Supp. 641 (Fla.
17th Cir. Ct. April 23, 2013) (a deputy had probable cause for the infraction of disobeying a traffic

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control device, contrary to Section 316.074(1), where he observed the vehicle weave over the lane
markers; there was no requirement that the conduct affect other traffic); State v. Romine, 19 Fla. L.
Weekly Supp. 349 (Fla. 4th Cir. Ct. Jan. 11, 2012)State v. Romine, 19 Fla. L. Weekly Supp. 349 (Fla.
4th Cir. Ct. Jan. 11, 2012) (the trial court properly held that crossing the white edge lane marker
involved in this case was not a failure to obey a traffic control device as prohibited in section 316.074(1)
because there are two types of white lane markers and the FHA’s Manual on Uniform Traffic Control
does not prohibit crossing the edge line); Darcy v. State, 16 Fla. L. Weekly Supp. 730 (Fla. 17th Cir. Ct.
June 16, 2009)Darcy v. State, 16 Fla. L. Weekly Supp. 730 (Fla. 17th Cir. Ct. June 16, 2009) (trial court
did not err in finding reasonable suspicion for infraction of disobeying a traffic control device in
violation of § 316.074(1), Fla. Stat., where officer saw vehicle weaving within lane and driving over
solid white line a couple of times in four or five blocks; there was no requirement that other traffic be
affected as is sometimes required for the offense of failure to maintain a single lane); Sapp v. State, 15
Fla. L. Weekly Supp. 1038 (Fla. 4th Cir. Ct. May 29, 2009) (crossing over the left solid lane marker
constitutes a violation of § 316.089, Fla. Stat. which provides that such markers must be obeyed;
crossing over solid line is a violation of § 316.074, Fla. Stat.); State v. Ralph, 18 Fla. L. Weekly Supp.
900 (Fla. Duval Cty. Ct. June 14, 2011)State v. Ralph, 18 Fla. L. Weekly Supp. 900 (Fla. Duval Cty. Ct.
June 14, 2011) (touching the fog line without affecting any other vehicle did not constitute failure to
maintain a single lane or violation of a traffic control device (§ 316.074)); State v. Barnes, 17 Fla. L.
Weekly Supp. 396 (Fla. Brevard Cty. Ct. Jan. 28, 2010)State v. Barnes, 17 Fla. L. Weekly Supp. 396
(Fla. Brevard Cty. Ct. Jan. 28, 2010)(deputy lawfully made stop for the infraction of failing to obey a
traffic control device in violation of § 316.074(1), Fla. Stat. where the vehicle crossed the fog and center
lines); State v. Schmits, 16 Fla. L. Weekly Supp. 362 (Fla. Brevard Cty. Ct. Dec. 4, 2008)State v.
Schmits, 16 Fla. L. Weekly Supp. 362 (Fla. Brevard Cty. Ct. Dec. 4, 2008) (crossing lane dividers
constitutes sufficient grounds for a stop for violation of § 316.074, Fla. Stat.); Valladares v. State, 15
Fla. L. Weekly Supp. 1040 (Fla. Duval Cty. Ct. July 2, 2008)(crossing the solid white right lane marker
twice and the inside lane marker once established probable cause for the infraction of failure to obey a
traffic control device (i.e. lane markers) and the court need not determine whether there was probable
cause for the more specific uncharged offense of failure to maintain a single lane); State v. Conti, 12 Fla.
L. Weekly Supp. 176 (Fla. Seminole Cty. Ct. Nov. 8, 2004)State v. Conti, 12 Fla. L. Weekly Supp. 176
(Fla. Seminole Cty. Ct. Nov. 8, 2004); State v. Orcino, 7 Fla. L. Weekly Supp. 144 (Fla. Broward Cty.
Ct. Nov. 9, 1999)State v. Orcino, 7 Fla. L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999).
Contra: State v. Banks, 20 Fla. L. Weekly Supp. 985 (Fla. 7th Cir. Ct. July 29, 2013)20 Fla. L. Weekly
Supp. 985 (Fla. 7th Cir. Ct. July 29, 2013) (deputy did not have probable cause for an infraction based
on defendant crossing the fog line because it is not a traffic control device and crossing the fog line is
not a traffic infraction); State v. Cole, 24 Fla. L. Weekly Supp. 632 (Fla. Volusia Cty. Ct. Nov. 17,
2016)State v. Cole, 24 Fla. L. Weekly Supp. 632 (Fla. Volusia Cty. Ct. Nov. 17, 2016) (the court found
stop for failure to drive in a single lane in violation of § 316.089, Fla. Stat. was unlawful where the
defendant drove across a double yellow line; the court would not accept the alternative position that the
stop was lawful as violation of a traffic control device under § 316.074, Fla. Stat. because the other
charge was more specific to the facts and it was clear that was the one the officer was proceeding on);
State v. Albershinski, 18 Fla. L. Weekly Supp. 76 (Fla. Duval Cty. Ct. July 9, 2010)State v.
Albershinski, 18 Fla. L. Weekly Supp. 76 (Fla. Duval Cty. Ct. July 9, 2010) (when vehicle drifted over
solid white edge lane marker there was no violation of § 316.074(1), Fla. Stat., which requires obedience
to traffic control devices, because those lines are not traffic control devices; this is a very thorough
opinion on this subject); State v. Hayward, 17 Fla. L. Weekly Supp. 60 (Fla. Brevard Cty Ct. July 15,
2009)State v. Hayward, 17 Fla. L. Weekly Supp. 60 (Fla. Brevard Cty Ct. July 15, 2009)(officer did not
have probable cause for stop for failure to maintain a single lane in violation of § 316.089(1), Fla. Stat.
where vehicle was driving at midnight for about 100 yards with left tire over double yellow line on a
two lane straight roadway with no traffic, no other traffic was affected, and there were no reasonable
safety concerns; the fact that this may have been considered a violation of a traffic control device
contrary to § 316.074, Fla. Stat. did not make the stop lawful because the lane statute is more specific,
the specific controls over the general, and the lane violation was the reason the officer gave for the stop).
147
Jarrett v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 31 (Fla. 9th Cir. Ct. June
21, 2004)Jarrett v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 31 (Fla. 9th
Cir. Ct. June 21, 2004).
148
Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998).
149
State v. Gschwendtner, 9 Fla. L. Weekly Supp. 626 (Fla. Dade Cty. Ct. July 18, 2002)State v.

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Gschwendtner, 9 Fla. L. Weekly Supp. 626 (Fla. Dade Cty. Ct. July 18, 2002).
150
State v. Badran, 15 Fla. L. Weekly Supp. 86 (Fla. Volusia Cty. Ct. Nov. 14, 2007)State v. Badran, 15
Fla. L. Weekly Supp. 86 (Fla. Volusia Cty. Ct. Nov. 14, 2007).
151
Barrau v. State, 15 Fla. L. Weekly Supp. 588 (Fla. 17th Cir. Ct. Feb. 21, 2008)Barrau v. State, 15 Fla. L.
Weekly Supp. 588 (Fla. 17th Cir. Ct. Feb. 21, 2008).
152
State v. Rook, 6 Fla. L. Weekly Supp. 139 (Fla. Leon Cty. Ct. Nov. 16, 1998)State v. Rook, 6 Fla. L.
Weekly Supp. 139 (Fla. Leon Cty. Ct. Nov. 16, 1998), affirmed, 7 Fla. L. Weekly Supp. 423 (Fla. 2d
Cir. Ct. March 26, 2000)7 Fla. L. Weekly Supp. 423 (Fla. 2d Cir. Ct. March 26, 2000). See also State v.
Moore, 25 Fla. L. Weekly Supp. 45 (Fla. Duval Cty. Ct. August 6, 2015)State v. Moore, 25 Fla. L.
Weekly Supp. 45 (Fla. Duval Cty. Ct. August 6, 2015) (stop for driving the wrong way on a one-way
street in violation of § 316.088(2), Fla. Stat. was invalid where there was insufficient signage putting the
defendant on notice; § 316.074, Fla. Stat. prohibits finding a driver guilty for violating a traffic control
device if it is not located in a place where an “ordinarily observant person” could see it). But see Wolk
v. Dep’t Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 136 (Fla. 17th Cir. Dec. 11,
2006)Wolk v. Dep’t Highway Safety & Motor Vehicle, 14 Fla. L. Weekly Supp. 136 (Fla. 17th Cir.
Dec. 11, 2006) (officer lawfully stopped car traveling the wrong way on what the officer knew was a
one-way street, despite the fact that there was no sign); Monaco v. Dep’t Highway Safety & Motor
Vehicle, 14 Fla. L. Weekly Supp. 35 (Fla. 17th Cir. Ct. Nov. 22, 2006)Monaco v. Dep’t Highway Safety
& Motor Vehicle, 14 Fla. L. Weekly Supp. 35 (Fla. 17th Cir. Ct. Nov. 22, 2006) (same ruling as in
preceding case).
153
State v. Rook, 6 Fla. L. Weekly Supp. 139 (Fla. Leon Cty. Ct. Nov. 16, 1998)State v. Rook, 6 Fla. L.
Weekly Supp. 139 (Fla. Leon Cty. Ct. Nov. 16, 1998), affirmed, 7 Fla. L. Weekly Supp. 423 (Fla. 2d
Cir. Ct. March 26, 2000)7 Fla. L. Weekly Supp. 423 (Fla. 2d Cir. Ct. March 26, 2000).
154
State v. Rook, 6 Fla. L. Weekly Supp. 139 (Fla. Leon Cty. Ct. Nov. 16, 1998)State v. Rook, 6 Fla. L.
Weekly Supp. 139 (Fla. Leon Cty. Ct. Nov. 16, 1998), affirmed, 7 Fla. L. Weekly Supp. 423 (Fla. 2d
Cir. Ct. March 26, 2000)7 Fla. L. Weekly Supp. 423 (Fla. 2d Cir. Ct. March 26, 2000).
155
Phillips v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 419 (Fla. 6th Cir. Ct.
Feb. 14, 2006)Phillips v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 419 (Fla.
6th Cir. Ct. Feb. 14, 2006).
156
Phillips v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 419 (Fla. 6th Cir. Ct.
Feb. 14, 2006)Phillips v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 419 (Fla.
6th Cir. Ct. Feb. 14, 2006). State v. Phillips, 14 Fla. L. Weekly Supp. 1000 (Fla. 6th Cir. Ct. March 7,
2007) (police officer saw defendant roll through a red light, but officer testified that he stopped the
defendant for violating the “‘no right on red’ sign;” evidence disclosed that the sign was illegally placed
so trial judge granted a motion to suppress; court reversed because officer’s subjective reason was
irrelevant and rolling through the red light was a legitimate reason for the stop). See also State v.
Timmons, 17 Fla. L. Weekly Supp. 261 (Fla. 17th Cir. Ct. Dec. 22, 2009) State v. Timmons, 17 Fla. L.
Weekly Supp. 261 (Fla. 17th Cir. Ct. Dec. 22, 2009) (Deputy lawfully stopped vehicle for running a red
light while making a left turn in violation of section 316.075(1)(c)).
157
Moore v. State, 561 So. 2d 625 (Fla. 1st DCA 1990); Diaz v. State, 548 So. 2d 843 (Fla. 3d DCA 1989).
See also State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013) (where the defendant engaged in evasive
action and would not stop despite the use of police lights and siren, officer had probable cause to stop
for fleeing and eluding or attempting to elude in violation of section 316.1935 even though he did
not have reasonable suspicion for stopping the vehicle when he turned on his light and pursued the
vehicle).
158
Alphonso v. State, 963 So. 2d 287 (Fla. 4th DCA 2007) (officer put his lights on, honked his horn, and
ordered driver to stop over the P.A. system.)
159
State v. Eubanks, 609 So. 2d 107 (Fla. 4th DCA 1992). See also D.A. v. State, 10 So. 3d 674, 676
(Fla. 3d DCA 2009), review denied, 49 So. 3d 746 (Fla. 2010) (stop for expired temporary tag was
valid); State v. Fischer, 987 So. 2d 708 (Fla. 5th DCA 2008) (stop for expired temporary tag was valid);
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Gomez v. State, 748 So. 2d 352 (Fla. 3d DCA 1999), review dismissed, 762 So 2d 916 (Fla. 2000) (stop
for expired tag); State v. Reyna, 17 Fla. L. Weekly Supp. 1198 (Fla. 17th Cir. Ct. Sept. 20, 2010) (when
officer discovered on her computer that tag on defendant’s vehicle was expired, she could lawfully stop
the vehicle even if she had other motives and notwithstanding that owner’s brother was driving); State v.
Villegas, 17 Fla. L. Weekly Supp. 25 (Fla. Leon Cty. Ct. Oct. 30, 2009)State v. Villegas, 17 Fla. L.
Weekly Supp. 25 (Fla. Leon Cty. Ct. Oct. 30, 2009) (reasonable suspicion of expired tag not sufficient;
probable cause is required, and where officer stopped vehicle on December 19, 2008, the tag showed
that it expired in December, but there was no evidence that officer determined the exact date in
December that tag expired before stopping car; State’s argument that since there was only 12 days
remaining in the month it was more likely than not that the tag was expired, may have been an argument
for reasonable suspicion, but not probable cause).
160
State v. Deslandes, 13 Fla. Weekly Supp. 562 (Fla. 17th Cir. Ct. March 14, 2006) ( § 316.605, Fla. Stat.,
requires that permanent tags be “ ‘plainly visible and legible at all times 100 feet from the rear …’ and
the plate must be ‘securely fastened to the vehicle outside the main body of the vehicle.’ ”) See also
Montanez v. State, 13 Fla. L. Weekly Supp. 1139 (Fla. 6th Cir. Ct. May 25, 2006) (displaying a license
tag vertically, rather than horizontally, is a violation of § 316.605, Fla. Stat.); Myer v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 754 (Fla. 4th Cir. Ct. April 26, 2006) Myer v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 754 (Fla. 4th Cir. Ct. April 26, 2006)
(officer lawfully stopped vehicle where reflection from plastic covering resulting from the headlights of
the police car prevented him from reading the tag until he got well within 100 feet of car, and this
constituted a violation of § 316.605(1), Fla. Stat., which prohibits anything on face of the plate unless
permitted by law).
161
§ 316.605, Fla. Stat.
162
Harris v. State, 11 So.3d 462 (Fla. 2d DCA 2009) (court ruled that the statute only barred
obstructions that were on the tag itself; therefore, officers unlawfully stopped a vehicle because a
properly attached trailer hitch obstructed numbers on the tag). But see State v. English, 148 So.3d 529
(Fla. 5th DCA 2014); Baker v. State, 164 So.3d 151 (Fla. 1st DCA 2015) (courts disagreed with Harris).
163
English v. State, 191 So.3d 448 (Fla. 2016) (here the tag was obscured by tag light hanging down).
164
State v. St. Jean, 697 So. 2d 956 (Fla. 5th DCA 1997). See also State v. Benavides, 23 Fla. L.
Weekly Supp. 1004 (Fla. 5th Cir. Ct. March 18, 2016) (court relied on St. Jean in support of its holding
that it was not a violation of § 320.061, Fla. Stat. for a tag frame to “partially block[ ] the top portion of
the words “‘myflorida.com’” at the top of the tag, and … most of the letters at the bottom of the tag”).
165
State v. Miller, 16 Fla. L. Weekly Supp. 95 (Fla. Volusia Cty. Ct. Oct. 31, 2008)State v. Miller, 16 Fla.
L. Weekly Supp. 95 (Fla. Volusia Cty. Ct. Oct. 31, 2008).
166
Lukens v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1052 (Fla. 7th Cir. Ct.
Sept. 21, 2010) (Stop for having an obscured tag in violation of § 316.605(1), Fla. Stat., was lawful
where officer observed license tag bracket covering “Florida” on tag; court distinguished St. Jean based
on the fact that in 2005 the statute was amended “to specifically state that the word ‘Florida,’ the
registration decal, and the alphanumeric designation are to be clear, distinct and not obscured.”).
167
Ch. 2014-216, § 14, Laws of Florida. “This is intended to allow the use of license plate frames that
might otherwise partially obscure the word ‘Florida’ when it appears at the top or bottom of the license
plate.” Florida Staff Analysis, H.B. 7005, 6/24/2014.
168
State v. Pena, 247 So.3d 61 (Fla. 3d DCA.2018) (the court recognized that since the arrest of the
defendant, a change in the statute had taken affect that eliminated the prohibition against obscuring
“‘other identification marks upon the plates regarding the word “Florida” ’ from the statute.”).
169
State v. Carmody, 553 So. 2d 1366 (Fla. 5th DCA 1989); Phillips v. State, 531 So. 2d 1044 (Fla. 4th
DCA 1988). See also Weaver v. State, 233 So.3d 501 (Fla. 2d DCA 2017) (the fact that defendant
admitted a friend had attached the wrong plate did not validate the arrest; the offense occurred when the
plate was attached to the vehicle and that did not take place in the presence of the officer).

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170
Sowerby v. State, 73 So. 3d 329 (Fla. 5th DCA 2011). See also Wolf v. State, 18 Fla. L. Weekly Supp.
515 (Fla. 5th Cir. Ct. March 11, 2011)Wolf v. State, 18 Fla. L. Weekly Supp. 515 (Fla. 5th Cir. Ct.
March 11, 2011) (having a dealer tag in the parking lot of a nightclub in the early morning hours was not
unlawful; the officer wrongfully thought the tag could only be used for test driving and improperly
stopped the vehicle).
171
§ 320.131, Fla. Stat.
172
Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998), review denied, 725 So. 2d 1108 (Fla. 1998).
173
Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998), review denied, 725 So. 2d 1108 (Fla. 1998).
174
Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998), review denied, 725 So. 2d 1108 (Fla. 1998).
175
Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998), review denied, 725 So. 2d 1108 (Fla. 1998).
See also Sands v. State, 753 So. 2d 630 (Fla. 5th DCA 2000), review denied, 773 So. 2d 56 (Fla. 2000),
cert. denied, 531 U.S. 1178, 121 S. Ct. 1155, 148 L.Ed. 2d 1016 (2001).
176
Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998), review denied, 725 So. 2d 1108 (Fla. 1998).
See also § 320.131(4), Fla. Stat. The statute also authorizes display on the front of the vehicle under
certain circumstances.
177
Holmes v. State, 710 So. 2d 651 (Fla. 4th DCA 1998), review denied, 725 So. 2d 1108 (Fla. 1998).
See also State v. Tullis, 970 So. 2d 912 (Fla. 5th DCA 2007) (stop was lawful where temporary tag was
illegible because of a tinted license plate cover; court rejected argument that section 320.131(4) does
not require that tag be legible); State v. Heinmiller, 15 Fla. L. Weekly Supp. 445 (Fla. 17th Cir. Ct. Feb
5, 2008)State v. Heinmiller, 15 Fla. L. Weekly Supp. 445 (Fla. 17th Cir. Ct. Feb 5, 2008) (stop was
lawful where tinted tag cover prevented officer from reading tag until officer was within 20 to 25 feet,
and § 316.605, Fla. Stat. requires that it be legible 100 feet from rear).
178
State v. Parrish, 731 So. 2d 101 (Fla. 2d DCA 1999). But note Echevarri v. State, 8 Fla. L. Weekly
Supp. 817 (Fla. 11th Cir. Ct. Oct. 24, 2001)But note Echevarri v. State, 8 Fla. L. Weekly Supp. 817 (Fla.
11th Cir. Ct. Oct. 24, 2001) (stop to check temporary tag was unlawful when officer admitted on cross
that he could not see the tag because the morning sun was in his eyes).
179
Fla. Stat. Ch 2008-176, § 23.
180
Long v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 88 (Fla. 6th Cir. Ct.
March 30, 2016)Long v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 88 (Fla.
6th Cir. Ct. March 30, 2016).
181
Long v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 88 (Fla. 6th Cir. Ct.
March 30, 2016)Long v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 88 (Fla.
6th Cir. Ct. March 30, 2016).
182
State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011), affirmed, 104 So. 3d 1069 (Fla. 2012).
183
Montgomery v. State, 69 So. 3d 1023 (Fla. 5th DCA 2011).
184
State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011), affirmed, 104 So. 3d 1069 (Fla. 2012).
185
State v. Conley, 98 So. 3d 108 (Fla. 2d DCA 2012). See also State v. Allen, 110 So. 3d 484 (Fla. 4th
DCA 2013); State v. Lockett, 101 So. 3d 1275 (Fla. 4th DCA 2012).

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Works.

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§ 4:12.Arrest, 11 Fla. Prac., DUI Handbook § 4:12 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:12 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:12. Arrest

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(11)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Law enforcement officers throughout the state have authority to make DUI arrests. The officer retains this
authority even when off-duty.1 A marine patrol officer has the authority to stop a citizen for a noncriminal
traffic infraction, and upon determination that there is probable cause, to make a DUI arrest. 2 An officer of the
Department of Business and Professional Regulation did not have authority to detain a citizen for driving on a
flat tire.3 A Fish and Wildlife Conservation Commission officer has no authority to stop a vehicle for a
regulatory inspection without reasonable suspicion for a crime.4

The courts have also considered the authority of military personnel to conduct DUI investigations and arrests.
Based on § 901.1505(1), Fla. Stat., a trial judge5 ruled that a member of USAF security forces is authorized to
detain suspects and to investigate crimes and make arrest for crimes, including DUI, at an air force base. That
statute defines federal law enforcement officers and authorizes them to make certain arrests. However, the
statute limits the arrest authority of such officers to violent felonies or misdemeanors as defined by state statute
occurring “in the presence of the officer while the officer is engaged in the exercise of her or his federal law
enforcement duties.”6 Another trial judge7 upheld a DUI arrest by a civilian officer based on information
provided by military police who had detained the defendant at the entrance to a base. The judge found the arrest
lawful pursuant to § 901.15(5), Fla. Stat., which authorizes arrest based on information from a fellow officer
that a driver has violated chapter 316. 8 Additionally, the judge found support for the arrest in § 901.15(10),
Fla. Stat., which authorizes misdemeanor arrests based on affidavits from military police when the offense was
committed in the presence of those officers on federal property over which the state maintains exclusive
jurisdiction.9

Arrests frequently lead to evidence, including observations, statements, and test results. Other evidence, such as
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containers, drugs, or car keys may be discovered during searches of motor vehicles incidental to arrest. The
leading case on motor vehicle searches incidental to arrests is Arizona v. Gant.10 The Court ruled that “[p]olice
may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of
the offense of arrest.”11 The Fifth District ruled that this test is met if the crime of arrest is one that by its nature
might yield physical evidence.12 A trial judge ruled that Gant13 permitted a vehicle search incidental to a DUI
arrest because it was reasonable to believe that the vehicle might contain alcoholic beverage containers, other
intoxicants, or an ignition key.14

A search of the person incidental to arrest may take place prior to arrest if there is probable cause at the time of
the search and there is not a significant delay between the search and arrest. 15 A trial judge concluded that this
principle would also permit a vehicle search before the actual arrest if the Gant test was otherwise met.16

Recently, the courts expanded the authority to do warrantless searches incidental to arrest in DUI cases. In
Birchfield v. North Dakota,17 the United States Supreme Court ruled:
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we
conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for
drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is
great. We reach a different conclusion with respect to blood tests. (emphasis added) 18

In Williams v. State,19 the Fifth District modified its earlier decision to conform to Birchfield.20

Given the fact that in DUI cases much of the evidence is generated as a result of the arrest, issues related to the
validity of arrests are critical. That is the subject of the next several sections.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999). See also State v. Gelin, 844 So. 2d 659, 662
(Fla. 3d DCA 2003), review denied, 855 So. 2d 620 (Fla. 2003); Nicolosi v. State, 783 So. 2d 1095 (Fla.
5th DCA 2001); State v. Robinson, 379 So. 2d 712 (Fla. 5th DCA 1980), cert. denied, 388 So. 2d
1117 (Fla. 1980); State v. Doskik, 22 Fla. L. Weekly Supp. 190 (Fla. 17th Cir. Ct. Sept. 17, 2014) State
v. Doskik, 22 Fla. L. Weekly Supp. 190 (Fla. 17th Cir. Ct. Sept. 17, 2014); State v. Gallet, 7 Fla. L.
Weekly Supp. 415 (Fla. Broward Cty. Ct. March 7, 2000)State v. Gallet, 7 Fla. L. Weekly Supp. 415
(Fla. Broward Cty. Ct. March 7, 2000).
2
State v. Parsons, 569 So. 2d 437 (Fla. 1990); State v. Stember, 568 So. 2d 1274 (Fla. 1990).
3
Parmenter v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 360 (Fla. 4th Cir. Ct.
Feb. 15, 2007)Parmenter v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 360
(Fla. 4th Cir. Ct. Feb. 15, 2007).
4
Amison v. State, 5 So. 3d 798 (Fla. 2d DCA 2009) (officer improperly stopped a truck in a wildlife
management area based on the mistaken belief that he had the authority to detain someone for a
regulatory inspection).
5
State v. Martinez, 17 Fla. L. Weekly Supp. 486 (Fla. Brevard Cty. Ct. Feb. 1, 2010)State v. Martinez, 17
Fla. L. Weekly Supp. 486 (Fla. Brevard Cty. Ct. Feb. 1, 2010).
6
State v. Martinez, 17 Fla. L. Weekly Supp. 486 (Fla. Brevard Cty. Ct. Feb. 1, 2010)State v. Martinez, 17
Fla. L. Weekly Supp. 486 (Fla. Brevard Cty. Ct. Feb. 1, 2010).
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7
State v. Ladd, 16 Fla. L. Weekly Supp. 739 (Fla. 13th Cir. Ct. March 7, 2008)State v. Ladd, 16 Fla. L.
Weekly Supp. 739 (Fla. 13th Cir. Ct. March 7, 2008).
8
State v. Ladd, 16 Fla. L. Weekly Supp. 739 (Fla. 13th Cir. Ct. March 7, 2008)State v. Ladd, 16 Fla. L.
Weekly Supp. 739 (Fla. 13th Cir. Ct. March 7, 2008). But see Boermeester v. State, 15 Fla. L. Weekly
Supp. 576 (Fla. 13th Cir. Ct. Jan. 23, 2008)Boermeester v. State, 15 Fla. L. Weekly Supp. 576 (Fla. 13th
Cir. Ct. Jan. 23, 2008) (officer could not rely on information provided by an air force sergeant, whose
job included preventing unauthorized entry onto an air force base and who observed the defendant
driving, because that sergeant was not a law enforcement officer).
9
State v. Ladd, 16 Fla. L. Weekly Supp. 739 (Fla. 13th Cir. Ct. March 7, 2008)State v. Ladd, 16 Fla. L.
Weekly Supp. 739 (Fla. 13th Cir. Ct. March 7, 2008).
10
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
11
Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723, 173 L. Ed. 2d 485 (2009).
12
Grant v. State, 43 So. 3d 864 (Fla. 5th DCA 2010), cause dismissed, 48 So. 3d 836 (Fla. 2010) (search
was lawful where arrest was for mortgage fraud); Brown v. State, 24 So. 3d 671 (Fla. 5th DCA
2009) (search was lawful where arrest was on warrants for theft). See also State v. Lord, 150 So. 3d 260
(Fla. 1st DCA 2014) (store employees told officer that spark plugs and a drill had been stolen and drill
parts had been dumped out, but nothing indicated the officers were told other items had not been stolen;
arrest was for retail theft; officers could search cooler found in truck even after finding the drill and
spark plugs since it was reasonable other stolen items might be hidden). But see State v. McCullough, 76
So. 3d 399 (Fla. 2d DCA 2011) (search was unlawful where arrest was on a warrant for one incident of
cocaine sale that took place at least four months before the arrest and there was nothing in the car
suggesting that evidence might be found).
13
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
14
State v. Shier, 21 Fla. Law Weekly Supp. 843 (Fla. Brevard Cty. Ct. Feb. 19, 2014) (while holding
officer had probable cause for DUI and search was valid pursuant to Gant, trial judge granted motion to
suppress pursuant to § 901.15, Fla. Stat. because there was no driving in officer’s presence and he
did not know there was actual physical control until after the keys were discovered in the search).
15
Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633 (1980); Jenkins
v. State, 978 So. 2d 116, 126 (Fla. 2008).
16
State v. Shier, 21 Fla. Law Weekly Supp. 843 (Fla. Brevard Cty. Ct. Feb. 19, 2014) (search met
requirement that a search incidental to a lawful arrest be contemporaneous with the arrest, where officer
did a search of a lawfully detained vehicle a few minutes before the arrest and there was no unnecessary
delay between the search and the arrest and there was clearly probable cause to believe defendant was
DUI at the time of the search).
17
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).
18
Birchfield v. North Dakota, 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 (2016).
19
Williams v. State, 210 So.3d 774 (Fla. 5th DCA 2017).
20
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).

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§ 4:13.Arrest: warrantless entry into home, 11 Fla. Prac., DUI Handbook § 4:13...

11 Fla. Prac., DUI Handbook § 4:13 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:13. Arrest: warrantless entry into home

West’s Key Number Digest

• West’s Key Number Digest, Arrest 68(9), 68(10)
• West’s Key Number Digest, Automobiles 349(13)

Legal Encyclopedias
• C.J.S., Arrest §§ 3 to 4, 38, 43 to 49, 54
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Generally, it violates the Fourth Amendment to the U.S. Constitution for an officer to enter a private home
without consent or a warrant.1 However, there is no violation if officers have reasonable grounds for exigent
circumstances, including: (1) hot pursuit of a fleeing felon; (2) imminent destruction of evidence; (3) need to
prevent escape; and (4) risk of danger to police or others inside or outside of the dwelling. 2 In Moody v. City of
Key West,3 the court concluded that there was no hot pursuit because the defendant was already in his house
when police arrived and there was “no immediate or continuous pursuit originating outside the house and
continuing into the house.”4 But the pursuit need not go on for any specific time period.5

The foregoing authorities make it clear that officers can enter a home without a warrant in hot pursuit of a
fleeing felon. That establishes the necessary exigency for a warrantless entry. Obviously, in the absence of fresh
pursuit, warrantless entry for a felony DUI is improper unless justified by some other exigency. Drumm v.
State,6 involved such a situation.

In Drumm,7 officers investigated a fatal traffic accident. The driver fled the scene. Shortly after the accident,
officers developed reason to believe that the driver was in her home. They entered without consent or a warrant,
confronted the driver and secured evidence, including evidence of alcohol consumption. At the time of entry,
the officers had no evidence that alcohol had been involved in the accident. The officers could not rely on fresh
pursuit to justify the warrantless entry. Instead, the State argued that entry was lawful because there were
exigent circumstances consisting of a danger that the defendant might escape and safety risks for the officers.
The court found that these facts did not establish sufficient exigent circumstances. Further, the court concluded
that the entry could not be justified based on the possibility that evidence would be destroyed, because the

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§ 4:13.Arrest: warrantless entry into home, 11 Fla. Prac., DUI Handbook § 4:13...

officers had no indication that the defendant had been drinking. Accordingly, the court ruled that all of the
evidence should have been suppressed.8

Foreign courts have considered leaving scenes much like the one in Drumm.9 In two such cases, the courts
considered whether the possibility that the offender might have been injured in the accident constituted an
exigent circumstance. In one case, the court held that the theory was not supported because vehicle damage was
not severe, and there was no other information indicating the drivers were injured. 10 In the other case, the court
found that the police were justified in shining a light into the bedroom and, upon seeing the defendant bleeding,
could lawfully enter.11

While the law as to warrantless entry in hot pursuit of a fleeing felon is well established, the rules as to
misdemeanants are more complex. The United States Supreme Court addressed this issue in two cases— Welsh
v. Wisconsin12 and Stanton v. Sims.13 Actually, in Welsh14 the officer was not in hot pursuit, but the Court still
addressed the significance of the severity of the offense. The defendant was charged with a nonjailable civil
DUI, punishable only by fine and the Court stated that warrantless entry into a home on a minor offense should
be rare.15 The Court concluded that entry in hot pursuit would not have been justified because there was no
public safety concern since the defendant had abandoned his vehicle. The dissipation of blood alcohol level was
also insufficient to create an exigency given that this offense was a relatively minor civil matter. 16

Stanton17 was a civil case where the issue was whether the officer had qualified immunity for entering to make a
warrantless arrest for a jailable misdemeanor. In that case, the officer was in hot pursuit and had reason to
believe that entry onto the defendant’s curtilage was justified by the need to make an arrest on a jailable
misdemeanor. The Court stressed that it never ruled that the seriousness of the offense was as important as
whether there was actually hot pursuit. 18 And further, the Court confirmed that in Welsh19 it did not rule that hot
pursuit into a home to make a misdemeanor arrest was never permissible, but only that it should be rare. 20

In Illinois v. McArthur,21 the Court dealt with a related issue. It concluded that it was proper for officers to
prevent an individual from entering his home while a warrant was secured, based on probable cause to believe
the person had committed a jailable misdemeanor. The officers had probable cause to believe that the home
contained contraband and “they reasonably believed that the home’s resident, if left free of any restraint, would
destroy that evidence.”22

Florida courts have taken somewhat conflicting approaches on this issue. In Gasset v. State,23 the Third District
ruled that Welsh24 did not bar warrantless entry in fresh pursuit into a garage to make a misdemeanor DUI arrest
where entry was based on probable cause to believe the defendant was driving recklessly and fleeing. He turned
erratically and fled from officers. This decision was not based on the fact that the offense could lead to jail, but
rather on the violence of the conduct.25 The court characterized the acts as serious criminal traffic offenses. 26

In Ortiz v. State,27 the Third District clarified its decision in Gasset.28 The court ruled that an officer has no
authority to forcibly enter a private home without a warrant to make an arrest for a misdemeanor, even though
the officer saw the offense and was in hot pursuit. The decision in Ortiz,29 was based on Fla. Stat. §
901.19(1), which authorizes forcible warrantless entry for felonies where officers are authorized to make an
arrest without a warrant and they announce themselves. The court relied on the absence of any similar statutory
authority for misdemeanors and concluded that Gasset30 did not justify a different conclusion because the officer
in that case went into an open garage and the decision was based solely on the Fourth Amendment. 31

After the Gasset32 and Ortiz33 decisions, the Third District ruled in Ulysse v. State,34 that the Fourth Amendment
permitted warrantless entry in fresh pursuit of a passenger who ran from a stolen car based on probable cause
that the individual had committed misdemeanor trespass to a conveyance. The court reached this conclusion
based solely on the fact that the misdemeanor was a jailable offense. 35 Ulysse was particularly significant
because unlike other cases it permitted the warrantless entry for what was clearly a nonviolent misdemeanor
with no other exigent circumstances.36

The Third District addressed this issue again in State v. Brown37 and recognized conflicts in its early decisions.
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The court upheld an arrest where the officer chased the defendant into an apartment after observing him with an
assault-type rifle, which constituted a misdemeanor. The court rejected the defense position that Ortiz38 required
that the warrantless entry be ruled unlawful, finding that the pursuit in that case was not “‘hot’ or ‘fresh,’ but
rather lukewarm and stale.”39 Further, the Brown court disagreed with the Ortiz40 court’s interpretation of
Florida’s no-knock law.41 Instead, the court found common ground in Gasset42 and Ulysee43 and upheld the
warrantless entry. But unlike Ulysee,44 the court did not rely on the fact that the misdemeanor offense was
jailable.45

In Markus v. State,46 the First District disagreed with the Third District’s decision in Ulysee47 and ruled that it
was unlawful for officers to enter a dwelling in hot pursuit to make a warrantless misdemeanor arrest for
possession of marijuana and resisting arrest without violence. The defendant had dropped a marijuana cigarette
before entering the premises. The Florida Supreme Court granted review in the Markus case and in State v.
Markus,48 the Court clarified Florida law as to the status of fleeing misdemeanants. The Court ruled:

The totality of the circumstances must be taken into account in evaluating Fourth Amendment
cases, and we hold that a warrantless home entry, accompanied by a search, seizure, and arrest is
not justified by hot pursuit when the underlying conduct for which there is alleged probable
cause is a nonviolent misdemeanor and the evidence related thereto is outside the home.
There is no destruction of evidence issue involved here.49 (emphasis added)

The Supreme Court’s decision in Markus50 makes it clear that officers cannot pursue a nonviolent misdemeanor
suspect into a dwelling based on the misdemeanor alone. There must be additional exigent circumstances, such
as reasonable grounds to believe someone inside the premises may be in danger or that evidence will be
destroyed.51 While the Court makes clear that the trial judge’s decision must be based on the totality of the
circumstances,52 it does not address two other matters that commonly come up in DUI cases.

First, there was no issue as to whether the likelihood of loss of blood alcohol evidence in a misdemeanor DUI
constitutes sufficient circumstances for a warrantless entry. But that has been resolved by the United States
Supreme Court in Missouri v. McNeeley,53 where the Court ruled that dissipation of blood alcohol does not by
itself establish an exigency. The law on that subject is covered in other parts of this book, particularly section
5:1. It should be noted that loss of blood alcohol evidence may consist not merely of reduction of the BAL
reading as a result of the passage of time, but it may also consist of contamination of the blood by
consummation of alcohol when the suspect is in the home out of sight of law enforcement.

The second matter that was not developed in Markus54 is what constitutes a violent misdemeanor. The Court did,
however, address the standards that might apply to DUIs by reference to language from Gasset.55 The Florida
Supreme Court observed:
[I]n its holding the Gasset court emphasized the danger that the defendant’s crime imposed:
“Gasset’s actions in this case were of sufficient gravity to justify the de minimis intrusion
involved here. He jeopardized his own safety, the safety of others, and that of the general public.
By his own actions, he cast aside any fourth amendment shield which might have served to protect
him. We will not erect one for him now.” Gasset, 490 So.2d at 99.56

Thus, the Florida Supreme Court seems to suggest that some misdemeanor DUIs may be considered violent
misdemeanors. It is worth noting, as more fully developed in section 4:20 of this book, that DUIs have
consistently been considered breaches of peace for the purpose of justifying a citizen’s arrest. 57

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
See e.g. Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
2
Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). See also Kentucky v.
King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011); Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.
Ct. 1943, 164 L. Ed. 2d 650 (2006); State v. Markus, 211 So.3d 894, 907 (Fla. 2017); Sosnowski v.
State, 245 So.3d 885 (Fla. 1st DCA 2018); Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007);
Vanslyke v. State, 936 So. 2d 1218 (Fla. 2d DCA 2006).
3
Moody v. City of Key West, 805 So. 2d 1018 (Fla. 3d DCA 2001).
4
Moody v. City of Key West, 805 So. 2d 1018, 1023 (Fla. 3d DCA 2001).
5
State v. Williams, 128 So. 3d 30, 35 (Fla. 3d DCA 2012) (hot pursuit was valid even though it ended
almost as soon as it began—citing United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed.
2d 300 (1976)).
6
Drumm v. State, 530 So. 2d 394 (Fla. 4th DCA 1988). See also State v. Imm, 17 Fla. L. Weekly Supp.
378 (Fla. Duval Cty. Ct. Feb. 2, 2010)State v. Imm, 17 Fla. L. Weekly Supp. 378 (Fla. Duval Cty. Ct.
Feb. 2, 2010) (officers were not permitted to enter backyard without a warrant to investigate the second
degree misdemeanor of leaving the scene of an accident without injuries where the crash occurred one
hour before officers started looking for the suspect; so there was no fresh pursuit or any exigent
circumstances).
7
Drumm v. State, 530 So.2d 394 (Fla. 4th DCA 1988).
8
Drumm v. State, 530 So.2d 394 (Fla. 4th DCA 1988).
9
Drumm v. State, 530 So.2d 394 (Fla. 4th DCA 1988).
10
State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283, 1289 (1990), cert. granted, judgment vacated on
other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991). See also State v. Cordova,
366 P.3d 270 (N.M. App. 2015), cert. granted, 369 P.3d 369 (N.M. 2015).
11
City of Troy v. Ohlinger, 438 Mich. 477, 475 N.W.2d 54 (1991) (defendant hit a mailbox and a van
and left the scene). See also State v. Cioffi, 15 Fla. L. Weekly Supp. 852 (Fla. Martin Cty. Ct. June 9,
2008)State v. Cioffi, 15 Fla. L. Weekly Supp. 852 (Fla. Martin Cty. Ct. June 9, 2008) (officers
reasonably believed there was a medical emergency requiring them to enter defendant’s home where she
rear-ended a car causing her air bag to deploy, she drove to her house and drove around two or three
times, parked the car in the hot garage where she stayed for five to ten minutes despite officers’ knocks
and shouts, and witnesses had described her condition).
12
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
13
Stanton v. Sims, 134 S. Ct. 3, 187 L.Ed.2d 341 (2013).
14
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
15
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984). In State v. Markus,
211 So.3d 894, 908 (Fla. 2017), the Court found that the focus in Welch was on the fact that the offense
was minor rather than nonjailable and “The [Welch] Court thus concluded that when the offense is

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§ 4:13.Arrest: warrantless entry into home, 11 Fla. Prac., DUI Handbook § 4:13...

minor, a home arrest should usually be accompanied by a warrant.”

16
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 2100, 80 L.Ed.2d 732 (1984).
17
Stanton v. Sims, 134 S. Ct. 3, 187 L.Ed.2d 341 (2013).
18
Stanton v. Sims, 134 S. Ct. 3, 187 L.Ed.2d 341 (2013).
19
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
20
Stanton v. Sims, 134 S. Ct. 3, 6, 187 L.Ed.2d 341 (2013). In State v. Markus, 211 So.3d 894, 911
(Fla. 2017), the Florida Supreme Court recognized that this language was dictum.
21
Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001).
22
Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 953, 148 L. Ed. 2d 838 (2001).
23
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986) (there
was a strong dissenting opinion). See also State v. Shea, 10 Fla. L. Weekly Supp. 529 (Fla. Escambia
Cty. Ct. May 15, 2003)State v. Shea, 10 Fla. L. Weekly Supp. 529 (Fla. Escambia Cty. Ct. May 15,
2003) (off duty officer, who observed defendant’s vehicle swerving and almost hitting guard rail,
swerving back and forth between the two northbound lanes, slamming on his brakes at a red light, and
swerving into oncoming traffic, properly followed and detained defendant in his driveway). Contra State
v. Eastman, 553 So. 2d 349 (Fla. 4th DCA 1989) (court agreed with the dissent in Gasset, where an
officer saw defendant speeding and pursued him with police car’s light flashing and siren on for three
miles to his mother’s house; warrantless entry and arrest for DUI, resisting arrest, and fleeing was
improper); Brooks v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 10 (Fla. 7th
Cir. Ct. Nov. 21, 2002)Brooks v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp.
10 (Fla. 7th Cir. Ct. Nov. 21, 2002) (entry into garage to make a DUI arrest after officer saw defendant
weave in and out of his lane for about three blocks, and officer activated his emergency lights and
followed defendant to the garage, violated the Fourth Amendment); State v. Whitaker, 15 Fla. L.
Weekly Supp. 1098 (Fla. Leon Cty. Ct. Sept. 10, 2008) (officers called to defendant’s home by off-duty
officer who followed defendant to his residence because of unusual driving, did not have authority to
enter the home nor was it proper for them to coerce the defendant out of his home).
24
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
25
State v. Markus, 211 So.3d 894, 901 (Fla. 2017).
26
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986).
27
Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992) (involving misdemeanor marijuana possession).
See also Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007) (officer had no authority to enter
home to make a misdemeanor arrest for obstructing without violence or leaving the scene of accident
involving property damage even if the offenses occurred in officer’s presence); Espiet v. State, 797 So.
2d 598 (Fla. 5th DCA 2001) (forcible entry into home to make an arrest on a domestic violence charge is
impermissible); M.J.R. v. State, 715 So. 2d 1103 (Fla. 5th DCA 1998) (warrantless forcible entry into
home impermissible on first degree misdemeanors); Conner v. State, 641 So. 2d 143 (Fla. 4th DCA
1994), review denied, 649 So. 2d 234 (Fla. 1994) (entry into home to make an arrest for the first degree
misdemeanors of resisting arrest without violence or battery violated the Fourth Amendment); Johnson
v. State, 395 So. 2d 594 (Fla. 2d DCA 1981) (entry into home without consent to make an arrest for a
liquor violation, which was a second degree misdemeanor, witnessed by the officer was unlawful); State
v. Imm, 17 Fla. L. Weekly Supp. 378 (Fla. Duval Cty. Ct. Feb. 2, 2010)State v. Imm, 17 Fla. L. Weekly
Supp. 378 (Fla. Duval Cty. Ct. Feb. 2, 2010) ( § 901.19, Fla. Stat. limits an officer’s right to enter
building or property without consent or warrant and entry to make a misdemeanor arrest is unauthorized;

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officers were not permitted to enter backyard without a warrant to investigate the second degree
misdemeanor of leaving the scene of an accident without injuries where the crash occurred one hour
before officers started looking for the suspect; so there was no fresh pursuit or any exigent
circumstances).
28
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986).
29
Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992).
30
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986).
31
Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992).
32
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986).
33
Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992).
34
Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005), disapproved of by State v. Markus, 211 So.3d
894 (Fla. 2017).
35
Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005), disapproved of by State v. Markus, 211 So.3d
894 (Fla. 2017). See also Dyer v. State, 680 So. 2d 612 (Fla. 3d DCA 1996) (holding that the Fourth
Amendment does not prohibit a warrantless entry into a yard to make an arrest for the misdemeanor of
trespass).
36
Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005), disapproved of by State v. Markus, 211 So.3d
894 (Fla. 2017).
37
State v. Brown, 36 So. 3d 770 (Fla. 3d DCA 2010), review denied, 63 So. 3d 748 (Fla. 2011),
disapproved of on other grounds, State v. Cable, 51 So. 3d 434 (Fla. 2011).
38
Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992).
39
State v. Brown, 36 So. 3d 770, 773 (Fla. 3d DCA 2010), review denied, 63 So. 3d 748 (Fla. 2011),
disapproved of on other grounds, State v. Cable, 51 So. 3d 434 (Fla. 2011).
40
Ortiz v. State, 600 So. 2d 530 (Fla. 3d DCA 1992).
41
State v. Brown, 36 So. 3d 770, 773 (Fla. 3d DCA 2010), review denied, 63 So. 3d 748 (Fla. 2011),
disapproved of on other grounds, State v. Cable, 51 So. 3d 434 (Fla. 2011).
42
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986).
43
Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005), disapproved of by State v. Markus, 211 So.3d
894 (Fla. 2017).
44
Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005), disapproved of by State v. Markus, 211 So.3d
894 (Fla. 2017).
45
In State v. Markus, 211 So.3d 894, 901 (Fla. 2017), the Court recognized that ultimately the Brown
court relied on “the danger of the offense” rather that the fact that the offense was jailable.

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46
Markus v. State, 160 So.3d 488 (Fla. 1st DCA 2015).
47
Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005), disapproved of by State v. Markus, 211 So.3d
894 (Fla. 2017).
48
State v. Markus, 211 So.3d 894 (Fla. 2017).
49
State v. Markus, 211 So.3d 894, 897 (Fla. 2017).
50
State v. Markus, 211 So.3d 894 (Fla. 2017).
51
State v. Markus, 211 So.3d 894, 909-910 (Fla. 2017).
52
State v. Markus, 211 So.3d 894, 909 (Fla. 2017).
53
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (Fla. 2013).
54
State v. Markus, 211 So.3d 894 (Fla. 2017).
55
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So.2d 544 (Fla. 1986).
56
State v. Markus, 211 So.3d 894, 901-902 (Fla. 2017).
57
See e.g. State v. Furr, 723 So.2d 842 (Fla. 1st DCA 1998); Edwards v. State, 462 So.2d 581 (Fla. 4th
DCA 1985), review denied, 475 So.2d 694 (Fla. 1985).

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Works.

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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:14. Officer’s authority to arrest

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(11), 349(13)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Section 901.15, Fla. Stat. defines an officer’s authority to make a warrantless arrest. That authority depends
to a large degree on the nature of the charge.

Pursuant to the statute, an officer may make a warrantless arrest for a felony committed in the officer’s
presence1 or for a felony that the officer reasonably believes the defendant committed. 2 Similarly, an officer may
make a warrantless arrest for a misdemeanor or violation of an ordinance committed in the officer’s presence,
but the arrest must be made immediately or in fresh pursuit.3 Officers may also make a warrantless arrest for one
of the limited number of misdemeanors for which the statute specifically authorizes such an arrest 4 even if they
do not occur in their presence. DUIs are not among those offenses.

Section 901.15, Fla. Stat. establishes the general rule that an officer may make a warrantless arrest for
misdemeanor DUIs only if the officer observes all the elements sufficient to establish a prima facie case of
DUI5 and makes the arrest immediately or in fresh pursuit. 6 There are two clear exceptions to the general rule on
DUI arrests. The first is that an officer who does not witness the elements of the offense may, nevertheless,
make a DUI arrest based on the officer’s personal investigation of a crash. 7 The second exception is that an
officer who does not witness the elements of a DUI may still make an arrest if summoned by another officer to
assist in the arrest8 or pursuant to the fellow officer rule.9

If the officer does not witness the elements of the DUI or one of the exceptions is not present, the arrest is
unlawful.10 Thus, it was improper for a trooper to make an arrest where there was no accident, but the driver was
asleep in his car and was removed before the trooper arrived. 11 It is unnecessary, however, for the officer to see
the bad driving and the defendant/driver at the same time.12
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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

The two exceptions to the general rule for making a warrantless DUI arrest, have been thoroughly considered by
the courts. The first exception, the traffic crash 13 provision, permits an officer to make a misdemeanor DUI
arrest, if the officer’s “personal investigation” of the crash establishes “reasonable and probable grounds” for
such an arrest.14 The investigation at the scene may be criminal in nature and not just a crash investigation. 15 The
personal nature of the investigation may properly include talking to other officers at the scene as to their
findings.16 In other words, pursuant to the fellow officer rule, the arresting officer’s formulation of probable
cause through the investigation may include information provided by other officers who did an investigation at
the scene.17 That does not mean, however, that an investigating officer can have another officer who has never
been to the scene and participated in the investigation, make the arrest. 18 However, according to Ross v. State, 19
there is no requirement that the arrest be made at the scene of the accident and the arrest by the investigating
officer at an emergency room several hours later was proper. On the other hand, a trial court ruled that the
authority to make a warrantless arrest based upon a crash investigation, did not apply where the trooper
completed the investigation several miles from the accident scene and made the arrest at that remote location. 20

Additionally, it appears to be sufficient for the application of the investigation provision for officers to
reasonably believe there has been a crash. 21 In Dep’t of Highway Safety & Motor Vehicles v. Williams,22 the
court provided some guidance for determination of whether there has been a crash within the meaning of the
statute. The court rejected the idea that there can be no crash in the absence of forceful contact causing more
that nominal damage.23 The court adopted this meaning of “crash”:
”a breaking to pieces by or as if by collision” or “an instance of crashing,” Webster’s Collegiate
Dictionary, 271 (10th ed. 1998) and “collide,” which in turn means “to come together with solid
or direct impact,” id. at 226. . . . Although the term “traffic crash” reasonably contemplates some
degree of damage, it clearly does not imply that damage must have occurred to the property of
another, nor does it set a minimum amount necessary in order for such an incident to legally
occur.24

In State v. Prest,25 the court applied the foregoing standards to conclude that officers had no authority under the
accident investigation exemption to make the arrest. In that case, a SUV backed over a curb into a ditch, but
there was no evidence as to whether this incident caused any damage to the vehicle. There was nothing showing
that the act of backing into the ditch caused “‘a breaking to pieces by or as if by collision,’” nor was there any
evidence of solid or direct impact.26 Thus, the court concluded the arrest was unlawful.

However, according to State v. Callaway,27 it is not necessary for the trooper to testify as to damage for the
arrest to be lawful. It is sufficient if witnesses give testimony to establish the crash. 28

Other cases make it clear that a driver has a duty to stop, render aid, and report even in the absence of a
collision between vehicles. In State v. Elder,29 the court ruled that the defendant had a duty to stop even though
her vehicle didn’t collide with anything. The defendant left the scene after pulling in front of another car
causing it to flip and resulting in the death of a passenger, but there was no impact between the vehicles.
Section 316.027, Fla. Stat. requires drivers who are involved in crashes to stop. The court held that even in the
absence of an impact, a vehicle that causes a crash is involved in it and has a duty to comply with the statute.

While it is true that for the statute to apply, the crash need not involve an actual collision between vehicles, the
Florida Supreme Court recently identified statutory limits in Gaulden v. State.30 In that case, the Court ruled that
a passenger jumping from a car and hitting the shoulder or roadway does not constitute a crash under Fla.
Stat. § 316.027. “[T]he operative phrase ‘any vehicle involved in a crash’ means that a vehicle must collide with
another vehicle, person, or object.”31 The Supreme Court has also incorporated this definition of “crash” into a
standard jury instruction.32

The fellow officer rule that plays a role in accident investigations has much broader application and, in fact, is
the essence of the second exception to the requirement that an officer witness the elements of DUI before
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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

making an arrest. That exception permits an arresting officer to rely on information and direction provided by
other officers. It has both a legislative source and an independent judicial source.

The legislative source is set forth in § 901.18, Fla. Stat. That provision permits an officer to summon assistance
from anyone, usually a police officer, to assist in the arrest. The judicial source is known as the “fellow officer”
rule or the “collective knowledge” doctrine. It permits an officer to make an arrest based on the collective
knowledge of all law enforcement.33

It is important to be clear that the judicially established fellow officer rule has a long history and applies to
many situations. The doctrine has extensive implications for all sorts of arrests.

As previously noted, the fellow officer rule, permits an officer to make an arrest based on communication from
another officer, police department, or the law enforcement community, who has probable cause. 34 It clearly
applies to misdemeanors as well as felonies, including DUIs. 35 It is only necessary that the police as a whole
have probable cause.36

While the knowledge of other officers is imputed to the officer making the stop or arrest, there must be some
communication.37 In Strickroth v. State,38 the court said that the fellow officer rule or collective knowledge
doctrine “can involve direct communications between officers who have sufficient information and the officer
who stops the suspect, or it can involve general communications among officers of whom at least one possesses
the required level of real suspicion.”

Recently, in Montes-Valeton v. State,39 the Florida Supreme Court considered what fellow officers must
communicate to an arresting officer lacking sufficient personal knowledge to properly order a blood test under
the implied consent law. The Court said:
Nothing in the record indicates that Sergeant Tejera [the fellow officer] or any other officer
directed Trooper Molina [arresting officer] to take a blood draw from Montes–Valeton, gave any
indication that probable cause existed for such a blood draw, or communicated anything regarding
Montes–Valeton to Trooper Molina. Without the communication to the arresting officer of some
information that initiates the arrest, the predicate for application of the fellow officer rule is
lacking. Trooper Molina therefore lacked imputed probable cause knowledge of Montes–
Valeton’s intoxication under the fellow officer rule. (emphasis added)40

Thus, the Court does not require that the officer making a stop or an arrest know everything fellow officers
know, but rather, it is necessary that the stopping officer be acting on some information or directive from those
fellow officers. This is consistent with other Supreme Court decisions.41

However, in Carter v. State,42 the court concluded that the State failed to establish probable cause for a traffic
stop where the officer who testified that the defendant ran a stop sign, could not remember whether he actually
saw that or another officer told him. The court said that the testifying and stopping officer “would have been
justified in relying on Officer Sikos’s observations, if those observations had been communicated to him.” 43 On
its face, it appears that the court concluded that the information other officers have must be communicated to
the stopping or arresting officer, contrary to the authorities previously mentioned. The opinion suggests,
however, that it is more likely that the court is not departing from those authorities, but rather holds that at the
hearing on the motion to suppress either the stopping or arresting officer must testify to observations that he or
she personally made or to facts provided by other officers under the fellow officer rule or a combination of the
two. In fact, in Carter,44 the court acknowledged the holding in State v. Adderly,45 that the fellow officer rule
permits one officer to detain an individual for running a stop sign based solely on information provided by
another officer, who observed the person commit the infraction and the officer who made the observations need
not come to the scene of the stop to identify the offender. However, in Carter,46 the court observed that the
officer who actually observed the violation in Adderly47 testified at the hearing.

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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

The difference between the fellow officer rule as a principle providing authority to officers to make stops versus
an evidentiary rule at the hearing on a motion to suppress is well developed. According to Ferrer v. State,48 the
trial court may find probable cause for the initial stop based on the arresting officer’s testimony as to what a
nontestifying stopping officer said about the stop. However, the Second District disagreed.

In Bowers v. State,49 the court rejected the conclusion in Ferrer50 that the trial court could rely on one officer’s
hearsay account as to what another officer told him for the purpose of proving that the nontestifying officer
witnessed a traffic violation and made a valid stop. In Bowers, the court concluded that Ferrer misapplied the
fellow officer rule. The court said:
Under the (fellow officer) rule, one officer may rely on the knowledge and information possessed
by another officer to establish probable cause for an arrest for a felony or misdemeanor offense
…. The fellow officer rule is not a rule of evidence. It does not change the rules of evidence. And,
it is not one of the enumerated exceptions to the hearsay rule.51

In State v. Bowers,52 the Florida Supreme Court rejected the First District’s position in Ferrer v. State53 and
approved the Second District’s holding in Bowers v. State.54

Despite the apparent similarities between the legislative and judicial approaches, there are some differences. 55
By its plain language, § 901.18, Fla. Stat., allows an officer to summon any person to assist in an arrest, and the
provision does not apply to unsolicited assistance.56 Furthermore, the statute only applies to situations where the
summoning officer is making an arrest.57 Under the statute, the arresting officer has no greater authority than the
summoning officer.58

In contrast to the statutory rule, the judicial rule applies to information provided by law enforcement officers,
and it also includes volunteer assistance.59 It also applies to non-arrest situations, such as investigatory stops.60

The authority aspect of the statutory rule 61 has been considered in several cases. In one such case, 62 a deputy saw
the defendant driving and stopped the vehicle based on a description given to her in the course of a theft
investigation. When the defendant exited the vehicle, the deputy noticed some things that established grounds to
believe that the driver was committing a DUI. The deputy called for a backup officer to make the DUI arrest so
that she could complete the theft investigation. The backup officer made the arrest. On appeal, the court ruled,
pursuant to § 901.18, Fla. Stat., that the backup officer had the same authority as the initiating officer and could
lawfully make the arrest. Other cases have taken a similar approach. 63

In State v. Curtiss,64 the trial court drew a distinction between backup officers and members of special task
forces. There, one officer observed erratic driving and called a DUI task force member to determine the
defendant’s condition before the arrest and to make the arrest. Based on the fact that this was a misdemeanor
that did not occur in the task force member’s presence, the court ruled that the arrest was unlawful. 65

In other trial court cases,66 the courts took a different position. They relied on § 901.18, Fla. Stat. and
McClendon v. State,67 to uphold the arrest in circumstances similar to those in Curtiss.

It is apparent from these cases, that the language in § 901.18, Fla. Stat., that the requesting officer must be a
“peace officer making a lawful arrest,” is strictly followed. Thus, in Huebner v. State,68 the court found that an
off-duty police officer had the same authority to make an arrest as when he or she was on duty and to summon
aid pursuant to Section 901.18, but that statute does not apply where the off-duty officer is not making an arrest
or participating in an arrest. Clearly, for the statute to apply, the summoning officer must have the authority to
make the arrest and be involved in making the arrest at the time he or she summons aid.

The strict construction of the statute was illustrated again in Riehle v. Dep’t of Highway Safety & Motor
Vehicles.69 There an auxiliary trooper saw an impaired driver. He called his supervisor, who investigated and
arrested the defendant for DUI. That supervisor had apparently not witnessed driving or actual physical control.
The State attempted to salvage the arrest based on § 901.18, Fla. Stat., but conceded that the auxiliary trooper

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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

was not making a DUI arrest. In fact, at that time, the auxiliary trooper statute specifically prohibited auxiliary
officers from making arrests. The court found that the State’s concession was fatal to the validity of the arrest
by the supervisor because the statute requires that the first officer be making a lawful arrest.

The result in Riehle might have been different if the matter had come up a couple of years later. In 1995, the
auxiliary trooper statute was amended to specifically give such officer authority to bear arms and make arrests
after training and “while under the supervision and direction of the director or a member of the Florida Highway
Patrol.”70 Based on that, in State v. Collins71 a trial judge ruled that an auxiliary trooper properly activated his
blue lights after witnessing erratic driving, including a stop in the middle of a major highway. The defendant
continued slowly into a private community. The auxiliary trooper followed him and stayed with the vehicle
until a supervising trooper arrived 10 minutes later. Clearly, this did not take place directly in the presence of
the supervising trooper, but the auxiliary officer had been in constant contact with the FHP dispatcher while
following the vehicle, asked for a trooper, and the supervising trooper called on the radio when the auxiliary
officer activated his lights. Further, the trial judge focused on the exigent circumstances and relied on Stanford
v. State.72

In Stanford,73 the court said:

[T]he requirement that auxiliary officers function while “under the direct
supervision” … [of a regular officer] is met as long as the auxiliary officer is
directly accountable to [a regular officer] who is in the immediate vicinity of the
scene and who has ultimate control of the situation. The degree of supervisory
control necessary would be dependent upon the exigencies created by the
circumstances.

Under the judicial rule, and according to some cases, even under the statutory rule, probable cause may be
established by several officers’ observations. “[W]here one officer calls upon another officer for assistance, the
combined observations of two or more officers may be united to establish the probable cause to arrest.” 74 This is
particularly important because of the requirement that each element of a DUI must be witnessed by a police
officer. Thus, under the fellow officer rule, the observations of several officers can be joined together to provide
the necessary authority for a DUI arrest. However, nonofficers cannot be links in the chain. Thus, security
guards,75 community service officers,76 school administrative personnel,77 and others78 cannot be treated as law
enforcement officers for purposes of justifying an arrest under the fellow officer rule.

Neither the legislative nor judicial approach to the fellow officer rule permits an officer to rely on even clear cut
information from a highly reliable private source to provide probable cause for one of the elements of a
misdemeanor DUI that a police officer has not observed. 79 On the other hand, a three judge circuit court
appellate panel ruled that an arrest by a trooper, who never saw the defendant driving or in actual physical
control of the vehicle, was lawful. 80 The arrest was based solely on what the trooper learned from an off-duty
officer who made the stop and citizen’s arrest of the defendant, and the trooper’s observation of the impaired
condition of the defendant.

Officers may also rely on other officers for things other than assistance in making an arrest or conducting an
investigatory stop. Thus, it was proper for one officer to order a blood test under the fellow officer rule, based
on probable cause developed by another officer. 81 Similarly, it was proper for a municipal officer to ask deputy
sheriffs to videotape field sobriety tests, breath tests, and custodial interrogation. 82

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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 901.15(1), Fla. Stat.
2
§ 901.15(2), (3), Fla. Stat.
3
§ 901.15(1), Fla. Stat.
4
§ 901.15, Fla. Stat.
5
§ 901.15(1) & (5), Fla. Stat. See also Sawyer v. State, 905 So. 2d 232 (Fla. 2d DCA 2005); DeLuce
v. Dep’t of Highway Safety & Motor vehicles, 22 Fla. L. Weekly Supp. 890 (Fla. 15th Cir. Ct. Feb. 26,
2015)DeLuce v. Dep’t of Highway Safety & Motor vehicles, 22 Fla. L. Weekly Supp. 890 (Fla. 15th
Cir. Ct. Feb. 26, 2015) (in a two to one opinion, court ruled arrest unlawful where petitioner was leaning
against vehicle when officer arrived and the evidence was insufficient to show petitioner had keys or
that engine was running; but the court make it clear, it would have upheld the arrest even though
petitioner was outside vehicle, if engine had been running or petitioner had keys in his pocket or in the
ignition); Green v. State, 20 Fla. L. Weekly Supp. 745 (Fla. 4th Cir. Ct. March 14, 2013)Green v. State,
20 Fla. L. Weekly Supp. 745 (Fla. 4th Cir. Ct. March 14, 2013) (officers had probable cause for a DUI
arrest, but no authority to make an arrest because the defendant was standing outside the vehicle with the
keys when the officers arrived, there was no crash, and the community service officer who witnessed
driving was not a law enforcement officer for purposes of the fellow officer rule); Demchenko v. State,
18 Fla. L. Weekly Supp. 496 (Fla. 5th Cir. Ct. Feb. 18, 2011)Demchenko v. State, 18 Fla. L. Weekly
Supp. 496 (Fla. 5th Cir. Ct. Feb. 18, 2011) (arrest was unlawful because officer did not witness driving
or actual physical control where officer responded to call at restaurant and found defendant passed out
behind wheel, engine was not running, defendant displayed indicia of impairment by alcohol, but
employee who was standing next to the vehicle gave keys to officer); Williams v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 651 (Fla. 2d Cir. Ct. Feb. 22, 2006)Williams v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 651 (Fla. 2d Cir. Ct. Feb. 22, 2006);
Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla. 7th Cir. Ct.
Nov. 18, 2005)Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla.
7th Cir. Ct. Nov. 18, 2005); Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. July 27,
2005); State v. Shattuck, 25 Fla. L. Weekly Supp. 465 (Fla. Volusia Cty. Ct. June 29, 2017)State v.
Shattuck, 25 Fla. L. Weekly Supp. 465 (Fla. Volusia Cty. Ct. June 29, 2017) (officer outside her
jurisdiction contacted FHP to investigate minor motorcycle accident; DUI arrest by the trooper was
unlawful because the trooper did not see the defendant drive or in APC and could not rely on the fellow
officer rule as to the elements of DUI because the first officer was acting as a private citizen and trooper
could not rely on the crash investigation exception because there was no evidence that anyone other that
the defendant said the defendant was driving or in APC of the motorcycle); State v. Gibson, 23 Fla. L.
Weekly Supp. 751 (Fla. Leon Cty. Ct. Sept. 15 2015)State v. Gibson, 23 Fla. L. Weekly Supp. 751 (Fla.
Leon Cty. Ct. Sept. 15 2015) (arrest was unlawful because defendant was outside the car when the
officer blocked it, so no officer saw the defendant driving or in APC before the detention; the defendant
acknowledged ownership and entered the car to get the registration after the detention); State v. Jones,
22 Fla. L. Weekly Supp. 968 (Fla. Seminole Cty. Ct. Feb. 20, 2015)State v. Jones, 22 Fla. L. Weekly
Supp. 968 (Fla. Seminole Cty. Ct. Feb. 20, 2015) (officers could not lawfully arrest defendant because
they did not witness driving or APC where drunken defendant was in car in Publix parking lot when
they arrived and Publix employees had removed keys); State v. Shier, 21 Fla. Law Weekly Supp. 843
(Fla. Brevard Cty. Ct. Feb. 19, 2014) (officer did not have authority to arrest even though he had
probable cause for DUI where he did not see driving and did not know defendant was in actual physical
control until he discovered the key in the ignition in a search after the arrest); State v. Alfson, 21 Fla. L.
Weekly Supp. 343 (Fla. Volusia Cty. Ct. Oct. 14, 2013)State v. Alfson, 21 Fla. L. Weekly Supp. 343
(Fla. Volusia Cty. Ct. Oct. 14, 2013) (officer may have had probable cause and authority to detain
defendant while he got a warrant, but he did not have authority to make a warrantless arrest where
defendant was standing in the door frame of car at a closed gas station and tried to pump gas, defendant
appeared to be intoxicated, passenger said they had been at bars and defendant had driven them to the

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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

gas station, and the keys were on the floor board, but the officer never saw defendant driving or in the
car); State v. Heckel, 19 Fla. L. Weekly Supp. 584 (Fla. Sarasota Cty. Ct. March 20, 2012)State v.
Heckel, 19 Fla. L. Weekly Supp. 584 (Fla. Sarasota Cty. Ct. March 20, 2012) (officer had no authority
to arrest the defendant where she was sitting in her car when he arrived, but a civilian had the keys);
State v. Ezell, 18 Fla. L. Weekly Supp. 241 (Fla. Brevard Cty. Ct. Nov. 2, 2010)State v. Ezell, 18 Fla. L.
Weekly Supp. 241 (Fla. Brevard Cty. Ct. Nov. 2, 2010) (arrest was unlawful where employees reported
a drunk driver and camera revealed defendant exiting the vehicle, but the officer only observed
defendant walking from the driver’s side door of vehicle with a child and never saw the defendant in or
on the vehicle); State v. Robinson, 17 Fla. L. Weekly Supp. 1107 (Fla. Lake Cty. Ct. Aug. 18, 2010)
(arrest for driving on a suspended license was unlawful where the driver had been driving on the
roadway but the officer only observed her sitting in a car in a private driveway; no offense occurred in
the officer’s presence because suspended license offenses must occur on the streets or highways); State
v. Corbett, 15 Fla. L. Weekly Supp. 995 (Fla. Lake Cty. Ct. Aug. 20, 2008) State v. Corbett, 15 Fla. L.
Weekly Supp. 995 (Fla. Lake Cty. Ct. Aug. 20, 2008) (deputy had no authority to make an arrest
because he did not witness any driving or actual physical control and there was no evidence that the car
had collided with anything as required by § 316.645, Fla. Stat.; when the deputy arrived, the intoxicated
defendant was outside the vehicle, which was stuck in a private yard, off a passing dirt path used by
cars); State v. Prest, 14 Fla. L. Weekly Supp. 663 (Fla. Volusia Cty. Ct. April 17, 2007)State v. Prest, 14
Fla. L. Weekly Supp. 663 (Fla. Volusia Cty. Ct. April 17, 2007); State v. Wilbert, 12 Fla. L. Weekly
Supp. 1173 (Fla. Volusia Cty. Ct. Sept 6, 2005); State v. Hewitt, 12 Fla. L. Weekly Supp. 771 (Fla.
Volusia Cty. Ct. May 17, 2005)State v. Hewitt, 12 Fla. L. Weekly Supp. 771 (Fla. Volusia Cty. Ct. May
17, 2005).
6
§ 901.15(1) & (5), Fla. Stat.
7
§ 316.645, Fla. Stat. See also Sawyer v. State, 905 So. 2d 232 (Fla. 2d DCA 2005). But note Conrad v.
State, 9 Fla. L. Weekly Supp. 532 (Fla. 17th Cir. Ct. June 11, 2002)But note Conrad v. State, 9 Fla. L.
Weekly Supp. 532 (Fla. 17th Cir. Ct. June 11, 2002) (holding that leaving the scene of an accident is a
continuing offense, and an officer may arrest a person based on information that the officer receives or
observes indicating that the detained suspect is in fact in the process of leaving the scene).
8
§ 901.18, Fla. Stat.
9
Sawyer v. State, 905 So. 2d 232 (Fla. 2d DCA 2005).
10
Noffsinger v. State, 16 Fla. Supp. 2d 119 (Fla. 9th Cir. Ct. 1986).
11
Noffsinger v. State, 16 Fla. Supp. 2d 119 (Fla. 9th Cir. Ct. 1986).
12
State v. Grubman, 40 Fla. Supp. 2d 92 (Fla. 15th Cir. Ct. 1990) (officer lost track of the car for 90
seconds and did not see the defendant until he arrived at the scene of stop by other officers).
13
Prior to 1999 the statute used the term “traffic accident,” but that was changed to read “traffic crash.”
Since the case law frequently uses the term, “accident investigation,” instead of “traffic crash
investigation,” the terms are used interchangeably in this book.
14
§ 316.645, Fla. Stat.; State v. Hemmerly, 723 So. 2d 324 (Fla. 5th DCA 1998). See also Sawyer v. State,
905 So. 2d 232 (Fla. 2d DCA 2005); Bolan v. State, 18 Fla. L. Weekly Supp. 1081 (Fla. 6th Cir. Ct.
Aug. 18, 2011) (a DUI officer who arrived at the scene on his own had the authority to do a DUI
investigation and pursuant to section 316.645 to make an arrest, even though the DUI officer did not do
the crash investigation); Johnson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly
Supp. 440 (Fla. 4th Cir. Ct. Jan. 24, 2011)Johnson v. Dep’t of Highway Safety & Motor Vehicles, 18
Fla. L. Weekly Supp. 440 (Fla. 4th Cir. Ct. Jan. 24, 2011) (officer had probable cause for DUI arrest
where while investigating an accident, he was advised that defendant was the driver and while passenger
and defendant initially indicated that passenger was driving, they both admitted defendant was driving
and during questioning of defendant the officer noticed that defendant had bloodshot and watery eyes,
slurred speech, was unsteady on his feet, and had to use stationary items for balance); Mburu v. Dep’t of
Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 432 (Fla. 3d Cir. Ct. Dec. 7, 2010)Mburu
v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 432 (Fla. 3d Cir. Ct. Dec. 7,
2010) (DUI arrest was lawful where officer was investigating accident, did not see defendant driving,

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§ 4:14.Officer’s authority to arrest, 11 Fla. Prac., DUI Handbook § 4:14 (2018-2019 ed.)

there was no evidence anyone else was driving, no dispute defendant owned vehicle, no one else in the
vehicle, officer received a report of reckless driver involved in a crash, defendant was standing outside
wrecked car, and had alcohol on his breath, admitted drinking, could not successfully complete FSEs,
and three eye-witnesses reported defendant driving recklessly and crashing.); Kronen v. Dep’t of
Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. Nov. 3, 2010) Kronen v.
Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. Nov. 3, 2010)
(officer had probable cause for DUI where, while investigating a single car accident, he found defendant
alone near his vehicle and defendant had an odor of alcoholic beverage on his breath, bloodshot and
watery eyes, slurred speech, and was unsteady on his feet); Moore v. Dep’t of Highway Safety & Motor
Vehicles, 16 Fla. L. Weekly Supp. 1124 (Fla. 9th Cir. Ct. Oct. 23, 2009) (officer had probable cause for
DUI arrest where the officer approached the scene of an accident, saw defendant standing outside her
vehicle and she admitted driving home from a club, defendant had red and glassy eyes, strong odor of an
alcoholic beverage, slurred speech, stumbled, performed poorly on FSEs); State v. Hooks, 15 Fla. L.
Weekly Supp. 886 (Fla. 17th Cir. Ct. June 30, 2008)State v. Hooks, 15 Fla. L. Weekly Supp. 886 (Fla.
17th Cir. Ct. June 30, 2008)(arrest was not supported by section 316.645 because the arresting officer
did not observe the accident, driving, or actual physical control, interview witnesses, or otherwise
investigate to determine the circumstances; the officer only did the DUI investigation after the accident);
State v. Catapano, 15 Fla. L. Weekly Supp. 337 (Fla. 17th Cir. Ct. Jan. 9, 2008)State v. Catapano, 15
Fla. L. Weekly Supp. 337 (Fla. 17th Cir. Ct. Jan. 9, 2008) (second deputy to arrive at scene of accident
had probable cause and authority to arrest based on his independent observations of the defendant’s
condition, performance of voluntary sobriety exercises, and non-privileged information provided by first
deputy to arrive on the scene); Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. July
27, 2005) (officer did not see defendant driving, however, other officer’s knowledge was imputed to
investigating officer, and together with officer’s personal investigation, established probable cause for
DUI); State v. Zachary, 11 Fla. L. Weekly Supp. 709 (Fla. 17th Cir. Ct. April 27, 2004)State v. Zachary,
11 Fla. L. Weekly Supp. 709 (Fla. 17th Cir. Ct. April 27, 2004) (officer’s observations at scene of
Defendant’s blood shot eyes, slurred speech, and inability to perform field sobriety tests established
probable cause); State v. Morgan, 9 Fla L. Weekly Supp. 229 (Fla. 17th Cir. Ct. Jan. 28, 2002) State v.
Morgan, 9 Fla L. Weekly Supp. 229 (Fla. 17th Cir. Ct. Jan. 28, 2002) (officer’s personal investigation at
the scene of the accident, including surveying the accident scene and administering roadside sobriety
exercises, was sufficient to establish probable cause and permit an arrest); State v. Mayer, 22 Fla. L.
Weekly Supp. 941 (Fla. Volusia Cty. Ct. March 5, 2015)State v. Mayer, 22 Fla. L. Weekly Supp. 941
(Fla. Volusia Cty. Ct. March 5, 2015) (the arresting officer did a DUI investigation while other officers
did the accident investigation; the trial judge concluded that the personal investigation required by the
statute need not be the crash investigation, “instead, it is sufficient that the officer conduct the DUI
investigation at the scene of a motor vehicle accident.”); State v. Sherk, 20 Fla. L. Weekly Supp. 597
(Fla. Duval Cty. Ct. Nov. 16, 2012)State v. Sherk, 20 Fla. L. Weekly Supp. 597 (Fla. Duval Cty. Ct.
Nov. 16, 2012) (a DUI investigator who was called to the scene, but did not do the crash investigation,
had no authority to make an arrest; the statute requires the arresting officer to personally investigate the
crash); State v. Ingoldsby, 17 Fla. L. Weekly Supp. 1108 (Fla. Volusia Cty. Ct. May 18, 2010) (trooper
had probable cause for DUI arrest where he was investigating two car accident on the interstate and saw
defendant leaning or standing close to one car and driver of other car, which had rear-end damage, was
leaning against it; registrations showed that the individuals owned the cars they were closest to,
defendant smelled of alcohol and had slurred speech, defendant did not do well on FSEs; no one else
except law enforcement was on the scene); State v. French, 45 Fla. Supp. 2d 98 (Fla. St. Lucie Cty. Ct.
1990) (arrest of defendant by officer who had not witnessed any of the elements of DUI could not be
justified pursuant to the accident investigation exception where the officer arrested the defendant before
conducting the investigation; “The statute clearly requires an arresting officer to visit the actual scene of
the accident and conduct a personal investigation in order to have probable cause to arrest.”).
15
Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. July 27, 2005) (authority to arrest
applied to officer doing a DUI investigation); Mandemaker v. State, 10 Fla. L. Weekly Supp. 688 (Fla.
17th Cir. Ct. June 18, 2003)Mandemaker v. State, 10 Fla. L. Weekly Supp. 688 (Fla. 17th Cir. Ct. June
18, 2003) (where officer was called to scene of possible traffic accident, but defendant denied she was
involved in a crash and officer could not determine whether there was an accident, arrest was still lawful
because “any officer who conducts any investigation at the scene of a traffic accident may establish
sufficient probable cause.” (emphasis by court)); State v. Roi, 6 Fla. L. Weekly Supp. 359 (Fla. Broward
Cty. Ct. March 31, 1999)State v. Roi, 6 Fla. L. Weekly Supp. 359 (Fla. Broward Cty. Ct. March 31,
1999). See also State v. Johnson, 7 Fla. L. Weekly Supp. 485 (Fla. Broward. Cty. Ct. March 29, 2000)7
Fla. L. Weekly Supp. 485 (Fla. Broward. Cty. Ct. March 29, 2000); State v. Donnelly, 7 Fla. L. Weekly

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Supp. 411 (Fla. Broward Cty. Ct. March 7, 2000)State v. Donnelly, 7 Fla. L. Weekly Supp. 411 (Fla.
Broward Cty. Ct. March 7, 2000).
16
Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. July 27, 2005).
17
Sowinski v. State, 12 Fla. L. Weekly Supp. 1140 (Fla. 17th Cir. Ct. July 27, 2005); See also Cuciak v.
State, 18 Fla. L. Weekly Supp. 716 (Fla. 17th Cir. Ct. June 27, 2011)Cuciak v. State, 18 Fla. L. Weekly
Supp. 716 (Fla. 17th Cir. Ct. June 27, 2011) (arrest was lawful under the fellow officer rule, where
officer did an accident investigation, developed probable cause and communicated the information to the
arresting officer who came to the scene; defendant had already been transported to the hospital, so
arresting officer went to the hospital to do a DUI investigation); Harper v. Dep’t of Highway Safety &
Motor Vehicles, 11 Fla. L. Weekly Supp. 688 (Fla. 9th Cir. Ct. Dec. 5, 2003) Harper v. Dep’t of
Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 688 (Fla. 9th Cir. Ct. Dec. 5, 2003);
Mandemaker v. State, 10 Fla. L. Weekly Supp. 688 (Fla. 17th Cir. Ct. June 18, 2003)Mandemaker v.
State, 10 Fla. L. Weekly Supp. 688 (Fla. 17th Cir. Ct. June 18, 2003); State v. Carreau, 10 Fla. L.
Weekly Supp. 484 (Fla. 17th Cir. Ct. May 2, 2003)State v. Carreau, 10 Fla. L. Weekly Supp. 484 (Fla.
17th Cir. Ct. May 2, 2003); State v. Lawson, 10 Fla. L. Weekly Supp. 400 (Fla. 17th Cir. Ct. April 6,
2003)State v. Lawson, 10 Fla. L. Weekly Supp. 400 (Fla. 17th Cir. Ct. April 6, 2003); Zaman v. State, 9
Fla. L. Weekly Supp. 675 (Fla. 17th Cir. Ct. July 22, 2002)Zaman v. State, 9 Fla. L. Weekly Supp. 675
(Fla. 17th Cir. Ct. July 22, 2002); State v. Glasser, 9 Fla. L. Weekly Supp. 676 (Fla. 17th Cir. Ct. July 7,
2002)State v. Glasser, 9 Fla. L. Weekly Supp. 676 (Fla. 17th Cir. Ct. July 7, 2002) (officer had authority
to make a DUI arrest as a result of an accident investigation where the officer spoke to two other officers
who explained their investigation, talked with two witnesses who observed the accident, saw the
defendant behind the wheel before she exited, heard the defendant admit driving, and saw the defendant
perform field sobriety exercises); Anderson v. State, 9 Fla. L. Weekly Supp. 455 (Fla. 17th Cir. Ct. May
21, 2002)Anderson v. State, 9 Fla. L. Weekly Supp. 455 (Fla. 17th Cir. Ct. May 21, 2002) (where parties
moved cars involved in accident to police station, officer had authority and probable cause to arrest the
driver of one of the cars based upon personal observations, sobriety test results, information involving
an indentation and paint transfer provided by another officer, and statements of the defendant and others
involved in the accident); State v. Visnic, 8 Fla. L. Weekly Supp. 811 (Fla. 17th Cir. Ct. July 25,
2001)State v. Visnic, 8 Fla. L. Weekly Supp. 811 (Fla. 17th Cir. Ct. July 25, 2001) ; Carranza v. State, 8
Fla. L. Weekly Supp. 698 (Fla. 13th Cir. Ct. Aug. 14, 2001)Carranza v. State, 8 Fla. L. Weekly Supp.
698 (Fla. 13th Cir. Ct. Aug. 14, 2001) (where one officer had probable cause to order a blood draw, it
was unnecessary for the officer to tell the officer who ordered the blood what the basis for the draw was,
because one officer’s knowledge is imputed to the other); State v. Harris, 16 Fla. L. Weekly Supp. 1063
(Fla. Volusia Cty. Ct. Aug. 17, 2009) (second officer to arrive at scene of crash lawfully arrested
defendant based on officer’s personal investigation as required by section 316.645 where he consulted
with first officer to arrive, and second officer saw that defendant was only one at scene other than law
enforcement personnel and a tow truck driver and observed signs of impairment by alcohol confirmed
by FSEs). But see State v. Miller, 10 Fla. L. Weekly Supp. 165 (Fla. 17th Cir. Ct. Jan. 30, 2003) FSEs).
But see State v. Miller, 10 Fla. L. Weekly Supp. 165 (Fla. 17th Cir. Ct. Jan. 30, 2003) (fellow officer
rule applies to accident investigation, but in this case the information provided by one officer to the
arresting officer as to who was driving consisted of hearsay, which the trial judge found not to be
trustworthy, reliable, or credible, and the appellate court deferred to the trial court’s findings); State v.
Denton, 14 Fla. L. Weekly Supp. 785 (Fla. Broward Cty Ct. June 11, 2007)State v. Denton, 14 Fla. L.
Weekly Supp. 785 (Fla. Broward Cty Ct. June 11, 2007); State v. Garcia, 13 Fla. L. Weekly Supp. 1232
(Fla. Broward Cty. Ct. Sept. 15, 2006).
18
State v. Kramer, 47 Fla. Supp. 2d 58 (Fla. 17th Cir. Ct. 1991) ( § 316.645, Fla. Stat., does not authorize
an arrest by an officer who did not conduct an investigation at the scene, meaning one officer cannot
arrest based solely on another officer’s investigation). See also Sisois v. Dep’t of Highway Safety &
Motor Vehicles, 22 Fla. L. Weekly Supp. 872 (Fla. 6th Cir. Ct. March 5, 2015)Sisois v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 872 (Fla. 6th Cir. Ct. March 5, 2015)
(officer who didn’t witness driving or APC couldn’t make arrest pursuant to § 316.645, Fla. Stat. where
he did not do an independent investigation of the single car crash, interview witnesses, independently
verify petitioner was driving and observed petitioner just to determine whether she was under the
influence; knowledge of officer who actually investigated crash was not sufficient under fellow officer
rule because he did not have first hand knowledge petitioner was behind wheel at time of crash and
never saw her in APC of the vehicle, instead he was informed by two nonofficer witnesses that they
heard the crash and saw the defendant behind the wheel); Peck v. Dep’t of Highway Safety & Motor

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Vehicles, 18 Fla. L. Weekly Supp. 438 (Fla. 4th Cir. Ct. Feb. 10, 2011)Peck v. Dep’t of Highway Safety
& Motor Vehicles, 18 Fla. L. Weekly Supp. 438 (Fla. 4th Cir. Ct. Feb. 10, 2011) (deputy had authority
to make an arrest pursuant to § 316.645, Fla. Stat., where deputy was called to the gate of a military base
and saw defendant sitting in car without control of keys, but there were signs that defendant had recently
been in a traffic crash; it did not matter that the crash was at an undetermined location or that the deputy
had been dispatched to a DUI rather than an accident); State v. Mazurak, 17 Fla. L. Weekly Supp. 825
(Fla. Orange Cty. Ct. June 1, 2010)State v. Mazurak, 17 Fla. L. Weekly Supp. 825 (Fla. Orange Cty. Ct.
June 1, 2010); State v. Quigley, 39 Fla. Supp. 2d 146 (Fla. Escambia Cty. Ct. 1990).
19
Ross v. State, 215 So. 2d 33 (Fla. 1st DCA 1968). See also State v. Quigley, 39 Fla. Supp. 2d 146
(Fla. Escambia Cty. Ct. 1990).
20
State v. Hewitt, 12 Fla. L. Weekly Supp. 771 (Fla. Volusia Cty. Ct. May 17, 2005) State v. Hewitt, 12
Fla. L. Weekly Supp. 771 (Fla. Volusia Cty. Ct. May 17, 2005).
21
Runyon v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 588 (Fla. 13th Cir. Ct.
June 13, 2003)Runyon v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 588
(Fla. 13th Cir. Ct. June 13, 2003).
22
State, Dept. of Highway Safety and Motor Vehicles v. Williams, 937 So. 2d 815 (Fla. 1st DCA
2006).
23
State, Dept. of Highway Safety and Motor Vehicles v. Williams, 937 So. 2d 815 (Fla. 1st DCA
2006). See also State v. Moseley, 26 Fla. L. Weekly Supp. 90 (Fla. 12th Cir. Ct. June 8, 2018) State v.
Moseley, 26 Fla. L. Weekly Supp. 90 (Fla. 12th Cir. Ct. June 8, 2018) (reversed trial court finding that
DUI arrest based on crash investigation was unlawful because the officer observed no damage; appellate
court ruled Fla. Stat. § 316.645 requires only a collision not actual damage); Peck v. Dep’t of Highway
Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 438 (Fla. 4th Cir. Ct. Feb. 10, 2011)Peck v. Dep’t of
Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 438 (Fla. 4th Cir. Ct. Feb. 10, 2011)
(scraps and dirt and weeds in bumper area indicating a recent crash was sufficient to invoke the
authority set forth in § 316.645, Fla. Stat.).
24
State, Dept. of Highway Safety and Motor Vehicles v. Williams, 937 So. 2d 815, 817 (Fla. 1st DCA
2006).
25
State v. Prest, 14 Fla. L. Weekly Supp. 663 (Fla. Volusia Cty. Ct. April 17, 2007)State v. Prest, 14 Fla.
L. Weekly Supp. 663 (Fla. Volusia Cty. Ct. April 17, 2007).
26
State v. Prest, 14 Fla. L. Weekly Supp. 663 (Fla. Volusia Cty. Ct. April 17, 2007)State v. Prest, 14 Fla.
L. Weekly Supp. 663 (Fla. Volusia Cty. Ct. April 17, 2007). See also State v. Osheim, 22 Fla. L. Weekly
Supp. 115 (Fla. Volusia Cty. Ct. May 21, 2014)State v. Osheim, 22 Fla. L. Weekly Supp. 115 (Fla.
Volusia Cty. Ct. May 21, 2014) (officer had no authority to make arrest pursuant to § 316.645, Fla. Stat.
where it was reported that a vehicle hit a guardrail, officer saw dented vehicle in a parking lot, but there
was no evidence of property damage to other property and no officer actually went to see the guardrail);
State v. Corbett, 15 Fla. L. Weekly Supp. 995 (Fla. Lake Cty. Ct. Aug. 20, 2008)State v. Corbett, 15 Fla.
L. Weekly Supp. 995 (Fla. Lake Cty. Ct. Aug. 20, 2008) (deputy had no authority to make an arrest
because he did not witness any driving or actual physical control and there was no evidence that the car
had collided with anything as required by § 316.645, Fla. Stat.; when the deputy arrived, the intoxicated
defendant was outside the vehicle, which was stuck in a private yard, off a passing dirt path used by
cars).
27
State v. Callaway, 15 Fla. L. Weekly Supp. 111 (Fla. 9th Cir. Ct. Oct. 10, 2007)State v. Callaway, 15
Fla. L. Weekly Supp. 111 (Fla. 9th Cir. Ct. Oct. 10, 2007).
28
State v. Callaway, 15 Fla. L. Weekly Supp. 111 (Fla. 9th Cir. Ct. Oct. 10, 2007)State v. Callaway, 15
Fla. L. Weekly Supp. 111 (Fla. 9th Cir. Ct. Oct. 10, 2007) (the evidence was sufficient where another
driver testified that the defendant hit her vehicle from behind, that the defendant’s vehicle had a lot of
damage, and she told the trooper what happened).

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29
State v. Elder, 975 So. 2d 481 (Fla. 2d DCA 2007), review denied, 970 So. 2d 342 (Fla. 2007).
30
Gaulden v. State, 195 So.3d 1123 (Fla. 2016).
31
Gaulden v. State, 195 So.3d 1123, 1128 (Fla. 2016). See also Daugherty v. State, 207 So.3d 980 (Fla.
5th DCA 2016).
32
In re Standard Jury Instructions in Criminal Cases-Report 2017, 236 So.3d 244, 248 (Fla. 2018) (“A
vehicle is ‘involved in a crash’ if it collides with another vehicle, person, or object”).
33
Voorhees v. State, 699 So. 2d 602 (Fla. 1997). See also Montes-Valeton v. State, 216 So.3d 475 (Fla.
2017); State v. Bowers, 87 So.3d 704 (Fla. 2012); State v. Watson, 187 So.3d 349, 351 (Fla. 5th
DCA 2016); Dewberry v. State, 905 So. 2d 963 (Fla. 5th DCA 2005); State v. Bagley, 844 So. 2d 688
(Fla. 3d DCA 2003) (officer need not have an independent basis for arrest); State, Dept. of Highway
Safety and Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001); State v. Ellis, 11 Fla. L. Weekly
Supp. 15 (Fla. 17th Cir. Ct. Oct. 13, 2003)State v. Ellis, 11 Fla. L. Weekly Supp. 15 (Fla. 17th Cir. Ct.
Oct. 13, 2003) (it is sufficient for initiating officer to have probable cause, but if that officer’s
knowledge is based exclusively on hearsay, the trial judge must assess its “trustworthiness, reliability,
and credibility”). Carranza v. State, 8 Fla. L. Weekly Supp. 698 (Fla. 13th Cir. Ct. Aug. 14,
2001)Carranza v. State, 8 Fla. L. Weekly Supp. 698 (Fla. 13th Cir. Ct. Aug. 14, 2001); State v. Joseph, 8
Fla. L. Weekly Supp. 545 (Fla. 17th Cir. Ct. May 15, 2001)State v. Joseph, 8 Fla. L. Weekly Supp. 545
(Fla. 17th Cir. Ct. May 15, 2001).
34
Voorhees v. State, 699 So. 2d 602 (Fla. 1997). See also Montes-Valeton v. State, 216 So.3d 475 (Fla.
2017); State v. Bowers, 87 So.3d 704 (Fla. 2012); State v. Watson, 187 So.3d 349, 351 (Fla. 5th
DCA 2016); State v. Bagley, 844 So. 2d 688 (Fla. 3d DCA 2003); State v. McDonald, 826 So. 2d 1081
(Fla. 4th DCA 2002); Department of Highway Safety and Motor Vehicles v. Currier, 824 So. 2d 966
(Fla. 1st DCA 2002); State, Dept. of Highway Safety and Motor Vehicles v. Porter, 791 So. 2d 32
(Fla. 2d DCA 2001); A.J.M. v. State, 746 So. 2d 1222 (Fla. 3d DCA 1999); Smith v. State, 719 So.
2d 1018 (Fla. 3d DCA 1998); State v. Martinez, 7 Fla. L. Weekly Supp. 143 (Fla. Broward Cty. Ct. Oct.
13, 1999)State v. Martinez, 7 Fla. L. Weekly Supp. 143 (Fla. Broward Cty. Ct. Oct. 13, 1999).
35
State v. Boatman, 901 So. 2d 222 (Fla. 2d DCA 2005). See also Bowers v. State, 23 So. 3d 767 (Fla. 2d
DCA 2009), decision approved, 87 So. 3d 704 (Fla. 2012); Department of Highway Safety, Motor
Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998); Lathrop v. State, 20 Fla. L. Weekly Supp.
1145 (Fla. 17th Cir. Ct. July 31, 2013); Monk v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 969 (Fla. 13th Cir. Ct. Sept. 8, 2004)Monk v. Dep’t of Highway Safety & Motor
Vehicles, 11 Fla. L. Weekly Supp. 969 (Fla. 13th Cir. Ct. Sept. 8, 2004); State v. Denton, 14 Fla. L.
Weekly Supp. 785 (Fla. Brevard Cty. Ct. June 11, 2007)State v. Denton, 14 Fla. L. Weekly Supp. 785
(Fla. Brevard Cty. Ct. June 11, 2007).
36
State v. Boatman, 901 So. 2d 222 (Fla. 2d DCA 2005); Department of Highway Safety, Motor Vehicles
v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998). See also Huebner v. State, 731 So. 2d 40 (Fla. 4th
DCA 1999) (applies fellow officer rule to fresh pursuit); State v. Hooks, 15 Fla. L. Weekly Supp. 886
(Fla. 17th Cir. Ct. June 30, 2008)State v. Hooks, 15 Fla. L. Weekly Supp. 886 (Fla. 17th Cir. Ct. June
30, 2008) (arresting officer who focused exclusively on DUI investigation could not rely on information
provided by officer who was investigating accident because that officer did not witness the accident, did
not see who was driving, and did not provide necessary information for a DUI).
37
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017); Johnson v. State, 660 So. 2d 648, 657–58 (Fla.
1995), cert. denied, 517 U.S. 1159, 116 S. Ct. 1550, 134 L. Ed. 2d 653 (1996). Dewberry v. State, 905
So. 2d 963 (Fla. 5th DCA 2005); Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998). State, Dept.
of Highway Safety and Motor Vehicles v. Shonyo, 659 So. 2d 352 (Fla. 2d DCA 1995); Werle v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664 (Fla. 9th Cir. Ct. Feb. 20,
2006)Werle v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664 (Fla. 9th Cir.

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Ct. Feb. 20, 2006); Helligar v. State, 11 Fla. L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11,
2004)Helligar v. State, 11 Fla. L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004) (The court held
that if the officer with probable cause never conveys any information to the detaining officer and there is
no testimony as to the basis for the detaining officer’s action, the fellow officer rule does not apply). But
see Dickerson v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 122 (Fla. 9th Cir.
Ct. Nov. 15, 2005)Dickerson v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp.
122 (Fla. 9th Cir. Ct. Nov. 15, 2005) (under fellow officer rule, where officers were in close time-space
proximity, no evidence that one officer communicated information to the other was required); State v.
Seltzer, 9 Fla. L. Weekly Supp. 32 (Fla. 17th Cir. Ct. Nov. 20, 2001)State v. Seltzer, 9 Fla. L. Weekly
Supp. 32 (Fla. 17th Cir. Ct. Nov. 20, 2001) (“Once information is obtained by any officer, it is imputed
to all the other officers. Johnson v. State, 660 So. 2d 648, 657 (Fla. 1995). The rule does not require
that the information actually be communicated to the arresting officer as long as the information exists.
Voorhees v. State, 699 So. 2d 602, 610 (Fla. 1997).”); State v. Boase, 16 Fla. L. Weekly Supp. 691
(Fla. Brevard Cty. Ct. April 14, 2009)State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard Cty. Ct.
April 14, 2009) (it is not necessary under the fellow officer rule for the stopping officer to tell the
arresting officer the reason for the stop; the officer made the stop because he saw the vehicle pass over
the double line three times with the driver side front and rear tires going over the line, vehicle going to
the left and then to the right three times; this knowledge was imputed to the arresting officer).
38
Strickroth v. State, 963 So.2d 366, 368 (note 1) (Fla. 2d DCA 2007).
39
Montes-Valeton v. State, 216 So.3d 475,479 (Fla. 2017).
40
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017).
41
State v. Bowers, 87 So.3d 704 (Fla. 2012); Johnson v. State, 660 So. 2d 648, 657–58 (Fla. 1995),
cert. denied, 517 U.S. 1159, 116 S. Ct. 1550, 134 L. Ed. 2d 653 (1996); Voorhees v. State, 699 So.2d
602 (Fla. 1997). But see State v. James, 25 Fla. L. Weekly Supp. 543 (Fla. Volusia Cty. Ct. July 19,
2017)State v. James, 25 Fla. L. Weekly Supp. 543 (Fla. Volusia Cty. Ct. July 19, 2017) (trial judge ruled
that Montes-Valton means that “in order for the fellow officer rule to apply, the information establishing
probable cause for the arrest must be communicated directly from the officer possessing the knowledge
to the officer who will be making the arrest.”).
42
Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013).
43
Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013).
44
Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013).
45
State v. Adderly, 809 So. 2d 75 (Fla. 4th DCA 2002). See also Anderson v. State, 9 Fla. L. Weekly
Supp. 455 (Fla. 17th Cir. Ct. May 21, 2002)Anderson v. State, 9 Fla. L. Weekly Supp. 455 (Fla. 17th
Cir. Ct. May 21, 2002).
46
Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013).
47
State v. Adderly, 809 So. 2d 75 (Fla. 4th DCA 2002).
48
Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001) (rejected by, Bowers v. State, 23 So. 3d 767
(Fla. 2d DCA 2009)) and (disapproved of by, State v. Bowers, 87 So. 3d 704 (Fla. 2012)).
49
Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA 2009), decision approved, 87 So. 3d 704 (Fla. 2012).
50
Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001) (rejected by, Bowers v. State, 23 So. 3d 767
(Fla. 2d DCA 2009)) and (disapproved of by, State v. Bowers, 87 So. 3d 704 (Fla. 2012)).

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51
Bowers v. State, 23 So. 3d 767, 770 (Fla. 2d DCA 2009), decision approved, 87 So. 3d 704 (Fla.
2012).
52
State v. Bowers, 87 So. 3d 704 (Fla. 2012), review denied 817 So. 2d 846 (Fla. 2002).
53
Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001) (rejected by, Bowers v. State, 23 So. 3d 767
(Fla. 2d DCA 2009)) and (disapproved of by, State v. Bowers, 87 So. 3d 704 (Fla. 2012)).
54
Bowers v. State, 23 So. 3d 767 (Fla. 2d DCA 2009), decision approved, 87 So. 3d 704 (Fla. 2012).
55
Lee, The Fellow Officer Rule and the Officer’s Assistance Statute in Florida; Separate Assessments of
Probable Cause, 73 Fla. B.J. 55 (Dec. 1999).
56
Lee, The Fellow Officer Rule and the Officer’s Assistance Statute in Florida; Separate Assessments of
Probable Cause, 73 Fla. B.J. 55 (Dec. 1999). See also De Arment v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 652 (Fla. 4th Cir. Ct. Dec. 22, 2016)De Arment v. Dep’t of Highway
Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 652 (Fla. 4th Cir. Ct. Dec. 22, 2016).
57
Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999); Riehle v. Dep’t of Highway Safety & Motor
Vehicles, 684 So. 2d 823 (Fla. 2d DCA 1996), review denied, 686 So. 2d 576 (Fla. 1996).
58
Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999); Riehle v. Dep’t of Highway Safety & Motor
Vehicles, 684 So. 2d 823 (Fla. 2d DCA 1996), review denied, 686 So. 2d 576 (Fla. 1996).
59
Lee, The Fellow Officer Rule and the Officer’s Assistance Statute in Florida; Separate Assessments of
Probable Cause, 73 Fla. B.J. 55 (Dec. 1999).
60
Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998). See also A.J.M. v. State, 746 So. 2d 1222 (Fla.
3d DCA 1999).
61
§ 901.18, Fla. Stat.
62
State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990).
63
Department of Highway Safety, Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998); State
v. Ostrow, 579 So. 2d 292 (Fla. 3d DCA 1991); State v. Mahoy, 575 So. 2d 779 (Fla. 5th DCA 1991);
McClendon v. State, 440 So. 2d 52 (Fla. 1st DCA 1983). See also State v. Sherman, 7 Fla. L. Weekly
Supp. 50 (Fla. Manatee Cty. Ct. Feb. 5, 1999)State v. Sherman, 7 Fla. L. Weekly Supp. 50 (Fla. Manatee
Cty. Ct. Feb. 5, 1999); Katzenberg v. Dep’t of Highway Safety & Motor Vehicles, 2 Fla. L. Weekly
Supp. 366 (Fla. 18th Cir. Ct. June 3, 1994)Katzenberg v. Dep’t of Highway Safety & Motor Vehicles, 2
Fla. L. Weekly Supp. 366 (Fla. 18th Cir. Ct. June 3, 1994).
64
State v. Curtiss, 23 Fla. Supp. 2d 99 (Fla. Dade Cty. Ct. 1987).
65
State v. Curtiss, 23 Fla. Supp. 2d 99 (Fla. Dade Cty. Ct. 1987).
66
State v. Hollis, 28 Fla. Supp. 2d 18 (Fla. Palm Beach Cty. 1988); State v. Russell, 23 Fla. Supp. 2d 73
(Fla. Palm Beach Cty. 1987).
67
McClendon v. State, 440 So. 2d 52 (Fla. 1st DCA 1983).
68
Huebner v. State, 731 So.2d 40 (Fla. 4th DCA 1999). See also State v. Doskik, 22 Fla. L. Weekly
Supp. 190 (Fla. 17th Cir. Ct. Sept. 17, 2014)State v. Doskik, 22 Fla. L. Weekly Supp. 190 (Fla. 17th Cir.
Ct. Sept. 17, 2014).
69
Riehle v. Dep’t of Highway Safety & Motor Vehicles, 684 So.2d 823 (Fla. 2d DCA 1996), review
denied, 686 So.2d 576 (Fla. 1996).
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70
Fla. Stat. Ann. § 321.24(2).
71
State v. Collins, 26 Fla. L. Weekly Supp. 60State v. Collins, 26 Fla. L. Weekly Supp. 60 (Fla. Indian
River Cty. Ct. Match 19, 2018).
72
Stanford v. State, 415 So. 2d 879 (Fla. 1st DCA 1982).
73
Stanford v. State, 415 So. 2d 879, 881 (Fla. 1st DCA 1982).
74
Steiner v. State, 690 So. 2d 706, 708 (Fla. 4th DCA 1997). See also Sawyer v. State, 905 So. 2d 232
(Fla. 2d DCA 2005); Department of Highway Safety, Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla.
5th DCA 1998); State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990); Bolek v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 215 (Fla. 6th Cir. Ct. Dec. 16, 2005)Bolek v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 215 (Fla. 6th Cir. Ct. Dec. 16, 2005) ;
Zaffran v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 628 (Fla. 9th Cir. Ct.
April 1, 2005)Zaffran v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 628 (Fla.
9th Cir. Ct. April 1, 2005); Bryson v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly
Supp. 520 (Fla. 9th Cir. Ct. Feb. 17, 2004)Bryson v. Dep’t of Highway Safety & Motor Vehicles, 11
Fla. L. Weekly Supp. 520 (Fla. 9th Cir. Ct. Feb. 17, 2004); State v. Goodenough, 10 Fla. L. Weekly
Supp. 471 (Fla. 9th Cir. Ct. Nov. 14, 2002)State v. Goodenough, 10 Fla. L. Weekly Supp. 471 (Fla. 9th
Cir. Ct. Nov. 14, 2002); Pino v. State, 8 Fla. L. Weekly Supp. 26 (Fla. 17th Cir. Ct. May 22, 2000)Pino
v. State, 8 Fla. L. Weekly Supp. 26 (Fla. 17th Cir. Ct. May 22, 2000); Smith v. State, 8 Fla. L. Weekly
Supp. 21 (Fla. 17th Cir. Ct. June 12, 2000)Smith v. State, 8 Fla. L. Weekly Supp. 21 (Fla. 17th Cir. Ct.
June 12, 2000); State v. Martinez, 7 Fla. L. Weekly Supp. 143 (Fla. Broward Cty. Ct. Oct. 13,
1999)State v. Martinez, 7 Fla. L. Weekly Supp. 143 (Fla. Broward Cty. Ct. Oct. 13, 1999); State v.
Sherman, 7 Fla. L. Weekly Supp. 50 (Fla. Manatee Cty. Ct. Feb. 5, 1999)State v. Sherman, 7 Fla. L.
Weekly Supp. 50 (Fla. Manatee Cty. Ct. Feb. 5, 1999); State v. Manzie, 6 Fla. L. Weekly Supp. 233
(Fla. Broward Cty. Ct. Jan. 15, 1999)State v. Manzie, 6 Fla. L. Weekly Supp. 233 (Fla. Broward Cty. Ct.
Jan. 15, 1999).
75
Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997). See also State v. Lord, 150 So.3d 260 (Fla. 1st
DCA 2014) (Walmart loss prevention employee was not a fellow officer for purposes of an officer
making an arrest for a misdemeanor that did not occur in the officer’s presence); Carnagey v. Dep’t. of
Highway Safety & Motor Vehicles, 2000 WL 34509019 (Fla. 16th Cir. Ct. March 14, 2000) , cert.
denied, 763 So.2d 332 (Fla. 3d DCA 2000).
76
Mitchell v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 729 (Fla. 7th Cir. Ct.
April 15, 2010)Mitchell v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 729
(Fla. 7th Cir. Ct. April 15, 2010) (information from community service officer could not be imputed to
arresting officer; the DUI arrest was still valid because a trooper saw defendant driving at a “‘high rate
of speed on two blown tires,’” city officer saw defendant drive by, third officer saw defendant standing
outside his vehicle, and arresting officer detected a strong odor and concluded defendant was driver
reported to have blown out his tires). See also Green v. State, 20 Fla. L. Weekly Supp. 745 (Fla. 4th Cir.
Ct. March 14, 2013)Green v. State, 20 Fla. L. Weekly Supp. 745 (Fla. 4th Cir. Ct. March 14, 2013)
(officers had probable cause for a DUI arrest, but no authority to make an arrest because the defendant
was standing outside the vehicle with the keys when the officers arrived, there was no crash, and the
community service officer who witnessed driving was not a law enforcement officer for purpose of the
fellow officer rule); State v. Gibson, 23 Fla. L. Weekly Supp. 751 (Fla. Leon Cty. Ct. Sept. 15
2015)State v. Gibson, 23 Fla. L. Weekly Supp. 751 (Fla. Leon Cty. Ct. Sept. 15 2015) (arrest was
unlawful because defendant was outside the car when the officer blocked it, so no officer saw the
defendant driving or in APC before the detention; the defendant acknowledged ownership and entered
the car to get the registration after the detention).
77
M.W. v. State, 51 So. 3d 1220, 264 Ed. Law Rep. 512 (Fla. 2d DCA 2011).
78
De Arment v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 652 (Fla. 4th Cir.
Ct. Dec. 22, 2016)De Arment v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp.
652 (Fla. 4th Cir. Ct. Dec. 22, 2016) (arrest for DUI was unlawful because the officer relied on
information provided by a federal employee, an officer of the Department of Defense, who did not have

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the authority to enforce state law and did not meet the definition of an officer under Florida Statutes);
Boermeester v. State, 15 Fla. L. Weekly Supp. 576 (Fla. 13th Cir. Ct. Jan. 23, 2008)Boermeester v.
State, 15 Fla. L. Weekly Supp. 576 (Fla. 13th Cir. Ct. Jan. 23, 2008) (officer could not arrest defendant
for DUI because the officer arrived on the scene of the stop, the keys had been taken and defendant
could not operate the vehicle; therefore, the officer did not witness the element of actual physical control
and the officer could not rely on information provided by an air force sergeant whose job included
preventing unauthorized entry onto an air force base and who observed the defendant driving, because
that sergeant was not a law enforcement officer); State v. Duran-Elizarraga, 25 Fla. L. Weekly Supp.
105 (Fla. Manatee Cty Ct. March 20, 2017)State v. Duran-Elizarraga, 25 Fla. L. Weekly Supp. 105 (Fla.
Manatee Cty Ct. March 20, 2017) (a DUI arrest based on information conveyed by a paramedic to the
arresting officer could not be sustained under the fellow officer rule; the fact that the paramedic was also
certified as a law-enforcement officer was insufficient where there was no evidence he had arrest
authority); State v. Newman, 22 Fla. L. Weekly Supp. 716 (Fla. Volusia Cty. Ct. Oct. 8, 2014)State v.
Newman, 22 Fla. L. Weekly Supp. 716 (Fla. Volusia Cty. Ct. Oct. 8, 2014) (officer acting outside of her
jurisdiction saw defendant in APC of disabled vehicle and took the keys; when another officer from the
jurisdiction in which vehicle was located arrived, that officer could not rely on the first officer’s
information under the fellow officer rule); State v. Bass, 19 Fla. L. Weekly Supp. 653 (Fla. Leon Cty.
Ct. April 18, 2012)State v. Bass, 19 Fla. L. Weekly Supp. 653 (Fla. Leon Cty. Ct. April 18, 2012)
(citizen observed defendant’s driving and behavior indicating that he was DUI and called the police;
when the officer arrived the defendant was outside of the vehicle with keys in his hand, but the officer
did not determine whether those were the keys to the car; pursuant to Steiner the DUI arrest was
unlawful because the officer did not witness the elements of the crime).
79
Sawyer v. State, 905 So. 2d 232 (Fla. 2d DCA 2005); Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA
1997). See also M.W. v. State, 51 So. 3d 1220, 264 Ed. Law Rep. 512 (Fla. 2d DCA 2011) ; Maher v.
Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla. 7th Cir. Ct. Nov. 18,
2005)Maher v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 121 (Fla. 7th Cir.
Ct. Nov. 18, 2005); State v. Wilbert, 12 Fla. L. Weekly Supp. 1173 (Fla. Volusia Cty. Ct. Sept 6, 2005);
State v. Hewitt, 12 Fla. L. Weekly Supp. 771 (Fla. Volusia Cty. Ct. May 17, 2005) State v. Hewitt, 12
Fla. L. Weekly Supp. 771 (Fla. Volusia Cty. Ct. May 17, 2005).
80
Brown v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 348 (Fla. 13th Cir. Ct.
March 15, 2001)Brown v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 348 (Fla.
13th Cir. Ct. March 15, 2001). See also Alexander v. State, 8 Fla. L. Weekly Supp. 610 (Fla. 17th Cir.
Ct. July 20, 2001)Alexander v. State, 8 Fla. L. Weekly Supp. 610 (Fla. 17th Cir. Ct. July 20, 2001)
(arrest was lawful where one officer identified defendant as driver and the arresting officer did
investigation at scene of accident).
81
State v. Sams, 676 So. 2d 1045 (Fla. 5th DCA 1996).
82
See e.g. State v. Dobson, 2 Fla. L. Weekly Supp. 83 (Fla. Palm Beach Cty. Ct. Nov. 22, 1993) State v.
Dobson, 2 Fla. L. Weekly Supp. 83 (Fla. Palm Beach Cty. Ct. Nov. 22, 1993).

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Works.

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:15. Probable cause for DUI arrest

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 419

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335, 1407

“Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it
must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an
unlawful amount of alcohol in his system.”1 There are many factors that contribute to such a finding. The smell
or lack of smell of alcohol may be among the most important of these factors. 2 Accordingly, a trooper did not
have probable cause where the trooper knew that the defendant had probably caused an accident, had bloodshot
eyes, and had been crying, but had no odor of alcohol. 3 However, in Department of Highway Safety and Motor
Vehicles v. Rose,4 the court found that there was competent substantial evidence that the respondent was driving
a car while under the influence of alcohol despite the lack of any odor of alcohol. Such an odor is a significant
factor, but there are others and in this case, results on field sobriety exercises supported a finding of probable
cause.5 The circuit court’s conclusion that there could be no probable cause without the odor of alcohol was
wrong, disregarded the other evidence, and was an improper reweighing of the evidence. 6

On the other hand, the presence of an odor of alcohol alone is insufficient for a finding of probable cause. 7 Thus,
one court ruled that an accident and an odor of alcohol are not, standing alone, sufficient to establish probable
cause.8 Another court found that an officer did not have probable cause for a DUI arrest based on an odor of
alcohol where the officer never saw the defendant driving and the defendant produced her license and
registration without difficulty and normally exited the car.9

The foregoing cases clearly indicate that the odor of alcohol must be combined with other factors. Those factors
“may include the defendant’s reckless or dangerous operation of a vehicle, slurred speech, lack of balance or
dexterity, flushed face, bloodshot eyes, admissions, and poor performance on field sobriety exercises.” 10 Many
cases make this point.11

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

The one exception to the rule that an odor of alcoholic beverage alone is insufficient to establish probable cause
is where the driver is under the age of 21. In Golden v. Dep’t of Highway Safety & Motor Vehicles,12 the court
noted that by statute it is unlawful for such a person to drive with any breath alcohol level and a breath test is
authorized.13

Sometimes the circumstances of an accident alone may be sufficient to establish probable cause for DUI. 14 That
was the conclusion in Dep’t of Highway Safety & Motor Vehicles v. Favino,15 where the defendant went home
right after the accident. A trooper arrived about 25 minutes later. The defendant had all the indicia of being
under the influence, but the trooper said he had no knowledge as to whether the defendant had anything to drink
before the accident. Nevertheless, the court held that the circumstances of the accident were sufficient to
establish probable cause.16 The defendant rear-ended another car that was traveling 40 to 45 m.p.h.

More often, in accident situations, the officer develops probable cause from a number of factors. In one case,
those included the circumstances of the accident and the defendant’s speech, odor of alcohol, admissions, lack
of balance, flushed face, bloodshot eyes, and poor performance on field sobriety exercises. 17 In another case,18
the factors included: (1) the officer’s observations of the defendant’s vehicle stopped in the middle of three
lanes of traffic at 7 a.m.; (2) the defendant’s efforts to start the vehicle; (3) the defendant’s blood-shot eyes and
flushed face; (4) the defendant’s nervousness; (5) the defendant’s balance; and (6) the defendant’s poor
performance on the field sobriety exercises. There are many examples of similar observations. 19

It is not necessary for the arresting officer to testify, for the court to find probable cause. The court may rely on
the testimony of another officer who was in the same physical position as the arresting officer, so that he could
make the same observations.20

While, as the foregoing authorities suggest, DUI stops most often involve consumption of alcoholic beverages,
the role that chemical or controlled substances may play must not be overlooked. 21 In fact, an entire chapter of
this book is devoted to the law concerning drug use and driving. 22 Hence, in the civil case of Mathis v. Coats,23
the court found that a deputy had probable cause for a DUI arrest notwithstanding the absence of any odor of
alcoholic beverage.24 The defendant had many explanations for the problems the deputy observed and protested
that the deputy should have taken those matters into account. In rejecting that argument, the court said: “The
deputy need not eliminate all possible defenses in order to establish probable cause …. [The deputy’s]
determination that probable cause for arrest existed was reasonable under the circumstances and based on
information then available to him.”25

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Kliphouse, 771 So. 2d 16, 22 (Fla. 4th DCA 2000). See also State, Dept. of Highway Safety
and Motor Vehicles, Div. of Driver Licenses v. Possati, 866 So. 2d 737, 740 (Fla. 3d DCA 2004) ; Diaz
v. State, 9 Fla. L. Weekly Supp. 165 (Fla. 11th DCA Jan. 15, 2002)Diaz v. State, 9 Fla. L. Weekly Supp.
165 (Fla. 11th DCA Jan. 15, 2002).
2
Courts have characterized the odor of alcohol as “critical.” See State v. Catt, 839 So. 2d 757, 759 (Fla.
2d DCA 2003); State v. Kliphouse, 771 So. 2d 16, 23 (Fla. 4th DCA 2000); State v. Brown, 725 So.
2d 441, 444 (Fla. 5th DCA 1999). See also Department of Highway Safety and Motor Vehicles v. Rose,
105 So. 3d 22, 24 (Fla. 2d DCA 2012), review denied, 121 So. 3d 1038 (Fla. 2013) (quoting Kliphouse,
but the court also referred to the odor of alcohol as a “significant” factor); Sullivan v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 304 (Fla. 19th Cir. Ct. Nov. 20, 2002) Sullivan v.
Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 304 (Fla. 19th Cir. Ct. Nov. 20,

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

2002).
3
Dorman v. State, 492 So. 2d 1160 (Fla. 1st DCA 1986). See also Jackson v. State, 456 So. 2d 916 (Fla.
1st DCA 1984).
4
Department of Highway Safety and Motor Vehicles v. Rose, 105 So. 3d 22 (Fla. 2d DCA 2012) , review
denied, 121 So. 3d 1038 (Fla. 2013).
5
Department of Highway Safety and Motor Vehicles v. Rose, 105 So. 3d 22, 24–25 (Fla. 2d DCA 2012) ,
review denied, 121 So. 3d 1038 (Fla. 2013). See also Mathis v. Coats, 24 So. 3d 1284 (Fla. 2d DCA
2010).
6
Department of Highway Safety and Motor Vehicles v. Rose, 105 So. 3d 22 (Fla. 2d DCA 2012) , review
denied, 121 So. 3d 1038 (Fla. 2013).
7
State v. Kliphouse, 771 So. 2d 16, 22 (Fla. 4th DCA 2000). See also State v. Rocha, 22 Fla. L.
Weekly Supp. 336 (Fla. 17th Cir. Ct. Sept. 15, 2014)State v. Rocha, 22 Fla. L. Weekly Supp. 336 (Fla.
17th Cir. Ct. Sept. 15, 2014) (court accepted trial court’s findings that defendant was not swaying or
stumbling, did not show any other signs of impairment, and was crying, which explained blood shot
eyes, and provided a reasonable explanation for weaving; and concluded that the trial judge correctly
found no probable cause for DUI arrest where sole basis was weaving from center lane into both right
and left lane and an odor of alcohol); Ben–Asher v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla.
L. Weekly Supp. 630 (Fla. 11th Cir. Ct. April 5, 2005)Ben–Asher v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 630 (Fla. 11th Cir. Ct. April 5, 2005) (being asleep in a vehicle
parked on the side of the road did not establish grounds for detention even if the defendant had an odor
of alcohol); State v. Bain, 14 Fla. L. Weekly Supp. 508 (Fla. Nassau Cty. Ct. March 1, 2007)State v.
Bain, 14 Fla. L. Weekly Supp. 508 (Fla. Nassau Cty. Ct. March 1, 2007) (officer did not have probable
cause based on visual observations of speeding and an odor of alcohol); State v. Werman, 12 Fla. L.
Weekly Supp. 587 (Fla. Broward Cty. Ct. March 28, 2005)State v. Werman, 12 Fla. L. Weekly Supp.
587 (Fla. Broward Cty. Ct. March 28, 2005) (officer did not have probable cause for DUI based on an
odor of alcohol and poor results on the walk and turn test, where the defendant had suffered a knee
injury).
8
Chait v. State, 27 Fla. Supp. 2d 115 (Fla. 11th Cir.1988).
9
State v. Longacre, 2 Fla. L. Weekly Supp. 571 (Fla. Dade Cty. Ct. Aug. 15, 1994)State v. Longacre, 2
Fla. L. Weekly Supp. 571 (Fla. Dade Cty. Ct. Aug. 15, 1994).
10
State v. Kliphouse, 771 So. 2d 16, 23 (Fla. 4th DCA 2000). See also State v. Liles, 191 So.3d
484, note 4, (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla. Opinion Filed Aug. 11, 2016),
cert. denied, 137 S.Ct. 688, 196 L.Ed.2d 528 (2017); Department of Highway Safety and Motor
Vehicles v. Rose, 105 So.3d 22, 24 (Fla. 2d DCA 2012), review denied, 121 So.3d 1038 (Fla. 2013)
(quoting Kliphouse).

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

defendant ran a stop sign, had glassy or bloodshot eyes and a flushed face); Duncan v. Dep’t of Highway
Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 8 (Fla. 13th Cir. Ct. Dec. 12, 2016) Duncan v. Dep’t
of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 8 (Fla. 13th Cir. Ct. Dec. 12, 2016)
(“The court agrees with Petitioner that the odor of an alcoholic beverage and red watery eyes, without
more, are indicators only of consumption. Driving without headlights may occur with someone who is
not impaired. But, where there is evidence of consumption, the night-time driving without headlights …
along with the low, mumbled speech, and unresponsive answers to the officers’ questions become
probable cause to believe that Petitioner may have been driving while impaired.”); Khan v. Dep’t of
Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 8 (Fla. 13th Cir. Ct. Oct. 24, 2016)Khan v.
Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 8 (Fla. 13th Cir. Ct. Oct. 24,
2016) (there was probable cause for DUI arrest where petitioner was stopped at almost 4:30 am driving
without headlights; petitioner had an odor of alcohol on his breath and did not respond appropriately to
questions, and results of the HGN showed signs of impairment); Sizemore v. Dep’t of Highway Safety
& Motor Vehicles, 24 Fla. L. Weekly Supp. 899 (Fla. 4th Cir. Ct. Dec. 22, 2016)Sizemore v. Dep’t of
Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 899 (Fla. 4th Cir. Ct. Dec. 22, 2016)
(officer had probable cause for DUI arrest where defendant showed impaired judgment or reflexes by
failing to stop at a stop sign; had slurred speech, blood-shot and watery eyes, flushed face, odor of
alcohol on his breath, admitted consuming alcohol, and did not perform well on FSES; video could not
refute these observations); Dostie v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly
Supp. 897 (Fla. 4th Cir. Ct. Jan. 6, 2017)Dostie v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla.
L. Weekly Supp. 897 (Fla. 4th Cir. Ct. Jan. 6, 2017) (court upheld hearing officer’s finding of probable
cause for DUI where the driving was consistent with impairment, notwithstanding the fact that video did
not support finding where police officer said petitioner had an odor of alcohol and that defendant had
blood-shot watery eyes and flushed face, but the video was to far away to confirm or refute that
testimony; police officer also said defendant had slurred speech, court could not detect any slurred
speech on video but there were significant portions of conversation between the trooper and petitioner
during their initial encounter where the speech on video was “muffled, mumbled or inaudible” and
petitioner refused FSES); Marvel v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly
Supp. 897 (Fla. 4th Cir. Ct. Dec. 22, 2016)Marvel v. Dep’t of Highway Safety & Motor Vehicles, 24
Fla. L. Weekly Supp. 897 (Fla. 4th Cir. Ct. Dec. 22, 2016) (officer had probable cause for DUI arrest
where defendant showed impaired judgment by exceeding the speed limit; a strong odor of an alcoholic
beverage came from vehicle and driver’s breath; petitioner’s eyes were red and glassy, his face was
flushed, and he refused FSES); Maloney v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L.
Weekly Supp. 647 (Fla. 1st Cir. Ct. Nov. 16, 2016)Maloney v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 647 (Fla. 1st Cir. Ct. Nov. 16, 2016) (officer had probable cause for
DUI arrest where petitioner was driving more than 20 m.p.h. over the speed limit, had an odor of
alcohol, and watery bloodshot eyes, and refused FSES); Strang v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 208 (Fla. 12th Cir. Ct. June 23, 2016) Strang v. Dep’t of Highway
Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 208 (Fla. 12th Cir. Ct. June 23, 2016) (officer had
probable cause for DUI arrest where petitioner was lawfully stopped for speeding, petitioner admitted
drinking and had bloodshot, glassy eyes, and alcohol odor; petitioner refused FSES); Holton v. Dep’t of
Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 387 (Fla. 4th Cir Ct. April 16, 2015)Holton
v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 387 (Fla. 4th Cir Ct. April 16,
2015) (officer had p/c where vehicle was in a closed park with headlights on and engine running;
Petitioner was asleep in driver’s seat, had an odor of alcoholic beverage coming from his mouth and
watery, bloodshot eyes and slurred speech, and stumbled when exiting the vehicle; there was a beer in
the center console; when Petitioner awoke he said he was warming up the truck for his company, but he
had been in the same place for a long time); Hughes v. Dep’t of Highway Safety & Motor Vehicles, 23
Fla. L. Weekly Supp. 69 (Fla. 4th Cir. Ct. June 11, 2015)Hughes v. Dep’t of Highway Safety & Motor
Vehicles, 23 Fla. L. Weekly Supp. 69 (Fla. 4th Cir. Ct. June 11, 2015) (officer had p/c for DUI
notwithstanding Petitioner’s claim that he suffered from MS where the Petitioner did poorly on the walk
and turn exercise, refused other FSEs, ran a stop sign, had an odor of an alcoholic beverage on his
breath, bloodshot watery eyes with a flushed face and admitted consuming alcoholic beverages with
friends); Dahhane v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 1004 (Fla.
13th Cir. Ct. March 17, 2015) (officer, a member of the DUI squad, had probable cause for DUI arrest
where a BOLO reported a white male who stumbled, appeared to be drunk, and was wearing a tuxedo
and masquerade-type mask in a dark brown Cadillac with a specific tag number; based on the tag
number the officer determined the address and positioned himself on a likely path; after about five to 10
minutes the officer saw a vehicle matching the description of the report including the tag; in the few
miles the officer followed, he saw the car drift on the lane and construction zone markers and drive more

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

than 10 m.p.h. below speed limit; the driver matched description given by the BOLO, and had bloodshot
and glassy eyes, the odor of alcoholic beverages, other signs of impairment during FSEs); Bober v.
Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12,
2015)Bober v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir.
Ct. May 12, 2015) (deputy had authority to arrest petitioner who was behind wheel of parked car where
deputy had lawfully detained petitioner based on reasonable suspicion provided by a citizen informant
and deputy’s observations; deputy had probable cause based on these facts: petitioner behind the wheel,
she had an odor of alcohol on her breath, bloodshot and watery eyes, and slurred speech; when
defendant was removed from the vehicle, deputy observed keys fall to the floorboard from under her
leg); State v. Brown, 21 Fla. L. Weekly Supp. 989 (Fla. 11th Cir. Ct. June 16, 2014)State v. Brown, 21
Fla. L. Weekly Supp. 989 (Fla. 11th Cir. Ct. June 16, 2014) (where officer lawfully opened truck door to
investigate sexual intercourse officer publicly observed, officer developed probable cause for a DUI
arrest based on strong odor of alcohol, open containers, defendant in the vehicle with keys in the ignition
and had slurred speech and blood shot eyes); Altman v. Dep’t of Highway Safety & Motor Vehicles, 20
Fla. L. Weekly Supp. 741 (Fla. 4th Cir. Ct. Dec. 27, 2012)Altman v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 741 (Fla. 4th Cir. Ct. Dec. 27, 2012) (court rejected argument that
officer did not have probable cause because some facts were inconsistent with impairment; officer had
probable cause where Petitioner was speeding in a construction zone, crossed center double yellow line,
had a moderate odor of alcoholic beverage, bloodshot watery eyes; there was an open container in the
center console, and he admitted consuming two beers and that he was coming from a bar; he was a “ ‘a
little combative and belligerent[,]’”); Day v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 478 (Fla. 17th Cir. Ct. Feb. 26, 2013)Day v. Dep’t of Highway Safety & Motor Vehicles,
20 Fla. L. Weekly Supp. 478 (Fla. 17th Cir. Ct. Feb. 26, 2013) (deputy had probable cause for DUI
arrest based on observations that defendant moved “‘lethargically’”, breath smelled of alcohol, had
glassy eyes, flushed face, and was unsteady on his feet); Kehl v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 253 (Fla. 17th Cir. Ct. Nov. 13, 2012)Kehl v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 253 (Fla. 17th Cir. Ct. Nov. 13, 2012) (officer had
probable cause for DUI where the officer saw defendant’s northbound vehicle stopped in the southbound
lane of travel and the defendant had red and glassy eyes, flushed face, and an odor of an alcoholic
beverage on his breath); Parker v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp.
218 (Fla. 9th Cir. Ct. Oct. 11, 2012)Parker v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 218 (Fla. 9th Cir. Ct. Oct. 11, 2012) (officers had probable cause for DUI where they saw
defendant alone and in driver’s seat of vehicle stuck on the railroad tracks, but there was no evidence of
operability and the keys were not there; defendant’s speech was slurred, he staggered when he exited,
had a strong odor of alcoholic beverage, eyes were bloodshot and glassy, and he swayed back and forth
while standing; defendant admitted driving and that he had some beers and did poorly on FSEs); State v.
Carter, 18 Fla. L. Weekly Supp. 863 (Fla. 7th Cir. Ct. May 27, 2011) State v. Carter, 18 Fla. L. Weekly
Supp. 863 (Fla. 7th Cir. Ct. May 27, 2011) (circuit judge sitting as trial judge found sufficient facts for a
DUI investigation and FSEs, but no probable cause of impairment where the evidence showed that the
defendant was speeding, had an odor of alcohol on his breath, admitted that he had a couple of drinks,
had bloodshot, watery, and glassy eyes was able to park car successfully when instructed by officer;
FSES did not show signs of impairment; responses to officer were coherent and appropriate, voice did
not appear slurred; established probable cause that the defendant had consumed alcohol, but
“[c]onsuming alcohol and driving a vehicle in and of itself is not a crime.”); Norton v. Dep’t of Highway
Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011)Norton v. Dep’t
of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011)
(officer had probable cause for DUI arrest where officer observed defendant speeding, defendant had
bloodshot and watery eyes, flush face, and an odor of alcohol on her breath; defendant admitted to
having one beer); Lee v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 374 (Fla.
16th Cir. Ct. Feb. 1, 2011)Lee v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp.
374 (Fla. 16th Cir. Ct. Feb. 1, 2011) (officer had probable cause for DUI where officer observed driver
fail to maintain his lane, follow too closely, stumble while exiting vehicle; driver had bloodshot and
watery eyes, slurred and mumbled speech, strong odor of alcohol, admitted drinking, and refused FSEs
and breath test).
Jackson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 136 (Fla. 4th Cir. Ct.
Sept. 23, 2010)Jackson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 136
(Fla. 4th Cir. Ct. Sept. 23, 2010) (officer had probable cause for DUI arrest where driver failed to
maintain a single lane in violation of § 316.089(1), Fla. Stat., by swerving to the right about three times
causing a semi-tractor trailer to swerve to avoid a collision and driver had bloodshot watery eyes, slurred
speech, was unsteady on her feet, performed poorly on FSEs, and admitted consuming two glasses of

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

wine and a beer; odor of alcoholic beverage came from vehicle); Welch v. Dep’t of Highway Safety &
Motor Vehicles, 18 Fla. L. Weekly Supp. 38 (Fla. 14th Cir. Ct. Dec. 7, 2010)Welch v. Dep’t of Highway
Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 38 (Fla. 14th Cir. Ct. Dec. 7, 2010) (trooper had
probable cause for DUI where person who was hit by defendant identified defendant as driver, defendant
admitted drinking, had a strong odor of alcoholic beverage coming from his face, bloodshot and watery
eyes, a flushed face and did poorly on FSEs; there was a 12 pack of beer in back seat with seven empty
bottles); Nissen v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1071 (Fla. 6th
Cir. Ct. July 22, 2010) (officer had probable cause for DUI arrest where defendant had odor of alcoholic
beverage on breath, “a blank and uncomprehending expression,” flushed face, bloodshot and watery
eyes, slurred and mumbled speech, stumbled and swayed, performed poorly on FSEs, and admitted
drinking); Mastenbroek v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 949
(Fla. 6th Cir. Ct. April 16, 2010)Mastenbroek v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.
Weekly Supp. 949 (Fla. 6th Cir. Ct. April 16, 2010) (deputy had probable cause for DUI arrest where
defendant had strong odor of alcohol on his breath, slurred speech, was unsteady on his feet, rocked and
swayed, made repetitive statements, was excited, and refused to do FSEs); Shoaf v. Dep’t of Highway
Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 308 (Fla. 4th Cir. Ct. Oct. 7, 2009)Shoaf v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 308 (Fla. 4th Cir. Ct. Oct. 7, 2009) (officer
had probable cause for DUI arrest where driver was going 59 m.p.h. in a 35 m.p.h. zone, had an odor of
alcohol coming from his person and watery eyes, admitted having two drinks, and had three clues of
impairment on One Leg Stand and two clues on Walk & Turn); Fisette v. Dep’t of Highway Safety &
Motor Vehicles, 17 Fla. L. Weekly Supp. 306 (Fla. 4th Cir. Ct. Jan. 26, 2010)Fisette v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 306 (Fla. 4th Cir. Ct. Jan. 26, 2010)
(defendant was lawfully arrested for DUI where she was slumped over wheel of vehicle idling on the
side of the road and keys in the ignition; witnesses observed the driver in that condition for 30 minutes;
when officer arrived, rescue personnel were trying to wake the driver; defendant became combative with
rescue personnel, closed driver’s door, and tried to start the car; defendant had a strong odor of alcohol
on her breath, glassy watery eyes, slurred speech, was unsteady, and refused FSEs); State v. Timmons,
17 Fla. L. Weekly Supp. 261 (Fla. 17th Cir. Ct. Dec. 22, 2009)State v. Timmons, 17 Fla. L. Weekly
Supp. 261 (Fla. 17th Cir. Ct. Dec. 22, 2009) (deputy had probable cause for DUI arrest where deputy
saw vehicle continuously weaving within lane and running a red light while turning left, and after stop,
deputy observed that defendant had slurred speech, red and watery eyes, difficulty locating documents,
smelled of alcohol, and admitted consuming a glass of wine); Steller v. Dep’t of Highway Safety &
Motor Vehicles, 17 Fla. L. Weekly Supp. 152 (Fla. 6th Cir. Ct. Dec. 10, 2009)Steller v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 152 (Fla. 6th Cir. Ct. Dec. 10, 2009)
(officer had probable cause for DUI arrest where defendant was driving 82 m.p.h. in a 40 m.p.h. zone
and failed to maintain his lane, had an odor of alcohol, bloodshot and glassy eyes, and “‘mumbled and
incoherent’” speech; defendant performed poorly on FSEs); State v. Mahadeo, 16 Fla. L. Weekly Supp.
829 (Fla. 17th Cir. Ct. June 18, 2009)State v. Mahadeo, 16 Fla. L. Weekly Supp. 829 (Fla. 17th Cir. Ct.
June 18, 2009) (trial court did not err in finding no probable cause for DUI where defendant had odor of
alcohol, was speeding and swerving in an out of light traffic at 3:00 a.m.; odor of alcohol was not
enough—it must usually be combined with other factors like slurred speech, lack of dexterity, bloodshot
eyes, or admissions); Barlow v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp.
44 (Fla. 20th Cir. Ct. Oct. 24, 2007)Barlow v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L.
Weekly Supp. 44 (Fla. 20th Cir. Ct. Oct. 24, 2007) (a deputy had probable cause for DUI where
defendant did not make a complete stop at a stop sign, had extremely dark tinting, a strong odor of an
alcoholic beverage on his breath, a flushed face, and difficulty answering questions); Pagnotto v. Dep’t
of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 115 (Fla. 4th Cir. Ct. Dec. 4,
2006)Pagnotto v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 115 (Fla. 4th
Cir. Ct. Dec. 4, 2006) (officer had probable cause for DUI arrest where deputy saw defendant stop about
40 feet behind the limit line at an intersection, defendant was in driver’s seat with his head titled towards
the window on the driver’s side, and “appeared to ‘pass out’ for a moment,” then officer observed
vehicle cross the center line, go back into his own lane, and then cross into bike lane; finally defendant
used his turn signal and moved properly into the inside lane; defendant initially sped up when officer
signaled him to stop; defendant had a strong odor of alcohol coming from his mouth, he admitted having
a few alcoholic beverages and that he was coming from a bar; defendant had significant difficulty
locating his license, registration, and proof of insurance, which were readily available; defendant swayed
as he exited; defendant performed poorly on FSTs and indicated that he had no medical disabilities that
would affect his performance); McNall v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 1163 (Fla. 20th Cir. Ct. Sept. 11, 2006) (officer had probable cause for DUI arrest where
vehicle made a sudden jerk movement to the right and then back to the left while going eastbound;

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

during that movement both left tires crossed the white line into the center eastbound lane; vehicle
slowed down and sped up suddenly and made several drifting movements within the right lane;
defendant had difficulty finding license and registration; defendant’s eyes were red and watery and
defendant had a strong odor of alcohol on her breath, had trouble with her balance, had problems with
the field sobriety tests, and she refused to submit to a breath test).
Smart v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 867 (Fla. 9th Cir. Ct.
June 28, 2006)Smart v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 867 (Fla.
9th Cir. Ct. June 28, 2006) (officer had probable cause for DUI where he saw the defendant driving the
wrong way on a one way street; defendant made wide turn and accelerated when officer put on overhead
lights; officer detected a strong odor of alcohol coming from the car; defendant had difficulty locating
the registration and insurance card, had balance problems, stated that she had consumed two drinks, and
refused field sobriety tests); Lenart v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly
Supp. 860 (Fla. 12th Cir. Ct. June 9, 2006)Lenart v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla.
L. Weekly Supp. 860 (Fla. 12th Cir. Ct. June 9, 2006) (officer had probable cause for DUI arrest where
the officer clocked the defendant on radar doing 70 m.p.h. in a 45 m.p.h. zone; defendant had a strong
odor of alcoholic beverage, watery eyes, slowed speech, and did poorly on the walk the line test);
Truxton v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 851 (Fla. 6th Cir. Ct.
June 30, 2006)Truxton v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 851
(Fla. 6th Cir. Ct. June 30, 2006) (officer had probable cause for DUI arrest where the defendant drove on
the wrong side of the road; officer paced the vehicle doing 62 m.p.h. in a 45 m.p.h. zone and saw several
signs of impairment and advised the DUI officer; and the DUI officer noted that the defendant had
watery, bloodshot eyes, a strong odor of alcohol, and slurred speech; the defendant admitted that he had
been drinking, failed the walk and turn test, and refused the other FSTs); Grant v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1130 (Fla. 13th Cir. Ct. Sept. 9, 2005) (troopers had
probable cause where the defendant had an odor of alcoholic beverage on his breath and had bloodshot,
watery eyes, poor balance, and did not follow instructions on field sobriety tests); Boston v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1109 (Fla. 4th Cir. Ct. Sept. 27, 2005)
(officer had probable cause where the defendant drove completely off the road into the grass and
returned to the pavement two times, and the defendant had glassy, bloodshot eyes, flushed face, slightly
slurred speech, a strong odor of alcohol coming from his mouth, and refused to do the field sobriety
exercises); Barbacci v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1000 (Fla.
4th Cir. Ct. Aug. 1, 2005) (despite officer’s statement on cross that there was no probable cause, the
evidence supported a finding of probable cause where the defendant ran a stop sign, crashed into a curb,
stumbled out of the car, had an odor of alcohol, disregarded instructions to remain seated on the curb,
and on three occasions walked into the street in front of his car and crawled on his belly to look under
his car); Zaffran v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 628 (Fla. 9th
Cir. Ct. April 1, 2005)Zaffran v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp.
628 (Fla. 9th Cir. Ct. April 1, 2005) (officer had probable cause, despite the defendant’s advance age,
where another officer said the defendant was driving a car involved in an accident and the defendant had
an odor of alcohol, glassy and red eyes, was argumentative, and stumbling); Golstin v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 446 (Fla. 17th Cir. Ct. March 4,
2005)Golstin v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 446 (Fla. 17th
Cir. Ct. March 4, 2005) (officer had probable cause where defendant went 53 m.p.h. in a 35 m.p.h. zone,
weaved from side to side, passed four cars in the right turn lane, reacted slowly to emergency lights, had
a strong odor of alcohol, glassy and bloodshot eyes, a flushed face, and difficulty providing the
requested documents); Miller v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp.
439 (Fla. 12th Cir. Ct. Dec. 29, 2004)Miller v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 439 (Fla. 12th Cir. Ct. Dec. 29, 2004) (officer had probable cause for DUI where the
defendant drove over center line, drifted about two feet into a safety zone, and onto the lane marker four
or more times, had bloodshot eyes, a flushed face, slurred speech, and a strong odor of alcohol); Saxon v
Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 111 (Fla. 9th Cir. Ct. Nov. 24,
2004)Saxon v Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 111 (Fla. 9th Cir.
Ct. Nov. 24, 2004) (officer had probable cause for DUI arrest based on odor of alcohol, bloodshot eyes,
slow speech, unsteady balance, and poor performance on field sobriety exercises); Cascante v. Dep’t of
Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 945 (Fla. 4th Cir. Ct. Aug. 18,
2004)Cascante v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 945 (Fla. 4th
Cir. Ct. Aug. 18, 2004) (officer had probable cause for DUI arrest based on odor of alcohol combined
with blood shot and watery eyes, a flushed face, driving pattern, admission of drinking, and poor
performance on field sobriety exercises); Paisley v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla.
L. Weekly Supp. 83 (Fla. 9th Cir. Ct. Oct. 8, 2003)Paisley v. Dep’t of Highway Safety & Motor

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

Vehicles, 11 Fla. L. Weekly Supp. 83 (Fla. 9th Cir. Ct. Oct. 8, 2003) (trooper had probable cause based
on identification of defendant as hit and run driver who caused damage to other vehicles, odor of
alcohol, glassy eyes, occasionally slurred speech, and admission of drinking at least one beer); Sullivan
v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 304 (Fla. 19th Cir. Ct. Nov. 20,
2002)Sullivan v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 304 (Fla. 19th
Cir. Ct. Nov. 20, 2002) (officer had probable cause based on the odor of alcohol and defendant’s
reckless driving).
Diaz v. State, 9 Fla. L. Weekly Supp. 165 (Fla. 11th Cir. Ct. Jan. 15, 2002)Diaz v. State, 9 Fla. L.
Weekly Supp. 165 (Fla. 11th Cir. Ct. Jan. 15, 2002) (officer had probable cause for DUI where
defendant was speeding and rear-ended a parked police car, had an odor of alcohol, slurred speech, and
bloodshot eyes); Bolduc v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 62 (Fla.
9th Cir. Ct. Oct. 2, 1998)Bolduc v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp.
62 (Fla. 9th Cir. Ct. Oct. 2, 1998) (deputy had probable cause for DUI when she saw defendant fail to
yield when making a left turn and driving erratically; defendant staggered, had difficulty standing, an
odor of alcoholic beverage, bloodshot and glassy eyes, admitted consuming a few beers earlier in the
day, and performed poorly on FSEs); State v. Betancourt, 29 Fla. Supp. 2d 121 (Fla. 11th Cir.1988)
(there was probable cause for a DUI arrest where the officer lawfully stopped the defendant for a traffic
violation and defendant was staggering and smelled of alcohol); State v. Shier, 21 Fla. Law Weekly
Supp. 843 (Fla. Brevard Cty. Ct. Feb. 19, 2014) (there was probable cause for DUI arrest where a citizen
informant reported vehicle driving erratically shortly before an officer saw defendant exit vehicle in a
condominium parking lot; defendant met general description given by informant and was the only
person in the vehicle; when defendant exited, the officer saw indicia of intoxication going beyond an
odor of alcohol, including an unsteady gait, flushed face, glassy eyes, and slurred speech); State v.
Mattingly, 20 Fla. L. Weekly Supp. 591 (Fla. Brevard Cty Ct. Feb. 26, 2013)State v. Mattingly, 20 Fla.
L. Weekly Supp. 591 (Fla. Brevard Cty Ct. Feb. 26, 2013) (officer had probable cause for DUI arrest
where about half the truck was over the fog line and at least the tires were on the fog line for most of the
video and speed varied from 45 to 60 mph in a 55 zone; defendant said she had been at a bar and had
one or two drinks; she had an odor of an alcoholic beverage coming from her person and breath, watery
and glassy eyes, flush face, mumbled speech, fumbled and did not do well on FSEs); State v. Neniskis,
20 Fla. L. Weekly Supp. 81 (Fla. Monroe Cty. Ct. Oct. 24, 2012)State v. Neniskis, 20 Fla. L. Weekly
Supp. 81 (Fla. Monroe Cty. Ct. Oct. 24, 2012) (officer did not have probable cause for DUI arrest where
defendant was speeding and at one point was going 87 mph in a 35 mph zone, had an odor of alcohol,
flush face, bloodshot watery eyes, and difficulty producing documents, but the video of FSEs and
defendant’s performance was inconsistent with the officer’s testimony and did not support a finding of
impairment); State v. Harkey, 19 Fla. L. Weekly Supp. 287 (Fla. Broward Cty. Ct. Nov. 28, 2011)State
v. Harkey, 19 Fla. L. Weekly Supp. 287 (Fla. Broward Cty. Ct. Nov. 28, 2011) (no probable cause for
DUI arrest where officer followed vehicle for over 17 blocks for more than five minutes, defendant did
not speed, but intermittently weaved between lanes without affecting traffic on a roadway that included
a sever curve to the left that the judge found might have caused any citizen to cross; defendant pulled
over in a normal manner, provided license, exited, and walked without difficulty; had an odor of
alcoholic beverage consistent with one glass of wine earlier in the evening as she said; eyes were
somewhat bloodshot and watery and she was talkative; she said she was nervous; her thought processes
were clear; she had gaps between her feet as she walked during the walk-and-turn exercise, but she was
always on the line, she took the proper number of steps forward and back and she did not use her arms
for balance); State v. Miller, 16 Fla. L. Weekly Supp. 695 (Fla. Brevard Cty. Ct. Aug. 7, 2008)State v.
Miller, 16 Fla. L. Weekly Supp. 695 (Fla. Brevard Cty. Ct. Aug. 7, 2008) (officer had probable cause
where defendant was speeding, could not find her documents, was confused about location, used door to
exit and to stand upright, had glassy eyes and seemed unsteady with slow dexterity, did not perform the
walk and turn as requested, took more steps than requested in each direction, rambled on regarding an
incident which occurred at a hotel, could not stand on one leg without losing her balance, and had an
odor of alcohol); State v. McClure, 15 Fla. L. Weekly Supp. 1008 (Fla. Manatee Cty Ct. Aug 4, 2008)
(officer had probable cause for DUI arrest where defendant drove through a valid DUI checkpoint and
before he exited the vehicle the officer observed bloodshot, glassy, and watery eyes, and upon exit the
defendant was swaying; defendant had a strong odor of alcohol on his breath and admitted drinking two
glasses of wine); State v. Henderson, 15 Fla. L. Weekly Supp. 370 (Fla. Volusia Cty. Ct. Feb. 22,
2008)State v. Henderson, 15 Fla. L. Weekly Supp. 370 (Fla. Volusia Cty. Ct. Feb. 22, 2008) (no
probable cause for DUI arrest where car had an inoperable tag light, vehicle moved within its lane,
turned off road at speed officer considered excessive, but no violation; defendant had odor of alcohol
and an entry stamp from a local bar on her hand; when officer made contact, defendant passed over her
license in her wallet, seemed to have slow and slightly slurred speech, exited vehicle slowly and

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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

appeared unsteady on her feet, but the video tape revealed no slurred or abnormally slow speech,
unsteadiness or problems on FSEs); Sasser v. State, 6 Fla. L. Weekly Supp. 193 (Fla. Orange Cty. Ct.
Jan. 19, 1999)Sasser v. State, 6 Fla. L. Weekly Supp. 193 (Fla. Orange Cty. Ct. Jan. 19, 1999) (officer
had probable cause for DUI where defendant pulled out of bar parking lot, veered into oncoming traffic,
erratically jerked his vehicle back into his lane, had an odor of alcohol, moved slowly and deliberately
when exiting his vehicle, and had glassy eyes).
12
Golden v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 590 (Fla. 9th Cir. Ct.
April 16, 2008)Golden v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 590
(Fla. 9th Cir. Ct. April 16, 2008). See also Kubala v. Dep’t of Highway Safety & Motor Vehicles, 17
Fla. L. Weekly Supp. 1008 (Fla. 9th Cir. Ct. June 23, 2010) (where defendant is under 21, an officer has
probable cause based solely on driving or actual physical control and the odor of alcohol).
13
Golden v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 590 (Fla. 9th Cir. Ct.
April 16, 2008)Golden v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 590
(Fla. 9th Cir. Ct. April 16, 2008) (court found probable cause based on the language of the statute, the
basis for the stop, and the evidence presented, which included an odor of alcohol beverage coming from
the underage driver and an admission to drinking alcohol).
14
Department of Highway Safety and Motor Vehicles v. Favino, 667 So. 2d 305 (Fla. 1st DCA 1995). See
also Department of Highway Safety and Motor Vehicles v. Currier, 824 So. 2d 966 (Fla. 1st DCA
2002); Department of Highway Safety and Motor Vehicles v. Silva, 806 So. 2d 551, 553 (Fla. 2d DCA
2002).
15
Department of Highway Safety and Motor Vehicles v. Favino, 667 So. 2d 305 (Fla. 1st DCA 1995).
16
Department of Highway Safety and Motor Vehicles v. Favino, 667 So. 2d 305 (Fla. 1st DCA 1995).
17
Department of Highway Safety and Motor Vehicles v. Smith, 687 So. 2d 30 (Fla. 1st DCA 1997).
18
Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996).
19
Spears v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 741 (Fla. 4th Cir. Ct.
March 4, 2013)Spears v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 741 (Fla.
4th Cir. Ct. March 4, 2013) (hearing officer correctly found probable cause for actual physical control
where petitioner was only person at scene of an accident, driver’s window appeared to have been broken
out from the inside, and there was blood on petitioner’s legs and the glass); Wacker v. Dep’t of Highway
Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 489 (Fla. 9th Cir. Ct. Feb. 18, 2004) Wacker v. Dep’t
of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 489 (Fla. 9th Cir. Ct. Feb. 18, 2004)
(officer had probable cause based on “odor associated with alcoholic impurities” coming from
defendant’s breath; slurred speech; bloodshot, watery, red, and glassy eyes; and production of insurance
card when asked for a license); Rice v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly
Supp. 173 (Fla. 7th Cir. Ct. Dec. 9, 2003)Rice v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 173 (Fla. 7th Cir. Ct. Dec. 9, 2003) (officer had probable cause where another officer told
him that the defendant ran a stop sign; and the defendant had a strong odor of alcoholic beverages
coming from his breath, bloodshot and watery eyes, swayed while standing, leaned on the car for
support, admitted to drinking alcohol, and performed poorly on field sobriety exercises); State v. Sopko,
10 Fla. L. Weekly Supp. 987 (Fla. 17th Cir. Ct. Oct. 2, 2003)State v. Sopko, 10 Fla. L. Weekly Supp.
987 (Fla. 17th Cir. Ct. Oct. 2, 2003) (officer had probable cause based on observations of defendant’s
driving, her left turn across three lanes of traffic, the need for others to evade defendant, odor of alcohol,
and slurred speech); Kelly v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 378
(Fla. 7th Cir. Ct. Dec. 6, 2002)Kelly v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly
Supp. 378 (Fla. 7th Cir. Ct. Dec. 6, 2002) (officer had probable cause where officer saw defendant use
the vehicle for support as the defendant exited, the defendant had slurred speech, bloodshot and watery
eyes, a strong odor of alcoholic beverages, and refused to do field sobriety exercises).
20
State v. Krueger, 6 Fla. L. Weekly Supp. 595 (Fla. 9th Cir. Ct. Aug. 5, 1999)State v. Krueger, 6 Fla. L.
Weekly Supp. 595 (Fla. 9th Cir. Ct. Aug. 5, 1999).
21
§ 316.193(1), Fla. Stat.
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§ 4:15.Probable cause for DUI arrest, 11 Fla. Prac., DUI Handbook § 4:15 (2018-2019 ed.)

22
See §§ 9:1 et seq.
23
Mathis v. Coats, 24 So. 3d 1284 (Fla. 2d DCA 2010) (plaintiff sued for false arrest based on DUI
charge). See also Basaraba v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 996
(Fla. 18th Cir. Ct. Aug. 27, 2012)DUI charge). See also Basaraba v. Dep’t of Highway Safety & Motor
Vehicles, 19 Fla. L. Weekly Supp. 996 (Fla. 18th Cir. Ct. Aug. 27, 2012) (deputy, who was experienced
in drug cases, had probable cause for driving while under the influence of controlled substances where
he saw petitioner swerving from right lane to middle lane, almost striking his marked patrol car;
petitioner had watery eyes, sweating, shaking throughout his entire body, grinding his teeth, mental
confusion and no indication of alcohol consumption); State v. Francis, 18 Fla. L. Weekly Supp. 250
(Fla. 6th Cir. Ct. Dec. 16, 2010)State v. Francis, 18 Fla. L. Weekly Supp. 250 (Fla. 6th Cir. Ct. Dec. 16,
2010) (officers had probable cause for DUI arrest even though there was no odor of alcohol, but the
defendant was passed out in a vehicle at a convenience store, the defendant displayed the indicia of
impairment, and the officers could see Oxycodone from outside the car).
24
Defendant struck the center median, nearly sideswiped another vehicle, and struck the center median
again. She seemed agitated and moved in a very jerky fashion, had bloodshot or glassy eyes, slow
coordination, difficulty following conversation, and a flushed face. However, she was cooperative, had
no odor of alcohol, and had clear speech. The defendant did not satisfactorily complete field sobriety
tests. Breath and urine test results were both negative. 24 So. 3d at 1286–87.
25
Mathis v. Coats, 24 So. 3d 1284, 1288–89 (Fla. 2d DCA 2010). See also State v. Ludlow, 22 Fla. L.
Weekly Supp. 870 (Fla. 6th Cir. Ct. Feb. 13, 2015)State v. Ludlow, 22 Fla. L. Weekly Supp. 870 (Fla.
6th Cir. Ct. Feb. 13, 2015) (court reversed trial court’s conclusion that facts did not establish probable
cause where there was extensive evidence of DUI and the fact that there were some indicators of DUI
that were absent did not justify the conclusion there was not probable cause); Sasser v. State, 6 Fla. L.
Weekly Supp. 193 (Fla. Orange Cty. Ct. Jan. 19, 1999)Sasser v. State, 6 Fla. L. Weekly Supp. 193 (Fla.
Orange Cty. Ct. Jan. 19, 1999) (the fact that defendant subsequently gave an explanation for conduct did
not affect the validity of the arrest).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 4:16.Probable cause for arrest or search on other charges, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 4:16 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:16. Probable cause for arrest or search on other charges

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(7), 349.5(4)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1335

A DUI arrest may come as a result of an initial detention for other crimes. For instance, the odor of burnt
marijuana coming from a car window establishes probable cause to search the passenger compartment 1 and the
occupants.2 Also, such an odor in combination with other circumstances, such as furtive or nervous behavior,
establishes probable cause to search the entire vehicle.3

An officer might very well develop probable cause for a DUI arrest as a result of such a stop. The validity of a
DUI arrest does not depend on what charge formed the basis for the stop. 4 Thus, the fact that an officer had
probable cause for reckless driving and fleeing and eluding when the officer made the initial stop, did not affect
the validity of the DUI arrest based on subsequent developments.5

In fact, an error by the officer as to the level of belief established by the facts, may not affect the validity of a
stop and detention. Thus, an officer’s belief that he only had reasonable suspicion for a temporary detention, did
not bar the court from finding probable cause fore arrest.6

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Betz, 815 So. 2d 627, 633 (Fla. 2002). See also Kimball v. State, 951 So. 2d 35 (Fla. 1st
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 4:16.Probable cause for arrest or search on other charges, 11 Fla. Prac., DUI...

DCA 2007), review denied, 959 So. 2d 716 (Fla. 2007).

2
State v. Williams, 967 So. 2d 941 (Fla. 1st DCA 2007). See also State v. Sarria, 97 So. 3d 282, 284
(Fla. 4th DCA 2012) (holding that when officer smelled odor of raw marijuana coming from interior of
vehicle, officer had probable cause to search the vehicle and to arrest the occupants); State v. Jennings,
968 So. 2d 694 (Fla. 4th DCA 2007).
3
State v. Betz, 815 So. 2d 627, 633 (Fla. 2002); See also Kimball v. State, 951 So. 2d 35 (Fla. 1st
DCA 2007), review denied, 959 So. 2d 716 (Fla. 2007); State v. Oliphant, 14 Fla. L. Weekly Supp. 1038
(Fla. 17th Cir. Ct. July 27, 2007).
4
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986). See
also State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992), review denied, 614 So. 2d 503 (Fla. 1993);
State v. Hicks, 18 Fla. L. Weekly Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011)State v. Hicks, 18 Fla. L.
Weekly Supp. 248 (Fla. 6th Cir. Ct. Jan. 4, 2011) (court held that regardless of whether an officer who
made a traffic stop issued a citation, the stop was still valid if there was probable cause for any
infraction; court found that the traffic stop was valid even though the officer may not have had probable
cause for the charge on which a citation was issued because he clearly had probable cause for other
infractions).
5
Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986), review denied, 500 So. 2d 544 (Fla. 1986). In
fact, an officer may arrest an individual for fleeing and eluding even though the reason for the initial
stop was improper. State v. Kirer, 120 So. 3d 60 (Fla. 4th DCA 2013); Henderson v. State, 88 So. 3d
1060 (Fla. 1st DCA 2012), review denied, 163 So. 3d 509 (Fla. 2015) (deputy had probable cause for
fleeing and eluding in violation of section 316.1935(2) when deputy tried to pull defendant over with
lights and sirens and defendant continued to drive for nearly two miles).
6
McNeil v. State, 512 So. 2d 1062 (Fla. 4th DCA 1987), review denied, 519 So. 2d 987 (Fla. 1988).
See also State v. Blanco, 513 So. 2d 739 (Fla. 3d DCA 1987).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:17.Fresh pursuit, 11 Fla. Prac., DUI Handbook § 4:17 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:17 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:17. Fresh pursuit

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(11)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

An officer may make an arrest outside of his or her jurisdiction pursuant to the fresh pursuit, a/k/a/ hot pursuit
doctrine. This principle authorizes an officer who observes the commission of a crime, a violation of Florida
Statutes, Chapter 316, or a violation of an ordinance inside the officer’s city or county limits, to pursue the
defendant into another city or county to make the arrest.1 An off-duty officer has this same statutory authority.2

This concept involves essentially a continuous process. Thus, where an officer was investigating an accident
and the defendant left the scene, a court ruled that the officer could arrest the defendant outside of the officer’s
jurisdiction, because leaving the scene of an accident is a continuing offense, and the officer was effectively in
fresh pursuit.3 However, the same court ruled that there is no statutory requirement that there be continuous
surveillance of the defendant for there to be valid fresh pursuit. 4 The court established these three criteria for
determining whether there is fresh pursuit: “1) that the police act without unnecessary delay; 2) that the pursuit
be continuous and uninterrupted; and 3) that there be a close temporal relationship between the commission of
the offense and the commencement of the pursuit and apprehension of the suspect.” 5

This doctrine has been applied to justify an arrest where an officer observed a traffic infraction in his city, had
to follow the individual to a neighboring city, and then developed probable cause for a DUI arrest. 6 In a similar
case, the court concluded that an officer can follow a suspect into a neighboring community based solely on
reasonable suspicion of a traffic infraction, and lawfully make a DUI arrest outside the officer’s city based on
the defendant’s conduct in the other jurisdiction.7 Similarly, another court ruled that an officer could lawfully
pursue and stop a suspect beyond the officer’s jurisdiction, based on a dispatcher’s report of erratic driving
combined with the officer’s observations within the officer’s jurisdiction of weaving within the lane of travel. 8
However, once the officer apprehends the driver on a traffic infraction, the officer has no authority to pursue a

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:17.Fresh pursuit, 11 Fla. Prac., DUI Handbook § 4:17 (2018-2019 ed.)

passenger into a neighboring jurisdiction.9

If the arrest takes place in another county there are special requirements. The arresting officer must notify the
officer in charge of the jurisdiction where the arrest is made. 10 Both officers must take the arrested person before
a trial judge of the county where the individual was arrested without unnecessary delay. 11

However, according to Espin v. State,12 the failure to comply with the requirement to take the suspect before a
judge does not invalidate the arrest or require suppression of evidence secured incidental to that arrest. In
Espin,13 the court concluded that this requirement is intended only to ensure that citizens are not held for an
unreasonable time after arrest and there was no claim or evidence of any such delay.

The fellow officer rule also applies to fresh pursuit situations. 14 That is true even if the officer initiating action is
off-duty.15 Thus, in Huebner v. State,16 the court found that an off-duty officer had authority to pursue the
defendant outside of the officer’s jurisdiction based on probable cause developed by the off-duty officer while
he was still within his own jurisdiction. The off-duty officer conveyed the information to an on-duty officer,
who immediately joined in the pursuit and made the stop, and ultimately made the DUI arrest. Both officers
were from the same town, which was not the one in which the arrest was made, but the court ruled that under
the fellow officer rule the on-duty officer lawfully arrested the defendant for DUI based on the information
provided by the off-duty officer.17

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§§ 901.25 and 901.15(5), Fla. Stat.; Department of Highway Safety, Motor Vehicles v. Leonard, 718
So. 2d 314 (Fla. 5th DCA 1998); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); State v.
Phoenix, 428 So. 2d 262, 34 A.L.R.4th 320 (Fla. 4th DCA 1982), approved and remanded, 455 So.
2d 1024 (Fla. 1984); Cheatem v. State, 416 So. 2d 35 (Fla. 4th DCA 1982); Curtin v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1112 (Fla. 20th Cir. Ct. Sept. 27, 2007); State v.
Alberti, 8 Fla. L. Weekly Supp. 225 (Fla. 15th Cir. Ct. Jan. 26, 2001)State v. Alberti, 8 Fla. L. Weekly
Supp. 225 (Fla. 15th Cir. Ct. Jan. 26, 2001); Smith v. State, 8 Fla. L. Weekly Supp. 21 (Fla. 17th Cir. Ct.
June 12, 2000)Smith v. State, 8 Fla. L. Weekly Supp. 21 (Fla. 17th Cir. Ct. June 12, 2000); Strickland v.
State, 7 Fla. L. Weekly Supp. 162 (Fla. 10th Cir. Ct. Nov. 16, 1999)Strickland v. State, 7 Fla. L. Weekly
Supp. 162 (Fla. 10th Cir. Ct. Nov. 16, 1999).
2
Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999). See also Pino v. State, 8 Fla. L. Weekly Supp.
26 (Fla. 17th Cir. Ct. May 22, 2000)Pino v. State, 8 Fla. L. Weekly Supp. 26 (Fla. 17th Cir. Ct. May 22,
2000); State v. Tallis, 8 Fla. L. Weekly Supp. 865 (Fla. Palm Beach Cty. Ct. Sept. 26, 2001)State v.
Tallis, 8 Fla. L. Weekly Supp. 865 (Fla. Palm Beach Cty. Ct. Sept. 26, 2001); State v. Nicholson, 7 Fla.
L. Weekly Supp. 282 (Fla. Palm Beach Cty. Ct. Feb. 2, 2000)State v. Nicholson, 7 Fla. L. Weekly Supp.
282 (Fla. Palm Beach Cty. Ct. Feb. 2, 2000).
3
State v. Englehardt, 465 So. 2d 1366 (Fla. 4th DCA 1985). See also State v Seltzer, 9 Fla. L. Weekly
Supp. 32 (Fla. 17th Cir. Ct. Nov. 20, 2001)State v Seltzer, 9 Fla. L. Weekly Supp. 32 (Fla. 17th Cir. Ct.
Nov. 20, 2001).
4
Porter v. State, 765 So. 2d 76 (Fla. 4th DCA 2000), review denied, 790 So. 2d 1107 (Fla. 2001). See
also State v. Gelin, 844 So. 2d 659 (Fla. 3d DCA 2003), review denied, 855 So. 2d 620 (Fla. 2003).
5
Porter v. State, 765 So. 2d 76, 80 (Fla. 4th DCA 2000), review denied, 790 So. 2d 1107 (Fla. 2001).
See also State v. Gelin, 844 So. 2d 659 (Fla. 3d DCA 2003), review denied, 855 So. 2d 620 (Fla. 2003);

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:17.Fresh pursuit, 11 Fla. Prac., DUI Handbook § 4:17 (2018-2019 ed.)

Crabtree v. State, 21 Fla. L. Weekly Supp. 985 (Fla. 7th Cir. Ct. May 30, 2014)Crabtree v. State, 21 Fla.
L. Weekly Supp. 985 (Fla. 7th Cir. Ct. May 30, 2014) (officer who is parked outside his/her city, but
witnesses a driver speeding inside the city may lawfully start pursuit outside officer’s jurisdiction and
make the stop if there is compliance with the three elements of fresh pursuit).
6
State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983). See also Sparks v. Dep’t of Highway Safety &
Motor Vehicles, 24 Fla. L. Weekly Supp. 900 (Fla. 4th Cir. Ct. Jan. 5,2017)Sparks v. Dep’t of Highway
Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 900 (Fla. 4th Cir. Ct. Jan. 5,2017) (officer made a
lawful fresh pursuit stop and DUI arrest outside of his jurisdiction when he saw petitioner speeding and
repeatedly crossing the lane markers inside his city where the officer turned on his emergency lights, but
petitioner did not stop until he got to a neighboring city where the officer developed probable cause for a
DUI arrest); Sinns v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 17 (Fla. 9th
Cir. Ct. March 8, 2016)Sinns v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp.
17 (Fla. 9th Cir. Ct. March 8, 2016) (officer make lawful speeding stop outside his jurisdiction pursuant
to § 901.25, leading to a DUI arrest, when he clocked vehicle on radar in officer’s city, activated his
lights in less than a minute, pursued the speeding Petitioner for less than a minute; the fact that
Petitioner did not go before judge in jurisdiction of arrest did not invalidate arrest because there was no
showing of delay or prejudice); State v. Givens, 23 Fla. L. Weekly Supp. 660 (Fla. 4th Cir. Ct. Jan. 19,
2016)State v. Givens, 23 Fla. L. Weekly Supp. 660 (Fla. 4th Cir. Ct. Jan. 19, 2016) (stop was not
permitted by fresh pursuit doctrine or statute where officer set up “‘speed trap’” on border with another
city, saw Petitioner speeding, but did not activate blue lights for a mile and he was well outside his
jurisdiction when he stopped the Petitioner and did a DUI investigation; officer did not comply with §
901.25); Curtin v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1112 (Fla. 20th
Cir. Ct. Sept. 27, 2007); Strickland v. State, 7 Fla. L. Weekly Supp. 162 (Fla. 10th Cir. Ct. Nov. 16,
1999)Strickland v. State, 7 Fla. L. Weekly Supp. 162 (Fla. 10th Cir. Ct. Nov. 16, 1999) (officer
observed several traffic infractions inside his city and thus had a right to pursue the vehicle outside the
city). But see Basich v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 407 (Fla.
4th Cir. Ct. March 30, 2010)Basich v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly
Supp. 407 (Fla. 4th Cir. Ct. March 30, 2010) (stop outside officer’s jurisdiction was not made in fresh
pursuit because there was unnecessary delay where officer saw suspicious driving and could have made
the stop inside his jurisdiction); State v. Bolin, 21 Fla. L. Weekly Supp. 681 (Fla. Volusia Cty. Ct.
March 19, 2014)State v. Bolin, 21 Fla. L. Weekly Supp. 681 (Fla. Volusia Cty. Ct. March 19, 2014)
(stop for speeding outside officer’s jurisdiction was valid under fresh pursuit doctrine even though both
defendant and officer were outside the officer’s city before he activated his overhead lights, where
officer observed the speeding inside his jurisdiction and followed within seconds of defendant driving
by, paced defendant’s vehicle for three blocks and activated his overhead lights; defendant pulled over
less than two minutes and about a mile after driving past officer); State v. Mastando, 19 Fla. L. Weekly
Supp. 134 (Fla. Volusia Cty. Ct. Oct. 26, 2011)State v. Mastando, 19 Fla. L. Weekly Supp. 134 (Fla.
Volusia Cty. Ct. Oct. 26, 2011) (officer saw defendant speeding inside the officer’s jurisdiction; made a
U-turn, stopped behind vehicle at a traffic light and called in tag, but he did not indicate that he wanted
defendant to stop; he made stop in another city, which was unlawful because the officer was not
pursuing defendant but rather he was only following him).
7
State v. Joy, 637 So. 2d 946 (Fla. 3d DCA 1994). See also State v. Alberti, 8 Fla. L. Weekly Supp.
225 (Fla. 15th Cir. Ct. Jan. 26, 2001)State v. Alberti, 8 Fla. L. Weekly Supp. 225 (Fla. 15th Cir. Ct. Jan.
26, 2001).
8
Leboeuf v. State, 6 Fla. L. Weekly Supp. 240 (Fla. 9th Cir. Ct. Feb. 19, 1999)Leboeuf v. State, 6 Fla. L.
Weekly Supp. 240 (Fla. 9th Cir. Ct. Feb. 19, 1999). See also State v. Diaz, 10 Fla. L. Weekly Supp. 917
(Fla. Dade Cty. Ct. Aug. 11, 2003)State v. Diaz, 10 Fla. L. Weekly Supp. 917 (Fla. Dade Cty. Ct. Aug.
11, 2003) (where it was reported to officer who was outside of jurisdiction that one car had hit another,
he could not follow and detain that vehicle outside of his jurisdiction. Since the officer “did not witness
anything within his own jurisdiction … , he could not stop or arrest the defendant pursuant to Section
901.25.”).
9
T.T.N. v. State, 40 So. 3d 897 (Fla. 2d DCA 2010) (officers stopped vehicle within their jurisdiction,
driver fled on foot and passengers drove away in vehicle; after officers caught the driver they went to
driver’s home outside their jurisdiction and arrested one of the passengers on an unrelated matter).
10
§ 901.25(3), Fla. Stat.

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§ 4:17.Fresh pursuit, 11 Fla. Prac., DUI Handbook § 4:17 (2018-2019 ed.)

11
§ 901.25(3), Fla. Stat.
12
Espin v. State, 953 So. 2d 781 (Fla. 4th DCA 2007), review denied, 981 So. 2d 1199 (Fla. 2008).
13
Espin v. State, 953 So. 2d 781 (Fla. 4th DCA 2007), review denied, 981 So. 2d 1199 (Fla. 2008).
14
Huebner v. State, 731 So. 2d 40, 44 (Fla. 4th DCA 1999). See also State v. Gelin, 844 So. 2d 659
(Fla. 3d DCA 2003), review denied, 855 So. 2d 620 (Fla. 2003); State v. Rodriguez, 18 Fla. L. Weekly
Supp. 513 (Fla. 9th Cir. Ct. Aug. 13, 2010)State v. Rodriguez, 18 Fla. L. Weekly Supp. 513 (Fla. 9th
Cir. Ct. Aug. 13, 2010) (pursuant to fresh pursuit doctrine, officer had authority to make a DUI arrest
outside of his jurisdiction based on driving he saw inside officer’s jurisdiction and condition of
defendant; second officer, who actually made the arrest, had authority to make the arrest pursuant to §
901.18, Fla. Stat.).
15
Huebner v. State, 731 So. 2d 40, 44 (Fla. 4th DCA 1999).
16
Huebner v. State, 731 So. 2d 40 (Fla. 4th DCA 1999). See also State v. Kennedy, 15 Fla. L. Weekly
Supp. 134 (Fla. 17th Cir. Ct. Oct. 25, 2007)State v. Kennedy, 15 Fla. L. Weekly Supp. 134 (Fla. 17th
Cir. Ct. Oct. 25, 2007) (stop and arrest was lawful where officer observed defendant speeding and
crossing lane dividers in his jurisdiction; officer activated overhead lights and followed defendant to
another city where the offender finally stopped; officer observed indicia of DUI and conveyed
information to DUI task force officer from his jurisdiction and that officer came, did the investigation,
and made the arrest).
17
Huebner v. State, 731 So. 2d 40, 45 (Fla. 4th DCA 1999). See also State v. Kay, 10 Fla. L. Weekly
Supp. 358 (Fla. Palm Beach Cty. Ct. Feb. 12, 2003)State v. Kay, 10 Fla. L. Weekly Supp. 358 (Fla.
Palm Beach Cty. Ct. Feb. 12, 2003) (an officer witnessing an unlawful U-turn had the power under the
fresh pursuit statute to follow the offender into another city to make the stop, but another officer from
the first officer’s jurisdiction did not have the power to make the arrest under the fellow officer rule
because he arrived after the stop and was never in fresh pursuit); State v. Rubino, 7 Fla. L. Weekly
Supp. 286 (Fla. Palm Beach Cty. Ct. Feb. 11, 2000)State v. Rubino, 7 Fla. L. Weekly Supp. 286 (Fla.
Palm Beach Cty. Ct. Feb. 11, 2000) (trial judge observed what was really important in Huebner was that
the first officer radioed back to his own jurisdiction “after the fresh pursuit had led him into a foreign
jurisdiction,” and the second officer first observed the defendant when he was outside his jurisdiction).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 4:18.Officer not in fresh pursuit outside of officer’s jurisdiction, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 4:18 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:18. Officer not in fresh pursuit outside of officer’s jurisdiction

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(11)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Municipal police officers may also be authorized to act outside their cities as deputy sheriffs, but they must
comply with the necessary statutory requirements. 1 The sheriff may, however, appoint some individuals to be
special deputies. Such deputies may perform some functions without complying with statutory requirements. 2
This list is, however, inclusive.3

Municipal officers may also make stops and arrests in neighboring cities with which their city has a mutual aid
agreement pursuant to Florida Statutes, Chapter 23.4 These agreements must meet a variety of statutory
requirements having to do primarily with the relationship between and authority of the parties. 5 Except under
unusual circumstances involving disaster or emergency, a written copy of the agreement must be filed with the
Department of Law Enforcement within 14 days after signing.6

There have been few cases dealing with the consequences of failure to comply with the statutory requirements.
However, trial judges have ruled that the 14-day filing requirement is directory only. 7 Those courts also held
that the failure of the signatory agencies to comply does not affect the validity of the agreement. 8 Thus, DUI
arrests pursuant to the agreement are still valid, and all evidence secured as a result of the arrests is admissible. 9

Mutual aid agreements are clearly intended for significant law enforcement issues. In State v. Allen,10 the court
found that an officer’s action in initiating an investigation based on a tip that a marijuana odor was coming from
a location outside of his jurisdiction, was not permissible under a chapter 23 mutual aid agreement. The court
recognized that “[t]he announced policy of the Florida Mutual Aid Act was to provide a means to deal with
disasters, emergencies, and other major law enforcement problems.” 11 The court noted that the statute gives
examples of what might be appropriate for such agreement, and they include, but are not limited to, joint city-

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§ 4:18.Officer not in fresh pursuit outside of officer’s jurisdiction, 11 Fla. Prac., DUI...

county task forces dealing with drug smuggling and traffic enforcement task forces. 12 The court stressed that
such agreements cannot go beyond the legislative intent of the authorizing statute, and the statute was not
intended to give city police officers coextensive power with county deputy sheriffs.13

In Daniel v. State,14 the Court discussed another aspect of statutory mutual aid agreements called “‘voluntary
cooperation written agreement,’ which ‘permits voluntary cooperation and assistance of a routine law
enforcement nature across jurisdictional lines.’ … § 23.1225(1)(a).”15 The statute requires that these
agreements “‘specify the nature of the law enforcement assistance to be rendered,’ state ‘the procedures for
requesting and for authorizing assistance,’ and set forth ‘any other terms and conditions necessary to give it
effect.’ Id.”16 Based on such an agreement the court upheld a stop and arrest for armed robbery outside the
officers’ jurisdiction and not in fresh pursuit.17

Other routine law enforcement functions have also been found permissible under mutual aid agreements. In
Delgatto v. State,18 the court ruled that a speeding stop outside the officer’s jurisdiction was valid where the
officer was part of a saturation patrol and the mutual aid agreement provided for “‘assistance of a routine law
enforcement nature across jurisdictional lines.’” That is also the language of section 23.1225(1)(a). The court
ruled that this included traffic enforcement. 19 Similarly, a mutual aid agreement providing for interagency task
forces, which included traffic enforcement, was consistent with the statute and permitted joint efforts to enforce
the DUI law.20

As the foregoing authorities suggest, the intent of the mutual aid agreement is extremely important. Thus, in
State v. Medford,21 the three judge circuit court appellate panel concluded that the traffic stop was unlawful
because the officer was outside his jurisdiction when he observed the unlawful contact and made the stop. The
court concluded that “[t]he intent of the agreement … is that a stop is authorized when an officer, while in his
jurisdiction, observes a traffic offense on a contiguous roadway.”(emphasis by court). 22 The court went on to
rule that the officer could only make a stop based on probable cause for a traffic infraction, not reasonable
suspicion.23 This conclusion was based on the provision of the agreement that an officer could make a stop
where the officer “‘observes a traffic infraction occurring on a contiguous way, such officer may take
appropriate action to enforce the traffic laws of the state and issue any and all necessary citations, notice to
appear or to effect arrests; ….’”24

The impact of noncompliance or partial compliance with other statutory requirements as to the substance of
such agreements or with the terms of a mutual aid agreement, is not entirely clear. In one case, the court held
that the failure of the officer to comply with the terms of the agreement was not grounds for dismissal of the
charge.25 Where there was an invalid arrest made outside the officer’s jurisdiction, the court held that it did not
affect the jurisdiction of the court and had nothing to do with the guilt or innocence of the defendant. The court
concluded that the same would be true where an officer failed to comply with a mutual aid agreement after
making an otherwise valid arrest. 26 The court did not, however, address the effect of such noncompliance on the
admissibility of evidence.

That issue was addressed in Jarrett v. State.27 In that case, there was a mutual aid agreement, but it had not been
filed with the clerk of the circuit court as required. Thus, the defense argued that the officer who went to another
city pursuant to the agreement, acted without authority, and any seized evidence should have been suppressed.
On appeal, the court disagreed because the officer reasonably relied on the agreement, and the mistake was on
the part of the municipal governments. 28 There was no police misconduct to be deterred; therefore, the
exclusionary rule did not apply.29 On the other hand, in State v. Allen,30 the officer went beyond the scope of the
agreement, went out of town based on information that he had received from outside his jurisdiction, and
secured information leading to a search warrant. In that case, the court upheld suppression of the evidence. 31 It
clearly involved improper police conduct that could be deterred.

The courts have considered instances where officers have failed to comply with the terms of the agreement in
DUI cases, and, generally, such noncompliance results in exclusion of the evidence. In State v. Stice,32 the court
relied on the restrictions recognized in State v. Allen.33 In Stice,34 the state maintained that F.S.U. campus

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§ 4:18.Officer not in fresh pursuit outside of officer’s jurisdiction, 11 Fla. Prac., DUI...

officers had the same authority as deputy sheriffs because of a mutual aid agreement between the University
and the city. Thus, the state argued that a campus officer had the authority to make a traffic stop off campus,
which led to a DUI arrest. Based on the decision in Allen,35 the court disagreed. The authority of a city to enter
into agreements is restricted by the statute and the authority of an officer is restricted by the agreement. In
Stice,36 the agreement required that the campus officer notify the head of the police department about the
circumstances before or, as soon as possible, after entry into the city. The court noted that there was no urgency
that prevented this notification. Therefore, the court granted a motion to suppress the evidence. Similarly, where
the arresting officer was required by the agreement to turn the matter over to officers of the city where the arrest
took place, the failure to comply resulted in exclusion of the evidence.37

It is apparent that the terms of the agreement are critical to a determination of an officer’s authority outside of
the officer’s jurisdiction. Accordingly, the state should introduce either the agreement or competent evidence as
to its terms. And, if the state fails to do so, evidence secured as a result of police activity outside their
jurisdiction may be excluded.38

The mutual aid agreement itself may contain provisions that relieve officers from strict compliance. For
instance, in one case the agreement relieved officers from the duty of notifying a designated officer in the
subject jurisdiction prior to action where there were exigent circumstances. 39 Thus, prior notification was not
required where officers had to move quickly from one location to the next to apprehend the offender. 40 But in
the absence of such provisions, officers must comply with the agreement. 41 And the agreement did not apply
where there was no evidence that the sheriff of the county where the stop was made, actually requested
assistance from the other county.42

Officers may also stop vehicles in neighboring towns pursuant to interlocal agreements authorized by §
163.01, Fla. Stat. These are somewhat like the chapter 23 mutual aid agreements. By an interlocal agreement
one town agrees to provide law enforcement services for another. As with chapter 23 mutual aid agreements,
certain requirements must be met pursuant to chapter 163 agreements. The agreement and any amendments
must be filed with the clerk of the circuit court of each county in which a party to the agreement is located. One
trial court has ruled that this requirement is irrelevant to an officer’s authority to make an arrest outside of his or
her jurisdiction, because the filing requirement does not subserve any of the defendant’s rights and there is no
time frame for filing.43

Even without the statutory authority described above, an officer may make an arrest outside his or her
jurisdiction despite delay that might arguably indicate a lack of fresh pursuit. Thus, where an officer saw a
traffic violation inside his city, the arrest outside his city was valid despite a delay to check the tag in one case, 44
and to check ownership in another.45 However, it was improper for an officer who was outside of his jurisdiction
to follow a vehicle that allegedly hit another car outside of the officer’s jurisdiction and to detain the operator
outside of the officer’s jurisdiction.46 It was also improper for an officer who witnessed a traffic infraction in a
bordering city to stop the vehicle in the officer’s city solely for the infraction.47

The authority of university police off campus in the absence of an interlocal agreement was considered in
multiple consolidated cases by several circuit judges sitting in their appellate capacity. 48 These cases involved
officers making stops for traffic infractions committed on roads abutting the main campus and then observing
conduct leading to a DUI arrest. The court concluded that §§ 316.640 and 1012.97, Fla. Stat., must be
construed in pari materia resulting in the conclusion that university police have jurisdiction over roads on
campus and running through the campus, but not over roads abutting or adjacent to campus. 49 If university
police witness a traffic infraction on campus and the offender flees, section 316.640 permits the officer to
pursue the offender off-campus and make an arrest. The officer may make the arrest even if the pursuit began
on a road adjacent to the campus.50

Since those decisions dealing with campus police, the Legislature expanded the authority of both university 51
and Florida College System institutions (formerly community colleges) 52 police. In both cases, the law allows
campus officers to enforce traffic laws within 1000 feet of school property as it is defined in the statute. 53 If

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§ 4:18.Officer not in fresh pursuit outside of officer’s jurisdiction, 11 Fla. Prac., DUI...

officers witness a traffic offense in that area they have authority to pursue the offender. 54 The campus police still
have authority to enforce traffic laws “within a specified jurisdictional area as agreed upon in a mutual aid
agreement entered into with a law enforcement agency pursuant to s. 23.1225(1).”55

The new provision was specifically referenced in Acierno v. Dep’t of Highway Safety & Motor Vehicles.56 The
petitioner argued that his license suspension could not be sustained because the university officer was off
campus. In rejecting this argument, the court observed that the evidence referenced certain landmarks that made
it reasonable to conclude that the officer observed the violation within 1000 feet of the campus and was within
his jurisdiction.

Private or federal property creates special problems. One three judge circuit court appellate panel ruled that an
officer has no authority to stop a driver for driving without headlights in an apartment parking lot where there
was no agreement giving officers authority to enforce the traffic laws. 57 However, the court recognized that an
officer has the authority to make a stop for a DUI or nontraffic criminal offense in such a parking lot even in the
absence of an agreement.58 Thus, a different three judge panel of the same court ruled that officers had the
authority to enter a mobile home park to respond to a call for police service and reporting that a vehicle had
struck and damaged a mobile home and left the scene. 59 Officers had the authority to investigate the matter and
to make a DUI arrest.60 One trial court decision addressed the issue of whether a state trooper could make a DUI
arrest beyond the security gate at the Kennedy Space Center. 61 The court ruled based on a Deed of Cession
granting concurrent jurisdiction over the land within the Wild Refuse area, that the trooper had jurisdiction to
make the arrest.62

Sometimes officers conduct part of their investigation outside, but make the arrest inside their jurisdiction. That
is proper. If the subject of an investigation originates inside the officer’s jurisdiction, the officer may continue
the investigation outside his or her jurisdiction. 63 Thus, where an officer made a lawful DUI arrest inside his
city, it was proper for the officer to have the sheriff videotape sobriety tests, breath tests, and interrogation at the
sheriff’s facility, which was outside the city.64 In Thomas v. Dep’t of Highway Safety & Motor Vehicles, 65 while
recognizing that there is no prohibition against an officer going to another jurisdiction to secure the breath test,
the court suggested that the decisions in State v. Sills 66 and State v. Phoenix67 might require a different result in
criminal cases.

Once an officer secures the driver on a traffic infraction, there are limitations on further enforcement activity
outside the jurisdiction. Thus, in T.T.N. v. State, 68 the court held that the officer had no authority to pursue a
passenger into a neighboring jurisdiction.

An officer may leave his or her jurisdiction for reasons essentially unrelated to criminal conduct, but discover
evidence of criminal offense in the other jurisdiction. That is what happened where an officer received a report
that someone was passed out in a car at an intersection. 69 The officer received the report on the side of the
intersection that was within his jurisdiction, but the car was on the other side of the intersection in another city.
When the officer went to check on the man, he found that he was impaired and called an officer from the
jurisdiction in which the vehicle was located. That officer made a DUI arrest. The court held that the arrest was
lawful under the fellow officer rule.70

The foregoing discussion points to a growing problem in Florida. There are many areas where multiple towns
and cities literally come together, so that it is entirely possible that an officer might not know whether he or she
is making a stop in the proper jurisdiction. That’s what happened in one trial court case. 71 There the officer
responded to a minor traffic accident, which ultimately led to a DUI arrest. The officer did not realize until later
that the accident was outside of his jurisdiction. The trial judge found that the officer was acting under color of
office and without any authority. In granting the motion to suppress, the judge said, “While there is no unlawful
or evil intent on [the officer’s] behalf, as an officer with five (5) years of experience it is his obligation to know
where his jurisdiction begins and where it ends.”72

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 30.09, Fla. Stat.; Holloway v. State, 342 So. 2d 966 (Fla. 1977).
2
§ 30.09(4), Fla. Stat.
3
Ramer v. State, 530 So. 2d 915 (Fla. 1988). See also Biondi v. State, 240 So.3d 769 (Fla. 4th DCA
2018).
4
Daniel v. State, 20 So. 3d 1008 (Fla. 4th DCA 2009). See also Mattos v. State, 199 So.3d 416, 419
(Fla. 4th DCA 2016).
5
§ 23.1225, Fla. Stat.
6
§ 23.1225(4), Fla. Stat.
7
State v. Davis, 4 Fla. L. Weekly Supp. 265 (Fla. Pinellas Cty. Ct. July 2, 1996) State v. Davis, 4 Fla. L.
Weekly Supp. 265 (Fla. Pinellas Cty. Ct. July 2, 1996); State v. Scott, 4 Fla. L. Weekly Supp. 47 (Fla.
Pinellas Cty.Ct. March 26, 1996)State v. Scott, 4 Fla. L. Weekly Supp. 47 (Fla. Pinellas Cty.Ct. March
26, 1996). See also State v. Handren, 18 Fla. L. Weekly Supp. 556 (Fla. Palm Beach Cty. Ct. April 5,
2011)State v. Handren, 18 Fla. L. Weekly Supp. 556 (Fla. Palm Beach Cty. Ct. April 5, 2011) (failure to
comply with 14-day requirement was not grounds for suppression of evidence); State v. Caldwell, 7 Fla.
L. Weekly Supp. 140 (Fla. Palm Beach Cty. Ct. Nov. 15, 1999)State v. Caldwell, 7 Fla. L. Weekly
Supp. 140 (Fla. Palm Beach Cty. Ct. Nov. 15, 1999) (A trial judge found that failure to comply with 14
day requirement was not grounds for dismissal, because it did not cause prejudice to the defendant, and
it was not designed to protect any rights of accused citizens).
8
State v. Davis, 4 Fla. L. Weekly Supp. 265 (Fla. Pinellas Cty. Ct. July 2, 1996) State v. Davis, 4 Fla. L.
Weekly Supp. 265 (Fla. Pinellas Cty. Ct. July 2, 1996); State v. Scott, 4 Fla. L. Weekly Supp. 47 (Fla.
Pinellas Cty.Ct. March 26, 1996)State v. Scott, 4 Fla. L. Weekly Supp. 47 (Fla. Pinellas Cty.Ct. March
26, 1996).
9
State v. Davis, 4 Fla. L. Weekly Supp. 265 (Fla. Pinellas Cty. Ct. July 2, 1996) State v. Davis, 4 Fla. L.
Weekly Supp. 265 (Fla. Pinellas Cty. Ct. July 2, 1996); State v. Scott, 4 Fla. L. Weekly Supp. 47 (Fla.
Pinellas Cty.Ct. March 26, 1996)State v. Scott, 4 Fla. L. Weekly Supp. 47 (Fla. Pinellas Cty.Ct. March
26, 1996).
10
State v. Allen, 790 So. 2d 1122 (Fla. 2d DCA 2001). See also State v. Hindman, 25 Fla. L. Weekly
Supp. 541 (Fla. Volusia Cty. Ct. August 7, 2017)State v. Hindman, 25 Fla. L. Weekly Supp. 541 (Fla.
Volusia Cty. Ct. August 7, 2017) (officer had no authority under a Ch. 23 agreement to make a DUI
arrest arising out of an accident not on a city border or contiguous roadway, where the agreement
referred to “assistance,” but did not specify investigations or arrests except for cases where the
investigation leading to the arrest began in the arresting officers jurisdiction; the policy of a city to ask
other cities to investigate accidents in which officers were involved was not specified in the agreement
and was contrary to Ch 23 because it did not involve an emergency, disaster or a major law enforcement
problem); State v. Paris, 4 Fla. L. Weekly Supp. 661 (Fla. Dade Cty. Ct. Dec. 18, 1996)State v. Paris, 4
Fla. L. Weekly Supp. 661 (Fla. Dade Cty. Ct. Dec. 18, 1996) (Any mutual aid agreement permitting
stops outside of the officer’s jurisdiction for routine traffic matters like driving without headlights,
would violate the statute).
11
State v. Allen, 790 So. 2d 1122, 1125 (Fla. 2d DCA 2001).
12
State v. Allen, 790 So. 2d 1122, 1124 (Fla. 2d DCA 2001).

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13
State v. Allen, 790 So. 2d 1122, 1125 (Fla. 2d DCA 2001).
14
Daniel v. State, 20 So. 3d 1008 (Fla. 4th DCA 2009).
15
Daniel v. State, 20 So. 3d 1008, 1011 (Fla. 4th DCA 2009).
16
Daniel v. State, 20 So. 3d 1008, 1011–12 (Fla. 4th DCA 2009).
17
Daniel v. State, 20 So. 3d 1008 (Fla. 4th DCA 2009).
18
Delgatto v. State, 14 Fla. L. Weekly Supp. 437 (Fla. 7th Cir. Ct. March 8, 2007) Delgatto v. State, 14
Fla. L. Weekly Supp. 437 (Fla. 7th Cir. Ct. March 8, 2007).
19
Delgatto v. State, 14 Fla. L. Weekly Supp. 437 (Fla. 7th Cir. Ct. March 8, 2007) Delgatto v. State, 14
Fla. L. Weekly Supp. 437 (Fla. 7th Cir. Ct. March 8, 2007).
20
State v. Cypreste, 4 Fla. L. Weekly Supp. 102 (Fla. Volusia Cty. Ct. May 14, 1996)State v. Cypreste, 4
Fla. L. Weekly Supp. 102 (Fla. Volusia Cty. Ct. May 14, 1996).
21
State v. Medford, 16 Fla. L. Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008)State v. Medford, 16 Fla. L.
Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008).
22
State v. Medford, 16 Fla. L. Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008)State v. Medford, 16 Fla. L.
Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008).
23
State v. Medford, 16 Fla. L. Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008)State v. Medford, 16 Fla. L.
Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008).
24
State v. Medford, 16 Fla. L. Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008)State v. Medford, 16 Fla. L.
Weekly Supp. 6 (Fla. 6th Cir. Ct. June 12, 2008).
25
State v. Filoso, 613 So. 2d 69 (Fla. 4th DCA 1993) (It should be noted, however, that it was also the
Fourth District in State v. Eastman, 553 So. 2d 349 (Fla. 4th DCA 1989), that ruled that dismissal was
the appropriate remedy where officers unlawfully pursued the defendant into his mother’s home and
arrested him for DUI). Cf. State v. Ostrow, 579 So. 2d 292 (Fla. 3d DCA 1991) (holding that it is
improper to dismiss a DUI charge based on an unlawful arrest); State v. Rubino, 7 Fla. L. Weekly Supp.
286 (Fla. Palm Beach Cty. Ct. Feb. 11, 2000)State v. Rubino, 7 Fla. L. Weekly Supp. 286 (Fla. Palm
Beach Cty. Ct. Feb. 11, 2000) (failure to comply with filing requirements for an interlocal agreement
pursuant to Florida Statutes, Chapter 163, did not justify dismissal).
26
State v. Filoso, 613 So. 2d 69 (Fla. 4th DCA 1993).
27
Jarrett v. State, 926 So. 2d 429 (Fla. 2d DCA 2006), review dismissed, 940 So. 2d 427 (Fla. 2006).
28
Jarrett v. State, 926 So. 2d 429 (Fla. 2d DCA 2006), review dismissed, 940 So. 2d 427 (Fla. 2006).
29
Jarrett v. State, 926 So. 2d 429 (Fla. 2d DCA 2006), review dismissed, 940 So. 2d 427 (Fla. 2006); State
v. Handren, 18 Fla. L. Weekly Supp. 556 (Fla. Palm Beach Cty. Ct. April 5, 2011)State v. Handren, 18
Fla. L. Weekly Supp. 556 (Fla. Palm Beach Cty. Ct. April 5, 2011).
30
State v. Allen, 790 So. 2d 1122 (Fla. 2d DCA 2001). See also State v. Windau, 8 Fla. L. Weekly
Supp. 572 (Fla. Bay Cty. Ct. June 26, 2001)State v. Windau, 8 Fla. L. Weekly Supp. 572 (Fla. Bay Cty.
Ct. June 26, 2001).
31
State v. Allen, 790 So. 2d 1122 (Fla. 2d DCA 2001).
32
State v. Stice, 13 Fla. L. Weekly Supp. 1197 (Fla. Leon Cty. Ct. Sept. 18, 2006). See also State v.
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Rogan, 14 Fla. L. Weekly Supp. 72 (Fla. Leon Cty Ct. Nov. 15, 2006)Fla. Leon Cty. Ct. Sept. 18, 2006).
See also State v. Rogan, 14 Fla. L. Weekly Supp. 72 (Fla. Leon Cty Ct. Nov. 15, 2006) ; State v.
Barborini, 13 Fla. L. Weekly Supp. 1200 (Fla. Leon Cty. Ct. Sept. 18, 2006). State v. Beltran, 13 Fla. L.
Weekly Supp. 1194 (Fla. Leon Cty. Ct. Sept. 18, 2006).
33
State v. Allen, 790 So. 2d 1122 (Fla. 2d DCA 2001).
34
State v. Stice, 13 Fla. L. Weekly Supp. 1197 (Fla. Leon Cty. Ct. Sept. 18, 2006). See also State v.
Rogan, 14 Fla. L. Weekly Supp. 72 (Fla. Leon Cty Ct. Nov. 15, 2006)Fla. Leon Cty. Ct. Sept. 18, 2006).
See also State v. Rogan, 14 Fla. L. Weekly Supp. 72 (Fla. Leon Cty Ct. Nov. 15, 2006) ; State v.
Barborini, 13 Fla. L. Weekly Supp. 1200 (Fla. Leon Cty. Ct. Sept. 18, 2006); State v. Beltran, 13 Fla. L.
Weekly Supp. 1194 (Fla. Leon Cty. Ct. Sept. 18, 2006).
35
State v. Allen, 790 So. 2d 1122 (Fla. 2d DCA 2001).
36
State v. Stice, 13 Fla. L. Weekly Supp. 1197 (Fla. Leon Cty. Ct. Sept. 18, 2006). See also State v.
Wagner, 17 Fla. L. Weekly Supp. 25 (Fla. Leon Cty. Ct. Sept. 15, 2009)Fla. Leon Cty. Ct. Sept. 18,
2006). See also State v. Wagner, 17 Fla. L. Weekly Supp. 25 (Fla. Leon Cty. Ct. Sept. 15, 2009)
(campus officer observed traffic infractions off campus and made a stop off campus; state argued that
this was justified pursuant to agreements between the City and the University; court rejected this
position because officer did not notify the City police chief or his designee of the stop or make any
attempt to comply with the Mutual Aid Agreement; furthermore, the court found that jurisdiction lines
are precise, and language of statute “‘on or about’” does not permit the exercise of jurisdiction where
infractions are committed near the campus); State v. Rogan, 14 Fla. L. Weekly Supp. 72 (Fla. Leon Cty
Ct. Nov. 15, 2006)State v. Rogan, 14 Fla. L. Weekly Supp. 72 (Fla. Leon Cty Ct. Nov. 15, 2006); State
v. Barborini, 13 Fla. L. Weekly Supp. 1200 (Fla. Leon Cty. Ct. Sept. 18, 2006); State v. Beltran, 13 Fla.
L. Weekly Supp. 1194 (Fla. Leon Cty. Ct. Sept. 18, 2006).
37
Ball v. State, 14 Fla. L. Weekly Supp. 131 (Fla. 11th Cir. Ct. Nov. 21, 2006)Ball v. State, 14 Fla. L.
Weekly Supp. 131 (Fla. 11th Cir. Ct. Nov. 21, 2006). See also State v. Lundgren, 16 Fla. L. Weekly
Supp. 107 (Fla. 2d Cir. Ct. Sept. 1, 2009)State v. Lundgren, 16 Fla. L. Weekly Supp. 107 (Fla. 2d Cir.
Ct. Sept. 1, 2009) (trial court did not err in finding stop unlawful where campus police initiated stop off
campus, concluded stop off campus, and did not contact city police as required by mutual aid
agreement).
38
Walker v. State, 55 So. 3d 718 (Fla. 1st DCA 2011) (submission of mutual aid agreement after the close
of evidence was improper because it prevented the defendant from meaningfully considering its legal
effect and making substantive arguments to the trial court). See also Mattos v. State, 199 So.3d 416, 420
(Fla. 4th DCA 2016); Brennan v. State, 20 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Nov. 28,
2012)Brennan v. State, 20 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Nov. 28, 2012) (State did not
meet the burden of showing that officer had authority to act outside of his jurisdiction where they relied
on a mutual aid agreement in argument, but it was not introduced into evidence; it must be introduced,
cover time in question and must be strictly complied with); State v. Ralph, 18 Fla. L. Weekly Supp. 900
(Fla. Duval Cty. Ct. June 14, 2011)State v. Ralph, 18 Fla. L. Weekly Supp. 900 (Fla. Duval Cty. Ct.
June 14, 2011) (mutual aid agreement not considered by the court because the State just handed it to the
court without having it authenticated or properly admitted in evidence); Lewis v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 963 (Fla. 15th Cir. Ct. July 31, 2006)Lewis v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 963 (Fla. 15th Cir. Ct. July 31, 2006)
(officer was involved in a roadblock pursuant to a mutual aid agreement, but neither the agreement nor
any competent testimony as to its terms was presented to the hearing officer; therefore, the evidence did
not establish that the defendant was lawfully arrested); State v. Oliver, 14 Fla. L. Weekly Supp. 469
(Fla. Volusia Cty. Ct. Dec. 13, 2006)State v. Oliver, 14 Fla. L. Weekly Supp. 469 (Fla. Volusia Cty. Ct.
Dec. 13, 2006) (motion to suppress granted because the state failed to introduce a copy of the mutual aid
agreement).
39
State v. Walker, 852 So. 2d 863 (Fla. 3d DCA 2003).
40
State v. Walker, 852 So. 2d 863 (Fla. 3d DCA 2003).
41
State v. Earle, 17 Fla. L. Weekly Supp. 953 (Fla. 6th Cir. Ct. April 12, 2010) State v. Earle, 17 Fla. L.
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Weekly Supp. 953 (Fla. 6th Cir. Ct. April 12, 2010) (state could not rely on mutual aid agreement to
justify stop outside of officer’s jurisdiction where the officer did not comply with the agreement by
contacting the proper agency).
42
Pelkey v. Dep’t of Highway Safety & Motor Vehicle, 25 Fla. L. Weekly Supp. 853 (Fla. 5th Cir. Ct.
Nov 27, 2017)Pelkey v. Dep’t of Highway Safety & Motor Vehicle, 25 Fla. L. Weekly Supp. 853 (Fla.
5th Cir. Ct. Nov 27, 2017) (there was not competent substantial evidence that petitioner was lawfully
arrested where the stop, investigation and arrest was in a neighboring county and the hearing officer
relied solely on a Mutual Aid Agreement; but there was no evidence that the sheriff of the county where
the stop occurred actually requested assistance from the other county).
43
State v. Rubino, 7 Fla. L. Weekly Supp. 286 (Fla. Palm Beach Cty. Ct. Feb. 11, 2000)State v. Rubino, 7
Fla. L. Weekly Supp. 286 (Fla. Palm Beach Cty. Ct. Feb. 11, 2000).
44
State v. Brown, 16 Fla. L. Weekly C122 (Fla. 15th Cir. Ct. Aug. 21, 1991)State v. Brown, 16 Fla. L.
Weekly C122 (Fla. 15th Cir. Ct. Aug. 21, 1991).
45
Gibbons v. State, 16 Fla. L. Weekly C122 (Fla. 15th Cir. Ct. Aug. 21, 1991) Gibbons v. State, 16 Fla. L.
Weekly C122 (Fla. 15th Cir. Ct. Aug. 21, 1991).
46
State v. Diaz, 10 Fla. L. Weekly Supp. 917 (Fla. Dade Cty. Ct. Aug. 11, 2003)State v. Diaz, 10 Fla. L.
Weekly Supp. 917 (Fla. Dade Cty. Ct. Aug. 11, 2003) (since the officer “did not witness anything within
his own jurisdiction in the instant case, he could not stop or arrest the defendant pursuant to Section
901.25”).
47
Pipkin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 788 (Fla. 11th Cir. Ct.
June 22, 2004)Pipkin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 788 (Fla.
11th Cir. Ct. June 22, 2004). See also State v. Ralph, 18 Fla. L. Weekly Supp. 900 (Fla. Duval Cty. Ct.
June 14, 2011)State v. Ralph, 18 Fla. L. Weekly Supp. 900 (Fla. Duval Cty. Ct. June 14, 2011)
(witnessing an infraction outside of officer’s jurisdiction did not give officer authority to stop driver).
48
Tanzler v. State, 15 Fla. L. Weekly Supp. 773 (Fla. 8th Cir. Ct. June 20, 2008) Tanzler v. State, 15 Fla.
L. Weekly Supp. 773 (Fla. 8th Cir. Ct. June 20, 2008), motion for clarification denied, 15 Fla. L.
Weekly Supp. 960 (Fla. 8th Cir. Ct. Aug. 21, 2008)15 Fla. L. Weekly Supp. 960 (Fla. 8th Cir. Ct. Aug.
21, 2008).
49
Tanzler v. State, 15 Fla. L. Weekly Supp. 773 (Fla. 8th Cir. Ct. June 20, 2008) Tanzler v. State, 15 Fla.
L. Weekly Supp. 773 (Fla. 8th Cir. Ct. June 20, 2008), motion for clarification denied, 15 Fla. L.
Weekly Supp. 960 (Fla. 8th Cir. Ct. Aug. 21, 2008)15 Fla. L. Weekly Supp. 960 (Fla. 8th Cir. Ct. Aug.
21, 2008). See also Weaver v. State, 15 Fla. L. Weekly Supp. 958 (Fla. 8th Cir. Ct. Aug. 14,
2008)Weaver v. State, 15 Fla. L. Weekly Supp. 958 (Fla. 8th Cir. Ct. Aug. 14, 2008).
50
Tanzler v. State, 15 Fla. L. Weekly Supp. 773 (Fla. 8th Cir. Ct. June 20, 2008) Tanzler v. State, 15 Fla.
L. Weekly Supp. 773 (Fla. 8th Cir. Ct. June 20, 2008), motion for clarification denied, 15 Fla. L.
Weekly Supp. 960 (Fla. 8th Cir. Ct. Aug. 21, 2008)15 Fla. L. Weekly Supp. 960 (Fla. 8th Cir. Ct. Aug.
21, 2008). See also Weaver v. State, 15 Fla. L. Weekly Supp. 958 (Fla. 8th Cir. Ct. Aug. 14,
2008)Weaver v. State, 15 Fla. L. Weekly Supp. 958 (Fla. 8th Cir. Ct. Aug. 14, 2008).
51
Ch 2009-216, §§ 2 & 3, Laws of Florida (amends §§ 316.640 and 1012.97, Fla. Stat. (dealing with
the general arrest authority of university police)).
52
Ch. 2013-171, §§ 2 & 3, Laws of Florida (amends §§ 316.640 and 1012.88, Fla. Stat. (dealing with
the general arrest authority of Florida College System institutions police)).
53
Ch 2009-216, §§ 2 & 3 & Ch. 2013-171, §§ 2 & 3, Laws of Florida. University property is “any
property or facilities that are under the guidance, supervision, regulation, or control of a state university,
a direct-support organization of such state university, or any other organization controlled by the state
university or a direct-support organization of the state university.” § 316.640(1)b, Fla. Stat. Property
of a Florida College System institution is “any property or facilities that are under the guidance,

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§ 4:18.Officer not in fresh pursuit outside of officer’s jurisdiction, 11 Fla. Prac., DUI...

supervision, regulation, or control of the Florida College System institution.” § 316.640(1)c, Fla.
Stat.
54
Ch 2009-216, §§ 2 & 3 & Ch. 2013-171, §§ 2 & 3, Laws of Florida.
55
Ch 2009-216, §§ 2 & 3 & Ch. 2013-171, §§ 2 & 3, Laws of Florida. See Swearingen v. Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 127 (Fla. 9th Cir. Ct. Oct. 26, 2012) Laws
of Florida. See Swearingen v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 127
(Fla. 9th Cir. Ct. Oct. 26, 2012) (campus police were authorized by mutual aid agreement to make DUI
stops anywhere in Orange County; thus stop by one of those officers in Seminole County was lawful
where all observations were made in Orange County but not within a 1000 feet of campus and the
officer pursued the defendant into Seminole County).
56
Acierno v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct.
Jan. 9, 2013)Acierno v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 313 (Fla.
9th Cir. Ct. Jan. 9, 2013).
57
Nemeth v. State, 14 Fla. L. Weekly Supp. 334 (Fla. 6th Cir. Ct. Oct. 3, 2006)Nemeth v. State, 14 Fla. L.
Weekly Supp. 334 (Fla. 6th Cir. Ct. Oct. 3, 2006).
58
Nemeth v. State, 14 Fla. L. Weekly Supp. 334 (Fla. 6th Cir. Ct. Oct. 3, 2006)Nemeth v. State, 14 Fla. L.
Weekly Supp. 334 (Fla. 6th Cir. Ct. Oct. 3, 2006).
59
State v. Nolen, 16 Fla. L. Weekly Supp. 5 (Fla. 6th Cir. Ct. Aug. 21, 2008)State v. Nolen, 16 Fla. L.
Weekly Supp. 5 (Fla. 6th Cir. Ct. Aug. 21, 2008).
60
State v. Nolen, 16 Fla. L. Weekly Supp. 5 (Fla. 6th Cir. Ct. Aug. 21, 2008)State v. Nolen, 16 Fla. L.
Weekly Supp. 5 (Fla. 6th Cir. Ct. Aug. 21, 2008).
61
State v. Turpin, 16 Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009)State v. Turpin, 16
Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009).
62
State v. Turpin, 16 Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009)State v. Turpin, 16
Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009).
63
State v. Sills, 852 So. 2d 390, 393 (Fla. 4th DCA 2003) (court stressed while it is proper for officers
to go outside their jurisdiction for such investigations, they must investigate through the use of their own
senses and voluntary cooperation of citizens). See also State v. Stouffer, 248 So.3d 1165 (Fla. 4th DCA
2018); Knight v. State, 154 So. 3d 1157 (Fla. 1st DCA 2014), review denied, 173 So.3d 963 (Fla. 2015);
Department of Highway Safety and Motor Vehicles v. McClane, 891 So. 2d 596 (Fla. 5th DCA 2004) ;
State v. Walkin, 802 So. 2d 1169 (Fla. 3d DCA 2001); State v. Allen, 790 So. 2d 1122 (Fla. 2d DCA
2001); State v. Price, 589 So. 2d 1009 (Fla. 4th DCA 1991), review denied, 599 So. 2d 657 (Fla. 4th
DCA 1992).
64
See e.g. State v. Dobson, 2 Fla. L. Weekly Supp. 83 (Fla. Palm Beach Cty. Ct. Nov. 22, 1993) State v.
Dobson, 2 Fla. L. Weekly Supp. 83 (Fla. Palm Beach Cty. Ct. Nov. 22, 1993). See also State v. Currens,
11 Fla L. Weekly Supp. 370 (Fla. Brevard Cty. Ct. Feb. 2, 2004)State v. Currens, 11 Fla L. Weekly
Supp. 370 (Fla. Brevard Cty. Ct. Feb. 2, 2004) (there is no requirement that a breath test operator be
inside his/her jurisdiction when administering the tests, and such tests are lawful even without a mutual
aid agreement).
65
Thomas v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1073 (Fla. 9th Cir. Ct.
May 13, 2010) (any prohibition against testing outside of jurisdiction where the test is part of a
continuing investigation of a DUI offense that began in the officer’s jurisdiction does not apply to
administrative proceedings because exclusionary rule does not apply to such proceedings).
66
State v. Sills, 852 So. 2d 390 (Fla. 4th DCA 2003).

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67
State v. Phoenix, 428 So. 2d 262, 34 A.L.R.4th 320 (Fla. 4th DCA 1982), approved and remanded,
455 So. 2d 1024 (Fla. 1984).
68
T.T.N. v. State, 40 So. 3d 897 (Fla. 2d DCA 2010) (officers stopped vehicle within their jurisdiction,
driver fled on foot and passengers drove away in vehicle; after officer caught the driver they went to
driver’s home outside their jurisdiction and arrested one of the passengers on an unrelated matter).
69
State v. Anderson, 8 Fla. L. Weekly Supp. 121 (Fla. Palm Beach Cty. Ct. Oct. 27, 2000)State v.
Anderson, 8 Fla. L. Weekly Supp. 121 (Fla. Palm Beach Cty. Ct. Oct. 27, 2000).
70
State v. Anderson, 8 Fla. L. Weekly Supp. 121 (Fla. Palm Beach Cty. Ct. Oct. 27, 2000)State v.
Anderson, 8 Fla. L. Weekly Supp. 121 (Fla. Palm Beach Cty. Ct. Oct. 27, 2000).
71
State v. Ross, 10 Fla. L. Weekly Supp. 433 (Fla. Dade Cty. Ct. March 18, 2003)State v. Ross, 10 Fla. L.
Weekly Supp. 433 (Fla. Dade Cty. Ct. March 18, 2003).
72
State v. Ross, 10 Fla. L. Weekly Supp. 433 (Fla. Dade Cty. Ct. March 18, 2003)State v. Ross, 10 Fla. L.
Weekly Supp. 433 (Fla. Dade Cty. Ct. March 18, 2003).

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Works.

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§ 4:19.Pretextual stops, 11 Fla. Prac., DUI Handbook § 4:19 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:19 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:19. Pretextual stops

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(8), 349.5(3)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1335

In Kehoe v. State,1 the Court recognized that “[w]hen the police realize that they lack a founded suspicion, they
sometimes attempt to justify a stop on some obscure traffic violation.” 2 Over the years, that fact generated a
body of case law dealing with those types of situations, which became known as pretextual stops. Before the
Kehoe decision, the law in Florida was that a stop for a traffic violation was valid if an officer observed such a
violation, regardless of the officer’s true motives. 3 Thus, an officer could stop a suspect for a minor traffic
violation to investigate an unrelated criminal activity for which the officer lacked sufficient grounds to detain
the suspect.4

In Kehoe,5 the Court clarified its earlier position. It rejected the principle that as long as an officer has probable
cause for a traffic violation, an officer’s true motives for the stop are irrelevant. Instead, the Court held that
where there is a possible pretextual stop “the state must show that … a reasonable officer would have stopped
the vehicle absent an additional invalid purpose.” 6 In State v. Daniel,7 the Court clarified its ruling in Kehoe by
holding that “the reasonable officer test applies exclusively where a stop is justified solely by a minor
infraction, generally those that are purely regulatory in nature and do not address conduct potentially harmful to
other persons or property.”8

These principles of Florida law on pretextual stops were nullified by the United States Supreme Court in Whren
v. United States.9 Whren holds that if an officer has probable cause to stop a citizen for even a minor traffic
violation, the stop is lawful and the evidence secured as a result of the stop is admissible. This is true even if the
officer would not have made the stop in the absence of some other reason, such as drug interdiction. In Holland
v. State,10 the Florida Supreme Court recognized that Whren overrules the Kehoe/Daniel principles.
“[G]enerally, the only determination is whether probable cause existed for the stop in question.” 11 The

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§ 4:19.Pretextual stops, 11 Fla. Prac., DUI Handbook § 4:19 (2018-2019 ed.)

subjective intent of the officer is no longer determinative. 12 This means a return to the “could not” standard. If
an officer “could not” have made the stop, it is invalid. If an officer could have made the stop, it is valid, even if
a reasonable officer “would not” have made the stop in the absence of some motive other than traffic
enforcement.13

In Holland,14 the court observed that Whren15 sets forth a few rare exceptions to the general rule that a stop based
on probable cause is reasonable. A balancing test is required where the search and seizure was conducted in a
manner unusually harmful to the subject’s privacy or physical interests. In Whren, the Court gave four
examples.16 In Holland, the Court recognized that there may be other exceptions, but they must be of the same
serious nature. Being stopped by an unmarked car with flashing emergency lights in a high crime area does not
rise to that level.17

The current test for determining whether a stop for a traffic violation is valid simply requires a determination of
whether there is probable cause. This is the “could stop” test. Many cases since Whren have applied this test18
and many of them are included in § 4:11 of this chapter. A number of cases, predating Kehoe, found stops
invalid based on the “could stop” test. 19 Other rulings predating Kehoe found stops valid based on the “could
stop” test.20 These decisions could be of value in applying the Whren rule.

Despite abandonment of the Kehoe21 and Daniel22 standards by Whren23 and Holland,24 decisions predating the
move away from Kehoe/Daniel to Whren/Holland may still be helpful. Notwithstanding the pretext issues, these
cases provide incite as to violations of the statutes considered in those opinions.25

At one time, pretextual stop issues were extremely complex and consumed much of the court’s time. Clearly,
they are no longer complex and should not be a major issue in most cases.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Kehoe v. State, 521 So. 2d 1094 (Fla. 1988), abrogated by Dobrin v. Florida Dept. of Highway
Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert. denied, 543 U.S. 957, 125 S. Ct. 455, 160
L. Ed. 2d 320 (2004).
2
Kehoe v. State, 521 So. 2d 1094, 1096 (Fla. 1988), abrogated by Dobrin v. Florida Dept. of
Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert. denied, 543 U.S. 957, 125 S. Ct.
455, 160 L. Ed. 2d 320 (2004).
3
Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987); State v. Ogburn, 483 So. 2d 500 (Fla. 3d DCA
1986).
4
Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987); State v. Ogburn, 483 So. 2d 500 (Fla. 3d DCA
1986).
5
Kehoe v. State, 521 So. 2d 1094 (Fla. 1988), abrogated by Dobrin v. Florida Dept. of Highway
Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert. denied, 543 U.S. 957, 125 S. Ct. 455, 160
L. Ed. 2d 320 (2004).
6
Kehoe v. State, 521 So. 2d 1094, 1097 (Fla. 1988), abrogated by Dobrin v. Florida Dept. of
Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert. denied, 543 U.S. 957, 125 S. Ct.
455, 160 L. Ed. 2d 320 (2004).

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§ 4:19.Pretextual stops, 11 Fla. Prac., DUI Handbook § 4:19 (2018-2019 ed.)

7
State v. Daniel, 665 So. 2d 1040 (Fla. 1995).
8
State v. Daniel, 665 So. 2d 1040, 1043 (Fla. 1995).
9
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
10
Holland v. State, 696 So. 2d 757 (Fla. 1997).
11
Holland v. State, 696 So. 2d 757, 759 (Fla. 1997). See also State v. Battle, 232 So.3d 493 (Fla. 2d DCA
2017); State v. Proctor, 161 So. 3d 409 (Fla. 5th DCA 2014); State v. Coley, 157 So. 3d 542 (Fla. 4th
DCA 2015); State v. Williams, 119 So. 3d 544 (Fla. 1st DCA 2013); Sanchez v. State, 847 So. 2d 1043
(Fla. 4th DCA 2003), review denied, 860 So. 2d 978 (Fla. 2003) (lawful stop for driving 78 m.p.h. in a
70 m.p.h. zone); State v. McCabe, 845 So. 2d 327 (Fla. 2d DCA 2003) (lawful stop for speeding);
State v. Moore, 791 So. 2d 1246 (Fla. 1st DCA 2001) (lawful stop for illegally tinted windows); Sands
v. State, 753 So. 2d 630 (Fla. 5th DCA 2000), review denied, 773 So. 2d 56 (Fla. 2000), cert. denied.,
531 U.S. 1178, 121 S. Ct. 1155, 148 L. Ed. 2d 1016 (2001) (lawful stop for obscured temporary tag);
State v. Chambliss, 752 So. 2d 114 (Fla. 5th DCA 2000) (lawful stop for nonmatching tag); Gomez
v. State, 748 So. 2d 352 (Fla. 3d DCA 1999) (lawful stop for expired temporary tag); Bender v. State,
737 So. 2d 1181 (Fla. 1st DCA 1999), review denied, 744 So. 2d 452 (Fla. 1999), cert. denied, 529 U.S.
1029, 120 S. Ct. 1443, 146 L. Ed. 2d 331, (2000) (lawful stop for illegal U-turn); State v. Chaney, 744
So. 2d 595 (Fla. 2d DCA 1999) (lawful stop for failing to stop at stop sign); Covington v. State, 728 So.
2d 1195 (Fla. 4th DCA 1999) (lawful stop for ordinance violation of improperly stopping vehicle).
12
Holland v. State, 696 So. 2d 757, 759 (Fla. 1997). See also State v. Nelson, 183 So.3d 1074, 1076 (Fla.
5th DCA 2015); State v. Proctor, 161 So. 3d 409 (Fla. 5th DCA 2014); State v. Coley, 157 So. 3d 542
(Fla. 4th DCA 2015); Noto v. State, 42 So. 3d 814 (Fla. 4th DCA 2010), review denied, 56 So. 3d 767
(Fla. 2011), cert. denied, 132 S. Ct. 105, 181 L. Ed. 2d 32 (2011); State v. Hebert, 8 So. 3d 393 (Fla. 4th
DCA 2009) (Trooper stopped the defendant for turning left in front of traffic that had a green light,
trooper determined defendant’s license was revoked; trooper testified on a motion to suppress identity
that he could not tell if defendant had a green arrow because he could not see the light, but the light for
oncoming traffic was green; defendant and his wife testified on a motion to suppress, that they had a
green light; trial judge granted the motion to suppress because there was an “‘honest doubt as to whether
or not the defendant violated.’” the traffic statute; on appeal, the court reversed because the trial judge
did not apply the proper test—“‘whether the particular officer who initiated the traffic stop had an
objectively reasonable basis for making the stop.’ (quoting Dobrin v. Florida Dept. of Highway
Safety and Motor Vehicles, 874 So. 2d 1171, 1174 (Fla. 2004)” The trial judge did not determine
whether the trooper had probable cause.).
13
State v. Nurock, 680 So. 2d 629 (Fla. 4th DCA 1996). See also B.H. v. State, 958 So. 2d 536 (Fla. 4th
DCA 2007).
14
Holland v. State, 696 So. 2d 757 (Fla. 1997).
15
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
16
(1) seizure by deadly force, (2) physical penetration of the body, (3) warrantless entry into a home, and
(4) unannounced entry into a home.
17
Holland v. State, 696 So. 2d 757 (Fla. 1997).
18
State v. Proctor, 161 So. 3d 409 (Fla. 5th DCA 2014) (stop for driving without headlights on was valid
even though the conduct was brief and the officer was really concerned about a drug offense); Sanchez
v. State, 847 So. 2d 1043 (Fla. 4th DCA 2003), review denied, 860 So. 2d 978 (Fla. 2003) (trooper
lawfully stopped defendant when he performed a “ ‘pace clock’ ” showing that defendant was doing 78
m.p.h. in a 70 m.p.h., regardless of the trooper’s true motive); State v. McCabe, 845 So. 2d 327 (Fla. 2d
DCA 2003) (officer lawfully stopped defendant when radar showed that defendant was doing 47 m.p.h.
in a 40 m.p.h., even though the officer did not make the stop for eight blocks to see if there were signs of

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:19.Pretextual stops, 11 Fla. Prac., DUI Handbook § 4:19 (2018-2019 ed.)

impairment); Jordan v. State, 831 So. 2d 1241 (Fla. 5th DCA 2002) (where officer saw defendant
drive over line on edge of right lane of traffic three times, but no one was endangered, stop was
unlawful); Donaldson v. State, 803 So. 2d 856 (Fla. 4th DCA 2002) (squealing tires without any
other erratic driving when there were no other cars on the road or in the parking lot, was not sufficient
for a stop); Underwood v. State, 801 So. 2d 200 (Fla. 4th DCA 2001) (holding that a stop for
obstructing traffic for stopping in the middle of the road is without probable cause where there is no
evidence of intent to impede or hinder traffic); Betz v. State, 793 So. 2d 976 (Fla. 2d DCA 2001),
decision quashed on other grounds, 815 So. 2d 627 (Fla. 2002) (holding that a stop for an
extinguished headlight was lawful); State v. Moore, 791 So. 2d 1246 (Fla. 1st DCA 2001) (holding
that a stop for excessively dark tinted windows was lawful); State v. Kindle, 782 So. 2d 971 (Fla. 5th
DCA 2001) (holding that a stop for inoperative trailer taillights and a missing tag was lawful); State
v. Snead, 707 So. 2d 769 (Fla. 2d DCA 1998) (holding that a stop for inoperable taillight and brake light
on driver’s side was proper); State v. Kinnane, 689 So. 2d 1088 (Fla. 2d DCA 1996) (holding that a stop
for speeding was proper); State v. Holland, 680 So. 2d 1041 (Fla. 1st DCA 1996), decision approved,
696 So. 2d 757 (Fla. 1997) (holding that a stop for running a stop sign was valid); State v. Corvin, 677
So. 2d 947 (Fla. 2d DCA 1996) (holding that a stop for operating a vehicle without a validation sticker
in violation of § 320.07, Fla. Stat., was valid); State v. Grismer, 17 Fla. L. Weekly Supp. 947 (Fla.
6th Cir. Ct. April 21, 2010)State v. Grismer, 17 Fla. L. Weekly Supp. 947 (Fla. 6th Cir. Ct. April 21,
2010) (officer had probable cause for stop for failure to obey a traffic control device in violation of §
316.074, Fla. Stat.; stop was lawful regardless of officer’s subjective motivation where officer observed
vehicle stopped completely past the stop bar in the crosswalk; the trial judge’s concern that there was no
evidence that the driver had not already stopped and then moved past the stop bar was irrelevant because
there was no evidence that this had occurred; there was no authority that it would change the result, and
what the officer observed provided probable cause); State v. Reyna, 17 Fla. L. Weekly Supp. 1198 (Fla.
17th Cir. Ct. Sept. 20, 2010) (when officer discovered on her computer that the tag on defendant’s
vehicle was expired she could lawfully stop the vehicle even if she had other motives and
notwithstanding that owner’s brother was driving); State v. Lanciloti, 11 Fla. L. Weekly Supp. 342 (Fla.
Polk Cty. Ct. Jan. 30, 2004)State v. Lanciloti, 11 Fla. L. Weekly Supp. 342 (Fla. Polk Cty. Ct. Jan. 30,
2004) (holding that stopping in middle of road where no traffic was in fact obstructed was not a
violation, even though a parking space was available); State v. Serrano, 10 Fla. L. Weekly Supp. 56 (Fla.
Palm Beach Cty. Ct. Nov. 26, 2002)State v. Serrano, 10 Fla. L. Weekly Supp. 56 (Fla. Palm Beach Cty.
Ct. Nov. 26, 2002) (once deputy saw the defendant run a stoplight, the stop was lawful regardless of the
deputy’s true motive); State v. Schumm, 8 Fla. L. Weekly Supp. 817 (Fla. Palm Beach Cty. Ct. Aug. 30,
2001)State v. Schumm, 8 Fla. L. Weekly Supp. 817 (Fla. Palm Beach Cty. Ct. Aug. 30, 2001) (a stop
pursuant to section 316.087(1)(c) for changing to a left lane within 100 feet of an intersection); State v.
Picurro, 7 Fla. L. Weekly Supp. 687 (Fla. Palm Beach Cty. Ct. July 24, 2000)State v. Picurro, 7 Fla. L.
Weekly Supp. 687 (Fla. Palm Beach Cty. Ct. July 24, 2000) (holding that officer can establish probable
cause of speeding based on officer’s sensory perception); State v. Volts, 7 Fla. L. Weekly Supp. 346
(Fla. Manatee Cty. Ct. Oct. 21, 1999)State v. Volts, 7 Fla. L. Weekly Supp. 346 (Fla. Manatee Cty. Ct.
Oct. 21, 1999) (probable cause that the defendant had run a stop sign was sufficient for lawful stop even
though the officer was actually looking for drug violations).
19
Wilhelm v. State, 515 So. 2d 1343 (Fla. 2d DCA 1987) (holding that defective taillight, tag light, or
clearance light were too minor to justify stop); State v. Gray, 366 So. 2d 137 (Fla. 2d DCA 1979);
Diggs v. State, 345 So. 2d 815 (Fla. 2d DCA 1977), cert. denied, 353 So.2d 679 (Fla. 1977) (holding
that even though officer had a reason to believe the defendant did not have a license, a stop to check the
license was a pretext stop); Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975) disapproved of by
Ensor v. State, 403 So. 2d 349 (Fla. 1981) (holding that a bent, partially illegible tag was not
sufficient to justify stop); State v. Holmes, 256 So. 2d 32 (Fla. 2d DCA 1971), opinion adopted, 273
So. 2d 753 (Fla. 1972).
20
State v. Irvin, 483 So. 2d 461 (Fla. 5th DCA 1986), review denied, 491 So. 2d 279 (Fla. 1986)
(stating that speeding in presence of officers was sufficient to justify stop); State v. Turner, 345 So.

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§ 4:19.Pretextual stops, 11 Fla. Prac., DUI Handbook § 4:19 (2018-2019 ed.)

2d 767 (Fla. 4th DCA 1977) abrogated by State v. Kehoe, 498 So. 2d 560 (Fla. 4th DCA 1986) (stating
that a taillight problem was sufficient to justify stop); Urquhart v. State, 261 So. 2d 535 (Fla. 2d
DCA 1971), cert. denied, 266 So. 2d 349 (Fla. 1972) (stating that exceeding speed limit by 15 m.p.h.
was sufficient to justify stop).
21
Kehoe v. State, 521 So. 2d 1094 (Fla. 1988), abrogated by Dobrin v. Florida Dept. of Highway
Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), cert. denied, 543 U.S. 957, 125 S. Ct. 455, 160
L. Ed. 2d 320 (2004).
22
State v. Daniel, 665 So. 2d 1040 (Fla. 1995).
23
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
24
Holland v. State, 696 So. 2d 757 (Fla. 1997).
25
State v. Daniel, 665 So. 2d 1040 (Fla. 1995) (stating that stop for cracked windshield and a
windshield wiper stuck across driver’s view was valid pursuant to §§ 316.610(1) and 316.2952(4), Fla.
Stat.), overruled on other grounds by Holland v. State, 696 So. 2d 757 (Fla. 1997); State v. Everett, 671
So. 2d 161 (Fla. 2d DCA 1996), review denied, 676 So. 2d 412 (Fla. 1996) (stating that a stop for
making a right turn without signaling is valid pursuant to § 316.665, Fla. Stat.); Robinson v. State,
667 So. 2d 384 (Fla. 1st DCA 1995) (stating that stop for having high beams on across from an
intersection was valid pursuant to § 316.238(1), Fla. Stat.); Jackson v. State, 660 So. 2d 312 (Fla. 2d
DCA 1995) (stating that having a rear window completely out is not a violation); Joseph v. State, 588
So. 2d 1014 (Fla. 2d DCA 1991) (holding that stop for missing taillight lens was proper pursuant to §
316.221, Fla. Stat., which required two taillights emitting a red light); DeGroat v. State, 583 So. 2d 1105
(Fla. 5th DCA 1991) (stating that it was proper for officer to stop driver operating vehicle without
headlights in violation of § 316.217, Fla. Stat.); State v. Fernandez, 526 So. 2d 192 (Fla. 3d DCA 1988),
cause dismissed, 531 So. 2d 1352 (Fla. 1988) (holding that a stop for a tag light problem was valid).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:20. Citizen’s arrest

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(11)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

Officers acting outside of their jurisdiction have the same authority as any other citizen. 1 That means for
offenses occurring in their presence, they may make an arrest for all felonies and any misdemeanors
constituting a breach of peace. 2 They may also make an arrest for any felony that does not happen in their
presence, if they have probable cause.3 In felony cases not occurring in the officers’ presence, the officers must
also actually believe that the defendant committed the felony.4

There are limitations on an officer making an arrest as a private citizen that are unique to law enforcement
officers. They cannot make an arrest under color of office outside of their jurisdiction, but that principle has
been interpreted to mean officers cannot use their authority to observe criminal activity or to secure evidence
that they could not have otherwise obtained as a private citizen. 5 The fact that an officer is in a police cruiser, in
uniform, and identifies himself or herself as an officer has been found to not constitute “color of office.” 6 Thus,
in Mattos v. State,7 the court held that an officer made a valid citizen’s arrest, but he was acting under color of
law when he started a DUI investigation. “Indeed, a private citizen would not have been permitted to lawfully
administer a breathalyzer test and conduct field sobriety exercises.” 8 Furthermore, an officer cannot make a
Terry stop,9 or a stop to issue a citation for a civil infraction,10 as a private citizen.

These rules have been extensively developed in motor vehicle stop cases. An officer, while outside of his
jurisdiction, saw the defendant’s vehicle cross the center line three to seven times, force approaching vehicles
onto a berm, and almost hit a bridge abutment before coming to a halt. 11 The officer managed to stop the
defendant, identified himself as an officer, and detained the defendant. The court held that this was a valid
citizen’s arrest because such behavior constituted “a breach of the individual and collective peace of the
people.”12 This decision supports the lawfulness of a DUI arrest by an officer outside of his jurisdiction, if the

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§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

circumstances justify the conclusion that the activity is endangering life or property. Similarly, where an officer
observes erratic driving resulting in an accident, he or she may make an arrest as a private citizen. 13 However,
the decision in State v. Furr14 makes it clear that drunk driving constitutes a breach of the peace, justifying a
citizen’s arrest, regardless of whether other vehicles are around or not. Some circuit and county courts hold that
Furr15 permits a DUI to be treated as a breach of the peace only where there is erratic driving. 16

Recently, in Mattos v. State,17 the Fourth District found that being in actual physical control while impaired by
alcohol may constitute a breach of the peace. In this case, both the defendant, who was behind the wheel of a
vehicle stopped in the middle of traffic, and the passenger were passed out. Defendant had an odor of alcohol,
the car was in drive, and the defendant had his foot on the brake. “It strains credulity to assert that these
circumstances did not pose a threat to the safety and order of the public.”18

There have been several cases upholding stops for reckless driving or DUI by private citizens, who turn the
defendant over to law enforcement officers. Thus, two citizens properly stopped an individual and made a valid
citizen’s arrest by taking his keys, where they saw him swerve across three lanes of traffic, nearly striking
several cars.19 Officers observed additional facts upon their arrival that established probable cause. 20 A fireman
properly stopped a driver where she was driving “all over the road and on the sidewalk in front of a middle
school around 6 p.m.”21 Citizens who observed the defendant passed out behind the wheel of a vehicle, under
circumstances indicating that he had driven the vehicle to that location while impaired by alcohol, had the
authority to arrest the defendant.22 Also, they effectively consummated that arrest by taking the keys of the car
away from him.23 In another case,24 the court ruled that a school board officer made a proper citizen’s arrest for
reckless driving and police officers, who subsequently arrived, conducted a proper DUI investigation.

As some of the foregoing cases suggest, one crucial element of a citizen’s arrest is the arrest itself. Indeed, in
Steiner v. State,25 the court recognized: “to effectuate a citizen’s arrest … there must be an arrest—that is a
deprivation of the suspect’s right to leave.” It is particularly critical in a DUI case because if the citizen did not
make an arrest, the officer who subsequently arrives on the scene must have done so. Since the officer did not
witness driving or actual physical control, that arrest would be unlawful resulting in exclusion of all the
evidence.

Burch v. State26 provides a good example of this problem. In that case, a citizen reported seeing a vehicle leave a
bar and weave. After following the driver to the driver’s home, the citizen left. When police arrived, the
defendant was asleep on the ground and they detained him. Since no officer saw the defendant driving or in
actual physical control of the vehicle, the officers called the reporting citizen back to the scene and asked that he
arrest the defendant. He did by saying, “I arrest you.” The court ruled that this was not a valid citizen’s arrest
because upon first observing the defendant’s conduct, the citizen did nothing to restrain the defendant; and did
not take any action to arrest the defendant until the police had already detained him.

There are better examples of conduct by citizens actually constituting a valid arrest. Evidence supported the trial
judge’s finding that a volunteer firefighter made a citizen’s arrest for drunk driving where the firefighter “used
all of the restraint that was needed to restrict [defendant’s] ability to leave,” even though the firefighter was
courteous and defendant was submissive; so the fact that the deputies who took charge of the defendant did not
witness actual physical control or driving did not matter. 27 As suggested in the foregoing cases, the arrest may
be accomplished by taking the driver’s keys.28 Thus, there was a valid citizen’s arrest when a woman took the
impaired defendant’s keys, kept them, gave them to police and moved the car while the defendant sat in the
passenger’s seat.29 The court concluded that it didn’t matter what the woman’s reason for taking the keys was
because based on the totality of the circumstances, no reasonable person would have believed they were free to
go.30

However, in another case,31 the court reached a different decision. The court said: “While the confiscation of
another’s keys can demonstrate intent to deprive that person of his or her right to leave, this fact alone is not
dispositive of the issue.” In this case, the citizen said he took the keys for safety reasons, not to keep the driver
from leaving. “It seems axiomatic that if [the citizen] did not intend to arrest [the suspect] that he did not in fact
arrest him.” Furthermore, it was clear that the officer who subsequently arrived did not believe the defendant

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

had been arrested.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Mattos v. State, 199 So.3d 416 (Fla. 4th DCA 2016); State v. Price, 74 So. 3d 528 (Fla. 2d DCA 2011);
State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991);
Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA 1985), review denied, 475 So. 2d 694 (Fla. 1985);
State v. Phoenix, 428 So. 2d 262, 34 A.L.R.4th 320 (Fla. 4th DCA 1982), approved and remanded,
455 So. 2d 1024 (Fla. 1984); Wilson v. State, 403 So. 2d 982 (Fla. 1st DCA 1980); Collins v.
State, 143 So. 2d 700 (Fla. 2d DCA 1962), cert denied, 148 So. 2d 280 (Fla. 1962).
2
Phoenix v. State, 455 So. 2d 1024 (Fla. 1984); Mattos v. State, 199 So.3d 416 (Fla. 4th DCA 2016);
Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA 1985), review denied, 475 So. 2d 694 (Fla. 1985);
Collins v. State, 143 So. 2d 700 (Fla. 2d DCA 1962), cert denied, 148 So. 2d 280 (Fla. 1962).
3
Phoenix v. State, 455 So. 2d 1024 (Fla. 1984); State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA
1991), review denied, 591 So. 2d 184 (Fla. 1991); Collins v. State, 143 So. 2d 700 (Fla. 2d DCA
1962), cert denied, 148 So. 2d 280 (Fla. 1962).
4
State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991)
(dissent also contains an excellent discussion of the law on citizen’s arrest); Edwards v. State, 462 So.
2d 581 (Fla. 4th DCA 1985), review denied, 475 So. 2d 694 (Fla. 1985); Collins v. State, 143 So. 2d
700 (Fla. 2d DCA 1962), cert denied, 148 So. 2d 280 (Fla. 1962). See also State, Dept. of Highway
Safety and Motor Vehicles v. Pipkin, 927 So. 2d 901 (Fla. 3d DCA 2005); Brown v. Dep’t of Highway
Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 348 (Fla. 13th Cir. Ct. March 15, 2001) Brown v.
Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 348 (Fla. 13th Cir. Ct. March 15,
2001) (court adopted the reasoning of the dissenting judge in Sobrino and concluded that where an off-
duty officer outside of his jurisdiction did everything to detain the defendant except remove him from
the area, it did not affect the validity of the citizen’s arrest by the off-duty officer when an officer with
full arrest powers was arriving shortly).
5
Phoenix v. State, 455 So. 2d 1024 (Fla. 1984); Mattos v. State, 199 So.3d 416 (Fla. 4th DCA 2016);
State v. Sills, 852 So. 2d 390 (Fla. 4th DCA 2003); State v. Furr, 723 So. 2d 842 (Fla. 1st DCA
1998); State v. Moonie, 505 So. 2d 575 (Fla. 4th DCA 1987).
6
Phoenix v. State, 455 So. 2d 1024 (Fla. 1984). See also Mattos v. State, 199 So.3d 416, 421 (Fla. 4th
DCA 2016) (“By merely approaching Mattos in uniform, and after activating the police car’s emergency
lights, Officer Pedrero was not acting under color of law.”); State v. Price, 74 So. 3d 528 (Fla. 2d DCA
2011) (a stop by uniformed officer using patrol car’s lights based on conduct that any private citizen
could have observed was not under color of office; acting like a police officer outside of jurisdiction
does not alone constitute color of office); Buigues v. State, 920 So. 2d 1203 (Fla. 4th DCA 2006)
(confidential informant was not acting under color of office; that happens when an “ ‘officer actually
hold(s) himself out as a police officer, by either wearing his uniform or in some other manner openly
asserting his official position, in order to observe the unlawful activity involved or the contraband
seized.’ ” (quoting from State v. Shipman, 370 So. 2d 1195 (Fla. 4th DCA 1979))); Ripley v.
State, 898 So. 2d 1078 (Fla. 4th DCA 2005), receded from on other grounds by Morris v. State, 212
So.3d 383 (Fla. 4th DCA 2017) (detectives acted under color of office where they detained defendant in
his home without probable cause for the purpose of gathering evidence, began interrogating him without

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§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

advising him of his Miranda rights, and took control of the defendant and his children); State v. Sills,
852 So. 2d 390 (Fla. 4th DCA 2003) (officers acted under color of office where they induced the
defendant by promises of leniency to go with them outside of their jurisdiction); State v. Earle, 17 Fla.
L. Weekly Supp. 953 (Fla. 6th Cir. Ct. April 12, 2010)State v. Earle, 17 Fla. L. Weekly Supp. 953 (Fla.
6th Cir. Ct. April 12, 2010) (beside the fact that citizens are not authorized to do DUI investigations,
officers’ detention of defendant for that purpose outside their jurisdiction was under color of office
because they were using their position to secure evidence that they could not otherwise secure); Pino v.
State, 8 Fla. L. Weekly Supp. 26 (Fla. 17th Cir. Ct. May 22, 2000) Pino v. State, 8 Fla. L. Weekly Supp.
26 (Fla. 17th Cir. Ct. May 22, 2000) (a DUI arrest by an off-duty officer may still be valid as a citizen’s
arrest even though the officer makes the stop with his flashing lights on and it appears to the defendant
that it is a police arrest); State v. Harmon, 9 Fla. L. Weekly Supp. 877State v. Harmon, 9 Fla. L. Weekly
Supp. 877 (Fla. Seminole Cty. Ct. Aug. 30, 2002 and Oct. 3, 2002).
7
Mattos v. State, 199 So.3d 416 (Fla. 4th DCA 2016).
8
Mattos v. State, 199 So.3d 416, 420-21 (Fla. 4th DCA 2016).
9
State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991);
State v. Schuyler, 390 So. 2d 458 (Fla. 3d DCA 1980). See also State v. Earle, 17 Fla. L. Weekly Supp.
953 (Fla. 6th Cir. Ct. April 12, 2010)State v. Earle, 17 Fla. L. Weekly Supp. 953 (Fla. 6th Cir. Ct. April
12, 2010) (detention could not be justified as a citizen arrest where all observations and contact took
place outside officers’ jurisdiction and the stop was for a traffic violation followed by a DUI
investigation; citizens do not have authority to make stops for traffic violations or do DUI
investigations); State v. Shattuck, 25 Fla. L. Weekly Supp. 465 (Fla. Volusia Cty. Ct. June 29,
2017)State v. Shattuck, 25 Fla. L. Weekly Supp. 465 (Fla. Volusia Cty. Ct. June 29, 2017) (officer, who
was outside her jurisdiction, did not have authority to conduct a DUI investigation based on reasonable
suspicion nor did she have probable cause to make a citizen’s DUI arrest of an injured motorcyclists
after the scene was cleared and the defendant was treated; where there was a minor accident, an odor of
alcohol, and some other signs of possible impairment); State v. Dermangian, 20 Fla. L. Weekly Supp.
284 (Fla. Manatee Cty. Ct. Oct. 24, 2012)State v. Dermangian, 20 Fla. L. Weekly Supp. 284 (Fla.
Manatee Cty. Ct. Oct. 24, 2012) (there was not a valid citizen’s arrest where deputy was outside of his
jurisdiction when he saw a vehicle driving on the wrong side of the road, but not affecting other traffic; a
citizen would not have the authority to make a stop for investigation); State v. Ryan, 18 Fla. L. Weekly
Supp. 243 (Fla. Brevard Cty. Ct. Dec. 2, 2010)State v. Ryan, 18 Fla. L. Weekly Supp. 243 (Fla. Brevard
Cty. Ct. Dec. 2, 2010) (citizen stop by officer without intent to make an arrest is unlawful; citizen has no
authority to stop just for an investigation). But see Patel v. Dep’t of Highway Safety & Motor Vehicles,
22 Fla. L. Weekly Supp. 290 (Fla. 4th Cir Ct. Sept 22, 2014)Patel v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 290 (Fla. 4th Cir Ct. Sept 22, 2014) (court held officer outside
jurisdiction properly detained petitioner based on reasonable suspicion when petitioner veered sharply
across two lanes of travel into the lane occupied by officer and nearly hit the officer; officer conducted
traffic stop in parking lot and saw petitioner eating breath mints and having difficulty rolling down
window; officer also detected odor of an alcoholic beverage on petitioner’s breath and petitioner had
bloodshot, watery eyes, was confused and admitted drinking 2-3 beers just prior to driving his vehicle,
because a private citizen could have made an arrest under these circumstances); Herrera v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 177 (Fla. 4th Cir Ct. August 27,
2014)Herrera v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 177 (Fla. 4th Cir
Ct. August 27, 2014) (court held off duty officer outside jurisdiction could detain a petitioner parked on
side of the road based on reasonable suspicion where petitioner was alone and asleep at the wheel with
keys in ignition and when petitioner awoke he had slurred speech, could not be understood and smelled
of alcohol, because a private citizen could have made an arrest under these circumstances).
10
Schachter v. State, 338 So. 2d 269 (Fla. 3d DCA 1976). See also State, Dept. of Highway Safety and
Motor Vehicles v. Pipkin, 927 So. 2d 901 (Fla. 3d DCA 2005) (stop outside jurisdiction for failure to
maintain a proper lane was improper); Behr v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L.
Weekly Supp. 298 (Fla. 4th Cir. Ct. May 18, 2015)Behr v. Dep’t of Highway Safety & Motor Vehicles,
23 Fla. L. Weekly Supp. 298 (Fla. 4th Cir. Ct. May 18, 2015); Smyth v. Dep’t of Highway Safety &
Motor Vehicles, 18 Fla. L. Weekly Supp. 137 (Fla. 4th Cir. Ct. Nov. 18, 2010)Smyth v. Dep’t of
Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 137 (Fla. 4th Cir. Ct. Nov. 18, 2010)
(speeding, abruptly going around officer’s vehicle from rear, and continued speeding did not establish a
breach of the peace; therefore, stop could not be justified as a citizen’s arrest); State v. Dermangian, 20
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Fla. L. Weekly Supp. 284 (Fla. Manatee Cty. Ct. Oct. 24, 2012)State v. Dermangian, 20 Fla. L. Weekly
Supp. 284 (Fla. Manatee Cty. Ct. Oct. 24, 2012) (a citizen would not have authority to make a stop for
the infraction of driving on the wrong side of the road where no other traffic was affected); State v.
Helmer, 18 Fla. L. Weekly Supp. 1001 (Fla. Manatee Cty. Ct. June 6, 2011) (Manatee County deputy
did not have authority to do an investigatory stop as a citizen and the facts were not sufficiently
egregious for a citizen’s arrest where the deputy was at an intersection in Sarasota and saw the defendant
commit a red light violation when the defendant’s driver’s door was opened and his leg was hanging
out); State v. Handren, 18 Fla. L. Weekly Supp. 556 (Fla. Palm Beach Cty. Ct. April 5, 2011)State v.
Handren, 18 Fla. L. Weekly Supp. 556 (Fla. Palm Beach Cty. Ct. April 5, 2011) (speeding at 95 m.p.h.
in a 64 m.p.h. zone and almost striking another vehicle, changing lanes and passing the other vehicle and
returning to the right lane did not constitute a breach of peace; traffic infraction is not a breach of
peace); State v. Ryan, 18 Fla. L. Weekly Supp. 243 (Fla. Brevard Cty. Ct. Dec. 2, 2010) State v. Ryan,
18 Fla. L. Weekly Supp. 243 (Fla. Brevard Cty. Ct. Dec. 2, 2010) (a traffic infraction is not a breach of
the peace, there must be something more; hopping the curb and striking a small tree twice at the circular
entrance to a development with no damage does not constitute a breach of peace); State v. Christo, 12
Fla. L. Weekly Supp. 1189 (Fla. Bay Cty. Ct. Feb. 27, 2005) (stop by officer outside her jurisdiction
based on the infraction of driving on the wrong side of the road and no other facts could not be justified
as a citizen arrest because there was no felony or breach of the peace).
11
Edwards v. State, 462 So. 2d 581 (Fla. 4th DCA 1985), review denied, 475 So. 2d 694 (Fla. 1985). See
also State v. Price, 74 So. 3d 528 (Fla. 2d DCA 2011) (officer lawfully stopped vehicle outside of his
jurisdiction when it made a wide turn; drifted left of white line; sped up to 80 m.p.h.; then slowed down,
sped up, and slowed down again; drifted between lanes; when lanes went from three to two lanes, car
stayed in third lane as it was ending, and then changed lanes in front of a semi-truck, causing it to take
evasive action and blow horn; a few moments later, vehicle swerved right of fog line and came within a
foot of striking a bridge); Roberts v. Department of Highway Safety and Motor Vehicles, 976 So. 2d
1241 (Fla. 2d DCA 2008), cause dismissed, 984 So. 2d 520 (Fla. 2008) (circuit court did not apply
“wrong law when it determined that an officer outside his jurisdiction could make a legal stop and arrest
as a private citizen for a breach of the peace based on Roberts’ erratic and unsafe driving”); State v.
Schenck, 22 Fla. L. Weekly Supp. 30 (Fla. 9th Cir. Ct. 2014)State v. Schenck, 22 Fla. L. Weekly Supp.
30 (Fla. 9th Cir. Ct. 2014) (off-duty officer made lawful stop outside jurisdiction where over about two
miles he saw driver weaving in and out of lane, driving significantly below speed limit, tires going off
roadway, crossing centerline and “snaking” along roadway at least 10 times.); State v. Vagotis, 19 Fla.
L. Weekly Supp. 516 (Fla. 17th Cir. Ct. March 8, 2012)State v. Vagotis, 19 Fla. L. Weekly Supp. 516
(Fla. 17th Cir. Ct. March 8, 2012) (officer lawfully made a citizen’s arrest for breach of peace where
defendant ran a red light, swerved to and from left and right lanes, came close to several other vehicles
and then slammed hard on the brakes; “[t]he … standard is whether a motorist poses a threat to himself
or others” (Emphasis by court)); Harr v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly
Supp. 70 (Fla. 9th Cir. Ct. Sept. 17, 2009)Harr v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.
Weekly Supp. 70 (Fla. 9th Cir. Ct. Sept. 17, 2009) (paramedic had probable cause for citizen’s arrest on
DUI, which was a breach of peace, where truck was stopped in turn lane with lights off, in neutral,
engine running, and keys in the ignition; defendant slumped over the wheel, asleep, had a strong odor of
alcohol, and admitted drinking to excess); Randall v. Dep’t of Highway Safety & Motor Vehicles, 16
Fla. L. Weekly Supp. 614 (Fla. 9th Cir. Ct. April 1, 2009)Randall v. Dep’t of Highway Safety & Motor
Vehicles, 16 Fla. L. Weekly Supp. 614 (Fla. 9th Cir. Ct. April 1, 2009) (driving about 65-68 mph in a 50
mph zone and drifting from side to side within lane (line to line) did not constitute a breach of peace;
therefore, citizen’s arrest by officer was invalid); State v. Taber, 15 Fla. L. Weekly Supp. 797 (Fla. 17th
Cir. Ct. May 29, 2008)State v. Taber, 15 Fla. L. Weekly Supp. 797 (Fla. 17th Cir. Ct. May 29, 2008)
(officer had the authority to stop the defendant outside of his jurisdiction where he observed the
defendant swerve over multiple lanes of traffic, causing two other vehicles to swerve out of the way; this
constituted a breach of the peace); Fitsell v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L.
Weekly Supp. 357 (Fla. 7th Cir. Ct. Nov. 29, 2006)Fitsell v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 357 (Fla. 7th Cir. Ct. Nov. 29, 2006) (officer outside of his
jurisdiction made a valid citizen’s arrest where the officer reasonably believed that the defendant had
committed the felony of leaving the scene of an accident with injuries; subsequently, the defendant was
arrested for DUI); Seay v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 312
(Fla. 9th Cir. Ct. Dec. 27, 2004)Seay v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly
Supp. 312 (Fla. 9th Cir. Ct. Dec. 27, 2004) (being unresponsive and asleep at the wheel of a vehicle in
the middle of a street with the engine running and requiring other vehicles to go around the subject
vehicle constituted a breach of the peace); Clanton v. State, 11 Fla. L. Weekly Supp. 799 (Fla. 20th Cir.

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§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

Ct. May 4, 2004)Clanton v. State, 11 Fla. L. Weekly Supp. 799 (Fla. 20th Cir. Ct. May 4, 2004) (citizens
made a valid arrest where defendant was swerving from lane to lane, almost striking other vehicles);
Hamlin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 768 (Fla. 7th Cir. Ct.
Jan. 20, 2004)Hamlin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 768 (Fla.
7th Cir. Ct. Jan. 20, 2004) (accelerating rapidly, sliding the vehicle sideways, fish tailing, and screeching
tires constituted breach of the peace and the officer lawfully stopped defendant outside of his
jurisdiction); Cortinas v. State, 11 Fla. L. Weekly Supp. 416 (Fla. 17th Cir. Ct. Feb. 11, 2004)Cortinas v.
State, 11 Fla. L. Weekly Supp. 416 (Fla. 17th Cir. Ct. Feb. 11, 2004) (erratic driving consisting of
swerving into oncoming traffic and striking the median constituted a breach of peace permitting a
citizen’s arrest); Justice v. State, 9 Fla. L. Weekly Supp. 457 (Fla. 17th Cir. Ct. May 13, 2002)Justice v.
State, 9 Fla. L. Weekly Supp. 457 (Fla. 17th Cir. Ct. May 13, 2002) (crossing over line several times
causing other cars to move out of the area and accelerating and braking for no apparent reason
constituted a breach of the peace); Anderson v. State, 8 Fla. L. Weekly Supp. 865 (Fla. 17th Cir. Ct.
May 9, 2001)Anderson v. State, 8 Fla. L. Weekly Supp. 865 (Fla. 17th Cir. Ct. May 9, 2001) (striking
curb and swerving back into traffic three times was a breach of the peace); Overton v. Dep’t of Highway
Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 529 (Fla. 8th Cir. Ct. June 12, 2001)Overton v. Dep’t
of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 529 (Fla. 8th Cir. Ct. June 12, 2001)
(speeding, running two stop signs, failing to maintain a single lane, striking curb, and running off road
into the grass constituted breach of peace and off-duty officer could make a stop; officer had reasonable
suspicion of DUI, which is a breach of peace); Kuse v. State, 6 Fla. L. Weekly Supp. 473 (Fla. 11th Cir.
Ct. May 28, 1999)Kuse v. State, 6 Fla. L. Weekly Supp. 473 (Fla. 11th Cir. Ct. May 28, 1999) (swerving
from lane to lane and driving onto a sidewalk on two occasions constituted a breach of peace); State v.
Martinez, 17 Fla. L. Weekly Supp. 486 (Fla. Brevard Cty. Ct. Feb. 1, 2010)State v. Martinez, 17 Fla. L.
Weekly Supp. 486 (Fla. Brevard Cty. Ct. Feb. 1, 2010) (a member of USAF security forces at an air
force base stopped truck after it pulled into a no trespassing area and stopped, slowly proceeded forward
and stopped again, swerved and stopped abruptly; driving pattern continued for one to two minutes, and
after officer put emergency lights on, it took about 45 seconds to a minute for vehicle to stop; after stop,
officer observed that sole occupant of truck had glassy and bloodshot eyes, slurred and slow speech,
fumbled with documents, and an odor of an alcoholic beverage came from the vehicle; based on these
observations the officer made a lawful citizen’s arrest because DUI is a breach of peace, and officer
asked defendant to step out of truck, and took keys until deputies arrived and gave keys to them); State
v. Anderson, 16 Fla. L. Weekly Supp. 784 (Fla. Brevard Cty. Ct. May 4, 2009)State v. Anderson, 16 Fla.
L. Weekly Supp. 784 (Fla. Brevard Cty. Ct. May 4, 2009) (off duty officer stopped defendant outside his
city and court found stop to be a valid citizen’s arrest because erratic driving constituted a breach of the
peace; vehicle left roadway and over two miles crossed over fog line four more times while going 40 in
a 55 m.p.h. zone and officer thought driver was DUI; judge concluded driver jeopardized his and other’s
safety, and DUI is a breach of the peace, whether or not any other traffic is disrupted); State v. Alcorn,
12 Fla. L. Weekly Supp. 156 (Fla. Dade Cty. Ct. Nov. 17, 2004)State v. Alcorn, 12 Fla. L. Weekly
Supp. 156 (Fla. Dade Cty. Ct. Nov. 17, 2004) (this conduct did not constitute a beach of the peace:
vehicle driving erratically, going into the center turn lane, failing to maintain single lane, weaving and
having to stop between lanes to correct, in traffic that was not heavy and not affecting other vehicles;
court was not satisfied that officer observed the defendant for sufficient time); State v. Diaz, 10 Fla. L.
Weekly Supp. 917 (Fla. Dade Cty. Ct. Aug. 11, 2003)State v. Diaz, 10 Fla. L. Weekly Supp. 917 (Fla.
Dade Cty. Ct. Aug. 11, 2003) (where it was reported to officer who was outside his jurisdiction that one
car had hit another and the officer followed the vehicle, but witnessed no erratic driving, officer could
not make a citizen’s arrest); State v. Tallis, 8 Fla. L. Weekly Supp. 865 (Fla. Palm Beach Cty. Ct. Sept.
26, 2001)State v. Tallis, 8 Fla. L. Weekly Supp. 865 (Fla. Palm Beach Cty. Ct. Sept. 26, 2001) (officer
outside of jurisdiction made a lawful citizen’s arrest upon observing erratic and unsafe driving); State v.
Paris, 4 Fla. L. Weekly Supp. 661 (Fla. Dade Cty. Ct. Dec. 18, 1996)State v. Paris, 4 Fla. L. Weekly
Supp. 661 (Fla. Dade Cty. Ct. Dec. 18, 1996) (driving without headlights was not a breach of the peace).
12
Edwards v. State, 462 So. 2d 581, 582 (Fla. 4th DCA 1985), review denied, 475 So. 2d 694 (Fla. 1985).
13
State v. Englehardt, 465 So. 2d 1366 (Fla. 4th DCA 1985).
14
State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1998). See also Maciuba v. Dep’t of Highway Safety &
Motor Vehicles, 24 Fla. L. Weekly Supp. 4 (Fla. 6th Cir. Ct. March 8, 2016) Maciuba v. Dep’t of
Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 4 (Fla. 6th Cir. Ct. March 8, 2016) (failure
to maintain a single lane and being passed out at a traffic light constituted a breach of the peace; “an
officer acting outside of his jurisdiction does not need to wait until vehicles are forced off the road or

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§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

someone is injured to conduct a lawful citizen’s arrest.”); Whitney v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 531 (Fla. 6th Cir. Ct. March 30, 2007)Whitney v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 531 (Fla. 6th Cir. Ct. March 30, 2007) (off-duty
officer made a lawful citizen’s arrest where the defendant’s vehicle was obstructing traffic and creating
a traffic hazard; vehicle was running and in drive; defendant was passed out in the driver’s seat with his
foot on the brake); Hamlin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 768
(Fla. 7th Cir. Ct. Jan. 20, 2004)Hamlin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 768 (Fla. 7th Cir. Ct. Jan. 20, 2004); Worley v. State, 11 Fla. L. Weekly Supp. 210 (Fla.
15th Cir. Ct. Jan. 22, 2004)Worley v. State, 11 Fla. L. Weekly Supp. 210 (Fla. 15th Cir. Ct. Jan. 22,
2004) (officer who had not been recertified could make a valid citizen’s arrest for DUI); Gueltzow v.
State, 10 Fla. L. Weekly Supp. 788 (Fla. 17th Cir Ct. July 23, 2003)Gueltzow v. State, 10 Fla. L.
Weekly Supp. 788 (Fla. 17th Cir Ct. July 23, 2003) (Based on Furr, court said, “[O]perating any motor
vehicle while impaired from alcohol is a breach of the peace, regardless of whether any other traffic is
disrupted.”); Brown v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 348 (Fla.
13th Cir. Ct. March 15, 2001)Brown v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly
Supp. 348 (Fla. 13th Cir. Ct. March 15, 2001); Smith v. State, 8 Fla. L. Weekly Supp. 21 (Fla. 17th Cir.
Ct. June 12, 2000)Smith v. State, 8 Fla. L. Weekly Supp. 21 (Fla. 17th Cir. Ct. June 12, 2000).
15
State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1998).
16
State v. Gonzalez, 13 Fla. L. Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006) State v. Gonzalez, 13
Fla. L. Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006) (speeding and failure to stay in lane for two
blocks constituted a breach of the peace); Charlotin v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 907 (Fla. 9th Cir. Ct. May 25, 2005)Charlotin v. Dep’t of Highway Safety &
Motor Vehicles, 12 Fla. L. Weekly Supp. 907 (Fla. 9th Cir. Ct. May 25, 2005) (the court concluded that
State v. Furr stands for the proposition that DUI constitutes a breach of the peace only where there is
erratic driving, and in this case, that test was not met because the defendant was only driving 20 m.p.h.
in a 10 m.p.h. zone and did not come to a complete stop at a stop sign); State v. Collins, 26 Fla. L.
Weekly Supp. 60State v. Collins, 26 Fla. L. Weekly Supp. 60 (Fla. Indian River Cty. Ct. Match 19,
2018) (auxiliary trooper had authority to make a citizen arrest where he observed erratic driving,
including stopping for no apparent reason on a heavily travelled highway); State v. Marrier, 25 Fla. L.
Weekly Supp. 1022 (Fla. Volusia Cty. Ct. Feb. 13, 2018) (stop by officer outside his jurisdiction could
not be justified as a citizen arrest where officer followed vehicle 8-10 miles, it swerved within its lane 2-
4 times, crossed the fog line 1-2 feet; but never left the roadway or crossed center line; the shoulder was
only 1-1½ feet width and there was no evidence anyone or anything was placed in danger); State v.
Laprada, 22 Fla. L. Weekly Supp. 1174 (Fla. Brevard Cty. Ct. Nov. 24, 2014) (detective outside his
jurisdiction saw defendant at a light behind several other vehicles; he appeared to be pressing the gas
and brake at the same time causing his truck to continually lurch forward; when light changed to green
defendant did not move, one car went around, detective hit his siren, truck did not move immediately,
but did move within a short time; detective witnessed no bad driving; trial judge found stop as citizen
unlawful because the driving was not erratic); State v. Newman, 22 Fla. L. Weekly Supp. 939 (Fla.
Volusia Cty. Ct. Oct. 8, 2014)State v. Newman, 22 Fla. L. Weekly Supp. 939 (Fla. Volusia Cty. Ct. Oct.
8, 2014) (officer could not lawfully make a valid citizen’s arrest outside her jurisdiction based on the
fact that she saw defendant get out of an inoperable vehicle; officer did not witness any erratic driving
nor was the driver passed out in the vehicle in the middle of the road); State v. Christo, 12 Fla. L.
Weekly Supp. 1189 (Fla. Bay Cty. Ct. Feb. 27, 2005) (officer could not make a citizen’s arrest where
defendant passed several vehicles as he was meeting the officer, and the officer had to pull off the road
to allow the defendant to return to his lane after passing the vehicles; the court concluded that these facts
were more akin to an infraction than a breach of the peace).
17
Mattos v. State, 199 So.3d 416, 420 (Fla. 4th DCA 2016).
18
Mattos v. State, 199 So.3d 416, 420 (Fla. 4th DCA 2016).
19
Clanton v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 882 (Fla. 20th Cir. Ct.
Aug. 21, 2003)Clanton v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 882
(Fla. 20th Cir. Ct. Aug. 21, 2003). See also Seay v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla.
L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Dec. 27, 2004)Seay v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Dec. 27, 2004) (where the defendant was asleep
at the wheel of a vehicle in the middle of a street with the engine running, making other vehicles go

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§ 4:20.Citizen’s arrest, 11 Fla. Prac., DUI Handbook § 4:20 (2018-2019 ed.)

around, the EMT make a valid citizen’s arrest by taking the defendant’s car keys, regardless of the
EMT’s actual intent).
20
Clanton v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 882 (Fla. 20th Cir. Ct.
Aug. 21, 2003)Clanton v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 882
(Fla. 20th Cir. Ct. Aug. 21, 2003). See also Seay v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla.
L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Dec. 27, 2004)Seay v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. Dec. 27, 2004).
21
Brignola v. State, 10 Fla. L. Weekly Supp. 687 (Fla. 17th Cir. Ct. July 15, 2003) Brignola v. State, 10
Fla. L. Weekly Supp. 687 (Fla. 17th Cir. Ct. July 15, 2003).
22
Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir. Ct. Sept.
27, 2002)Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir.
Ct. Sept. 27, 2002).
23
Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir. Ct. Sept.
27, 2002)Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir.
Ct. Sept. 27, 2002).
24
State v. Ramos, 38 Fla. Supp. 2d 171 (Fla. Dade Cty. Ct. 1989).
25
Steiner v. State, 690 So. 2d 706, 708 (Fla. 4th DCA 1997). See also McAnnis v. State, 386 So.2d
1230 (Fla. 3d DCA 1980) (notwithstanding language that for an arrest to be valid there must be an intent
to arrest, an intent to “detain” is sufficient; “‘If there is significant interference with a defendant’s
liberty, the fact that the police did not intend to make a formal arrest or did not think that their actions
constituted an arrest is irrelevant.’” (quoting from United States v. Jones, 352 F.Supp. 369
(S.D.Ga.1972), aff’d 481 F.2d 1402 (5th Cir. 1973))).
26
Burch v. State, 20 Fla. L. Weekly Supp. 654 (Fla. 18th Cir. Ct. Feb. 7, 2013)Burch v. State, 20 Fla. L.
Weekly Supp. 654 (Fla. 18th Cir. Ct. Feb. 7, 2013). See also DeLuce v. Dep’t of Highway Safety &
Motor vehicles, 22 Fla. L. Weekly Supp. 890 (Fla. 15th Cir. Ct. Feb. 26, 2015)DeLuce v. Dep’t of
Highway Safety & Motor vehicles, 22 Fla. L. Weekly Supp. 890 (Fla. 15th Cir. Ct. Feb. 26, 2015)
(detention of defendant by police officers who did not witness driving or APC couldn’t be upheld based
on theory that gated community security officers who called police make a citizen’s arrest because the
security officers actually encouraged petitioner to leave rather than restraining him); State v. Perez, 16
Fla. L. Weekly Supp. 661 (Fla. Leon Cty. Ct. Jan. 29, 2009)State v. Perez, 16 Fla. L. Weekly Supp. 661
(Fla. Leon Cty. Ct. Jan. 29, 2009) (while on his way to an accident an employee of the fire department
saw a vehicle being operated erratically and a person in the vehicle yelled that the driver was drunk;
employee called 911 and used his emergency lights to make a stop, but he did nothing to prevent the
driver from driving away; this was an invalid citizen’s stop and the exclusionary rule applied because
the employee was a government agent on his way to a call, and used government property to make stop).
27
Pigna v. State, 15 Fla. L. Weekly Supp. 231 (Fla. 17th Cir. Ct. Dec. 26, 2007) Pigna v. State, 15 Fla. L.
Weekly Supp. 231 (Fla. 17th Cir. Ct. Dec. 26, 2007). See also Sanchez v. Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 1019 (Fla. 4th Cir. Ct. August 30, 2011) (when officers
arrived, petitioner was under a valid citizen’s arrest where a civilian used his vehicle to block
petitioner’s vehicle, assisted moving petitioner to passenger seat and got into the driver’s side in an
attempt to move the vehicle where the civilian saw petitioner was unable to maintain her lane of travel
and almost struck two cars, appeared passed out at a stop light, and then drove away); State v. Ford, 18
Fla. L. Weekly Supp. 1071 (Fla. 15th Cir. Ct. Aug. 22, 2011) (paramedics made a citizen’s arrest, where
they took defendant’s keys and kept them, helped defendant out of the car, and prevented her from
walking when she tried).
28
Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly 733 (Fla. 9th Cir. Ct. Sept. 27,
2002)Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly 733 (Fla. 9th Cir. Ct. Sept.
27, 2002). See also Harr v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 70
(Fla. 9th Cir. Ct. Sept. 17, 2009)Harr v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly
Supp. 70 (Fla. 9th Cir. Ct. Sept. 17, 2009) (paramedic made an arrest by removing the keys from the
ignition).

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29
Estrada v. State, 19 Fla. L. Weekly Supp. 70 (Fla. 15th Cir. Ct. Oct. 12, 2011)Estrada v. State, 19 Fla. L.
Weekly Supp. 70 (Fla. 15th Cir. Ct. Oct. 12, 2011).
30
Estrada v. State, 19 Fla. L. Weekly Supp. 70 (Fla. 15th Cir. Ct. Oct. 12, 2011)Estrada v. State, 19 Fla. L.
Weekly Supp. 70 (Fla. 15th Cir. Ct. Oct. 12, 2011) (the woman said that she took the keys because she
didn’t want the defendant to hurt herself or someone else).
31
Boermeester v. State, 15 Fla. L. Weekly Supp. 576 (Fla. 13th Cir. Ct. Jan. 23, 2008)Boermeester v.
State, 15 Fla. L. Weekly Supp. 576 (Fla. 13th Cir. Ct. Jan. 23, 2008). See also Savnik v. Dep’t of
Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 304 (Fla. 15th Cir. Ct. June 1, 2017)Savnik
v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 304 (Fla. 15th Cir. Ct. June 1,
2017) (there was not a lawful arrest where arresting officer did not witness driving or actual physical
control and the State relied on a citizen’s arrest by an occupant of the car, who took the keys and threw
them away for safety reasons and then walked a half a mile from the vehicle); Palmer v. State, 21 Fla. L.
Weekly Supp. 541 (Fla. 4th Cir. Ct. Jan. 9, 2014)Palmer v. State, 21 Fla. L. Weekly Supp. 541 (Fla. 4th
Cir. Ct. Jan. 9, 2014) (evidence of a citizen’s arrest was insufficient where a private citizen removed
keys from defendant’s car, which was stopped at a red light, but the only evidence of impairment was
another citizen’s testimony that the car had swerved a bit; there was insufficient evidence a
misdemeanor had occurred in the presence of the citizen who allegedly made the arrest or that he
intended to make an arrest and prevent the defendant from leaving); State v. Ross, 25 Fla. L. Weekly
Supp. 642 (Fla. Polk Cty. Ct. July 31,2017)State v. Ross, 25 Fla. L. Weekly Supp. 642 (Fla. Polk Cty.
Ct. July 31,2017) (the arrest by officers who had not witnessed any driving or APC, could not be upheld
as a preceding citizen arrest by a non-officer citizen; the citizen intended to detain the defendant when
she saw her condition in a parking lot, but she did not intend to arrest her; after the defendant’s mother
told the citizen by phone that she should keep the defendant there, the citizen parked the car and took
possession of the keys; there was no evidence the citizen told the defendant she was under arrest, not
free to leave, or had to wait for the police; and the citizen did not call the police until the defendant
became aggressive); State v. Shattuck, 25 Fla. L. Weekly Supp. 465 (Fla. Volusia Cty. Ct. June 29,
2017)State v. Shattuck, 25 Fla. L. Weekly Supp. 465 (Fla. Volusia Cty. Ct. June 29, 2017) (trial judge
seemed to hold that officer who was outside of her jurisdiction did not make a valid citizen’s arrest
where the stated reason she asked an injured motorcyclist to remain at the scene was for medical care
and to talk to another officer who would come to investigate the motorcycle accident; but then for sake
of argument, the judge suggested that after the defendant was treated and cleared no reasonable person
would believe they were free to go where a uniformed officer in a marked car with activated lights and
sirens asked him to stay until another officer arrived); State v. Duran-Elizarraga, 25 Fla. L. Weekly
Supp. 105 (Fla. Manatee Cty Ct. March 20, 2017)State v. Duran-Elizarraga, 25 Fla. L. Weekly Supp.
105 (Fla. Manatee Cty Ct. March 20, 2017) (paramedic who told defendant to turn off his car and
confiscated his keys did not make a valid citizen’s arrest where the paramedic said: “ ‘I didn’t tell him
he wasn’t free to leave because we are not permitted to detain people.’ Thus it is clear to the Court that
the paramedic did not have a purpose or intention to effect a citizen’s arrest.”); State v. Ledford, 24 Fla.
L. Weekly Supp. 301 (Fla. Flagler Cty. Ct. June 22, 2016)State v. Ledford, 24 Fla. L. Weekly Supp. 301
(Fla. Flagler Cty. Ct. June 22, 2016) (there was not a valid citizen’s arrest where an off duty first
responder observed defendant driving dangerously; first responder told her to get the vehicle off the
road, secured the keys, put them on top of the vehicle and had her sit in the passenger seat until an
officer arrived; it was clear that the first responder “intended to ‘detain’ the [driver] so that she could be
further evaluated by medical and law enforcement personnel;” but the evidence did not establish that he
intended to arrest her); State v. Jones, 22 Fla. L. Weekly Supp. 968 (Fla. Seminole Cty. Ct. Feb. 20,
2015)State v. Jones, 22 Fla. L. Weekly Supp. 968 (Fla. Seminole Cty. Ct. Feb. 20, 2015) (officers could
not lawfully arrest defendant because they did not witness driving or APC where drunken defendant was
in car in a parking lot when they arrived and Publix employees had removed keys; but those employees
did not make a citizen arrest even though they took her keys, because they did not make or intend to
make a citizen’s arrest where no Publix employee said anything to defendant indicating she could not
leave, took keys just to keep her from driving, and no one stayed with her to prevent her from leaving
the parking lot); State v. Mustafa, 18 Fla. L. Weekly Supp. 911 (Fla. Palm Beach Cty. Ct. July 19,
2011)State v. Mustafa, 18 Fla. L. Weekly Supp. 911 (Fla. Palm Beach Cty. Ct. July 19, 2011) (no
citizen’s arrest where security guard suggested defendant and others exit vehicle, which was on railroad
track, for their safety and guard told defendant it would be in his best interest to wait for officers, but the
guard did not intend to arrest the defendant and he was free to go; subsequent arrest by officer who did
not witness actual physical control was unlawful).

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End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:21. Roadblocks

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 349(6), 349(9)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1321 to 1332, 1334 to 1335

A seizure takes place as contemplated by the Fourth Amendment when a person’s freedom of movement is
terminated by an instrumentality that a law enforcement officer puts in place to terminate that freedom. 1 It is a
seizure even if the person stopped is not the one police intended to stop. 2 Thus, a seizure occurs where police
put a roadblock across both lanes of a highway.3 It does not constitute a consensual encounter, and the defendant
is not free to ignore the officer’s directions or to refuse to answer questions. 4 Clearly, the use of such techniques
for various kinds of traffic enforcement is tempting, because it permits law enforcement to confront a large
number of drivers in a relatively short period of time in an environment structured and controlled by police. It
does, however, have a great potential for abuse. Such stops are made without probable cause or reasonable
suspicion.5 Accordingly, officers cannot randomly stop drivers to check licenses and registrations, 6 where there
is “no empirical evidence” that such stops promote highway safety.7

Roadblocks have frequently been used for DUI investigations. Thus, in State v. Jones,8 the Florida Supreme
Court established standards for this procedure. First, the roadblock must be established and operated according
to detailed guidelines regarding the selection of vehicles, detention techniques, assignments, and the disposition
of vehicles so that little discretion is left to the officers conducting the roadblock.

In one case,9 the defendant was stopped at a roadblock and sought suppression based on the failure of the state
to introduce into evidence a written set of uniform guidelines for operating the roadblock. The trial judge denied
the motion based on the finding that the deputies’ testimony about their standard operating procedure was the
functional equivalent of written guidelines. On appeal, the court reversed because the absence of specific
written guidelines rendered the roadblock fatally defective under Jones. The court stressed the Jones
requirement for detailed written procedures to minimize the intrusion and prevent arbitrary police action.

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

However, the court indicated that even if the guidelines do not cover each of the listed matters, they may still be
acceptable because the sufficiency of a plan should be considered as a whole. 10

In Rinaldo v. State,11 the court followed the principle that the plan should be considered as a whole and
evaluated based on whether it adequately limits police discretion. There the defendant did not stop for the
roadblock as directed by one officer, but another officer stopped him. That contact led to the development of
sufficient grounds for requiring the defendant to exit his vehicle, and ultimately, to his arrest for carrying a
concealed firearm and DUI. The defendant argued that the written roadblock guidelines gave no instructions as
to how a person who rolled through the roadblock was to be treated, and therefore, the stop was unlawful. The
court ruled that this was not a fatal flaw. The guidelines were sufficient to limit police discretion. The court
concluded that motorists are neither expected nor privileged to ignore a roadblock. In the alternative, the court
ruled that the defendant had a legal obligation to stop and his failure to do so might constitute obstructing and
opposing.

The Fourth District also considered the guidelines as a whole in Jones v. State,12 but it distinguished Rinaldo.
The detection of illegal drugs was “an integral part of this roadblock,” 13 but the written guidelines fell far short
of those in Rinaldo.14 “Although the guidelines addressed the important issue of which vehicles would initially
be stopped (all), they did not address which cars would be checked for narcotics or the procedures to be used.” 15
Thus, it “left the crucial decisions of which drivers would be questioned about drugs and how they would be
questioned solely to the discretion of the officers on the scene.” 16 For these reasons, the stop was invalid.
Similarly, guidelines were inadequate where they gave the officers the discretion to divert vehicles around the
roadblock when four vehicles were in line. 17 “That provides the officers with the ability, upon a common and
usual occurrence, to effectively suspend the roadblock, without any guidelines or criteria for its resumption.” 18
Also, the plan was invalid where it was old, repeatedly used for different roadblocks, so that it was not
particularized, and failed to specify a vehicle selection procedure. 19 However, where the guidelines adequately
identified the ratio of vehicles to be stopped, they were valid, even though they gave the roadblock supervisor
the authority to adjust the ratio based on the traffic flow.20

In Guy v. State,21 the court reversed the denial of a motion to suppress despite written guidelines for two
reasons. First, the guidelines vested too much discretion in the event commander or checkpoint supervisor to
adjust the plan. Second, the agencies departed from the plan.

As to the first factor, the plan provided: “‘If a traffic back-up occurs that would not facilitate a minimal
detainment, a contingency plan of either stopping the checkpoint until traffic does facilitate a minimal
detainment or a systemic selection of vehicles to include every X# vehicle will enter the checkpoint [sic]. This
will be determined by the Event Commander/Checkpoint Supervisor.’” 22 The court concluded that this provision
permitted one officer “to develop a contingency plan on the spot, in the event of a traffic backup” which was
likely since every vehicle was to be checked. This was contrary to the requirement established in Jones and
confirmed in Campbell “that the vehicle selection procedure be governed by neutral criteria which limits the
conduct of individual officers.”23

As to the second factor, the evidence established that there was not strict compliance with the plan as required
by Campbell. The assignments were subject to change in the field. One officer who was the “‘checkpoint
supervisor’” and “‘drug recognition expert’” was called away, so another officer took over those duties and
continued to perform his duties as “‘traffic control officer.’” Additionally, the plan provided that the roadblock
would remain open until 11:30 p.m., but it was terminated at 11:10 p.m. due to lack of manpower, which was
foreseeable given the shortage of officers and the need for officers to perform more than one task. However, the
plan did not include this as a reason for early termination.24

As these cases make clear, guidelines are critical because they regulate the officers’ discretion and reduce the
chances of arbitrary enforcement. That does not mean, however, that the involved officers necessarily have to
read the guidelines. In Santilli v. State,25 the court concluded that there is no requirement that each officer
personally read the written guidelines. It was sufficient for the supervisor to discuss the operational plan with
the other officers, and give them specific guidelines and instructions on their duties and the methods for dealing

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

with encounters as a result of the roadblock. On the other hand, where both the officer making the stop at a
roadblock and his supervisor, had no knowledge that written guidelines even existed and were not present at the
predeployment briefing, the stop violated the Fourth Amendment. 26 However, there is no requirement that
officers keep a log of what vehicles are stopped or when they are stopped.27

The Florida Supreme Court reiterated the critical nature of detailed written guidelines in Campbell v. State.28
The Court said this requirement is not merely a formality; but rather, “it is the method this Court … [has]
chosen to ensure that the police do not act with unbridled discretion in exercising the power to stop and restrain
citizens who have manifested no conduct that would otherwise justify an intrusion on a citizen’s liberty.” 29
Further, the Court ruled that the holding in Jones “requires particularized advance planning and direct and strict
compliance thereafter.”30

The second requirement established in Jones is that the safety of motorists must be assured by providing
adequate lighting, warning signals, and officers who are easily identified as law enforcement personnel. 31 The
third requirement is that the degree of intrusion and length of detention must be minimized. 32 Last, the district
court in Jones required that the roadblock be significantly more effective in combating a serious crime problem
than other less intrusive means, and the Florida Supreme Court did not alter this requirement. 33

While Campbell34 makes it clear that Jones is still the law of the State of Florida, in Michigan Dep’t of State
Police v. Sitz,35 the U.S. Supreme Court effectively eliminated any requirement concerning effectiveness. 36 In
Sitz, a state police agency established a sobriety checkpoint. Detailed guidelines were distributed, but citizens
were stopped at the checkpoint without probable cause or reasonable suspicion. The evidence showed that 126
vehicles were stopped and two drivers, or about 1.6%, were arrested for driving under the influence. The
evidence also indicated that such checkpoints commonly resulted in an arrest of only 1% of the drivers for DUI.
Thus, this procedure clearly did not meet the requirement that the roadblock procedure be significantly more
effective in combating a serious crime problem than other less intrusive means. The Court in Sitz was not
concerned about this apparent deficiency. Instead, the Court concluded that there was some evidence that the
procedure was effective in accomplishing its goal and it was for the “politically accountable officials,” not the
courts, to decide how this law enforcement technique should be used.37

The Court in Sitz ruled that such procedures comport with Fourth Amendment requirements based on the three-
part balancing test established in Brown v. Texas.38 First, the interest of the State in preventing accidents caused
by drunk driving must be considered. The Court recognized that the State has a great interest in accomplishing
this purpose. Second, the level of intrusion on the individual’s privacy interest caused by the stop must be
balanced against the State’s interest. The Court held that the level of intrusion was slight since each stop
averaged about 25 seconds, and the stops were pursuant to guidelines and involved every vehicle, so that the
stop was not arbitrary. Third, the effectiveness of the checkpoints in achieving the State’s goals must be
considered. As suggested earlier, the Court found that there was some evidence of effectiveness, and that was
sufficient. In Sitz, the court concluded:
In sum, the balance of the state’s interest in preventing drunken driving, the extent to which this
system can reasonably be said to advance that interest, and the degree of intrusion upon individual
motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it
is consistent with the Fourth Amendment.39

Minor errors that have no significant impact will not invalidate roadblock stops. Thus, the failure of the data
collection officer to keep track of the average length of the delay for each person as contemplated by the plan,
was not grounds for suppression. There was a sufficient plan, everyone was treated the same, and there was no
evidence that anyone was detained for an unreasonable period of time. 40 Furthermore, the failure to have a
formal meeting after the checkpoint was concluded, was not fatal. 41 Similarly, the roadblock stop was valid
where not all the field sobriety exercises specified by the plan were given, some exercises unspecified by the
plan were given, and the officers in charge switched.42

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

In another case,43 a roadblock was set up where most of the people who passed through it were residents of the
area. On appeal, the court found the impact on the liberty of the citizens living there to be severe. The court
concluded that in this setting, the interference with individual liberty outweighed the State’s interest in
combating drugs. This was particularly so, since the seizure advanced that interest only slightly. This opinion
predated Sitz,44 and it is uncertain whether the result would be the same now.

Sometimes law enforcement may set up a roadblock for purposes unrelated to traffic control. That was the
situation in Harbaugh v. State.45 There officers set up a roadblock in connection with a shooting. The roadblock
had two purposes. First, it was to secure the crime scene so that evidence of the crime was not lost. Second, it
was to detain any suspects matching the description of the shooter. The defendant was caught in that roadblock
for reasons unconnected with the shooting and arrested for DUI. He attacked the validity of his arrest because
the roadblock did not comply with Campbell and Jones. The Harbaugh court ruled that the procedure in those
cases was inapplicable to this type of roadblock. The validity of this procedure is more properly considered
based on the balancing test established in Brown v. Texas.46 The procedure passed the Brown test.

In contrast to the situation in Harbaugh,47 where the stop focused on a specific crime, the courts have made it
clear that different rules apply to checkpoints set up to deal generally with crime and not traffic safety issues,
like sobriety and driver’s license checkpoints. In City of Indianapolis v. Edmond,48 the Court ruled that a
checkpoint set up for drug interdiction violated the Fourth Amendment. Based on that decision, in Davis v.
State,49 the court ruled that, contrary to law enforcement’s assertion that their checkpoint was to check driver’s
licenses, the evidence indicated it was really to catch drug offenders. Therefore, it violated the Fourth
Amendment.

In Illinois v. Lidster,50 the Court recognized a different kind of generalized roadblock than the one considered in
Edmond.51 In Lidster,52 police established a checkpoint primarily for the purpose of securing information that
might lead to the apprehension of individuals other than the occupants of the detained vehicles. Officers set up
the roadblock in the hopes of learning things that would lead to the apprehension of a hit and run driver. In the
process, they developed probable cause for a DUI arrest. The Court refused to “apply an Edmond-type rule of
automatic unconstitutionality to [such] brief, information seeking highway stops.” 53 Thus, such information
seeking stops are not presumptively unconstitutional. Instead, in Lidster,54 the Court ruled that the three part test
established in Brown v. Texas55 must be applied.

A trial judge applied the three part balancing test relied on in Harbaugh56 and Lidster57 to a much different
situation in State v. Currid.58 In Currid, an officer blocked a road while other officers did a DUI investigation
unrelated to the defendant. When the defendant pulled up to where the officer was blocking the road for the
other DUI investigation, the officer went to tell him they were doing the investigation and he would be able to
pass soon. As a result of that contact, the officer developed grounds for a DUI arrest. The court found that
blocking the road in this fashion was unlawful because it did not comply with the three part balancing test.
Officers had no explanation for why the roadblock was necessary to investigate a DUI or to address any other
exigent circumstances. The interference with personal liberty in Currid59 was greater than in Harbaugh60 because
in Harbaugh, if the defendant had not been impaired he would have been told to turn around; whereas, in
Currid,61 the delay would have been much greater due to the DUI investigation and there was no indication as to
how long defendant would be there.62

All of the foregoing cases involved some kind of police-citizen contact in which citizens were required to stop
by road blockages created and maintained by law enforcement. In State v. Plebanek,63 the trial judge found that
the involved road closure was not a roadblock as considered in those cases or even a stop; therefore, guideline
requirements did not apply. The road closure related to safety concerns arising from an air show. Plenty of
warning of the closure was given and most people turned around and no one was pursued. But the defendant
voluntarily chose to approach the officer. When he did, according to the judge, he was lawfully arrested because
he had slurred speech, glassy, bloodshot eyes an odor of alcohol and an open can of beer in his hand.

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Brower v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989).
2
Brower v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989).
3
Brower v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989).
4
Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).
5
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990).
6
Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).
7
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990).
8
State v. Jones, 483 So. 2d 433 (Fla. 1986). See also Guy v. State, 993 So. 2d 77 (Fla. 2d DCA 2008),
review denied, 7 So. 3d 536 (Fla. 2009); Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001);
Cardwell v. State, 482 So. 2d 512 (Fla. 1st DCA 1986).
9
Hartsfield v. State, 629 So. 2d 1020 (Fla. 4th DCA 1993). See also State v. Szymoniak, 14 Fla. L.
Weekly Supp. 485 (Fla. Osceola Cty. Ct. Feb. 16, 2007)State v. Szymoniak, 14 Fla. L. Weekly Supp.
485 (Fla. Osceola Cty. Ct. Feb. 16, 2007) (court suppressed evidence without ruling on constitutionality
of the operational plan because the state did not meet its burden by introducing the plan into evidence
and relied on checkpoint commander to describe how vehicles were selected).
10
Hartsfield v. State, 629 So. 2d 1020 (Fla. 4th DCA 1993).
11
Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).
12
Jones v. State, 800 So. 2d 351 (Fla. 4th DCA 2001).
13
Jones v. State, 800 So. 2d 351, 355 (Fla. 4th DCA 2001).
14
Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).
15
Jones v. State, 800 So. 2d 351, 355 (Fla. 4th DCA 2001). State v. Mondragon, 14 Fla. L. Weekly Supp.
1137 (Fla. Polk Cty. Ct. Sept. 26, 2007).
16
Jones v. State, 800 So. 2d 351, 355 (Fla. 4th DCA 2001). State v. Mondragon, 14 Fla. L. Weekly Supp.
1137 (Fla. Polk Cty. Ct. Sept. 26, 2007).
17
State v. Buchholz, 12 Fla. L. Weekly Supp. 993 (Fla. Brevard Cty. Ct. July 4, 2005)State v. Buchholz,
12 Fla. L. Weekly Supp. 993 (Fla. Brevard Cty. Ct. July 4, 2005). See also State v. Singh, 14 Fla. L.
Weekly Supp. 85 (Fla. Palm Beach Cty. Ct. Oct. 17, 2006)State v. Singh, 14 Fla. L. Weekly Supp. 85
(Fla. Palm Beach Cty. Ct. Oct. 17, 2006) (roadblock violated Fourth Amendment when officers
abandoned detailed plan as traffic backed up).
18
State v. Buchholz, 12 Fla. L. Weekly Supp. 993 (Fla. Brevard Cty. Ct. July 4, 2005)State v. Buchholz,
12 Fla. L. Weekly Supp. 993 (Fla. Brevard Cty. Ct. July 4, 2005).

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

19
State v. Bauers, 13 Fla. L. Weekly Supp. 377 (Fla. Broward Cty. Ct. Nov. 10, 2005)State v. Bauers, 13
Fla. L. Weekly Supp. 377 (Fla. Broward Cty. Ct. Nov. 10, 2005).
20
State v. Gill, 9 Fla. L. Weekly Supp. 823 (Fla. 17th Cir. Ct. Oct. 3, 2002)State v. Gill, 9 Fla. L. Weekly
Supp. 823 (Fla. 17th Cir. Ct. Oct. 3, 2002); Suffront v. State, 8 Fla. L. Weekly Supp. 700 (Fla. 17th Cir.
Ct. Aug. 6, 2001)Suffront v. State, 8 Fla. L. Weekly Supp. 700 (Fla. 17th Cir. Ct. Aug. 6, 2001).
21
Guy v. State, 993 So. 2d 77 (Fla. 2d DCA 2008), review denied, 7 So. 3d 536 (Fla. 2009).
22
Guy v. State, 993 So. 2d 77 (Fla. 2d DCA 2008), review denied, 7 So. 3d 536 (Fla. 2009). See also
Delgado v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. Law Weekly Supp. 103 (Fla. 9th Cir.
Ct. Oct. 11, 2012) (guidelines were reasonably specific where they did not allow officers to choose
whether to close the checkpoint or change the number of vehicles; instead, “should traffic congestion,
excessive delays, or traffic hazards occur” the Operational Supervisor could let traffic through “until an
orderly traffic pattern is restored, and then resume stopping all vehicles thereafter;” the only thing left to
discretion is “what constitutes traffic congestion, excessive delays, or traffic hazards”); State v. Rizzo,
20 Fla. L. Weekly Supp. 10 (Fla. 6th Cir. Ct. Sept. 12, 2012)State v. Rizzo, 20 Fla. L. Weekly Supp. 10
(Fla. 6th Cir. Ct. Sept. 12, 2012) (roadblock was invalid—the guidelines provided for diverting every
fifth vehicle unless traffic volume justified a change to every tenth vehicle, but “The Command Officer”
had the sole discretion to deviate; the prohibition against unbridled discretion applies to any officer; the
fact that all vehicles were stopped, did not cure the problem because the test is whether guidelines allow
unbridled discretion, not whether officers use the discretion); Ramirez v. State, 19 Fla. L. Weekly Supp.
966 (Fla. 7th Cir. Ct. July 12, 2012)Ramirez v. State, 19 Fla. L. Weekly Supp. 966 (Fla. 7th Cir. Ct. July
12, 2012) (roadblock was invalid because the guidelines provided that every third car was to be stopped,
but the checkpoint supervisor had discretion to change that without any indication of the circumstances;
officers started diverting every car); State v. Wing, 18 Fla. L. Weekly Supp. 1120 (Fla. 15th Cir. Ct.
Sept. 16, 2011) (roadblock stop was valid where written plan provided a list of standard indications of
DUI, but also provided “‘if deemed necessary other possible means may be used for detecting
impairment;’” officer testified that this consisted of requesting the driver to perform roadside sobriety
tasks or a portable breath test if under 21 and that the guidelines were followed and the officers were
allowed no discretion whatsoever; court relied on Schleter); State v. Jutrowski, 18 Fla. L. Weekly Supp.
771 (Fla. 20th Cir. Ct. April 21, 2011)State v. Jutrowski, 18 Fla. L. Weekly Supp. 771 (Fla. 20th Cir. Ct.
April 21, 2011) (guidelines allowed too much discretion where they provided that if impairment by
chemical or controlled substance was suspected a DRE would be called, but did not provide for drug
evaluation process, including the test, and the decision to use it would be made by an officer if the
breath test was below.08; while plan did not provide unbridled discretion by giving officers a choice
about specifically listed FSEs, the power to choose “‘any other exercises deemed appropriate if driver is
unable to perform the standardized exercises’” did give too much discretion); Schleter v. State, 15 Fla.
L. Weekly Supp. 1062 (Fla. 15th Cir. Ct. Sept. 10, 2008) (guidelines must eliminate unbridled
discretion, not all discretion; thus the fact that deputy could exercise discretion as to whose licenses or
brake lights he would check, did not constitute unbridled discretion and invalidate the stop where the
guidelines specified “the purpose of the roadblock, the procedures regarding the selection of vehicles,
detention techniques, duty assignments, disposition of vehicles, and … that every vehicle must be
stopped.” (two to one decision)); Ambrose v. State, 15 Fla. L. Weekly Supp. 343 (Fla. 20th Cir. Ct. Aug.
21, 2007)Ambrose v. State, 15 Fla. L. Weekly Supp. 343 (Fla. 20th Cir. Ct. Aug. 21, 2007) (guidelines
were insufficient because they authorized officers to have drivers exit if “‘there are sufficient signs of
impairment’” after considering specific factors and asking specific questions, but there were no
guidelines as to what impairment met, and the guidelines left “the inquiry and detention to the relatively
unbridled discretion of the officer”); State v. Miller, 16 Fla. L. Weekly Supp. 951 (Fla. Escambia Cty.
Ct. July 14, 2009)State v. Miller, 16 Fla. L. Weekly Supp. 951 (Fla. Escambia Cty. Ct. July 14, 2009)
(sobriety checkpoint stop was improper where the written guidelines allowed the stop methodology
(every vehicle) to be “changed to insure the smooth and safe flow of traffic and efficient operations,”
which left selection of vehicles to discretion of officers); State v. Yacko, 15 Fla. L. Weekly Supp. 945
(Fla. Broward Cty. Ct. July 21, 2008)State v. Yacko, 15 Fla. L. Weekly Supp. 945 (Fla. Broward Cty.
Ct. July 21, 2008)(checkpoint stop was invalid where the written guidelines did not specify any vehicle
selection procedure, it was discussed at the briefing and there were no duty assignments or after action
report); State v. Luke, 14 Fla. L. Weekly Supp. 882 (Fla. Nassau Cty. Ct. July 2, 2007)State v. Luke, 14
Fla. L. Weekly Supp. 882 (Fla. Nassau Cty. Ct. July 2, 2007) (guidelines were insufficient because they
provided “no criteria on which the supervisor was to adjust the frequency of the stops”). Contrast Muller
v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 960 (Fla. 9th Cir. Ct. July 8,

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

2010)Muller v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 960 (Fla. 9th Cir.
Ct. July 8, 2010) (guidelines sufficient: suspension and resumption of checkpoint based on traffic
patterns, but Event Commander did not choose whether to close checkpoint or change number of
stopped vehicles; instead, if there was congestion, excessive delays, or traffic hazards traffic would
move through checkpoint until an orderly pattern returned and then officers would continue stopping all
vehicles).
23
Guy v. State, 993 So. 2d 77, 79 (Fla. 2d DCA 2008), review denied, 7 So. 3d 536 (Fla. 2009).
24
Guy v. State, 993 So. 2d 77 (Fla. 2d DCA 2008), review denied, 7 So. 3d 536 (Fla. 2009). See also
Kennon v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. Law Weekly Supp. 99 (Fla. 7th Cir. Ct.
Oct. 9, 2012) (officers did not violate the guidelines regarding time because they provided that the
checkpoint would be closed “no later than 0300 hours” and the checkpoint closed at 0100 hours; unlike
Guy the time was not fixed); Ramirez v. State, 19 Fla. L. Weekly Supp. 966 (Fla. 17th Cir. Ct. July 12,
2012)Ramirez v. State, 19 Fla. L. Weekly Supp. 966 (Fla. 17th Cir. Ct. July 12, 2012) (procedure was
unconstitutional because the checkpoint began 30 minutes late and ended two hours early); Hancock v.
Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 918 (Fla. 4th Cir. Ct. July 30,
2012)Hancock v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 918 (Fla. 4th
Cir. Ct. July 30, 2012) (procedure was unconstitutional because guidelines were not strictly followed
where the checkpoint was closed 15 minutes before the time provided for in the guidelines and the
defendant was detained after it was closed; additionally, guidelines provided scenarios for stopping all
cars, every third car, or every tenth car, but at some point the officers started stopping every fifth car and
there was no such authority in the guidelines). But see Willgues v. State, 18 Fla. L. Weekly Supp. 174
(Fla. 20th Cir. Ct. Aug. 23, 2010)Willgues v. State, 18 Fla. L. Weekly Supp. 174 (Fla. 20th Cir. Ct. Aug.
23, 2010) (fact that checkpoint started one hour earlier than time specified in plan did not make it
unconstitutional; neither the decision in Guy nor the Supreme Court decision in Jones, intended to
require compliance with a specific time; rather the focus was on a general time of day and impact on
traffic and highway safety; further, the contact with defendant was actually within the planned hours and
was unaffected by the early start).
25
Santilli v. State, 9 Fla. L. Weekly Supp. 216 (Fla. 9th Cir. Ct. Oct. 29, 2001) Santilli v. State, 9 Fla. L.
Weekly Supp. 216 (Fla. 9th Cir. Ct. Oct. 29, 2001) (three judge panel, with one judge dissenting for an
unrelated reason).
26
Dreen v. State, 11 Fla. L. Weekly Supp. 487 (Fla. 4th Cir. Ct. March 28, 2004)Dreen v. State, 11 Fla. L.
Weekly Supp. 487 (Fla. 4th Cir. Ct. March 28, 2004).
27
Schreiber v. State, 15 Fla. L. Weekly Supp. 240 (Fla. 6th Cir. Ct. Oct.12, 2007)Schreiber v. State, 15
Fla. L. Weekly Supp. 240 (Fla. 6th Cir. Ct. Oct.12, 2007); Ralston v. State, 15 Fla. L. Weekly Supp. 207
(Fla. 6th Cir. Ct. Oct. 12, 2007)Ralston v. State, 15 Fla. L. Weekly Supp. 207 (Fla. 6th Cir. Ct. Oct. 12,
2007).
28
Campbell v. State, 679 So. 2d 1168 (Fla. 1996). See also McCalman v. State, 8 Fla. L. Weekly Supp.
19 (Fla. 17th Cir. Ct. Aug. 16, 2000)McCalman v. State, 8 Fla. L. Weekly Supp. 19 (Fla. 17th Cir. Ct.
Aug. 16, 2000); State v. Kenopke, 7 Fla. L. Weekly Supp. 792 (Fla. 15th Cir. Ct. Sept. 20, 2000)State v.
Kenopke, 7 Fla. L. Weekly Supp. 792 (Fla. 15th Cir. Ct. Sept. 20, 2000); State v. Hilton, 7 Fla. L.
Weekly Supp. 700 (Fla. 20th Cir. Ct. June 22, 2000)State v. Hilton, 7 Fla. L. Weekly Supp. 700 (Fla.
20th Cir. Ct. June 22, 2000); State v. Cook, 14 Fla. L. Weekly Supp. 377 (Fla. Palm Beach Cty Ct. Feb.
12, 2007)State v. Cook, 14 Fla. L. Weekly Supp. 377 (Fla. Palm Beach Cty Ct. Feb. 12, 2007).
29
Campbell v. State, 679 So. 2d 1168, 1172 (Fla. 1996).
30
Campbell v. State, 679 So. 2d 1168, 1172 (Fla. 1996). See also Schreiber v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 817 (Fla. 6th Cir. Ct. April 26, 2005)Schreiber v.
Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 817 (Fla. 6th Cir. Ct. April 26,
2005) (roadblock was to start at 12:30 a.m., but record indicated that defendant completed the field
sobriety tests and was arrested by 12:35 a.m. and the court concluded that couldn’t be done in five
minutes; therefore, the defendant must have been stopped before the time in the plan and the stop was
unlawful).

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

31
State v. Jones, 483 So. 2d 433, 439 (Fla. 1986).
32
State v. Jones, 483 So. 2d 433, 439 (Fla. 1986). See also Cahill v. State, 595 So. 2d 258 (Fla. 4th
DCA 1992), review denied, 601 So. 2d 551 (Fla. 1992) (finding that a three to four minute delay from
the time of the encounter to the time the defendant was asked to get out of the car was constitutional);
State v. Deutsch, 14 Fla. L. Weekly Supp. 576 (Fla. Hillsborough. Cty. Ct. March 13, 2007) State v.
Deutsch, 14 Fla. L. Weekly Supp. 576 (Fla. Hillsborough. Cty. Ct. March 13, 2007) (roadblock met
minimal intrusion requirement where the delay was 35 to 45 seconds).
33
State v. Jones, 483 So. 2d 433, 437 (Fla. 1986). See also State v. Deutsch, 14 Fla. L. Weekly Supp.
576 (Fla. Hillsborough. Cty. Ct. March 13, 2007)State v. Deutsch, 14 Fla. L. Weekly Supp. 576 (Fla.
Hillsborough. Cty. Ct. March 13, 2007) (while evidence did not show roadblock was significantly more
effective than other techniques, not all Jones factors must favor the state, and the evidence did show that
roadblock advanced State’s compelling interest in protecting public where officer testified that it was
effective, enhanced public awareness, and resulted in arrests of 2.75% of those passing through
roadblock for DUI); State v. Singh, 14 Fla. L. Weekly Supp. 85 (Fla. Palm Beach Cty. Ct. Oct. 17,
2006)State v. Singh, 14 Fla. L. Weekly Supp. 85 (Fla. Palm Beach Cty. Ct. Oct. 17, 2006) (court could
not conclude that the roadblock was significantly more effective than routine patrol where it was
maintained for three hours, involved 30 officers, stopped 565 vehicles, and only made two DUI arrests,
but it is unclear whether this was the reason the court found a violation of the Fourth Amendment).
34
Campbell v. State, 679 So. 2d 1168 (Fla. 1996).
35
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990).
36
State v. Deutsch, 14 Fla. L. Weekly Supp. 576 (Fla. Hillsborough. Cty. Ct. March 13, 2007) State v.
Deutsch, 14 Fla. L. Weekly Supp. 576 (Fla. Hillsborough. Cty. Ct. March 13, 2007) (Jones decision is
inconsistent with the U.S. Supreme Court’s decision, and under Florida Constitution the U.S. Supreme
Court decisions on the Fourth Amendment control).
37
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 453–54, 110 S. Ct. 2481, 2487, 110 L. Ed. 2d
412 (1990). See also Schreiber v. State, 15 Fla. L. Weekly Supp. 240 (Fla. 6th Cir. Ct. Oct.12,
2007)Schreiber v. State, 15 Fla. L. Weekly Supp. 240 (Fla. 6th Cir. Ct. Oct.12, 2007); Ralston v. State,
15 Fla. L. Weekly Supp. 207 (Fla. 6th Cir. Ct. Oct. 12, 2007)Ralston v. State, 15 Fla. L. Weekly Supp.
207 (Fla. 6th Cir. Ct. Oct. 12, 2007).
38
Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
39
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455, 110 S. Ct. 2481, 2488, 110 L. Ed. 2d 412
(1990).
40
State v. Kenopke, 7 Fla. L. Weekly Supp. 792 (Fla. 15th Cir. Ct. Sept. 20, 2000)State v. Kenopke, 7 Fla.
L. Weekly Supp. 792 (Fla. 15th Cir. Ct. Sept. 20, 2000).
41
State v. Kenopke, 7 Fla. L. Weekly Supp. 792 (Fla. 15th Cir. Ct. Sept. 20, 2000)State v. Kenopke, 7 Fla.
L. Weekly Supp. 792 (Fla. 15th Cir. Ct. Sept. 20, 2000).
42
State v. Hilton, 7 Fla. L. Weekly Supp. 700 (Fla. 20th Cir. Ct. June 22, 2000) State v. Hilton, 7 Fla. L.
Weekly Supp. 700 (Fla. 20th Cir. Ct. June 22, 2000).
43
State v. Landfald, 571 So. 2d 10 (Fla. 2d DCA 1990).
44
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990).
45
Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998), decision approved, 754 So. 2d 691 (Fla.

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

2000). See also McNamee v. State, 906 So. 2d 1171 (Fla. 4th DCA 2005) (roadblock at key intersections
looking for suspect in course of murder investigation did not require written guidelines. “In such cases
… , the exigent nature of the circumstances distinguishes the stop from a DUI or traffic safety
roadblock.”).
46
Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
47
Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998), decision approved, 754 So. 2d 691 (Fla.
2000).
48
City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
49
Davis v. State, 788 So. 2d 1064 (Fla. 2d DCA 2001).
50
Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004).
51
City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
52
Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004).
53
Illinois v. Lidster, 540 U.S. 419, 424, 124 S. Ct. 885, 889, 157 L. Ed. 2d 843 (2004).
54
Illinois v. Lidster, 540 U.S. 419, 427, 124 S. Ct. 885, 890, 157 L. Ed. 2d 843 (2004) ((1) seriousness
of public concern served by the detention; (2) the degree to which the procedure serves the public
interest; and (3) the extent of interference with individual liberty).
55
Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
56
Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998), decision approved, 754 So. 2d 691 (Fla.
2000).
57
Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004).
58
State v. Currid, 15 Fla. L. Weekly Supp. 607 (Fla. Walton Cty. Ct. March 6, 2008) State v. Currid, 15
Fla. L. Weekly Supp. 607 (Fla. Walton Cty. Ct. March 6, 2008).
59
State v. Currid, 15 Fla. L. Weekly Supp. 607 (Fla. Walton Cty. Ct. March 6, 2008) State v. Currid, 15
Fla. L. Weekly Supp. 607 (Fla. Walton Cty. Ct. March 6, 2008).
60
Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998), decision approved, 754 So. 2d 691 (Fla.
2000).
61
State v. Currid, 15 Fla. L. Weekly Supp. 607 (Fla. Walton Cty. Ct. March 6, 2008) State v. Currid, 15
Fla. L. Weekly Supp. 607 (Fla. Walton Cty. Ct. March 6, 2008).
62
In Currid, there was no indication as to what the officer met when the officer told him he could leave
soon.
63
State v. Plebanek, 24 Fla. L. Weekly Supp. 542 (Fla. Volusia Cty. Ct. August 15, 2016)State v.
Plebanek, 24 Fla. L. Weekly Supp. 542 (Fla. Volusia Cty. Ct. August 15, 2016).

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Works.

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§ 4:21.Roadblocks, 11 Fla. Prac., DUI Handbook § 4:21 (2018-2019 ed.)

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:22.Exceptions to the exclusionary rule, 11 Fla. Prac., DUI Handbook § 4:22...

11 Fla. Prac., DUI Handbook § 4:22 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:22. Exceptions to the exclusionary rule

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 394.4

Legal Encyclopedias
• C.J.S., Criminal Law §§ 770, 772, 778 to 792

As the foregoing discussion demonstrates, vehicle stops and driver detentions are fraught with potential
violations of the state and federal constitutions. The exclusionary rule is the remedy for these violations. There
are, however, exceptions to the requirement that evidence secured as a result of unlawful stops or detentions
should be excluded. Those exceptions are appropriately the last subject for this chapter on stops and detentions.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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Works.

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:23. Good faith exception

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 394.4(6)

Legal Encyclopedias
• C.J.S., Criminal Law §§ 770, 778, 782

In United States v. Leon,1 the United States Supreme Court established the “good faith” exception to the
exclusionary rule. It provides that improperly secured evidence need not be excluded where officers acted in the
“objectively reasonable” belief that they were not violating the Fourth Amendment. However, many Florida
courts have ruled that the good faith exception to the exclusionary rule does not apply where officers maintain
that they misunderstood the law, rather than the facts. 2 The United States Supreme Court’s recent decision in
Heien v. North Carolina3 appears to effectively overrule all of those cases. All the Florida opinions are based on
the good faith exception, but Heien4 makes it clear that analysis is incorrect. The issue is whether there is any
violation of the Fourth Amendment, not whether the exclusionary rule applies. And the Court holds that if an
officer acts on a reasonable mistake of fact or law, there is no Fourth Amendment violation. 5 Under these
circumstances, the stop is reasonable and the Fourth Amendment only bars unreasonable government conduct. 6

In Leon,7 the test was specifically tailored to search warrants. However, subsequently, the doctrine has regularly
been applied to situations where the law changes after an officer makes the stop in objectively reasonable
reliance on the law before the court invalidated it. 8 In Davis v. United States,9 the Court ruled “that searches
conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” In State v. Teamer,10 the Court recently made it clear that this application of the good faith doctrine does
not apply where a district court decision relied on by the State was rendered after the involved police conduct.

There has been conflict as to the effect of a decision in one district on the application of the good faith
exception in other districts that have not ruled on the point where there is no Supreme Court guidance. These
decisions turned on whether the Florida Supreme Court’s opinion in Pardo v. State,11 holding that the decision
of one district court is controlling in all other districts if there is no conflicting authority in the Supreme Court
or any other district, applies to the good faith exception to the exclusionary rule. The majority in Willis v. State12
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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

said: “We are not inclined to believe that the rule announced in Pardo should be used in the Fourth Amendment
context to determine whether evidence from a warrantless search is admissible.” In State v. Carpenter,13 the
court agreed with the dissent in Willis14 that the majority carved out an unsupported exception to Pardo15 and the
officer’s reliance on a district court decision dealing with the application of the exclusionary rule was
objectively reasonable.16

The Florida Supreme has resolved the conflict. In Carpenter v. State,17 a four to three majority agreed with the
result in Willis18 but did not adopt the reasoning. The Court ruled that Pardo19 does not control the determination
of whether an officer is acting in objectively reasonable reliance on a Florida District Court decision. The Court
said:
[W]hile an opinion from a district court of appeal may be binding on lower trial courts in Florida
under a Pardo theory, this fact does not necessarily justify law enforcement’s reliance on that
decision as “binding” law authorizing a warrantless cell phone search, especially when on actual
notice of the pending review in this Court.20

Instead, in evaluating the effect of a district court opinion on whether law enforcement is acting in good faith,
the trial court must consider the procedural posture and history of that decision. The issue is whether it can be
said that the principle established by the district court opinion is “final, well-settled, unequivocal, [and] clearly
established.”21

The good faith exception potentially applies in other ways. Although an officer was investigating a crime that
occurred outside her jurisdiction, the evidence she secured on a recording was admissible because she had a
good faith belief the crime may have occurred in her city.22

One of the more common situations in which the good faith exception might arise in a DUI is where an officer
believes that there is a valid warrant or some other outstanding process that authorizes an arrest, although the
officer has never seen the warrant or process. There have been several cases dealing with this situation.

One of the most interesting of those cases is Arizona v. Evans.23 There a police officer relied on a police
computer record that showed an active arrest warrant for the defendant. The officer arrested the defendant. The
warrant had been quashed seventeen days before the arrest. The computer showed that the warrant was still
active because a court clerk had failed to notify the sheriff’s department that it had been quashed. There was no
evidence that the officer did not act in an objectively reasonable way. The United States Supreme Court ruled
that the good faith exception applied. The Court concluded that to hold officers responsible for the knowledge
and errors of court employees would not deter unlawful searches by law enforcement personnel.

In Frierson v. State,24 the court reached the same conclusion regarding false information provided by private
citizens as the Court did in Arizona v. Evans25 regarding incorrect information provided by the clerk. In
Frierson, a private citizen gave the officer a false name (i.e. Frierson) and other false identifying information.
The officer did a license check and determined that Frierson’s license was suspended. He issued a notice to
appear to the person using the false name and identifying information of Frierson. The person who received the
notice failed to appear; therefore, the court issued a warrant for Frierson. Subsequently, an officer stopped the
real Frierson, found the warrant, and arrested him. Frierson argued that the arrest was unlawful because the
warrant was erroneously issued for him. Based on Arizona v. Evans,26 the court found that the officer acted
properly in making the arrest. The court observed since the error resulted from the misconduct of a private
citizen, exclusion of evidence discovered incidental to the arrest would have no deterrent effect. 27 The court also
rejected the suggestion that officers had a duty to take more extensive measures to make certain that the driver’s
identification was correct.28

A different rule applies, however, where an officer relies on defective information provided by other officers or
law enforcement agencies. In State v. White,29 the Florida Supreme Court concluded that the fellow officer or
collective knowledge rule may bar the application of the good faith exception. 30 On that basis, the Court ruled

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

that the good faith exception did not support the admissibility of evidence secured as a result of an arrest based
on a warrant that had already been executed. This was so despite the fact that the police computer showed that
the warrant was still active, and the arresting officers had no contrary knowledge. “In essence, the arresting
officers are charged with knowledge that they had no authority to arrest the defendant.” 31

The same test has been applied to the application of the good faith exception to arrests for driving on a
suspended license, where the computer failed to reflect a license reinstatement. 32 However, a conflict developed
on this issue among the district courts. In the First District, the court ruled that a stop based on the failure of the
Department of Highway Safety to correct its computer was unlawful, and the trial judge should have suppressed
any evidence seized as a result of the stop. 33 In contrast, the Fifth District 34 reached a different result because it
concluded that the Department of Highway Safety was like the court personnel in Arizona v. Evans.35 The
Florida Supreme Court resolved this conflict in Shadler v. State.36 In that case, the Court concluded that
because the Department of Highway Safety is an executive branch agency and is an integral part
of law enforcement in the state of Florida, and because operation of the exclusionary rule in this
case should have a significant effect upon the Department’s record-keeping efforts, we find that
the error made here is a “law enforcement” error under White. Thus, the good faith exception
would not apply and the exclusionary rule would apply.37

The rulings in White and Shadler have been applied to several slightly different situations. In State v. Murphy,38
the court ruled that the stop was unlawful, because the sheriff’s internal database erroneously showed that the
defendant’s vehicle had an improper tag. In Eldridge v. State,39 the court concluded that evidence secured as a
result of a canine unit should have been suppressed, because the defendant was detained too long. The
prolonged detention resulted solely from the time it took to deal with an error of the Department of Motor
Vehicles as to the defendant’s driver’s license. In Carter v. State,40 the trial judge denied a motion to suppress
because the confusion concerning the license resulted from the defendant lying about his birth date many years
before, but the appellate court reversed. “The only significant distinction between the present case and White
and Shadler is that in the present case the mistake in the records was originally caused by appellant giving the
police an incorrect birth date. Those records, however, should have been corrected.” 41

However, the situation is different where the defendant’s arrest is based entirely on the false information that he
provides at the time of the arrest. That was what happened in Fripp v. State.42 In that case, an officer stopped the
defendant for running a stop sign. The defendant gave the officer a false name and said that he had no license.
The computer confirmed that information. Subsequently, when the defendant revealed his real name, the
computer showed that he had a valid license. The appellate court found that the arrest for having no valid
license was proper. As in Fripp, in Tongue v. State,43 where the defendant was driving a stolen car and gave a
false identity, which resulted in information that his license was suspended, the court was far less sympathetic.
The court did not even consider the application of the good faith test. Instead, it found that under the
circumstances, the defendant’s detention as a result of his misrepresentations was lawful and did not constitute
an unreasonable seizure.

The continued viability of the line of cases based on Shadler44 has been cast into doubt by legislative
action. The Legislature essentially mandated reversal of Shadler. Section 322.202, Fla. Stat., provides that:
(1) the agencies involved in that case are not law enforcement agencies; (2) the records of those agencies are not
within the collective knowledge of any law enforcement agency; (3) the agencies have a sufficient incentive to
maintain correct records; (4) the application of the exclusionary rule to objectively reasonable reliance on such
records is inconsistent with U.S. Supreme Court decisions; (5) evidence secured as a result of such reliance
shall not be suppressed. The only potential issue is whether the courts will find such a legislative modification
of a court created rule to be constitutional. A three judge circuit court appellate panel rejected the argument that
the statute violates separation of powers.45 The Second District reversed and remanded an order denying a
motion to suppress because the court was not “confident as a matter of law whether Shadler II or the new
statute” controlled and that had not been addressed by the trial judge.46

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

In all of the foregoing cases, it was clear who was responsible for the erroneous records. Rarely, is it unclear as
to whether the error was chargeable to law enforcement or to the clerk or court. That was the situation in Miles
v. State.47 The court ruled: “The burden, however, is on the state. We conclude that the state has failed to meet
its burden, as the state has failed to show that the error was not attributable to law enforcement.” 48 Thus, such
situations are resolved against the State.

In two other situations involving mistakes relating to valid warrants, the courts upheld the arrests. First, where
officers had a valid warrant, but made a good faith mistake as to the identity of the defendant, the arrest was
lawful.49

In the second case,50 a valid warrant had been issued for the defendant, but the arresting officer did not know
about the warrant. He made a warrantless arrest of the defendant. The Florida Supreme Court found that the
arrest was valid. The Court said:
[W]e hold that knowledge of the existence of a valid warrant is imputed to all officers in
departments working on the case from the moment the warrant is signed, without regard to actual
knowledge, at least where the arrest is prompted by the crime identified by the warrant or its
accompanying papers.51

Sometimes even where there is no warrant or process or other grounds for arrest, the good faith exception still
applies. That was true in an unusual case where both the defendant and arresting officers believed the defendant
was on probation and that he was wanted for a violation, when he was, in fact, not on probation. 52 The defendant
was the person who provided this information. The court found that it was objectively reasonable for the
officers to act on the information and make the arrest.

The authorities on good faith and the exclusionary rule must be evaluated in light of the U.S. Supreme Court’s
ruling in Herring v. United States.53 In that case, the warrant leading to the defendant’s arrest had been recalled,
but the clerk of another county advised law enforcement that it was still outstanding. The police had made a
mistake in failing to update their database. The United States Supreme Court ruled that such negligence was not
the proper subject of the exclusionary rule. The Court said:
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the
justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless,
or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The
error in this case does not rise to that level …. Petitioner’s claim that police negligence
automatically triggers suppression cannot be squared with the principles underlying the
exclusionary rule …. In light of our repeated holdings that the deterrent effect of suppression must
be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U.S., at 909–910,
104 S.Ct. 3405, we conclude that when police mistakes are the result of negligence such as that
described here, rather than systemic error or reckless disregard of constitutional requirements, any
marginal deterrence does not “pay its way.” Id., at 907–908, n. 6, 104 S.Ct. 340554

This decision may have a profound impact on the application of several of the authorities included in this
section.

The Court relied extensively on the foregoing language from Herring55 in Davis v. United States,56 referred to
earlier in this section. In Davis,57 the Court found that the good faith exception barred the application of the
exclusionary rule where, after the involved search, the U.S. Supreme Court changed the rules for motor vehicle
searches incidental to arrest. The Court specifically focused on the fact that, “[t]he officers who conducted the
search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence.” 58
While that is the standard propounded in Herring59 and Davis,60 the Florida Supreme Court seems to apply a
somewhat different standard in two recent cases.
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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

The first case is State v. Teamer,61 where the Court found that a motor vehicle stop based solely on an
inconsistency between the actual color of the vehicle and the color reflected on the registration was not based on
reasonable suspicion. In addressing whether the exclusionary rule applied, the Court did not discuss the
Herring62 test. Based on Davis63 the State argued that the good faith exception applied. But without discussion of
whether the officer acted deliberately, recklessly or with gross negligence, the Court rejected that argument,
finding that the Florida district court opinion the State relied on to justify the stop came long after the event and
cases from other jurisdictions were in conflict. The Court concluded that application of the exclusionary rule
would have the desired deterrent effect.64

The second recent case, Carpenter v. State65 was discussed earlier in this section in regard to its impact on the
controlling nature of district court cases dealing with the application of the exclusionary rule. Carpenter66 is also
important as to the good faith exception because of the majority’s view of Davis v. United States.67 In
Carpenter,68 the Court considered whether the exclusionary rule applied to a warrantless search of a cell phone
incidental to arrest based on a district court decision under review by the Supreme Court, where subsequent to
the arrest, the Court ruled that such searches were unlawful. In considering the impact of Davis,69 the Court
focused on the language of the U.S. Supreme Court requiring that police reliance on court decisions be
objectively reasonable. The Court made no mention of what appears to be the rule in Herring70 and Davis71 that
for the exclusionary rule to apply the police violation of the constitution must be deliberate, reckless or grossly
negligent. This suggests three alternatives: (1) the Florida Supreme Court does not accept the view that the
United States Supreme Court limits the exclusionary rule to such culpable conduct; (2) the Court concluded that
the police conduct in Carpenter72 in fact rose to that level of culpability; or (3) the Court simply applies a
different test to the kind of police conduct present in Carpenter.73 That awaits further development.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
2
Sneed v. State, 876 So. 2d 1235 (Fla. 3d DCA 2004) (good faith exception did not apply where officer,
who said he did not know the law, secured medical records at hospital without complying with statutory
requirements). See also Leslie v. State, 108 So. 3d 722 (Fla. 5th DCA 2013) (stop was unlawful where
the officer mistakenly thought the law requires a center mirror, even though the vehicle has a side mirror
that complies with the statute); L.B.B. v. State, 998 So. 2d 1217 (Fla. 2d DCA 2009) (officers could not
validly rely on an ordinance when an equivalent ordinance was declared unconstitutional over 14 years
prior to the involved stop); State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005) (good faith exception
did not apply to erroneous use of a form to secure medical records without compliance with statute,
where form was only to be used to secure legal blood test results); Frank v. State, 912 So. 2d 329
(Fla. 5th DCA 2005) (good faith exception did not apply to officer securing medical records from
hospital without complying with statute); Stone v. State, 856 So. 2d 1109 (Fla. 4th DCA 2003) (good
faith exception did not apply where officer detained scooter driver for not having a helmet and eye
protection and the statute did not require such things for the scooter); Spooner v. State, 19 Fla. L.
Weekly Supp. 776 (Fla. 18th Cir. Ct. July 19, 2012)Spooner v. State, 19 Fla. L. Weekly Supp. 776 (Fla.
18th Cir. Ct. July 19, 2012) (erroneous stop for failure to stop when entering highway from a gas station
in violation of § 316.125, which requires such a stop in a business or residence district, could not be
sustained based on the good faith exception if the officer made the error because he did not know the
definition of business district); State v. Ramputi, 15 Fla. L. Weekly Supp. 588 (Fla. Marion Cty. Ct.
March 24, 2008)State v. Ramputi, 15 Fla. L. Weekly Supp. 588 (Fla. Marion Cty. Ct. March 24, 2008)
(stop for drag racing in violation of § 316.191, Fla. Stat. was unlawful because the statute had been
declared unconstitutional in State v. Wells, 965 So. 2d 834 (Fla. 4th DCA 2007), two months before

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

and a mistake of law cannot justify a stop—but note in Reaves v. State, 979 So. 2d 1066 (Fla. 1st DCA
2008) the Court disagreed with Wells and found the statute constitutional); State v. Rogers, 11 Fla. L.
Weekly Supp. 447 (Fla. Volusia Cty. Ct. March 19, 2004)State v. Rogers, 11 Fla. L. Weekly Supp. 447
(Fla. Volusia Cty. Ct. March 19, 2004) (same ruling as in Stone).
3
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
4
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (The Court concluded: “It was thus
objectively reasonable for an officer in Sergeant Darisse’s position to think that Heien’s faulty right
brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there
was reasonable suspicion justifying the stop.”).
5
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
6
Heien v. North Carolina, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
7
U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). See also State v. Geiss, 70
So. 3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So. 3d 111 (Fla. 2012) (court held that Florida
Statutes bar securing a blood sample by search warrant based on an affidavit that alleges only a
misdemeanor DUI, but applied the good faith exception because warrant was facially valid).
8
Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) (court declared statute
unconstitutional after the stop); Davis v. U.S., 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285, 68
A.L.R. Fed. 2d 665 (2011) (where U.S. Supreme Court precedent dealing with vehicle searches incident
to arrests changed, the exclusionary rule did not apply to evidence properly secured under the law prior
to the change); McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), review granted 2018 WL
3342880 (Fla. Opinion Filed July 9, 2018) (while majority found that Fla. Stat. Ann. § 316.1832(1)(c),
allowing for blood draw where it is impractical or impossible to get breath test, is constitutional, they
joined with the dissent in holding that if the court had ruled otherwise, the good faith exception would
apply); State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla.
Opinion Filed Aug. 11, 2016); (pursuant to decision in Missouri v. McNeely, 133 S.Ct. 1552, 185
L.Ed.2d 696 (2013) a warrant is required for a blood test notwithstanding implied consent and the effect
of delay on test results; since these cases came up before McNeely, suppression was not appropriate
“based on the police officers’ good-faith reliance on section 316.1933.”); State v. Allen, 110 So. 3d
484 (Fla. 4th DCA 2013); State v. Lockett, 101 So. 3d 1275 (Fla. 4th DCA 2012); State v. Conley, 98
So. 3d 108 (Fla. 2d DCA 2012); Montgomery v. State, 69 So. 3d 1023 (Fla. 5th DCA 2011) (in each of
the foregoing cases a stop for a noise violation was made, but the statute was declared unconstitutional
after the stop); State v. Ycaza, 24 Fla. L. Weekly Supp. 686 (Fla. 16th Cir. Ct. Nov. 21, 2016) State v.
Ycaza, 24 Fla. L. Weekly Supp. 686 (Fla. 16th Cir. Ct. Nov. 21, 2016) (trial judge ruled that the good
faith exception applied to blood draw under Florida Statutes occurring before McNeely decision
requiring a warrant in the absence of exigent circumstances); State v. Usaga, 20 Fla. L. Weekly Supp.
1194 (Fla. 11th Cir. Ct. August 29, 2013) (trial judge concluded that the exclusionary rule did not bar
admissibility of blood test results without a warrant pursuant to McNeely because at the time the blood
was taken the law in Florida was that no warrant was required). See also State v. Finnegan, 21 Florida L.
Weekly Supp. 329 (Fla. 19th Cir. Ct. Oct. 28, 2013).
9
Davis v. U.S., 564 U.S. 229, 232, 131 S.Ct. 2419, 2423-2424, 180 L.Ed.2d 285 (2011).
10
State v. Teamer, 151 So. 3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L.Ed.2d 754 (2015)
(officer made a stop for not having the right tag on a vehicle based solely on a discrepancy between the
color of the car on the registration and the actual color; subsequently a district court upheld such stops,
but then the Supreme Court disapproved that decision).
11
Pardo v. State, 596 So.2d 665 (Fla. 1992).

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

12
Willis v. State, 148 So.3d 480, 483 (Fla. 2d DCA 2014).
13
State v. Carpenter, 158 So.3d 693 (Fla. 1st DCA 2015), decision disapproved of by Carpenter v.
State, 228 So.3d 535 (Fla. 2017).
14
Willis v. State, 148 So.3d 480, 484 (Fla. 2d DCA 2014) (Judge Morris dissenting).
15
Pardo v. State, 596 So.2d 665 (Fla. 1992).
16
State v. Carpenter, 158 So.3d 693 (Fla. 1st DCA 2015), decision disapproved of by Carpenter v.
State, 228 So.3d 535 (Fla. 2017).
17
Carpenter v. State, 228 So.3d 535 (Fla. 2017).
18
Willis v. State, 148 So.3d 480 (Fla. 2d DCA 2014).
19
Pardo v. State, 596 So.2d 665 (Fla. 1992).
20
Carpenter v. State, 228 So.3d 535, 540 (Fla. 2017).
21
Carpenter v. State, 228 So.3d 535 (Fla. 2017) (the Court explained that the district court opinion relied
on by the officers was in the pipeline, before the Florida Supreme Court and the DCA opinion indicated
uncertainty).
22
Nunn v. State, 121 So. 3d 566 (Fla. 4th DCA 2013), review denied, 137 So. 3d 1021 (Fla. 2014), cert.
denied, 135 S.Ct. 119, 190 L.Ed.2d 91 (2014).
23
Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
24
Frierson v. State, 851 So. 2d 293 (Fla. 4th DCA 2003), decision quashed on other grounds, 926
So. 2d 1139 (Fla. 2006).
25
Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
26
Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
27
Frierson v. State, 851 So. 2d 293 (Fla. 4th DCA 2003), decision quashed on other grounds, 926
So. 2d 1139 (Fla. 2006) (Florida Supreme reversed the district court on the issue of whether a detention
based on a warrant is valid where the initial traffic stop is invalid. The Court described guidelines for
determining whether the arrest on the warrant is sufficiently attenuated from the unlawful stop).
28
Frierson v. State, 851 So. 2d 293 (Fla. 4th DCA 2003), decision quashed on other grounds, 926
So. 2d 1139 (Fla. 2006).
29
State v. White, 660 So. 2d 664 (Fla. 1995). See also Robinson v. State, 885 So. 2d 951 (Fla. 1st DCA
2004).
30
State v. White, 660 So. 2d 664, 667 (Fla. 1995).
31
State v. White, 660 So. 2d 664, 668 (Fla. 1995).
32
Albo v. State, 477 So. 2d 1071 (Fla. 3d DCA 1985). See also Walker v. State, 606 So. 2d 1220 (Fla.
2d DCA 1992) (relying on erroneous police radio transmission that the suspect’s license had been
suspended).

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

33
Bruno v. State, 704 So. 2d 134 (Fla. 1st DCA 1997).
34
State v. Shadler, 714 So. 2d 662 (Fla. 5th DCA 1998), decision quashed, 761 So. 2d 279 (Fla.
2000).
35
Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
36
Shadler v. State, 761 So. 2d 279 (Fla. 200), cert. denied, 531 U.S. 924, 121 S. Ct. 298, 138 L. Ed. 2d
240 (2000).
37
Shadler v. State, 761 So. 2d 279, 284 (Fla. 2000), cert. denied, 531 U.S. 924, 121 S. Ct. 298, 148 L.
Ed. 2d 240 (2000).
38
State v. Murphy, 793 So. 2d 112 (Fla. 2d DCA 2001). See also Austin v. State, 965 So. 2d 853 (Fla. 2d
DCA 2007) (stop would be unlawful if it was based on computer information incorrectly indicating that
the license plate on the vehicle was assigned to another vehicle; but defendant fled from officers);
Fontaine v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 817 (Fla. 4th Cir. Ct.
June 20, 2005)Fontaine v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 817
(Fla. 4th Cir. Ct. June 20, 2005).
39
Eldridge v. State, 817 So. 2d 884 (Fla. 5th DCA 2002).
40
Carter v. State, 817 So. 2d 992 (Fla. 4th DCA 2002).
41
Carter v. State, 817 So. 2d 992, 993 (Fla. 4th DCA 2002).
42
Fripp v. State, 766 So. 2d 252 (Fla. 4th DCA 2000). In Carter, the court stressed the fact that in
Fripp, the defendant’s falsehoods were totally responsible for the erroneous arrest; whereas, in Carter’s
case, there were conflicts in the records that could have been corrected.
43
Tongue v. State, 544 So. 2d 1173 (Fla. 5th DCA 1989).
44
Shadler v. State, 761 So. 2d 279 (Fla. 2000), cert. denied, 531 U.S. 924, 121 S. Ct. 298, 148 L. Ed.
2d 240 (2000).
45
Small v. State, 15 Fla. L. Weekly Supp. 1140 (Fla. 6th Cir. Ct. Aug. 21, 2008). See also State v. Russell,
15 Fla. L. Weekly Supp. 172 (Fla. Polk Cty. Ct. March 16, 2007)Cir. Ct. Aug. 21, 2008). See also State
v. Russell, 15 Fla. L. Weekly Supp. 172 (Fla. Polk Cty. Ct. March 16, 2007).
46
Moore v. State, 123 So. 3d 672, 674 (Fla. 2d DCA 2013).
47
Miles v. State, 953 So. 2d 778 (Fla. 4th DCA 2007).
48
Miles v. State, 953 So. 2d 778, 780 (Fla. 4th DCA 2007).
49
McCrea v. State, 475 So. 2d 1357 (Fla. 5th DCA 1985); Neal v. State, 456 So. 2d 897 (Fla. 2d
DCA 1984), review denied, 461 So. 2d 115 (Fla. 1985).
50
Johnson v. State, 660 So. 2d 648 (Fla. 1995), cert. denied, 517 U.S. 1159, 116 S. Ct. 1550, 134 L.
Ed. 2d 653 (1996).
51
Johnson v. State, 660 So. 2d 648, 658 (Fla. 1995), cert. denied, 517 U.S. 1159, 116 S. Ct. 1550, 134
L. Ed. 2d 653 (1996).
52
Savage v. State, 588 So. 2d 975 (Fla. 1991).

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

53
Herring v. U.S., 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).
54
Herring v. U.S., 555 U.S. 135, 129 S. Ct. 695, 702–703, 172 L. Ed. 2d 496 (2009). See also Cole v.
State, 190 So.3d 185 (Fla. 3d DCA 2016), review denied, 2016 WL 4182848 (Fla. Opinion Filed Aug.
08, 2016); State v. Conley, 98 So. 3d 108 (Fla. 2d DCA 2012); State v. Rushing, 83 So. 3d 746 (Fla. 5th
DCA 2011); Howard v. State, 59 So. 3d 229, 230 (Fla. 2d DCA 2011); Brown v. State, 24 So. 3d
671 (Fla. 5th DCA 2009), cert. denied, 134 S. Ct. 2730 (2014).
55
Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L. Ed.2d 496 (2009).
56
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
57
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
58
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 2428, 180 L.Ed.2d 285 (2011).
59
Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L. Ed.2d 496 (2009).
60
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
61
State v. Teamer, 151 So.3d 421 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L. Ed.2d 754 (2015).
62
Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L. Ed.2d 496 (2009).
63
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
64
State v. Teamer, 151 So.3d 421, 430 (Fla. 2014), cert. denied, 135 S.Ct. 1859, 191 L. Ed.2d 754
(2015).
65
Carpenter v. State, 228 So.3d 535 (Fla. 2017).
66
Carpenter v. State, 228 So.3d 535 (Fla. 2017).
67
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
68
Carpenter v. State, 228 So.3d 535 (Fla. 2017).
69
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
70
Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L. Ed.2d 496 (2009).
71
Davis v. U.S., 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
72
Carpenter v. State, 228 So.3d 535 (Fla. 2017).
73
Carpenter v. State, 228 So.3d 535 (Fla. 2017).

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Works.

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§ 4:23.Good faith exception, 11 Fla. Prac., DUI Handbook § 4:23 (2018-2019 ed.)

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§ 4:24.The inevitable discovery rule, 11 Fla. Prac., DUI Handbook § 4:24 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 4:24 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 4. Suppression of Evidence: Validity of Detention

§ 4:24. The inevitable discovery rule

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 394.1(3)

Legal Encyclopedias
• C.J.S., Criminal Law §§ 770 to 771, 773

Pursuant to the inevitable discovery rule, “evidence obtained as the result of unconstitutional police procedures
may still be admissible if it is shown that the evidence would ultimately have been discovered by legal means.” 1
The U.S. Supreme Court established this doctrine in Nix v. Williams.2 The Court stressed that the State must
establish the inevitability of discovery “by a preponderance of the evidence,” but the Court also stressed that
there need only be a “reasonable probability” of discovery. 3 In other words, the State need only establish a
reasonable probability of discovery by a preponderance of the evidence. But the application of the doctrine
cannot be based on speculation that officers would have initiated a proper independent investigation leading to
discovery of the involved evidence.4 The State must show that an investigation was already underway when the
improper police conduct occurred.5

In cases involving unlawful entry into the home, the district courts split as to whether probable cause before the
unlawful entry is sufficient for the application of the inevitable discovery rule or must there be proof that the
officers were in the process of securing a warrant. The Florida Supreme Court resolved this conflict in
Rodriguez v. State.6 The Court ruled that the police must be in the process of obtaining a warrant before the
warrantless entry.7

While it is important to be aware of this doctrine, its application to DUI cases may be difficult to image. There
are, however, a few cases that illustrate the point. One recent trial court decision 8 holding that the warrant
requirement applies to urine tests relied on Rodriguez9 to find that, even though the deputy had probable cause,
the test could not be sustained based on the inevitable discovery doctrine because the officer was not seeking a
warrant.

In one case,10 officers stopped the defendant to investigate poor driving. There was no argument about the
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§ 4:24.The inevitable discovery rule, 11 Fla. Prac., DUI Handbook § 4:24 (2018-2019 ed.)

validity of the stop. The officer developed further facts indicating that the defendant was guilty of DUI. Before
the arrest, the officer did a pat-down search, which the defendant resisted. The officer arrested the defendant for
obstructing. A search incident to that arrest revealed drugs. The officer also arrested the defendant for DUI after
discovering the drugs and completing the DUI investigation. On appeal, the court considered only one ground
for upholding the search and seizure of drugs—the inevitable discovery rule. The court ruled that regardless of
the legality of the obstructing arrest, it was inevitable that the defendant would have been arrested for DUI, and
the drugs discovered incidental to that arrest. 11 Obviously, the drugs could have been used in the DUI
prosecution if there was no other evidentiary basis for exclusion.

There is also a foreign case in which the court applied the inevitable discovery rule to a DUI. 12 There a sample
of the defendant’s blood was secured by employees of a medical facility and tested for blood alcohol level.
Pursuant to a statutory requirement, the results were turned over to a prosecutor. Subsequently, that statute was
declared unconstitutional. The prosecutor then secured the results with a valid search warrant. The defense
argued that the results were inadmissible because the statute had been declared unconstitutional. The court
found13 that the test results were admissible under the inevitable discovery rule.

A third case14 illustrates a little different attempted application of the doctrine. In that case, there was no
evidence as to why one officer stopped the defendant, and the court concluded that the stop was unlawful. 15
However, there was substantial evidence establishing that another officer had probable cause to arrest the
defendant for DUI. The State argued that under the inevitable discovery rule, the stop was valid because the
officer who had probable cause would have ultimately captured the defendant and secured all of the evidence
for the DUI prosecution. The court rejected this application of the inevitable discovery rule because having
probable cause did not necessarily mean that the officer would have caught the defendant, and the officer
actually testified that he was about to give up.16

There are two other principles that are closely related to the inevitable discovery doctrine. They are the
independent source rule and the attenuation concept. Evidence secured as a result of an unlawful stop may be
admissible if there is an independent source for the discovery of the evidence or there is sufficient attenuation
between the questioned evidence and the unlawful police conduct. 17 To determine whether challenged evidence
is sufficiently attenuated from the unlawful police conduct the court must consider these three factors: “‘(1) the
time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the official misconduct.’” 18

State v. Frierson19 is an important case dealing with the application of attenuation principles to unlawful traffic
stops. In that case, the Court considered the impact of the discovery of a valid warrant after an unlawful traffic
stop. The challenged evidence was secured after defendant was arrested on the warrant. The Court ruled that the
three factors mentioned above control the outcome. The passage of little time goes against the conclusion that
the search was attenuated, but that does not conclude the inquiry. The warrant is an intervening circumstance
that tends to dispel the taint of the original unlawful stop. The third factor focuses on the question of whether
the purpose and flagrancy of the improper police conduct outweighs the intervening cause, so that the taint of
the illegal stop requires suppression. In Frierson,20 the police made a mistake in dealing with the traffic laws,
but there was no evidence of pretext or bad faith. Thus, the evidence secured incidental to the arrest was
admissible.21

These cases reflect how unusual the circumstances are in which these doctrines are likely to appear in a DUI
case. Nevertheless, the law is full of surprises, so it is wise to be familiar with the concepts.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 4:24.The inevitable discovery rule, 11 Fla. Prac., DUI Handbook § 4:24 (2018-2019 ed.)

1
State v. Duggins, 691 So. 2d 566, 568 (Fla. 2d DCA 1997). See also Clayton v. State, 252 So.3d 827
(Fla. 1st DCA 2018); Cole v. State, 190 So.3d 185 (Fla. 3d DCA 2016); review denied, 2016 WL
4182848 (Fla. Opinion Filed Aug. 08, 2016); Murray v. State, 155 So. 3d 1210 (Fla. 4th DCA 2015);
State v. Ojeda, 147 So. 3d 53 (Fla. 3d DCA 2014); State v. Hannah, 98 So. 3d 226 (Fla. 1st DCA 2012);
Jackson v. State, 1 So. 3d 273 (Fla. 1st DCA 2009); State v. Nowak, 1 So. 3d 215 (Fla. 5th DCA 2008);
Hatcher v. State, 834 So. 2d 314, 317–18 (Fla. 5th DCA 2003).
2
Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). See also Fitzpatrick v.
State, 900 So. 2d 495, 514 (Fla. 2005), as revised on denial of reh’g, (Apr. 21, 2005); Moody v.
State, 842 So. 2d 754 (Fla. 2003), cert. denied, 540 U.S. 939, 124 S.Ct. 181, 157 L.Ed.2d 252 (2003);
Jeffries v. State, 797 So. 2d 573 (Fla. 2001); Maulden v. State, 617 So. 2d 298 (Fla. 1993); Clayton
v. State, 252 So.3d 827 (Fla. 1st DCA 2018); Cole v. State, 190 So.3d 185 (Fla. 3d DCA 2016); review
denied, 2016 WL 4182848 (Fla. Opinion Filed Aug. 08, 2016); Murray v. State, 155 So. 3d 1210 (Fla.
4th DCA 2015); Davis v. State, 153 So. 3d 360 (Fla. 4th DCA 2014); State v. R.R., 90 So. 3d 919 (Fla.
4th DCA 2012); Rowell v. State, 83 So. 3d 990 (Fla. 4th DCA 2012); Jackson v. State, 1 So. 3d 273
(Fla. 1st DCA 2009); Cummings v. State, 956 So. 2d 559 (Fla. 5th DCA 2007); Rosales v. State, 878 So.
2d 497 (Fla. 3d DCA 2004); Carter v. State, 868 So. 2d 1276 (Fla. 4th DCA 2004); Hatcher v. State, 834
So. 2d 314 (Fla. 5th DCA 2003); A.J.M. v. State, 746 So. 2d 1222 (Fla. 3d DCA 1999); Putnel v.
State, 746 So. 2d 521 (Fla. 2d DCA 1999).
3
Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). See also Carter v. State,
868 So. 2d 1276 (Fla. 4th DCA 2004); Minter-Smith v. State, 864 So. 2d 1141, 1144 (Fla. 1st DCA
2003).
4
Fitzpatrick v. State, 900 So. 2d 495, 514 (Fla. 2005), as revised on denial of reh’g, (Apr. 21, 2005);
Moody v. State, 842 So. 2d 754, 759 (Fla. 2003), cert. denied, 540 U.S. 939, 124 S.Ct. 181, 157
L.Ed.2d 252 (2003); Grant v. State, 978 So. 2d 862 (Fla. 2d DCA 2008).
5
Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); Moody v. State, 842
So. 2d 754, 759 (Fla. 2003), cert. denied, 540 U.S. 939, 124 S.Ct. 181, 157 L.Ed.2d 252 (2003). See also
Fitzpatrick v. State, 900 So. 2d 495, 514 (Fla. 2005), as revised on denial of reh’g, (Apr. 21, 2005);
Hidalgo v. State, 959 So. 2d 353 (Fla. 3d DCA 2007); Garrett v. State, 946 So. 2d 1211 (Fla. 2d
DCA 2006).
6
Rodriguez v. State, 187 So.3d 841 (Fla. 2015), cert. denied, 137 S.Ct. 124, 196 L.Ed.2d 199 (2016).
7
Rodriguez v. State, 187 So.3d 841 (Fla. 2015), cert. denied, 137 S.Ct. 124, 196 L.Ed.2d 199 (2016).
See also Clayton v. State, 252 So.3d 827 (Fla. 1st DCA 2018).
8
State v. Kepics, 25 Fla. L. Weekly Supp. 893, (Fla. Leon Cty. Ct. Dec. 7, 2017)State v. Kepics, 25 Fla.
L. Weekly Supp. 893, (Fla. Leon Cty. Ct. Dec. 7, 2017).
9
Rodriguez v. State, 187 So.3d 841 (Fla. 2015), cert. denied, 137 S. Ct. 124, 196 L. Ed.2d 199 (2016).
10
State v. Duggins, 691 So. 2d 566 (Fla. 2d DCA 1997). See also Cummings v. State, 956 So. 2d 559 (Fla.
5th DCA 2007) (while court recognized that temporary detention to write traffic citation turned into
seizure without probable cause, court sustained seizure of drugs, because in the course of issuing traffic
ticket, officer would have discovered that driver’s license was suspended and the drugs would have been
discovered incidental to arrest on the license charge); Zeigler v. State, 922 So. 2d 384 (Fla. 1st DCA
2006), review dismissed, 955 So. 2d 532 (Fla. 2007) (evidence discovered as a result of the officer’s
detection of the smell of marijuana when the driver opened the window in response to the officer’s
improper request for identification was admissible, because the odor would have been inevitably
detected when the driver opened the window for the officer to explain the purpose of the stop); State v.
Alfieri, 20 Fla. L. Weekly Supp. 963 (Fla. 17th Cir. Ct. June 27, 2013)State v. Alfieri, 20 Fla. L. Weekly
Supp. 963 (Fla. 17th Cir. Ct. June 27, 2013) (inevitable discovery rule applied where officer observed
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§ 4:24.The inevitable discovery rule, 11 Fla. Prac., DUI Handbook § 4:24 (2018-2019 ed.)

improper driving and indicia of impairment, but prematurely arrested defendant; officer called the DUI
unit before the alleged arrest so that the evidence would have been discovered through the normal
investigative procedures of the DUI unit, even if Appellee had not been handcuffed and placed in the
patrol car).
11
State v. Duggins, 691 So. 2d 566 (Fla. 2d DCA 1997).
12
People v. Kroll, 179 Mich. App. 423, 446 N.W.2d 317 (1989).
13
People v. Kroll, 179 Mich. App. 423, 446 N.W.2d 317 (1989).
14
Helligar v. State, 11 Fla. L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004)Helligar v. State, 11 Fla.
L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004).
15
Helligar v. State, 11 Fla. L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004)Helligar v. State, 11 Fla.
L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004).
16
Helligar v. State, 11 Fla. L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004)Helligar v. State, 11 Fla.
L. Weekly Supp. 686 (Fla. 9th Cir. Ct. May 11, 2004).
17
Hidalgo v. State, 959 So. 2d 353 (Fla. 3d DCA 2007) (citing Moody v. State, 842 So. 2d 754 (Fla.
2003)). See also Rodriguez v. State, 187 So.3d 841, 845 (Fla. 2015), cert. denied, 137 S.Ct. 124, 196
L.Ed.2d 199 (2016); Lebron v. State, 135 So. 3d 1040, 1055 (Fla. 2014).
18
State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006), cert. denied, 549 U.S. 1082, 127 S. Ct. 734, 166
L. Ed. 2d 570 (2006); Utah v. Streiff, 136 S.Ct. 2056, 2062, 195 L.Ed.2d 400 (2016). See also
Moody v. State, 2018 WL 3553816 (Fla. 2d DCA Opinion Filed July 25, 2018) ; State v. H.D., 113
So.3d 917 (Fla. 2d DCA 2013).
19
State v. Frierson, 926 So. 2d 1139 (Fla. 2006), cert. denied, 549 U.S. 1082, 127 S. Ct. 734, 166 L.
Ed. 2d 570 (2006). See also Utah v. Streiff, 136 S.Ct. 2056, 2062, 195 L.Ed.2d 400 (2016);
Golphin v. State, 945 So. 2d 1174 (Fla. 2006), cert. denied, 552 U.S. 810, 128 S. Ct. 40, 169 L. Ed. 2d
11 (2007) (Court applied analysis in Frierson to the situation where consensual encounter arguably
became a seizure when an officer checked the defendant’s voluntarily produced identification and
discovered a warrant, and the court concluded that the evidence secured in that case would not be
subject to suppression); Falls v. State, 953 So. 2d 627 (Fla. 4th DCA 2007) (same result as in Golphin);
State v. Barnes, 979 So. 2d 991 (Fla. 4th DCA 2008).
20
State v. Frierson, 926 So. 2d 1139 (Fla. 2006), cert. denied, 549 U.S. 1082, 127 S. Ct. 734, 166 L.
Ed. 2d 570 (2006). See also Utah v. Streiff, 136 S.Ct. 2056, 2062, 195 L.Ed.2d 400 (2016).
21
State v. Frierson, 926 So. 2d 1139 (Fla. 2006), cert. denied, 549 U.S. 1082, 127 S. Ct. 734, 166 L.
Ed. 2d 570 (2006). But see State v. Dickey, 203 So.3d 958 (Fla. 1st DCA 2016) (the court ruled that the
intervening circumstances concept did not apply where the evidence showed that the purpose of
unlawfully seizing defendant’s wallet was to learn defendant’s identification so that a warrant could be
discovered).

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Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 5 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 5 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

Introduction

INTRODUCTION
If the sample was improperly secured, the court may exclude chemical or physical test results. The two areas of
concern are the defendant’s constitutional rights and statutory restrictions.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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Works.

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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

11 Fla. Prac., DUI Handbook § 5:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

§ 5:1. Constitutional rights applied to securing samples

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 414 to 418, 421, 422.1

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

The defendant may raise the violation of federal and state constitutional rights as grounds for suppression of
chemical or physical test results. These include the right to be free from unreasonable searches and seizures, 1 the
right to counsel,2 and the privilege against self-incrimination.3

The search and seizure issues involve the validity of detention and search. Detention was the subject of the last
chapter. Under the federal and state constitutions, the taking of a blood sample is a search and seizure. 4 The
same is true of a deep lung breath sample5 and a urine sample.6

The leading case on the constitutionality of taking blood samples is Schmerber v. California.7 Florida courts
have interpreted that decision as allowing extraction of blood without a warrant 8 or an arrest,9 if the officer has
reasonable grounds to believe that evidence will be discovered, there are exigent circumstances, like the loss of
valid test results, and the sample is secured in a reasonable way. However, these decisions have not recognized
any constitutional difference between various periods of delay in securing the blood sample.

The recent decision in Missouri v. McNeely10 makes it clear that Schmerber11 did not establish a per se rule and
every delay in securing blood is not the same. To the contrary, the Court holds that dissipation in blood alcohol
readings alone does not establish exigent circumstances justifying a warrantless seizure of blood. 12 Instead, each
case must be considered based on the totality of the circumstances. 13 The nature of blood alcohol evidence when
considered with other circumstances, may be sufficient to create an exigency. For instance, if the evidence
supports the conclusion that a warrant cannot be secured without unreasonable delay, a warrantless seizure may
be justified.14 The Court notes that in Schmerber,15 delay was attributable to the fact that the officer was engaged
in an accident investigation and transporting the defendant to the hospital. The Court also points out that

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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

technology has changed so that there may be ways to secure a warrant today that were unavailable when
Schmerber16 was before the Court.17

In McNeely,18 the Court provides little guidance as to what constitutes unreasonable delay. In other words, for
Fourth Amendment purposes, what is a tolerable loss of blood alcohol in a DUI? But the Court did focus on
certain facts that provide some insight as to the Court’s intent. McNeely,19 involved just a routine DUI where the
defendant refused to submit to a breath test and the officer took him to the hospital to extract a blood sample. It
did not involve an accident investigation as in Schmerber.20 That was important. In fact, in the recent case of
Goodman v. State,21 the court recognized that distinction.

In Goodman,22 the court upheld blood seizure based on exigent circumstances. Defendant left the scene of an
accident resulting in another vehicle submerging in a canal, returned an hour later with the investigator, and
then went to the hospital. The court characterized the resultant delay:
By the time the homicide investigator arrived and then went to the hospital, nearly four hours had
passed since the time of the crash, but less than two hours from the time the body was discovered.
The investigator testified that it would have taken an additional two hours to obtain a search
warrant. This was not a “routine DUI” once the victim’s body was discovered…. If the
circumstances in Schmerber constituted exigent circumstances to justify a warrantless blood draw,
then the circumstances of this case present a far more compelling reason to obtain a blood draw as
soon as possible so as to prevent the dissipation of alcohol.23

Several trial courts have applied McNeely24 in the same way.25

A number of courts have considered how delay in securing a sample affects the relevance and admissibility of
test results. It might be helpful in deciding what constitutes tolerable delay in securing a blood sample to
consider what Florida courts have considered reasonable for admissibility purposes. 26

Recently, the United States Supreme Court considered whether the warrant requirement applies to breath tests.
Obviously, this is critical to the survival of Florida’s implied consent law. Birchfield v. North Dakota,27 dealt
with criminal statutes that punish refusal to submit to breath tests. The Court ruled that the exception to the
warrant requirement allowing a search incident to a lawful arrest applies to warrantless breath tests. 28 The Court
applied a balancing test, weighing the impact on privacy against the needs of the state. 29 But the intrusion to
secure a blood sample is greater; therefore, the arrest exception does not permit warrantless blood tests. 30

In Birchfield,31 the Court also addressed the validity of reliance on provisions of the implied consent law
punishing refusal to submit to breath and blood tests with a jail sentence. The Court seemed to approve implied
consent when the sanctions for refusal are limited to loss of driving privileges and evidentiary consequences,
but not criminal punishment.32 In fact, the Court said: “we conclude that motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.” 33 In the recent case of McGraw v.
State,34 the Fourth District writes about the significance of the delineation in Birchfield35 between implied
consent laws imposing administrative, civil or evidentiary consequences for refusal and those providing
criminal sanctions. This opinion is explained in detail in section 5:2 of this chapter.

There are three ways of testing for mind-altering substances in DUI cases—blood, breath, and urine. In light of
recent developments, this much is clear as to the application of the Fourth Amendment: (1) unless there are
exigent circumstances beyond some delay, officers must have a warrant to take blood without consent; (2) a
search incidental to a lawful arrest permits officers to require a breath sample without a warrant; and (3)
whether the warrant requirement applies to demands for a urine sample is uncertain, but one recent trial court
decision36 and opinions from other jurisdictions 37 hold that a warrant is required because the amount of
information produced by a urine sample and the nature of the invasion of privacy make the process more like
blood than breath testing.

Right to counsel issues involve the point when the defendant has the right to have an attorney present. There is

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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

no constitutional or statutory right to counsel before providing a sample in a DUI case. 38 This principle does not
change for those who are subject to conviction of a first degree misdemeanor for refusing to submit to the
breath test.39 There is still no right to counsel prior to submitting to or refusing the test. 40 Further, officers need
not advise suspects that there is no right to counsel in such situations.41

The impact of the Florida Supreme Court’s decision in Traylor v. State42 should be considered. In Traylor, the
Court considered when the right to counsel attaches pursuant to Art. 1, § 16, Fla. Const. In State v. Burns,43 the
court ruled that Traylor did not establish a right to counsel before administration of breath tests or field sobriety
exercises. The court concluded that these procedures are “really nothing more than the collection and
preservation of physical evidence, as is done in every type of case, and do not constitute a crucial confrontation
requiring the presence of defense counsel.” 44 Similarly, several circuit and county courts have concluded that
Traylor does not require counsel prior to the administration of chemical tests. 45 Furthermore, a three-judge
circuit appellate panel ruled that Traylor does not require counsel until the booking process is over even where
the defendant refuses the breath test.46

Fifth Amendment issues involve the need to advise the defendant of Miranda rights before taking a sample and
the possible application of the crash report privilege. 47 Chemical or physical tests are not testimonial; therefore,
Miranda requirements do not apply.48 For the same reason, the crash report privilege does not apply. 49
Additionally, the statute specifically provides that such tests are not privileged. 50

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
U.S. Const. Amend. IV; Art. 1, § 12, Fla. Const.
2
U.S. Const. Amend. V and VI; Art. 1, § 16, Fla. Const.
3
U.S. Const. Amend. V; Art. 1, § 9, Fla. Const.
4
Birchfield v. North Dakota, 136 S.Ct. 2160, 2173, 195 L.Ed. 2d 560 (2016); Missouri v.
McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013); Schmerber v. California, 384 U.S. 757, 86 S.
Ct. 1826, 16 L. Ed. 2d 908 (1966); Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994); McGraw v. State,
245 So.3d 760 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla. Opinion Filed July 09,
2018); Goodman v. State, 229 So.3d 366 (Fla. 4th DCA 2017), review denied, 2018 WL 1256499 (Fla.
Opinion Filed March 9, 2018); State v. Liles, 191 So.3d 484, 486 (Fla. 5th DCA 2016), review
denied, 2016 WL 4245500 (Fla. Opinion Filed Aug. 11, 2016).
5
Birchfield v. North Dakota, 136 S.Ct. 2160, 2173, 195 L.Ed. 2d 560 (2016); Skinner v. Railway
Labor Executives’ Association, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); Blore v.
Fierro, 636 So. 2d 1329 (Fla. 1994); State v. Nickell, 21 Fla. L. Weekly Supp. 933 (Fla. Volusia Cty. Ct.
May 22, 2014)State v. Nickell, 21 Fla. L. Weekly Supp. 933 (Fla. Volusia Cty. Ct. May 22, 2014) ; State
v. Caporuscio, 21 Fla. L. Weekly Supp. 930 (Fla. Volusia Cty. Ct. May 22, 2014)State v. Caporuscio, 21
Fla. L. Weekly Supp. 930 (Fla. Volusia Cty. Ct. May 22, 2014).
6
Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 l.Ed.2d 639
(1989).
7
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
8
State v. Bender, 382 So. 2d 697, 698 (Fla. 1980); State v. Geiss, 70 So. 3d 642, 646 (Fla. 5th
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

DCA 2011), review dismissed, 88 So. 3d 111 (Fla. 2012); State v. Slaney, 653 So. 2d 422 (Fla. 3d
DCA 1995) (court says constitutional law permits police to secure a warrantless sample where the
defendant is arrested for DUI, there is probable cause, and the sample is secured in a reasonable matter
by medical personnel). See also State v. Langsford, 816 So. 2d 136, 138 (Fla. 4th DCA 2002); State
v. Kliphouse, 771 So. 2d 16, 20 (Fla. 4th DCA 2000).
9
Filmon v. State, 336 So. 2d 586 (Fla. 1976), cert. denied, 430 U.S. 980, 97 S. Ct. 1675, 52 L. Ed. 2d
375 (1977); State v. Mitchell, 245 So. 2d 618 (Fla. 1971).
10
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). See also Birchfield v. North
Dakota, 136 S.Ct. 2160, 2174, 195 L.Ed. 2d 560 (2016); Aguilar v. State, 239 So.3d 108 (Fla. 3d DCA
2018), review denied, 2018 WL 4050495 (Fla. Opinion Filed August. 23, 2018); Goodman v. State, 229
So.3d 366 (Fla. 4th DCA 2017), review denied, 2018 WL 1256499 (Fla. Opinion Filed March 9, 2018);
State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla. Opinion
Filed Aug. 11, 2016); State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16,
2013)State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013).
11
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
12
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). See also Birchfield v. North
Dakota, 136 S.Ct. 2160, 2174, 195 L.Ed. 2d 560 (2016); State v. Liles, 191 So.3d 484 (Fla. 5th DCA
2016), review denied, 2016 WL 4245500 (Fla. Opinion Filed Aug. 11, 2016).
13
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). See also Birchfield v. North
Dakota, 136 S.Ct. 2160, 2174, 195 L.Ed. 2d 560 (2016); Aguilar v. State, 239 So.3d 108 (Fla. 3d DCA
2018), review denied, 2018 WL 4050495 (Fla. Opinion Filed August. 23, 2018); Goodman v. State, 229
So.3d 366 (Fla. 4th DCA 2017), review denied, 2018 WL 1256499 (Fla. Opinion Filed March 9, 2018);
State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla. Opinion
Filed Aug. 11, 2016); State v. Finnegan, 21 Florida Law Weekly Supp. 329 (Fla. 19th Cir. Ct. Oct. 28,
2013); State v. Usaga, 20 Fla. L. Weekly Supp. 1194 (Fla. 11th Cir. Ct. August 29, 2013).
14
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). See also State v. Finnegan, 21
Florida Law Weekly Supp. 329 (Fla. 19th Cir. Ct. Oct. 28, 2013); State v. Aguilar, 20 Fla. L. Weekly
Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013)State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir.
Ct. May 16, 2013).
15
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
16
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
17
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
18
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
19
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
20
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
21
Goodman v. State, 229 So.3d 366 (Fla. 4th DCA 2017), review denied, 2018 WL 1256499 (Fla. Opinion
Filed March 9, 2018).
22
Goodman v. State, 229 So.3d 366 (Fla. 4th DCA 2017), review denied, 2018 WL 1256499 (Fla. Opinion
Filed March 9, 2018).

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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

23
Goodman v. State, 229 So.3d 366, 381 (Fla. 4th DCA 2017), review denied, 2018 WL 1256499 (Fla.
Opinion Filed March 9, 2018). See also Aguilar v. State, 239 So.3d 108 (Fla. 3d DCA 2018), review
denied, 2018 WL 4050495 (Fla. Opinion Filed August. 23, 2018) (upheld warrantless blood test where
accident, occurring at 4:22 a.m. on Sunday at the scene of a prior accident, caused death of one
pedestrian and serious injury to two others; Defendant was seriously injured, hospitalized, placed in a
coma and intubated, smelled of alcohol and showed signs of drunkenness; blood was taken about 90
minutes after the accident; it would have taken at least four hours to get a warrant from the time the
process began. “Factually, the instant case is akin to Schmerber and not to McNeely.”).
24
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
25
State v. Ycaza, 24 Fla. L. Weekly Supp. 686 (Fla. 16th Cir. Ct. Nov. 21, 2016)State v. Ycaza, 24 Fla. L.
Weekly Supp. 686 (Fla. 16th Cir. Ct. Nov. 21, 2016) (trial judge concluded that exigent circumstances
justified warrantless extraction of blood where there was a fatal accident at 9 p.m. on the one highway in
Monroe County, the Florida Keys; to contact a local judge would have required a drive of about two
hours and was a two hour round trip from the accident scene; time was required to prepare the warrant,
contact an ASA and for the judge to review it; defendant had been airlifted to Miami and was to be taken
into surgery); State v. Walker, 24 Fla. L. Weekly Supp. 338 (Fla. 15th Cir. Ct. June 23, 2016) State v.
Walker, 24 Fla. L. Weekly Supp. 338 (Fla. 15th Cir. Ct. June 23, 2016) (court found exigent
circumstances where there was no e-warrant system, fatal accident occurred on Saturday; investigator
was not close to the scene, so he arrived about 1 hr. & 45 min. after the accident and did a quick
investigation; defendant appeared to be under the influence of narcotics, so a DRE was called, who
arrived a little over 2 hrs. after the accident and about 2½ hours after the accident determined defendant
was under the influence of narcotics and there was probable cause for blood draw; retrograde
extrapolation is unavailable with drugs; it would have taken 2 to 4 hours to get a warrant); State v.
Cooper, 24 Fla. L. Weekly Supp. 336 (Fla. 15th Cir. Ct. June 20, 2016)State v. Cooper, 24 Fla. L.
Weekly Supp. 336 (Fla. 15th Cir. Ct. June 20, 2016) (blood sample was proper based on exigent
circumstances where there was a fatal accident at 1:00 a.m. and no e-warrant available; investigator was
at home not close to the scene so she did not arrive until 1 hr. & 20 min. after crash; deputy at hospital
saw evidence of alcohol impairment and defendant refused blood test; sample was taken 1 hr. & 45 min.
after accident; trial judge knew it would have taken 2 to 4 hours to get a warrant and serve it; officers
testified it would have taken between 1½ to 3 hours; took officers about two hours to establish probable
cause; the court did not accept the argument that the officers had probable cause within minutes even
though the investigator was told soon after arrival that defendant had been drinking, had slurred speech,
glassy eyes and a faint odor of alcohol and may have consumed mints; the court concluded that a more
extensive investigation by a trained investigator was reasonable before seeking the sample; defendant
had a faint odor of alcohol and stated she had a few drinks earlier in the evening, which would lead
officers to believe alcohol evidence had been dissipating from her system for some time and “any further
delay in obtaining the blood would frustrate the purpose of preserving evidence;” a warrant could not
have been secured until four to six hours after the crash); State v. Finnegan, 21 Florida Law Weekly
Supp. 329 (Fla. 19th Cir. Ct. Oct. 28, 2013) (trial judge concluded that the credible evidence indicated it
would have taken more than 3 hours to secure a warrant and found: “[T]he fact that there was a crash, no
electronic warrants were allowed, a judge had to be located after hours, the warrant had to be drafted at
the State Attorney’s Office, and the alcohol in the defendant’s blood was dissipating with every passing
hour combined to create exigent circumstances justifying a warrantless blood draw.”); State v. Aguilar,
20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013)State v. Aguilar, 20 Fla. L. Weekly Supp.
658 (Fla. 11th Cir. Ct. May 16, 2013) (defendant was hospitalized with serious bodily injuries incurred
in a 4:22 a.m. fatal accident; the court found exigent circumstances where the evidence showed that the
trooper would have to wait for a homicide investigator to draft the warrant, locate and wake the duty
ASA to review and approve the warrant, locate and wake the judge to review and approve the warrant
and travel to the judge’s residence, and then travel to the trauma center to serve the warrant and obtain
the blood sample). But see State v. Usaga, 20 Fla. L. Weekly Supp. 1194 (Fla. 11th Cir. Ct. August 29,
2013) (McNeely barred a warrantless seizure of blood from an unconscious defendant after an accident
resulting in serious bodily injury where the detective expressed concern that the substances being
administered by IV might dilute the alcohol reading; the trial judge noted that delay is typical of all DUI
cases and there was no evidence as to what was in the solution or the rate at which it would dilute the
alcohol in the bloodstream).
26
Miller v. State, 597 So. 2d 767 (Fla. 1991) (the Court found an hour and 20 minutes reasonable); State v.

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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

Banoub, 700 So. 2d 44 (Fla. 2d DCA 1997) (“based on the totality of the circumstances in this case, the
test results from a sample taken four hours after driving were probative of the blood alcohol level at the
time of driving even though the results could not be extrapolated back to the time of driving.”); Tracton
v. City of Miami Beach, 616 So. 2d 457 (Fla. 3d DCA 1992), review denied, 626 So. 2d 207 (Fla. 1993)
(delay of two hours was reasonable); Gallagher v. State, 606 So. 2d 1236 (Fla. 3d DCA 1992) (delays of
46, 90, and 142 minutes after an accident were reasonable); State v. Wilson, 19 Fla. L. Weekly Supp.
1028 (Fla. Palm Beach Cty. Ct. Aug. 1, 2012) (breath test was not impractical or impossible where
officer arrived at the hospital about 66 minutes after the accident, a breath testing facility was no more
than 15 minutes away and a 20 minute observation period was required, so that the breath test could
have been completed within two hours); State v. Morrick, 11 Fla. L. Weekly Supp. 237 (Fla. Taylor Cty
Ct. Jan. 20, 2004)State v. Morrick, 11 Fla. L. Weekly Supp. 237 (Fla. Taylor Cty Ct. Jan. 20, 2004) (trial
judge found five hours unreasonable based on the facts of the case).
27
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
28
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016). See also Williams v. State,
210 So.3d 774 (Fla. 5th DCA 2017).
29
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
30
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
31
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
32
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
33
Birchfield v. North Dakota, 136 S.Ct. 2160, 2185, 195 L.Ed. 2d 560 (2016) (the Court noted: “Our
prior opinions have referred approvingly to the general concept of implied-consent laws that impose
civil penalties and evidentiary consequences on motorists who refuse to comply …. It is another matter,
however, for a State … to impose criminal penalties on the refusal to submit to such a test. There must
be a limit to the consequences to which motorists may be deemed to have consented by virtue of a
decision to drive on public roads..”) Before Birchfield, several trial judges upheld the refusal statute
based on implied consent. State v. Tista, 22 Fla. L. Weekly Supp. 632 (Fla. Dade Cty. Ct. Dec. 1,
2014)State v. Tista, 22 Fla. L. Weekly Supp. 632 (Fla. Dade Cty. Ct. Dec. 1, 2014); State v. Nickell, 21
Fla. L. Weekly Supp. 933 (Fla. Volusia Cty. Ct. May 22, 2014)State v. Nickell, 21 Fla. L. Weekly Supp.
933 (Fla. Volusia Cty. Ct. May 22, 2014); State v. Caporuscio, 21 Fla. L. Weekly Supp. 930 (Fla.
Volusia Cty. Ct. May 22, 2014)State v. Caporuscio, 21 Fla. L. Weekly Supp. 930 (Fla. Volusia Cty. Ct.
May 22, 2014).
34
McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018).
35
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016).
36
State v. Kepics, 25 Fla. L. Weekly Supp. 893 (Fla. Leon Cty. Ct. Dec. 7, 2017)State v. Kepics, 25 Fla. L.
Weekly Supp. 893 (Fla. Leon Cty. Ct. Dec. 7, 2017) (trial judge ruled in a detailed opinion that
Birchfield requires a warrant for urine tests because such tests are more like blood than breath tests in
two ways relied on in Birchfield: (1) amount of private information that the urine test will disclose and
(2) increase embarrassment from being monitored while urinating; State could not rely on exigent
circumstances because there was no evidence that the substances in urine would dissipate in the few
hours it would take to get a warrant).
37
In State v. Thompson, 886 N.W.2d 224 (Minn. 2016) (court applied Birchfield to urine tests and
ruled that they are more like blood tests than breath tests; therefore, a urine sample can only be secured
by warrant, exigent circumstances or consent). See also State v. Hi Ta Lar, 908 N.W.2d 181 (S.D.
2018); State v. Helm, 901 N.W.2d 57 (N.D. 2017).

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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

38
Department of Highway Safety and Motor Vehicles v. Farr, 757 So. 2d 550 (Fla. 5th DCA 2000) ;
Nelson v. State, 508 So. 2d 48 (Fla. 4th DCA 1987); State v. Hoch, 500 So. 2d 597 (Fla. 3d DCA 1986),
review denied, 509 So. 2d 1118 (Fla. 1987); Langelier v. Coleman, 861 F.2d 1508 (11th Cir.1988).
See also Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010) (court considers right to counsel as it
applies to the confusion doctrine and refusal to submit to breath test); State v. Thompson, 987 So. 2d
163 (Fla. 3d DCA 2008) (there is no right to counsel prior to submitting to or refusing a breath test;
however, in this case, the defendant’s confession was inadmissible because the focus was on a robbery
and right to counsel was invoked after refusal of the breath test); State v. Johnson, 7 Fla. L. Weekly
Supp. 237 (Fla. 9th Cir. Ct. Dec. 9, 1999)State v. Johnson, 7 Fla. L. Weekly Supp. 237 (Fla. 9th Cir. Ct.
Dec. 9, 1999) (trial court suppressed refusal because defendant held for several hours after refusal
without honoring his request to call an attorney. Appellate court declined to address this issue, but ruled
that suppression of refusal was inappropriate remedy); Bosch v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003)Bosch v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003) (upholding
refusal suspension against defendant’s claim that he was confused by the information the officer
provided as to implied consent); Weaver v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L.
Weekly Supp. 161 (Fla. 13th Cir. Ct. Jan. 8, 2003)Weaver v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 161 (Fla. 13th Cir. Ct. Jan. 8, 2003); State v. Gomez, 11 Fla. L.
Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003)State v. Gomez, 11 Fla. L. Weekly Supp. 61
(Fla. Broward Cty. Ct. Nov. 10, 2003) (ruling on constitutionality of statute creating an independent
offense for refusing test).
39
§ 316.1939, Fla. Stat.
40
State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008). See
also State v. Ballinger, 977 So. 2d 636 (Fla. 2d DCA 2008), review denied, 14 So. 3d 1003 (Fla. 2009);
State v. McKinnnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard Cty. Ct. Feb. 17, 2008) State v.
McKinnnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard Cty. Ct. Feb. 17, 2008).
41
State v. Erving, 6 Fla. L. Weekly Supp. 264 (Fla. 20th Cir. Ct. Sept. 28, 1998)State v. Erving, 6 Fla. L.
Weekly Supp. 264 (Fla. 20th Cir. Ct. Sept. 28, 1998).
42
Traylor v. State, 596 So. 2d 957 (Fla. 1992).
43
State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996).
44
State v. Burns, 661 So. 2d 842, 848 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla.
1996). See also State v. Holland, 76 So. 3d 1032, 1035 (Fla. 4th DCA 2011); Bosch v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003)Bosch
v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6,
2003); Weaver v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 161 (Fla. 13th
Cir. Ct. Jan. 8, 2003)Weaver v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp.
161 (Fla. 13th Cir. Ct. Jan. 8, 2003).
45
State v. Clements, 2 Fla. L. Weekly Supp. 287 (Fla. 7th Cir. Ct. May 24, 1994)State v. Clements, 2 Fla.
L. Weekly Supp. 287 (Fla. 7th Cir. Ct. May 24, 1994); Chira v. Dep’t of Highway Safety & Motor
Vehicles, 2 Fla. L. Weekly Supp. 2, 3 (Fla. 9th Cir. Ct. Aug. 31, 1993)Chira v. Dep’t of Highway Safety
& Motor Vehicles, 2 Fla. L. Weekly Supp. 2, 3 (Fla. 9th Cir. Ct. Aug. 31, 1993) ; State v. Zemla, 2 Fla.
L. Weekly Supp. 343 (Fla. Manatee Cty. Ct. March 28, 1994)State v. Zemla, 2 Fla. L. Weekly Supp.
343 (Fla. Manatee Cty. Ct. March 28, 1994); State v. Adams, 2 Fla. L. Weekly Supp. 441 (Fla. Palm
Beach Cty. Ct. Aug. 16, 1994)State v. Adams, 2 Fla. L. Weekly Supp. 441 (Fla. Palm Beach Cty. Ct.
Aug. 16, 1994); State v. Peddie, 2 Fla. L. Weekly Supp. 170 (Fla. Bay Cty. Ct. Feb. 17, 1994) State v.
Peddie, 2 Fla. L. Weekly Supp. 170 (Fla. Bay Cty. Ct. Feb. 17, 1994).
46
State v. Godby, 6 Fla. L. Weekly Supp. 3 (Fla. 9th Cir. Ct. Sept. 10, 1998)State v. Godby, 6 Fla. L.
Weekly Supp. 3 (Fla. 9th Cir. Ct. Sept. 10, 1998). See also State v. Benjamin, 10 Fla. L. Weekly Supp.
855 (Fla. 9th Cir. Ct. Sept. 2, 2003)State v. Benjamin, 10 Fla. L. Weekly Supp. 855 (Fla. 9th Cir. Ct.
Sept. 2, 2003) (court rejected argument that defendant had a right to counsel at breath test center after
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§ 5:1.Constitutional rights applied to securing samples, 11 Fla. Prac., DUI Handbook §...

Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 486 (Fla. 18th Cir. Ct. May 13,
2003)Vaughn v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 486 (Fla. 18th
Cir. Ct. May 13, 2003) (court declined to reverse suspension based on inability of lawyer to reach
defendant because breath test center had an unlisted number. The court said: “Even if counsel had been
able to contact the Petitioner immediately after his refusal, the Petitioner is essentially asking this Court
to speculate that he would have changed his mind and submitted to the test.”); State v. Madlem, 10 Fla.
L. Weekly Supp. 1056 (Fla. Brevard Cty. Ct. Oct. 9, 2003) (court acknowledged circuit court ruling in
18th circuit that the time following refusal is crucial stage of proceedings and under Traylor right to
counsel attaches, but found that ruling inapplicable where the accused asked to call “someone” after he
refused and did not specifically mention an attorney).
47
§ 316.066(4), Fla. Stat. Statements relating to investigation made by a person involved in a crash to
the investigating officer are privileged. In 1999, the Legislature amended the law so that the word
“crash” was substituted for all references to “accident” in the statute, and the term “crash report” was
substituted for “accident report.” Chapter 99–248, Laws of Florida. Nevertheless, some of the references
in this book are still to “accident report privilege” rather than “crash report privilege,” primarily because
many of the opinions use that term.
48
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); Brackin v.
Boles, 452 So. 2d 540 (Fla. 1984); Sambrine v. State, 386 So. 2d 546 (Fla. 1980). See also State v.
Gomez, 11 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003)State v. Gomez, 11 Fla. L.
Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003) (ruling on constitutionality of statute creating
an independent offense for refusing test).
49
State v. Adams, 466 So. 2d 1067 (Fla. 1985); Brackin v. Boles, 452 So. 2d 540 (Fla. 1984); Eichholz
v. Pepo Petroleum Co., Inc., 475 So. 2d 1244 (Fla. 1st DCA 1985), review denied, 476 So. 2d 673 (Fla.
1985).
50
§ 316.066(4), Fla. Stat.

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Works.

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§ 5:2.Overview and scope of Implied Consent Law, 11 Fla. Prac., DUI Handbook § 5:2...

11 Fla. Prac., DUI Handbook § 5:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

§ 5:2. Overview and scope of Implied Consent Law

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 418

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

It is understatement to say that Fourth Amendment jurisprudence dealing with DUI has recently grown. But
statutory requirements must be considered because states have the power to extend greater protection to their
citizens.1 The Florida Legislature has elected to do so in DUI cases by limiting police power to force a lawfully
arrested person to provide samples and restricting the available methods for taking and testing such samples. 2
Those restrictions are cumulatively referred to as the implied consent law. 3 The statutes permit the extraction of
blood in only two situations. First, a blood sample may be forcibly extracted where there is a crash involving
DUI resulting in death or serious bodily injury. 4 Second, there is implied consent to a blood withdrawal where
the suspect is admitted to a hospital, clinic, or other medical facility and it is impractical or impossible to
administer a breath or urine test.5 The statutes also provide for implied consent to a breath and urine sample. 6

How then do the recent profound interpretations of the Fourth Amendment affect the application of these
statutes? Three trial judges considered the impact of McNeely7 on Florida Statutes, section 316.1933.8 This
matter has now been clearly addressed by the Fifth District in State v. Liles:
Following McNeely, we must read section 316.1933, Florida Statutes, as a directive to law
enforcement to obtain blood samples in serious and deadly crashes when probable cause exists to
suggest impaired driving. To comply with McNeely, the statute must assume the blood draw
will be obtained with a warrant, absent consent or proof of exigent circumstances. (emphasis
added).9

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§ 5:2.Overview and scope of Implied Consent Law, 11 Fla. Prac., DUI Handbook § 5:2...

Birchfield10 makes a similar observation applying to § 316.1932, Fla. Stat., providing for consent to a blood
draw when it is impossible or impractical to secure breath or urine. The Court says:

It is true that a blood test, unlike a breath test, may be administered to a person who
is unconscious (perhaps as a result of a crash) or who is unable to do what is needed
to take a breath test due to profound intoxication or injuries. But we have no reason
to believe that such situations are common in drunk-driving arrests, and when they
arise, the police may apply for a warrant if need be. (emphasis added)

In a recent two to one decision in McGraw v. State,11 the majority concludes that this comment from Birchfield12
does not justify a finding that Florida’s implied consent law authorizing warrantless extraction of a blood
sample13 from an unconscious person is unconstitutional. The court observes that Birchfield14 finds implied
consent laws unconstitutional when they provide for criminal penalties for refusal to provide a blood sample. 15
But that does not apply when the law only provides for administrative, civil or evidentiary consequences;
therefore, it does not apply to an unconscious suspect in a Florida hospital. 16 The court draws this important
distinction:
We agree with Liles’s conclusion that when a defendant specifically withdraws his or her consent,
the state cannot compel a blood draw. In that situation, the State would not be able to rely on
implied consent as an exception to the warrant requirement; and the defendant would be subject to
the administrative and evidentiary penalties provided by the implied consent law (and approved of
in Birchfield).17

Some courts from other jurisdictions agree18 with McGraw; while others do not.19 The majority in McGraw cites
several of these opinions.

Obviously, McGraw20 is an extremely important case, but it leaves a couple of related significant questions. The
court does not comment on the fact that a second refusal in Florida does, in fact, carry criminal penalties. 21 Nor
does it clearly address the treatment of those who are hospitalized and can’t provide a breath or urine sample,
but are conscious. Does that mean that Florida’s implied consent statute authorizing the extraction of blood is
unconstitutional as applied to an unconscious person who has a prior refusal? Is the statute unconstitutional as
applied to others who are conscious at a medical facility, but due to the circumstances cannot possibly or
practically provide a breath or urine test? Perhaps these issues will be considered by the Florida Supreme Court.

At the end of the day, all this could have largely been a constitutional tempest in a teapot. These watershed
Supreme Court rulings could have met that while officers must have a warrant to secure nonconsensual blood
samples in the absence of exigent circumstances, those warrants are only available in DUI cases where there is
compliance with one of the two provisions dealing with blood. That would have meant whether officers relied
on a warrant or exigent circumstances, the result would have been the same—citizens would still have had the
special protection extended by the Legislature in DUI cases. But that is not what happened. Before these
important decisions on the warrant requirement, one Florida district court considered this issue.

In State v. Geiss,22 two members of a three judge panel ruled that the implied consent law applies only to
warrantless seizures. The court concluded instead that the statute generally regulating the issuance of warrants
exclusively controls warrants.23 The court reasoned that this was a matter of legislative intent and if the
Legislature had intended for the implied consent law to apply to warrants, it would have said so. 24 This ruling
elevates the significance in Florida of the recent U.S. Supreme Court cases requiring a warrant to secure a blood
sample in DUI cases because it effectively means that there is no special protection for those drivers. If the
implied consent law does not control when law enforcement relies on warrants, then such seizures would not be
limited to the two situations authorized by that law—accidents involving death or serious bodily injury or
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§ 5:2.Overview and scope of Implied Consent Law, 11 Fla. Prac., DUI Handbook § 5:2...

admissions to the hospital making it impossible or impractical to secure a breath or urine sample.

A partially dissenting judge expressed a conflicting view:

Contrary to the majority’s assertion, a statutory construction analysis does not support its
conclusion. The search warrant statute is a statute of general application. The implied consent
statute is a statute of specific application. It is a fundamental statutory construction tenet that the
specific controls over the general in seemingly conflicting statutes …. Here, though the language
of the statute might not be explicit, any uncertainty about its intent was resolved over thirty years
ago by judicial interpretation—an interpretation that the legislature has had numerous
opportunities to reject in its numerous amendments to the statute.25

Decisions of Florida District Courts are always important because in the absence of a contrary decision from the
Supreme Court or another district, they are mandatory authority throughout the state. 26 The Florida Supreme
Court recently reviewed this principle in Carpenter v. State.27 In that case, a four to three majority of the Court
ruled that Pardo28 does not in all cases control the determination of whether an officer is acting in objectively
reasonable reliance on a Florida District Court decision. The Court said:

[W]hile an opinion from a district court of appeal may be binding on lower trial courts in
Florida under a Pardo theory, this fact does not necessarily justify law enforcement’s reliance
on that decision as “binding” law authorizing a warrantless cell phone search, especially when on
actual notice of the pending review in this Court.29 (emphasis added)

Thus, the decision of the two judges in Geiss30 is, as of this writing, controlling in all trial courts throughout the
state. When that decision was rendered, warrants in DUI cases were relatively rare; but given the recent rulings,
they should be expected often when officers are seeking blood. That is true except in misdemeanor DUI cases
because all three judges on the Geiss31 panel agreed that the search warrant statute 32 does not permit the issuance
of a warrant for blood where the affidavit alleges only a misdemeanor DUI.

The unavailability of a warrant based on an affidavit alleging only a misdemeanor closes the door to the creative
approach to breath test refusal attempted by the officer in Geiss.33 That procedure had been approved by other
trial judges.34 But in the absence of a statutory amendment or different interpretation, it is not an alternative to
breath testing in misdemeanor cases.

Thus, Geiss35 is extremely important because it means that the implied consent law only applies to blood where
the State is relying on exigent circumstances and nonconsensual blood draws are unavailable for misdemeanor
DUIs. Consequently, the following sections of this Chapter discussing the extensive body of law dealing with
the provisions of the implied consent law on blood, apply solely to cases where the state relies on exigent
circumstances. However, some of that case law may be useful in determining whether there is probable cause
for a warrant.36

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995). See also State v. Cable, 51 So. 3d 434, 441
(Fla. 2010); State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v.
Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).

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§ 5:2.Overview and scope of Implied Consent Law, 11 Fla. Prac., DUI Handbook § 5:2...

2
State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995). See also State v. Bokilo, 23 Fla. L. Weekly
Supp. 289 (Fla. Brevard Cty. Ct. May 1, 2015)State v. Bokilo, 23 Fla. L. Weekly Supp. 289 (Fla.
Brevard Cty. Ct. May 1, 2015).
3
State v. Liles, 191 So.3d 484, note 2, (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla.
Opinion Filed August 11, 2016) (Court recently recognized that the implied consent law consists of
three statutes; one provides that a driver consents to a BAT if lawfully arrested for DUI; a second
provides for legal presumptions based on test results. and the third requires an officer secure a blood
sample under certain circumstances.). See also Montes-Valeton v. State, 216 So.3d 475, 480 (Fla. 2017);
State v. Langsford, 816 So.2d 136, 139 (Fla. 4th DCA 2012).
4
§ 316.1933(1)(a), Fla. Stat.
5
§ 316.1932(1)(c), Fla. Stat.
6
§ 316.1932(1)(a) 1., Fla. Stat.
7
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
8
State v. Liles, 21 Fla. L. Weekly Supp. 883 (Fla. 9th Cir. Ct. April 29, 2014) State v. Liles, 21 Fla. L.
Weekly Supp. 883 (Fla. 9th Cir. Ct. April 29, 2014) (statute not invalid, officer required to secure blood
sample under the statutory circumstances; “[T]he Legislative intent was to adopt Schmerber allowing
the warrantless extraction of blood [only]where there are exigent circumstances” and McNeely holds that
decline in BAL alone does not establish an exigency); State v. Finnegan, 21 Florida Law Weekly Supp.
329 (Fla. 19th Cir. Ct. Oct. 28, 2013) (statute not unconstitutional because it was part of the implied
consent law, which has not been invalidated); State v. Usaga, 20 Fla. L. Weekly Supp. 1194 (Fla. 11th
Cir. Ct. August 29, 2013) (statute is unconstitutional).
9
State v. Liles, 191 So.3d 484, 489 (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla.
Opinion Filed Aug. 11, 2016).
10
In Birchfield v. North Dakota, 136 S.Ct. 2160, 2184-2185, 195 L.Ed. 2d 560 (2016).
11
McGraw v. State, 245 So.3d 760, 771 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018) (Judge Gross writes a strong dissent in which he paraphrases the Nobel
Laureate, Bob Dylan: “‘you don’t need to be a weatherman to know which way the legal wind blows.’”).
12
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016).
13
Fla. Stat. Ann. § 316.1932(1)(c).
14
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016).
15
McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018).
16
McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018).
17
McGraw v. State, 245 So.3d 760, 769 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018).
18
Dortch v. State, 2018 Ark. 135 544 S.W.3d 518 (2018) (citing McGraw, court found even though the

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§ 5:2.Overview and scope of Implied Consent Law, 11 Fla. Prac., DUI Handbook § 5:2...

penalties for refusal were significantly less than those in Birchfield: “because the refusal to submit to a
blood test pursuant to section 5-65-202 would result in the imposition of criminal penalties, we hold
that, as applied to Dortch, it is unconstitutional.”); State v. Mitchell, 914 N.W.2d 151 (Wis. 2018)
(draws same distinction as in McGraw between administrative and evidentiary versus criminal
consequences for withdrawal of consent where defendant drank to the point of unconsciousness);
People v. Hyde, 393 P.3d 962 (Colo 2017) (opinion relied on extensively by majority in McGraw);
Wolfe v. Commonwealth, 67 Va.App. 977, 93 S.E.2d 811 (2016) (recognized distinction in Birchfield
between refusal statutes resulting in civil penalties versus criminal penalties).
19
State v. Romano, 369 N.C. 678, 800 S.E.2d 644 (2017) (implied consent statute did not provide for a
criminal penalty for refusal and allowed blood draw from an unconscious person; court noted that
Birchfield did not specifically say that this was an exception to the warrant requirement, “based on the
Supreme Court’s Fourth Amendment precedent regarding consent as well as the rationale and language
the Court employed in McNeely and Birchfield, we conclude that the blood draw from defendant cannot
be justified under [implied consent] as a per se categorical exception to the warrant requirement.”);
Commonwealth v. Myers, 640 Pa. 653, 164 A.3d 1162 (2017) (implied consent does not constitute an
independent exception to the warrant requirement).
20
McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018).
21
Fla. Stat. Ann. § 316.1939.
22
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012)
(defendant refused breath test, so officer secured a search warrant for blood).
23
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012)
(referring to § 933.02, Fla. Stat.).
24
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012).
25
State v. Geiss, 70 So.3d 642, 651-652 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla.
2012) (J. Torpy concurring in part and dissenting in part). See also State v. Bokilo, 23 Fla. L. Weekly
Supp. 289 (Fla. Brevard Cty. Ct, May 11, 2015)State v. Bokilo, 23 Fla. L. Weekly Supp. 289 (Fla.
Brevard Cty. Ct, May 11, 2015).
26
Pardo v. State, 596 So.2d 665, 666-667 (Fla. 1992).
27
Carpenter v. State, 228 So.3d 535 (Fla. 2017).
28
Pardo v. State, 596 So.2d 665 (Fla. 1992).
29
Carpenter v. State, 228 So.3d 535 (Fla. 2017) (the Court looked to whether it can be said that the
principle established by the district court opinion is “final, well-settled, unequivocal, [and] clearly
established”).
30
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012).
31
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012).
32
§ 933.02, Fla. Stat.
33
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012).
34
State v. Isley, 11 Fla. L. Weekly Supp. 1102 (Fla. Brevard Cty. Ct. Sept. 15, 2004). See also State v.
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Simmons, 17 Fla. L. Weekly Supp. 345 (Fla. 4th Cir. Ct. Nov. 23, 2009)Fla. Brevard Cty. Ct. Sept. 15,
2004). See also State v. Simmons, 17 Fla. L. Weekly Supp. 345 (Fla. 4th Cir. Ct. Nov. 23, 2009); State
v. McKinnon, 16 Fla. L. Weekly Supp. 329 (Fla. Duval Cty. Ct. Feb. 19, 2009)State v. McKinnon, 16
Fla. L. Weekly Supp. 329 (Fla. Duval Cty. Ct. Feb. 19, 2009); State v. St. George, 16 Fla. L. Weekly
Supp. 324 (Fla. Duval Cty. Ct. Jan. 29, 2009)State v. St. George, 16 Fla. L. Weekly Supp. 324 (Fla.
Duval Cty. Ct. Jan. 29, 2009).
35
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012).
36
In Birchfield v. North Dakota, 136 S.Ct. 2160, 2180, 195 L.Ed. 2d 560 (2016), the Court recognized
that to establish probable cause for a warrant an officer would usually rely on the same facts that cause
the officer to make an arrest.

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Works.

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§ 5:3.The forcible extraction of a blood sample, 11 Fla. Prac., DUI Handbook § 5:3...

11 Fla. Prac., DUI Handbook § 5:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

§ 5:3. The forcible extraction of a blood sample

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 414, 417

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

Section 316.1933(1), Fla. Stat. permits forcible extraction of a blood sample if the officer has “reasonably
trustworthy information,” sufficient to cause a person of reasonable caution to believe that a driver was under
the influence of alcoholic beverages at the time of an accident causing death or serious bodily injury of a human
being.1 The statute allows forcible extraction even if the defendant is the only one injured. 2 As explained earlier,
this statute currently applies only in felony cases where there are exigent circumstances.

For Section 316.1933 to apply, the officer must have probable cause to believe the defendant was driving
while under the influence of alcoholic beverages and caused death or serious bodily injury. 3 The officer must
determine that probable cause exists based on objective facts and circumstances, not on personal opinions or
suspicion.4 This probable cause determination may be based on “the collective knowledge” of officers. 5
However, where there was no evidence that the officer ordering the test had any personal information or reports
from other officers or anyone to establish probable cause, the blood test results were inadmissible. 6 Test results
secured solely as a standard operating procedure are inadmissible.7

Recently, in Montes-Valeton v. State,8 the Florida Supreme Court considered the fellow officer or collective
knowledge rule as it applied to the probable cause requirement for a forced blood test under Fla. Stat. §
316.1933. The Court held that the officer who has the information upon which the State relies to establish
probable cause for the blood test must communicate with the officer ordering the test. 9 And the officer taking
that action must be acting based upon what he or she was told by the first officer. 10 While the Court makes it
clear that the officer ordering the test must be motivated by the direction of the officer with the information, it
does not define the quantum of required information. Instead, the Court explains that the officer with the

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information in Montes-Valeton11 did not direct the acting officer to take the blood, indicate that probable cause
existed “or communicate[] anything regarding Montes-Valeton” to the officer ordering the blood draw. 12
“Without the communication to the arresting officer of some information that initiates the arrest, the predicate
for application of the fellow officer rule is lacking. Trooper Molina therefore lacked imputed probable cause
knowledge of Montes-Valeton’s intoxication under the fellow officer rule.” 13

There are numerous cases dealing with the determination of probable cause to believe the defendant was driving
while under the influence of alcohol and caused an accident resulting in death or serious bodily injury. The
officer need not have determined that the defendant is the person that was driving the vehicle to the exclusion of
all others before the officer orders the blood test. 14 It is sufficient if the officer has probable cause to believe that
the defendant was driving.15 Thus, where the facts clearly established that whoever was driving the involved
vehicle at the time of the accident was under the influence of alcohol and two occupants of the vehicle blamed
each other, the officer had the authority to order a blood sample to be drawn from each person. 16

There has been some variation in the approaches that courts have taken as to what officers must know about the
defendant’s impairment to order a blood withdrawal under § 316.1933(1), Fla. Stat. Although the statute
does not say so, some district courts have ruled that the officer must have probable cause to believe that the
driver was impaired by alcohol at the time of the accident, not merely that the driver had consumed alcohol. 17 In
State v. Brown,18 the court concluded that being under the influence is synonymous with being impaired. The
court also found probable cause for a DUI based on the fact that the defendant had an odor of alcohol, caused a
fatal accident, and had various indicia of alcohol consumption.19

Other district courts have taken a slightly different approach. 20 They have ruled that there is probable cause for a
DUI, and to order forcible extraction of a blood sample pursuant to § 316.1933(1), Fla. Stat., where the
defendant has merely consumed alcohol and caused a serious or fatal accident. These courts deem the odor of
alcohol and causation of the accident sufficient.

Despite the slight variation in the approach to forcible extraction pursuant to § 316.1933(1), Fla. Stat., it is
fairly clear that an officer may order a blood test if the officer knows that there was an accident involving
serious bodily injury, the suspect was driving one of the involved vehicles, and the suspect has a strong odor of
alcohol.21

In Palazzotto v State,22 the court held that after defendant was involved in an accident resulting in serious bodily
injury, there was probable cause for a blood draw based on defendant’s speed, violence at the hospital, and odor
of alcohol. The court concluded that under the circumstances there was no need to reexamine its earlier
decisions in State v. Catt23 and Keeton v. State.24

Even without an odor of alcohol, an officer may still have probable cause. Thus, the officer had probable cause
to order a blood test where the officer knew: (1) the defendant’s vehicle was about six feet across the center line
at the time of the impact; (2) there was an open container of liquor in the car; (3) there was an ice chest and beer
cans in the vehicle; and (4) the driver of the other vehicle was seriously injured. 25

In one instance, the court deemed a faint odor of alcohol to be significant, given the totality of the
circumstances.26 In that case, the defendant fled on foot from the scene of an accident resulting in death. Seven
hours later a trooper found him. On appeal, the court ruled that the trooper had probable cause to order a blood
test based on the circumstances of the accident, the faint odor of alcohol, and the fact that the trooper had
reasonable grounds to believe that the defendant had lied when he said the car had been stolen and he was not
the driver.

In other cases, the absence of an odor of alcohol has been fatal to the claim of probable cause. Where the
defendant had been crying, but the officer detected no odor of alcohol, the officer did not have probable cause
and could not force the defendant to submit to a blood test.27

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§ 5:3.The forcible extraction of a blood sample, 11 Fla. Prac., DUI Handbook § 5:3...

If the officer detects an odor of alcohol, there may also be a problem with the source of information that the
officer relies on to establish that the defendant was under the influence of alcohol. In one case, 28 the court found
that the source was subject to a claim of privilege. A treating doctor opined that the defendant was under the
influence of alcohol. Subsequently, the statute was amended to allow officers to order legal blood draws based
on information provided by health care providers as to medical blood draw results. 29 If law enforcement acts on
exigent circumstances, that information can be important in meeting the statutory probable cause requirement.
Otherwise, officers can rely on the information disclosed pursuant to the statute as a basis for an affidavit in
support of a warrant.

As indicated herein, in addition to determining whether there was probable cause to believe the defendant was
under the influence of alcohol, the officer must also determine whether there was death or serious bodily injury.
Such an injury is “a physical condition that creates a substantial risk of death, serious personal disfigurement, or
protracted loss or impairment of the function of any bodily member or organ.”30

All the law included here concerning serious bodily injury is also important for an affidavit for search warrant.
An affidavit showing only that the defendant was involved in an accident and probable cause of driving while
under the influence, but failing to reflect death or serious bodily injury, establishes only a misdemeanor. As
pointed out earlier, according to State v. Geiss31 Florida’s statute32 does not authorize a warrant for blood where
the affidavit reflects only a misdemeanor.

The officer generally must have sufficient information to establish reasonable grounds to believe that someone
in the accident suffered a serious bodily injury. The actual injuries sustained by the victim are not dispositive of
whether the defendant’s blood test was properly taken pursuant to Florida Statutes, section 316.1933(1).33
The officer’s knowledge and reasonable belief that there were serious injuries is important. 34

The officer must also have reason to believe that the accident in which the defendant was involved actually
resulted in the injuries.35 Therefore, a blood test was impermissible where the defendant ran over and dragged a
motorcyclist who previously had an accident causing him to lie in the road. The motorcyclist died, but the
trooper, “could not ascertain the cause of death for the victim, specifically whether it was related to the injuries
sustained from the prior accident or from being struck by [the defendant’s] vehicle. … There is no testimony to
distinguish whether the victim sustained any further bodily injuries after being struck by [the defendant’s]
vehicle.”36

The importance of the officer’s knowledge, rather than the actual injuries, is clear. 37 The officer had probable
cause to believe that there were serious injuries where paramedics told the officer that the accident victim was
unconscious and possibly suffering from neck and other unspecified internal injuries. 38 Similarly, the officer
acted reasonably in ordering a blood test where the officer knew that: (a) the victim had to be extricated from
the car, was placed on a back board, was screaming, and holding her side, and had trouble breathing; (b) the
victim’s car was badly damaged; and (c) paramedics told the officer that the victim had possible internal
injuries.39 In a similar case, the court found that the officer had probable cause where the victim had to be
removed from the car, was immobilized, had a cut on her head, was bleeding, complained of neck and back
injuries, was “woozy,” and a paramedic at the scene told the officer, “it did not look good” for the alleged
victim.40 Similarly, an officer had reasonable cause to believe the defendant had been seriously injured based on
the fact that the accident was serious; the defendant had serious cuts, was bleeding significantly, was
incoherent, and needed a CAT scan; a doctor told the officer that the defendant appeared to have suffered a
serious head injury; and the hospital treated the defendant as a trauma case. 41 Likewise, the court found that an
officer had probable cause to conclude that an accident had resulted in serious bodily injuries where a small
child had been ejected from the car and rolled on the road, and emergency medical personnel on the scene
advised the officer that they had decided to airlift the child to an out-of-county hospital because they were
concerned about possible internal injuries.42 In these cases, the officers had information from knowledgeable
medical personnel, but that is not always the case.

In one instance, the officer was unable to get sufficient information from medical personnel because they were
still treating the injured person.43 The officer arrived at the scene of the accident and saw a passenger bleeding
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profusely from a bad cut on the top of his head. The court ruled that the officer had sufficient objective facts to
cause a reasonably prudent person to believe that there was a “substantial risk of serious personal
disfigurement.” The court did note, however, that had treatment been completed, the officer would have had an
obligation to make reasonable inquiry of the treating physician as to the risks of scarring and disfigurement.
Similarly, a circuit judge sitting in his appellate capacity ruled that a deputy had sufficient grounds for
concluding that an accident had resulted in serious bodily injury based solely on information provided by
another deputy that two other individuals involved in the accident had been taken to the hospital on stretchers,
and it did not look good for a child involved in the accident.44

In other cases, where officers had no information from medical personnel, the court found it improper for the
officers to order a blood test. That was the result where the officer knew only that one person involved in an
accident complained of lower back pains and bruised ribs. 45 Similarly, in another case, the court held that the
State failed to establish probable cause to believe that there were serious bodily injuries where the officer did
not know how serious the accident was, did not ask emergency medical services personnel on the scene about
the extent of any injuries, and saw no one who was seriously injured. 46 In another case, the court found that the
facts were insufficient to justify the conclusion that there were serious injuries, where unidentified hospital
personnel told the officer that one of the people involved in the accident had “fractured ribs and punctured or
bruised organs.”47 The trial court reached the same conclusion and the appellate court affirmed, where the
defendant reported to the officer at the scene of a one car accident that her ankles were in a lot of pain, she was
given medical attention at the scene, and later treated at the hospital for two fractured ankles. 48

In another example,49 the court found there were insufficient grounds for forcible extraction of a blood sample
where the officer never believed there was a substantial risk of death or permanent personal disfigurement,
never asked any medical personnel about the extent of the injuries, and acknowledged that the use of neck
collars and transport to the hospital was normal when people involved in an accident complain of pain. The
damage to the vehicle appeared to be minor, the two victims complained of chest pain from striking the seat
belt, and one of the victims had an abrasion on the neck consistent with a seat belt injury. All of their vital signs
were normal.

As some of the foregoing circumstances suggest, the nature of the accident itself may establish reasonable
grounds to believe that someone was seriously injured. 50 The consequences of some accidents are so severe that
nothing more is required to justify the officer’s conclusion.

The statutory and constitutional grant of authority to use force only permits the use of reasonable force. Where
the officer threatened to “hit appellant over the head” to secure the sample, that threat did not constitute the use
of unreasonable force because the officer never intended to carry out his threat, made no move to carry it out,
hospital personnel were present, and the defendant was not intimidated by the threat and did not give the sample
in response to the threat.51 Further, a lawful arrest is not required for forcible extraction of blood. 52 Additionally,
the defendant need not be conscious when the officer requests a sample. 53 Also, the statute contemplates that the
request will be made to medical personnel, rather than the defendant. 54

Securing blood samples where there is death or serious bodily injury usually involves information obtained at a
medical facility. The same is true where the State relies on those provisions of the implied consent law
authorizing taking blood samples where it is impractical or impossible to get a breath or urine sample, which is
discussed in the next section. One issue that may arise is whether such information is barred by the federal
Health Insurance Portability and Accountability Act of 1996 (HIPAA). It is clear that HIPAA does not apply to
securing blood samples in DUI cases. Law enforcement officers are not covered by that law. 55 Even if they were
covered, exclusion of evidence is not authorized by the statute or constitution. 56 Additionally, HIPAA only
applies to records, so it would have no impact on an officer seeking information as to the location of the
defendant or being present in the room during treatment.57

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Durden, 655 So. 2d 215 (Fla. 1st DCA 1995).
2
§ 316.1933(1)(b), Fla. Stat.
3
§ 316.1933(1)(b), Fla. Stat. See also State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), review
denied, 2016 WL 4245500 (Fla. Opinion Filed Aug. 11, 2016); Palazzotto v. State, 988 So. 2d 123 (Fla.
2d DCA 2008); State v. Serrago, 875 So. 2d 815 (Fla. 2d DCA 2004); State v. Catt, 839 So. 2d 757 (Fla.
2d DCA 2003); State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000).
4
State v. Durden, 655 So. 2d 215 (Fla. 1st DCA 1995).
5
Henninger v. State, 667 So. 2d 488 (Fla. 1st DCA 1996). See also Gerlitz v. State, 725 So. 2d 393
(Fla. 4th DCA 1998), review denied, 732 So. 2d 326 (Fla. 1999); State v. Johnson, 695 So. 2d 771
(Fla. 5th DCA 1997), receded from on other grounds by Wheeler v. State, 87 So. 3d 5 (Fla. 5th DCA
2012), review denied, 92 So. 3d 215 (Fla. 2012); Carranza v. State, 8 Fla. L. Weekly Supp. 698 (Fla.
13th Cir. Ct. Aug. 14, 2001)Carranza v. State, 8 Fla. L. Weekly Supp. 698 (Fla. 13th Cir. Ct. Aug. 14,
2001) (knowledge of one officer was imputed to officer ordering blood draw). See §§ 4:1 et seq.
6
State v. Webb, 753 So. 2d 145 (Fla. 3d DCA 2000). See also State v. Salle-Green, 93 So. 3d 1169, 1172
(Fla. 2d DCA 2012) (officer must have independent probable cause that defendant was DUI at the time
of the accident or information from health care provider that defendant’s medical blood test results were
over the legal limit).
7
State v. Webb, 753 So. 2d 145 (Fla. 3d DCA 2000).
8
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017).
9
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017).
10
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017).
11
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017).
12
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017).
13
Montes-Valeton v. State, 216 So.3d 475, 479 (Fla. 2017) (the Court does not say that the officer with the
information must convey sufficient facts to the officer ordering the blood test to establish probable
cause, but the Court does end this part of the opinion with this quote: “ ‘A supervising officer’s
knowledge about a defendant cannot be relied upon to provide probable cause for his arrest where there
is no evidence that such knowledge was communicated to the agents on the scene who actually made or
ordered the defendant’s arrest.’” (quoting from United States v. Edwards, 885 F.2d 377, 382 (7th Cir.
1989))). But see State v. James, 25 Fla. L. Weekly Supp. 543 (Fla. Volusia Cty. Ct. July 19, 2017)State
v. James, 25 Fla. L. Weekly Supp. 543 (Fla. Volusia Cty. Ct. July 19, 2017) (trial judge ruled that
Montes-Valeton means that “in order for the fellow officer rule to apply, the information establishing
probable cause for the arrest must be communicated directly from the officer possessing the knowledge
to the officer who will be making the arrest.”).
14
Williams v. State, 731 So. 2d 48 (Fla. 2d DCA 1999).
15
Williams v. State, 731 So. 2d 48 (Fla. 2d DCA 1999).
16
Williams v. State, 731 So. 2d 48 (Fla. 2d DCA 1999).

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17
State v. Brown, 725 So. 2d 441 (Fla. 5th DCA 1999). See also State v. Catt, 839 So. 2d 757 (Fla. 2d
DCA 2003); Rodriguez v. State, 837 So. 2d 478 (Fla. 5th DCA 2002), review denied, 868 So. 2d 524
(Fla. 2004); State v. O’Neil, 11 Fla. L. Weekly Supp. 103 (Fla. Cir. Ct. 17th Cir. Ct. Nov. 12, 2003)State
v. O’Neil, 11 Fla. L. Weekly Supp. 103 (Fla. Cir. Ct. 17th Cir. Ct. Nov. 12, 2003).
18
State v. Brown, 725 So. 2d 441 (Fla. 5th DCA 1999).
19
State v. Brown, 725 So. 2d 441 (Fla. 5th DCA 1999). See also State, Dept. of Highway Safety and
Motor Vehicles, Div. of Driver Licenses v. Possati, 866 So. 2d 737, 740 (Fla. 3d DCA 2004) (an officer
had probable cause based on odor of alcohol on defendant’s breath, his bloodshot and watery eyes, and
the fact that he had just crashed into a parked police vehicle); Barlow v. Dep’t of Highway Safety &
Motor Vehicles, 15 Fla. L. Weekly Supp. 44 (Fla. 20th Cir. Ct. Oct. 24, 2007)Barlow v. Dep’t of
Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 44 (Fla. 20th Cir. Ct. Oct. 24, 2007)
(officer had probable cause for DUI based on odor of alcohol, blood shot watery eyes, and a moving
traffic infraction). Compare State v. O’Neil, 11 Fla. L. Weekly Supp. 103 (Fla. 17th Cir. Ct. Nov. 12,
2003)State v. O’Neil, 11 Fla. L. Weekly Supp. 103 (Fla. 17th Cir. Ct. Nov. 12, 2003) (court ruled that a
trooper did not have probable cause to order a blood draw because, in contrast to Brown, the officer was
never at the scene of the accident, the trooper did not review the witnesses’ written statements before
going to the hospital, none of the witnesses said that the defendant did anything wrong, and the trooper’s
basis for ordering the test was that the defendant, who was unconscious, had an odor of alcohol and
bloodshot eyes at the hospital); State v. Cooper, 25 Fla. L. Weekly Supp. 1019 (Fla. Volusia Cty. Ct.
Nov. 17, 2017) (trial court granted a motion to suppress a blood test because the officer did not have P/C
where officer said he responded to a “‘crash’” but there was no evidence as to any details about the
crash, except the officer’s conclusion that it was Defendant’s fault; officer noticed Defendant “‘spoke
slowly’” and was “‘lethargic’”; officer could not recall an odor of alcohol and admitted on cross that
was not in his report); State v. Lymon, 19 Fla. L. Weekly Supp. 953 (Fla. Palm Beach Cty. Ct. July 26,
2012)State v. Lymon, 19 Fla. L. Weekly Supp. 953 (Fla. Palm Beach Cty. Ct. July 26, 2012) (where the
basis for taking the blood was death of a bicyclist; the test results were inadmissible because officer did
not have probable cause to believe that defendant had caused the fatal accident; it was a dark and stormy
night, another driver swerved into the defendant’s lane to avoid a bicyclist, who had no light, and
defendant had to swerve to avoid the other driver and had no chance to avoid the bicyclist; the
investigating officer said everything was “‘up in the air’”).
20
State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000); State v. Cesaretti, 632 So. 2d 1105 (Fla. 4th
DCA 1994); Jackson v. State, 456 So. 2d 916 (Fla. 1st DCA 1984).
21
State v. Catt, 839 So. 2d 757 (Fla. 2d DCA 2003); Gerlitz v. State, 725 So. 2d 393 (Fla. 4th DCA
1998), review denied, 732 So. 2d 326 (Fla. 1999); Lax v. State, 639 So. 2d 76 (Fla. 3d DCA 1994),
review denied, 648 So 2d 723 (Fla. 1994); State v. Cesaretti, 632 So. 2d 1105 (Fla. 4th DCA 1994);
Keeton v. State, 525 So. 2d 912 (Fla. 2d DCA 1988), review denied, 534 So. 2d 400 (Fla. 1988); State v.
Silver, 498 So. 2d 580 (Fla. 4th DCA 1986); State v. Clark, 10 Fla. L. Weekly Supp. 6 (Fla. 5th Cir. Ct.
Oct. 21, 2002)State v. Clark, 10 Fla. L. Weekly Supp. 6 (Fla. 5th Cir. Ct. Oct. 21, 2002) (officer
properly ordered blood test where the defendant appeared to be seriously injured in an accident caused
by his own recklessness, the defendant had a strong odor of alcohol about his person, and a deputy noted
that the defendant had an odor of alcohol on his breath at the accident scene); Simonton v. State, 7 Fla.
L. Weekly Supp. 664 (Fla. 17th Cir. Ct. July 18, 2000)Simonton v. State, 7 Fla. L. Weekly Supp. 664
(Fla. 17th Cir. Ct. July 18, 2000) (extraction of blood sample proper where the deputy had reasonable
grounds to believe that the defendant had caused an accident resulting in serious bodily injury and the
defendant had an odor of alcohol and was unsteady on his feet); State v. Peterson, 7 Fla. L. Weekly
Supp. 632 (Fla. Broward Cty. Ct. May 4, 2000)State v. Peterson, 7 Fla. L. Weekly Supp. 632 (Fla.
Broward Cty. Ct. May 4, 2000) (extraction of blood sample proper where the deputy had reasonable
grounds to believe that the defendant had caused an accident resulting in serious bodily injury, the
defendant had an odor of alcohol, and had run into the back of a pick-up truck, and deputy observed him
for some time); State v. Crider, 7 Fla. L. Weekly Supp. 217 (Fla. Palm Beach Cty. Ct. Jan. 12,
2000)State v. Crider, 7 Fla. L. Weekly Supp. 217 (Fla. Palm Beach Cty. Ct. Jan. 12, 2000).
22
Palazzotto v. State, 988 So. 2d 123 (Fla. 2d DCA 2008).
23
State v. Catt, 839 So. 2d 757 (Fla. 2d DCA 2003).

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24
Keeton v. State, 525 So. 2d 912 (Fla. 2d DCA 1988), review denied, 534 So. 2d 400 (Fla. 1988).
25
State v. Durden, 655 So. 2d 215 (Fla. 1st DCA 1995). See also Mathis v. Coats, 24 So. 3d 1284, 1286–
87 (Fla. 2d DCA 2010) (plaintiff sued for false arrest based on DUI charge; court found probable cause
for DUI arrest even though she had no odor of alcohol; defendant struck the center median, nearly
sideswiped another vehicle, and struck the center median again; seemed agitated and moved in a very
jerky fashion, had bloodshot or glassy eyes, slow coordination, difficulty following conversation, a
flushed face, and did badly on FSTs; but she was cooperative and had clear speech); see § 4:15.
26
State v. Henderson, 719 So. 2d 1223 (Fla. 5th DCA 1998), review denied, 729 So. 2d 391 (Fla 1999).
See also State v. Serrago, 875 So. 2d 815 (Fla. 2d DCA 2004) (trooper had probable cause to order a
blood test where the defendant was driving erratically, there was a slight odor of alcohol on the driver’s
side and she came across a median into another car, resulting in death and serious bodily injury).
27
Dorman v. State, 492 So. 2d 1160 (Fla. 1st DCA 1986). See also State v. Floyd, 510 So. 2d 1180
(Fla. 4th DCA 1987); White v. State, 492 So. 2d 1163 (Fla. 1st DCA 1986).
28
State v. Buchanon, 610 So. 2d 467 (Fla. 2d DCA 1992), review denied, 623 So. 2d 495 (Fla. 1993).
There was a strong dissent.
29
State v. Salle-Green, 93 So. 3d 1169, 1172 (Fla. 2d DCA 2012).
30
§ 316.1933(1), Fla. Stat.
31
State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.3d 111 (Fla. 2012).
32
§ 933.02(2), Fla. Stat.
33
State v. Hall, 2 Fla. L. Weekly Supp. 228 (Fla. Palm Beach Cty. Ct. March 22, 1994)State v. Hall, 2 Fla.
L. Weekly Supp. 228 (Fla. Palm Beach Cty. Ct. March 22, 1994). See also State v. Munro, 16 Fla. L.
Weekly Supp. 185 (Fla. Dade Cty. Ct. Nov. 25, 2008)State v. Munro, 16 Fla. L. Weekly Supp. 185 (Fla.
Dade Cty. Ct. Nov. 25, 2008).
34
State v. James, 42 Fla. Supp. 2d 66 (Fla. 15th Cir. Ct. 1990). See also State v. Munro, 16 Fla. L. Weekly
Supp. 185 (Fla. Dade Cty. Ct. Nov. 25, 2008)16 Fla. L. Weekly Supp. 185 (Fla. Dade Cty. Ct. Nov. 25,
2008); State v. Langsford, 8 Fla. L. Weekly Supp. 657 (Fla. Palm Beach Cty. Ct. Aug. 3, 2001) State v.
Langsford, 8 Fla. L. Weekly Supp. 657 (Fla. Palm Beach Cty. Ct. Aug. 3, 2001), affirmed on other
grounds, 816 So. 2d 136, 138 (Fla. 4th DCA 2002).
35
State v. Williams, 15 Fla. L. Weekly Supp. 335 (Fla. 17th Cir. Ct. Jan. 30, 2008)State v. Williams, 15
Fla. L. Weekly Supp. 335 (Fla. 17th Cir. Ct. Jan. 30, 2008). See also State v. Garrett, 25 Fla. L. Weekly
Supp. 71 (Fla. Orange Cty. Ct. Feb. 17, 2017)State v. Garrett, 25 Fla. L. Weekly Supp. 71 (Fla. Orange
Cty. Ct. Feb. 17, 2017) (after an accident the defendant was taken to the hospital, but the blood sample
was not properly taken pursuant to § 316.1933(1)(a), Fla. Stat. because there was no evidence as to
the defendant’s medical condition or the officer’s knowledge of the condition so that the evidence was
insufficient to show that the officer had reason to believe the defendant’s driving caused serious injury).
36
State v. Williams, 15 Fla. L. Weekly Supp. 335 (Fla. 17th Cir. Ct. Jan. 30, 2008)State v. Williams, 15
Fla. L. Weekly Supp. 335 (Fla. 17th Cir. Ct. Jan. 30, 2008). But see State v. Harrington, 17 Fla. L.
Weekly Supp. 67 (Fla. 6th Cir. Ct. Dec. 10, 2009)State v. Harrington, 17 Fla. L. Weekly Supp. 67 (Fla.
6th Cir. Ct. Dec. 10, 2009) (forced blood draw was proper where defendant allowed person to ride on a
motorcycle he was driving, which was not designed for passengers, resulting in a crash; officer observed
passenger face down in road with a pool of blood around her head, gurgling blood, unconscious, and
medical personnel advised she was in poor and critical condition; defendant had an odor of alcoholic
beverage coming from his breath, bloodshot and watery eyes, and refused FSEs; witnesses said he had
been drinking).

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37
Gerlitz v. State, 725 So. 2d 393 (Fla. 4th DCA 1998), review denied, 732 So. 2d 326 (Fla. 1999).
38
Carbone v. State, 564 So. 2d 1253 (Fla. 4th DCA 1990). See also State v. Hughes, 14 Fla. L. Weekly
Supp. 1002 (Fla. 6th Cir. Ct. March 23, 2007) (blood sample from impaired defendant was proper where
passenger in vehicle operated by defendant hit windshield, was unconscious and taken to the hospital,
and doctors and nurses indicated passenger was in serious condition); State v. Lambertus, 13 Fla. L.
Weekly Supp. 81 (Fla. 17th Cir. Ct. Nov.17, 2005)State v. Lambertus, 13 Fla. L. Weekly Supp. 81 (Fla.
17th Cir. Ct. Nov.17, 2005) (officers had probable cause to believe there was serious bodily injury
where they had these facts: (1) crash involved multiple cars; (2) there was a head-on collusion where
people were ejected; (3) defendant’s car was seriously damaged; (4) defendant had blood dripping down
his face; (5) there was a radio transmission indicated that others had suffered at least loss of body parts;
(6) defendant had blunt trauma to chest, and (7) paramedic said such an injury could be fatal). Contrast
State v. Elzweigh, 10 Fla. L. Weekly Supp. 787 (Fla. 17th Cir. Ct. July 11, 2003)State v. Elzweigh, 10
Fla. L. Weekly Supp. 787 (Fla. 17th Cir. Ct. July 11, 2003) (holding that deputy didn’t have probable
cause even though emergency personnel at the scene told him that the defendant had a compound
fracture and possible internal injuries. Court felt that these things were significant: (1) deputy did not see
the injuries; (2) the defendant was conscious at the hospital; (3) deputy saw that defendant’s leg was
hurt, but he did not talk to any medical personnel at the hospital about her condition; (4) there was no
evidence the defendant actually suffered serious injury; and (5) deputy said he ordered the test because
he observed a “tannish, crusty-type substance” around the defendant’s nostrils and she had a strong odor
of alcohol); State v. Clark, 18 Fla. L. Weekly Supp. 625 (Fla. Brevard Cty. Ct. April 5, 2011) State v.
Clark, 18 Fla. L. Weekly Supp. 625 (Fla. Brevard Cty. Ct. April 5, 2011) (officer had p/c that defendant
had serious bodily injury where vehicle struck a tree, there seemed to be substantial damage to front of
vehicle and airbag deployed; defendant needed help to exit and couldn’t walked, complained of pain in
leg, had glassy eyes, slurred speech and exaggerated movements and did not recall the accident; officer
overheard E.R. doctor say defendant had dislocated femur and fractured hip socket); State v. Bischoff,
16 Fla. L. Weekly Supp. 437 (Fla. Leon Cty. Ct. March 6, 2008)State v. Bischoff, 16 Fla. L. Weekly
Supp. 437 (Fla. Leon Cty. Ct. March 6, 2008) (no probable cause of serious bodily injury justifying
blood test where officer knew only that defendant had a bump on the side of his head and was
transported to hospital; officer was advised by nurse that CAT scan and x-rays would be taken as
diagnostic tools, but the defendant suffered no other injuries and was released one hour after blood
draw); State v. Munro, 16 Fla. L. Weekly Supp. 185 (Fla. Dade Cty. Ct. Nov. 25, 2008)State v. Munro,
16 Fla. L. Weekly Supp. 185 (Fla. Dade Cty. Ct. Nov. 25, 2008) (judge ruled that officer who ordered
blood test of a driver based on his belief that an officer injured in an accident was taken to a trauma
center unconscious with a head injury, did not have reasonably trustworthy information to believe that
the officer suffered serious injury. Judge noted: (1) there was no evidence the injured officer ever lost
consciousness; (2) the trunk of the injured officer’s vehicle was shoved into the back seat, and the
officer was injured; (3) one officer told the officer who ordered the blood test that the injured officer was
“‘bandaged up real bad;’” (4) the officer who ordered the blood test made no observations of his own,
made no inquiry of any medical personnel, and spoke to no other officer who had, including the officer
who went to the hospital with the injured person.).
39
State v. Cesaretti, 632 So. 2d 1105 (Fla. 4th DCA 1994); See also State v. Crider, 7 Fla. L. Weekly
Supp. 217 (Fla. Palm Beach Cty. Ct. Jan. 12, 2000)State v. Crider, 7 Fla. L. Weekly Supp. 217 (Fla.
Palm Beach Cty. Ct. Jan. 12, 2000).
40
State v. Hall, 2 Fla. L. Weekly Supp. 228 (Fla. Palm Beach Cty. Ct. March 22, 1994)State v. Hall, 2 Fla.
L. Weekly Supp. 228 (Fla. Palm Beach Cty. Ct. March 22, 1994).
41
State v. Peterson, 7 Fla. L. Weekly Supp. 632 (Fla. Broward Cty. Ct. May 4, 2000)State v. Peterson, 7
Fla. L. Weekly Supp. 632 (Fla. Broward Cty. Ct. May 4, 2000).
42
State v. Catt, 839 So. 2d 757 (Fla. 2d DCA 2003).
43
State v. James, 42 Fla. Supp. 2d 66 (Fla. 15th Cir. Ct. 1990). See also State v. Langsford, 8 Fla. L.
Weekly Supp. 657 (Fla. Palm Beach Cty. Ct. Aug. 3, 2001)8 Fla. L. Weekly Supp. 657 (Fla. Palm Beach
Cty. Ct. Aug. 3, 2001), affirmed on other grounds, 816 So. 2d 136, 138 (Fla. 4th DCA 2002).
44
Simonton v. State, 7 Fla. L. Weekly Supp. 664 (Fla. 17th Cir. Ct. July 18, 2000)Simonton v. State, 7 Fla.
L. Weekly Supp. 664 (Fla. 17th Cir. Ct. July 18, 2000).

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45
State v. Petrone, 21 Fla. Supp. 2d 130 (Fla. Palm Beach Cty. Ct. 1987).
46
State v. Dannelly, 37 Fla. Supp. 2d 74 (Fla. 1st Cir. Ct. 1989). See also Lukaj v. Dep’t of Highway
Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 563 (Fla. 4th Cir. Ct. March 19, 2010)17 Fla. L.
Weekly Supp. 563 (Fla. 4th Cir. Ct. March 19, 2010) (officer did not have probable cause that driver in
crash suffered serious bodily injury where the only evidence was that driver had been taken to hospital
by ambulance, had been speeding, and said he thought his neck was broken); State v. Gentile, 25 Fla. L.
Weekly Supp. 540 (Fla. Volusia Cty. Ct. August 22, 2017)State v. Gentile, 25 Fla. L. Weekly Supp. 540
(Fla. Volusia Cty. Ct. August 22, 2017) (judge granted motion to suppress blood test results; Defendant-
motorcyclists was taken to the hospital because of a swollen ankle; the blood test was not proper under
§ 316.1933(1)(a), because there was no evidence of serious bodily injury; when the officer asked for
blood Defendant was conscious and there was no evidence he was strapped to a gurney, in shock, going
into surgery, or was going to be admitted; high ankle sprain is not a serious bodily injury); State v.
Milledge, 12 Fla. L. Weekly Supp. 676 (Fla. Palm Beach Cty. Ct. March 1, 2005)State v. Milledge, 12
Fla. L. Weekly Supp. 676 (Fla. Palm Beach Cty. Ct. March 1, 2005) (blood sample was improperly
ordered where officer was told by other officers that the victim was unconscious, he did not speak to any
medical personnel about her condition, and just assumed that there was serious injury because she was
taken to the hospital. “[A] minimal inquiry by the officer would have led a reasonable person to
conclude that there was no serious bodily injury.”). See also State v. Bischoff, 16 Fla. L. Weekly Supp.
437 (Fla. Leon Cty. Ct. March 6, 2008)State v. Bischoff, 16 Fla. L. Weekly Supp. 437 (Fla. Leon Cty.
Ct. March 6, 2008) (no probable cause of serious bodily injury justifying blood test where officer knew
only that defendant had a bump on the side of his head and was transported to hospital; officer was
advised by nurse that CAT scan and x-rays would be taken as diagnostic tools, but the defendant
suffered no other injuries and was released one hour after blood draw); State v. Munro, 16 Fla. L.
Weekly Supp. 185 (Fla. Dade Cty. Ct. Nov. 25, 2008)State v. Munro, 16 Fla. L. Weekly Supp. 185 (Fla.
Dade Cty. Ct. Nov. 25, 2008) (judge ruled that officer who ordered blood test of a driver based on his
belief that an officer injured in an accident was taken to a trauma center unconscious with a head injury,
did not have reasonable trustworthy information to believe that the officer suffered serious injury. Judge
noted: (1) there was no evidence the injured officer ever lost consciousness; (2) the trunk of the injured
officer’s vehicle was shoved into the back seat, and the officer was injured; (3) one officer told the
officer who ordered the blood test that the injured officer was “‘bandaged up real bad;’” (4) the officer
who ordered the blood test made no observations of his own, made no inquiry of any medical personnel,
and spoke to no other officer who had, including the officer who went to the hospital with the injured
person.).
47
State v. Henderson, 24 Fla. Supp. 2d 84 (Fla. Indian River Cty. Ct. 1987).
48
State v. Schreiber, 835 So. 2d 344 (Fla. 4th DCA 2003), review denied, 882 So. 2d 386 (Fla. 2004). See
also State v. Galvan, 15 Fla. L. Weekly Supp. 59 (Fla. Santa Rosa Cty. Ct. Sept. 21, 2007) State v.
Galvan, 15 Fla. L. Weekly Supp. 59 (Fla. Santa Rosa Cty. Ct. Sept. 21, 2007) (officers had probable
cause to believe defendant was impaired and caused accident, but no probable cause to believe
defendant caused serious bodily injury where he was not injured; other driver said her right arm and
head hurt, she had minor abrasions on arm, officer had to repeat some things to her, she was placed on
back board and taken to hospital; but officers were not able to learn her condition before securing a
breath sample by telling defendant he had to take a breath or blood test).
49
State v. Langsford, 8 Fla. L. Weekly Supp. 657 (Fla. Palm Beach Cty. Ct. Aug 3, 2001)State v.
Langsford, 8 Fla. L. Weekly Supp. 657 (Fla. Palm Beach Cty. Ct. Aug 3, 2001) , affirmed on other
grounds, 816 So. 2d 136, 138 (Fla. 4th DCA 2002).
50
Oiknine v. State, 14 Fla. L. Weekly Supp. 1104 (Fla. 17th Cir. Ct. Aug. 21, 2007) (blood could have
been extracted based on serious injury where the car flipped across five to six lanes and rolled over,
completely overturned, and the officer observed blood gushing from the defendant’s face and head).
51
Cox v. State, 473 So. 2d 778 (Fla. 2d DCA 1985) (stressing the point that such procedures might
under other circumstances constitute the use of unreasonable force). See also State v. Serrago, 875 So.
2d 815 (Fla. 2d DCA 2004).

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§ 5:3.The forcible extraction of a blood sample, 11 Fla. Prac., DUI Handbook § 5:3...

52
Filmon v. State, 336 So. 2d 586 (Fla. 1976); State v. Mitchell, 245 So. 2d 618 (Fla. 1971).
53
State v. Serrago, 875 So. 2d 815 (Fla. 2d DCA 2004).
54
State v. Serrago, 875 So. 2d 815 (Fla. 2d DCA 2004).
55
State v. Carter, 23 So. 3d 798, 801 (Fla. 1st DCA 2009). See also State v. Thompson, 72 So. 3d 246
(Fla. 2d DCA 2011); State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16,
2013)State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013).
56
State v. Carter, 23 So. 3d 798, 801 (Fla. 1st DCA 2009). See also State v. Aguilar, 20 Fla. L. Weekly
Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013)State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir.
Ct. May 16, 2013).
57
State v. Aguilar, 20 Fla. L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013)State v. Aguilar, 20 Fla.
L. Weekly Supp. 658 (Fla. 11th Cir. Ct. May 16, 2013) (court also pointed out that asking the location of
the defendant involves no Fourth Amendment violation).

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Works.

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

§ 5:4. Reliance on implied consent

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 414, 417

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

Pursuant to the implied consent law, drivers in Florida agree to submit to blood, breath, and urine tests under
certain conditions. It is anticipated that drivers will typically submit to a breath test for alcohol, 1 a urine test for
chemical or controlled substances2 and, sometimes blood for either. 3 This section focuses first on the law
controlling implied consent to blood, then breath and urine. There is some overlap, particularly as to what
constitutes probable cause, which would also be useful in dealing with warrants.

As to blood, the State must show exigent circumstances or that the Defendant was unconscious 4 and compliance
with three conditions set forth in Florida Statutes, section 316.1932(1)(c).5 First, the officer must have
reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under
the influence of alcoholic beverages or chemical or controlled substances. 6 Second, the subject must appear for
treatment at a hospital, clinic, ambulance, other medical emergency, or medical facility. 7 Third, there must be
cause to believe that the administration of a breath or urine test within a reasonable time is impractical or
impossible.8

In State v. Kliphouse,9 the court construed the requirement that there be reasonable cause as requiring the officer
to have probable cause to believe the tested individual has committed a DUI. But there were three opinions in
that case focusing on whether “reasonable cause” is the same has “probable cause.” Two judges saw no
difference. In fact, Judge Klein wrote a thorough concurring opinion supporting that position. 10 Judge Farmer
said in an equally thorough dissent that “reasonable cause” is a lower standard requiring only that something be
possible whereas “probable cause” means that something is more likely than not. 11

As to the requirement of reasonable cause, the courts have from time to time focused on whether the presence of

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

an odor of alcohol and an accident are sufficient to meet this standard. 12 In State v. Kliphouse,13 the court
addressed this issue as it relates to the extraction of a blood sample where it is impossible or impractical to
administer a breath or urine test. The court ruled that the odor of alcohol on the driver’s breath is insufficient
standing alone to establish reasonable cause where there is an accident, and “the investigating officer possesses
no information about the driver that indicates impairment by alcohol, other than the odor of alcohol on the
driver’s breath, and where having completed an accident investigation, the officer can conclusively rule out the
defendant as a sole or contributing cause of the accident.”14

The third requirement, impracticality or impossibility, has been considered in many county and circuit court
cases. A trial court held that it was not impractical or impossible for the defendant to take a urine or breath test
where he “went to the police station from the scene (of the accident), had no visible injuries to his mouth or
face, and there (was) no evidence a breath test could not have been administered within a reasonable time.” 15
However, where the jail nurse examined the defendant and refused to accept him because of an elevated pulse,
the court held that a breath or urine test was impractical or impossible.16

Usually, an officer can rely on the statements of medical personnel or circumstances indicating a need for
hospitalization to support the conclusion that a breath or urine test was not an option. Where a paramedic
recommended that a defendant who had been involved in a single car accident be transported to a hospital, the
court held that it was impractical or impossible to administer a breath or urine test. 17 Similarly, a trial judge
ruled that a blood sample was properly secured under this section where the defendant was involved in an
accident that could have caused injury, and the defendant’s behavior caused a paramedic to be concerned about
a possible injury and to recommend hospitalization. 18 This was so even though the defendant said he was not
injured.19 The trial judge felt that the core policy of the implied consent law to protect the suspect’s health,
justified deferring to the judgment of medical personnel. 20 Where the defendant had been in an accident and
displayed the various indicators of impairment by alcohol, the officer had probable cause for DUI, and “due to
the fact that it was a reasonable and probable result of the crash that [the defendant] would require immediate
medical attention at the hospital, it was impractical if not impossible for [the defendant] to submit to a breath
test.”21

When it is a close call, public policy favors hospitalizing the individual, which will make it impractical or
impossible to secure a breath or urine test. 22 In fact, one court ruled that the requirement that administration of a
breath or urine test be impossible or impractical, is met simply by the hospitalization of the defendant, and the
testimony of the officer that a breath test cannot be administered at that location and a urine test would not be
effective because it does not measure alcohol. 23 “If it reasonably appears from the circumstances that the
defendant is likely to be at the medical facility for some time and that there is no practical way to take a breath
test at the hospital, a blood sample may be secured because a breath test is impractical or impossible.” 24 An
officer need not “intrude and ask busy emergency personnel when the defendant could take a breath test, or
when he would be released” before the officer can reasonably conclude that a breath test would be impossible or
impractical.25

However, where there is doubt as to whether the defendant actually went to the hospital or needed to go, the
result is different. Thus, where the defendant was not suffering from any apparent injuries and the State’s
evidence was in conflict as to whether he actually went to the hospital, the State did not meet the burden of
showing that it was impractical or impossible to administer a breath test. 26 Similarly, a breath test was not
impractical or impossible where defendant went to a hospital to be “checked out,” she was “medically cleared”
an hour after the accident, the breath testing equipment was near the hospital, the trooper made no inquiry as to
whether he could remove defendant from the hospital, and the trooper said he knew of no medical or physical
reason why he could not have performed a breath test.27

The statute does not specify whether it must be impractical or impossible to administer both a breath test and a
urine test. Circuit court appellate panels and trial courts 28 have ruled on this issue. They hold that the state must
show that a urine test was impractical or impossible only if the officer had reason to believe the defendant was
under the influence of controlled substances, rather than just alcohol. That requirement was met where the
subject’s behavior, statements, and physical appearance caused officers to believe he was under the influence of

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

a controlled substance rather than alcohol.29

In Bedell v. State,30 the court recently made it clear that under § 316.1932(1)(c), even if it is possible to
secure urine, a blood test is still proper if securing the urine sample would be impractical. Here the trial judge
suppressed the results of the blood test based on the testimony, medical training and background of the deputy.
Defendant could not safely provide a urine sample. The fact that medical personnel might have helped her to the
bathroom did not mean the blood test was improper, because the trial court correctly found that procedure was
impractical. Thus, the Defendant was deemed to have consented to the blood test.

Some requirements apply to the administration of breath or urine tests that do not apply to blood tests. The
breath31 and urine32 tests must be administered at the request of a law enforcement officer who has reasonable
cause to believe the individual was violating the statute. This has been the subject of some controversy because
in many cases the arresting officer who observes the unlawful conduct does not administer the breath test. That
officer may make a request verbally or in writing to the breath test operator, or even pass the request on through
another officer. That was the situation in Koegler v. Dep’t of Highway Safety & Motor Vehicles.33 There the
arresting officer turned the defendant over to a second officer along with his report and written request that the
individual undergo a breath test, and the second officer took the defendant to the breath test operator. The
operator administered the test without reading the written request. The court ruled that there need not be face-to-
face conversation between the two officers nor was it required that the breath test operator read the request
before administering the test. Thus, a request in a field sobriety report that the defendant be given a breath test
was sufficient.34

Another issue as to who may request the breath test was considered in Franke v. Dep’t of Highway Safety &
Motor Vehicles.35 There the arresting deputy who requested the breath test believed that the defendant was under
the influence of controlled substances, not alcohol.36 Another deputy had more information, including having
detected an odor of alcohol.37 Under the fellow officer rule, reasonable cause was imputed to the arresting
officer and the request for the breath test was proper.38

Another issue regarding the requirement that a law enforcement officer request the test, relates to the role of
volunteers. In State v. Ortiz-Rotger,39 a public service aide read the implied consent form to the defendant in the
officer’s presence and the officer saw the defendant agree to submit and sign the consent form. The trial judge
suppressed the test results because the public service aide was not a law enforcement officer. On appeal, the
court reversed, finding that this was a minor deviation involving no constitutional rights nor negatively
impacting the test results. “[T]here was substantial compliance with the statutory procedure.” 40

A lawful arrest is required for the administration of a breath 41 or urine test.42 This is particularly important in
view of the recent U.S. Supreme Court decision in Birchfield v. North Dakota43 holding that a warrantless breath
test is permissible incidental to a lawful arrest.

The statute does not require an arrest for a blood test. 44 The Court ruled that the different treatment did not
violate the equal protection clause.45 This is no longer of much significance since the United States Supreme
Court has ruled that a warrantless nonconsensual blood test is not permissible incidental to a lawful arrest in the
absence of exigent circumstances.46

The elements of a lawful arrest are: (1) the officer has the intent to make the arrest; (2) the officer actually or
constructively detains the individual when the officer has the “present power to control the person arrested;”
and (3) the officer communicates to the individual “an understanding … of the officer’s purpose and intention
to effect an arrest.”47

In most cases, it is easy to recognize an arrest because the officer tells the offender that he or she is under arrest.
However, that is not necessary.48 It is only required that the officer’s conduct put the defendant on notice of the
arrest.49 While the statute requires that the arrest be before the administration of a breath or urine test, 50 it does
not require that the arrest actually be for DUI. 51 Thus, the statutory requirement of an arrest before offering a
breath test was met by an arrest for fleeing and eluding.52
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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

Additionally, an officer’s subjective belief that he or she detained the defendant prior to the administration of
the test and arrested the defendant after the test is not determinative. 53 The decision turns on an objective
analysis.54 Thus, the defendant was under arrest prior to the administration of the breath test, but after the
administration of the field sobriety exercises where the officer placed the defendant in the back seat of a marked
car, told the defendant he was taking him to the police substation, let him out of the back of the car upon arrival
at the substation because the back door could not be opened from the inside, and placed him in handcuffs. 55

Despite the clear language in § 316.1932, Fla. Stat., limiting a breath test under the implied consent law to
situations incidental to a lawful arrest, in 2006 the Legislature amended the statute dealing with administrative
refusal suspensions to eliminate the requirement that the hearing officer consider “whether the person was
placed under lawful arrest.”56 The district courts disagreed as to the impact of the change. In Dep’t of Highway
Safety & Motor Vehicles v. Hernandez,57 the Florida Supreme Court resolved this conflict and ruled that to
sustain a license suspension for refusal to take a breath test the refusal must be incidental to a lawful arrest.

The statute provides that the individual whose breath or urine is to be tested is to be advised that refusal will
result in suspension of driving privileges for one year for a first refusal and 18 months if there has been a prior
refusal resulting in suspension.58 Additionally, the suspect is to be told that if there have been previous refusals
resulting in suspensions, another refusal is a separate misdemeanor.59

Pursuant to the statute, an officer need not advise a person who is incapable of refusing, about the consequences
of refusal before taking a blood sample. 60 However, even if the suspect is capable of refusing, no such advice is
required where the defendant is in the hospital or other medical facility, it is impractical or impossible to
administer a breath or urine test, and the defendant consents to the blood test without being advised of the
statutory terms.61 But the decision in Birchfield62 significantly changes things. In the absence of voluntary
consent, implied consent of an unconscious suspect in a medical facility 63 or exigent circumstances a warrant is
required to withdraw blood.64

The requirement that an officer advise the suspect of the consequences of a refusal goes to the very nature of the
implied consent law. It is intended to be coercive. 65 It is designed to encourage submission so that evidence
might be secured. In fact, in Birchfield66 the Court specifically recognizes that the purpose of implied consent
laws is to induce drivers to submit to alcohol testing. Administrative suspensions for refusing the test can only
be upheld on proof that the officer gave such coercive advice prior to the refusal. 67 Hence, the officer must
advise the defendant of the possible license suspension described earlier before there are any consequences for
refusing the test.68 The advice need only be incidental to a lawful arrest, but may be given before or after that
arrest.69

On the other hand, there is no such requirement if the defendant submits to the test. There is an administrative
suspension for having over .08 alcohol level, but there is no requirement that there be proof that the officer
advised the defendant of the consequences of refusing the test. 70 Furthermore, there is no other statutory
requirement that the defendant be advised of the administrative suspension for an unlawful blood alcohol level. 71
Additionally, there has long been substantial judicial authority supporting the conclusion that where the
defendant submits, the officer need not advise the defendant of the consequences of refusal. 72 In fact, there is
authority that even if the officer tells the defendant about these consequences, the alleged offender need not
understand them.73

That having been said, in Florida’s Seventeenth Circuit in Griffin v. Dep’t of Highway Safety & Motor
Vehicles,74 a judge concluded that a hearing officer in an administrative suspension proceeding departed from
the essential requirements of law and denied the defendant due process “by considering the breath test readings
… where Petitioner was never advised of implied consent warnings.” The court reasoned that the implied
consent law provided for such advice, and if it was not given, the test results were not secured in compliance
with the implied consent law. A trial judge in the Seventeenth Circuit also suppressed breath test results based
on that rationale.75

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

Notwithstanding those county and circuit court decisions, the decision of the Fourth District in State v. Iaco76
makes it clear that the earlier holdings from the district courts, particularly the one in State v. Gunn,77 stand
firmly for the proposition that an officer need not advise the defendant who submits to the test of the
consequences of refusal. And the officer may intentionally decline to advise the defendant of those
consequences as a matter of policy. 78 “As we noted in Gunn, the administrative and criminal consequences
apply only if the defendant refuses the breathalyzer test. When the defendant submits to the test, those
consequences do not apply. Thus, failure to advise of the consequences of refusal does not warrant suppression
of the test results.”79

Despite the decisions in State v. Iaco80 and State v. Gunn,81 in State v. Downs,82 a circuit judge sitting in an
appellate capacity, ruled that where the accused responded to a request to submit to a breath test with, “‘I have
no choice,’” the officer should have read the implied consent warnings. The court concluded that failure to read
the warnings breached a duty to the defendant, and the trial judge properly suppressed the test results. 83 Another
trial judge84 acknowledged the ruling in State v. Iaco85 but distinguished it from situations where the officer not
only fails to advise the defendant of the consequences of refusing a breath test, but also fails to tell the
defendant that Florida law requires submission to the test or to address the issue in any way. The court ruled
that under such circumstances where the officer is clearly relying on voluntary consent, implied consent is not
“implicated” and principles of voluntary consent control.86

Although there is no duty to give the warnings if an accused submits, more often than not officers do give
implied consent warnings. Sometimes those warnings depart from the statutory language and may be
misleading. Confusion may result from an officers attempt to help an individual better understand the warnings.
In one such case, the court allowed test results in evidence where the officer initially gave the defendant the
correct advice, became frustrated over the defendant’s lack of understanding, and may have given
misinformation in an effort to clarify the law. 87 Generally misstatements leading to submission to a breath test
fall into several categories.

One category is misadvice as to the driver’s duty to take the test. Thus, where an officer told a suspect that there
is no right to refuse the test, the results were still admissible because the officer also stated that the person’s
license would be suspended for the statutory period.88 In several cases where there have been no statutory
grounds for requiring a blood test, courts have found both breath and blood tests invalid when the defendant
submitted to both after being told that one or the other was required. 89 In Dep’t of Highway Safety & Motor
Vehicles v. Clark,90 the court explained that a license suspension for refusal after such advice could not be
upheld because the accused may have been misled “into thinking that she would have to submit to a more
invasive test, the withdrawal of blood, than was authorized by the statute.” However, in Dep’t of Highway
Safety & Motor Vehicles v. Nader,91 the court disagreed and held that a license can be lawfully suspended for
refusing a breath test
when a law enforcement officer offers the driver the option of taking a breath test, a blood test, or
a urine test. The fact that the officer provides the driver with additional alternative tests that may
be more invasive but more accurate does not negate the fact that the officer asked the driver to
take the required test.92

The court certified that question to the Supreme Court and the Supreme Court 93 rejected the ruling in Clark94 and
affirmed the ruling in Nader.95

A second category is misinformation concerning the suspension, including opportunities to secure limited
driving privileges and to challenge an administrative suspension. Telling the defendant that the suspension was
six months rather than one year was not grounds for suppression, where there was no evidence that the
defendant relied on that advice in deciding to take the test. 96 On the other hand, breath test results were
inadmissible where the officer incorrectly told the defendant that if he refused the test his license would be
gone, he couldn’t get a hardship license, and he would lose his job; but, if he submitted, he could get a hardship
license and his license case would be better.97 Another trial judge found test results inadmissible where in
response to the defendant’s question, the officer told the defendant that he could not contest the license

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

suspension for refusal.98

A third category is misinformation as to how the case will be processed. Test results were admissible even
though in response to the defendant’s inquiry, the officer told the defendant that if she had an unlawful breath
alcohol level, “the paperwork would be submitted ‘to the various departments, state attorney and agency heads,’
and it would be up to them to review the paperwork ‘and put it all together.’”99

A fourth category consists of comments concerning detention or the possibly of being released. In one such
case,100 the court denied a motion to suppress where the officer told the defendant, who had been in an accident
and indicated he wanted to go home, that it was necessary to arrest him and take him to jail to do a breath test,
but if he submitted to a blood test and the results were bad, the officer could arrest him later. On the other hand,
the court excluded breath test results where the officer told the defendant that if he did not submit to the breath
test he would be held without bond over a three day holiday weekend. 101 The court concluded that the officer
could lawfully coerce the defendant, but could not improperly state the law or fail to fully inform the defendant
of his rights.102 Similarly, the court excluded all test results where the officer responded to the defendant’s
inquiry about what would happen if he took the test, by telling him, “the DUI would ‘no longer exist,’” and he
would be released immediately.103 Telling the defendant that he would be taken to jail if he did not submit to a
statutorily authorized blood test did not relieve the defendant of the duty to submit, because the officer had
probable cause and could have taken him to jail; so there was no misstatement of law. 104

As noted above, many cases that have considered the impact of misrepresentations on the admissibility of
breath test results have relied on the principle that officers cannot misstate the law set forth in State v. Henry.105
Recently, the same court limited the reach of Henry.106 “We … clarify that the holding in Henry only applies to
gross misstatements of the law.”107

One issue that has come up regarding the standard warnings, applies only to out-of-state drivers. The warnings
that officers generally give draw no distinction between Florida drivers and out-of-state drivers. In one case, 108
the circuit court sitting in its appellate capacity, affirmed a trial court decision that such warnings are defective
and require suppression of breath test results. In another circuit court case, the court noted that the earlier case
appears to be in conflict with district court decisions and a more recent case from the same circuit. 109 Also, the
court held that the fact that an officer did not distinguish between Florida driving privileges and out-of-state
driving privileges in reading implied consent, did not justify exclusion of the test results. 110 However, when an
officer incorrectly told the accused that her New Jersey driver’s license would be automatically suspended for a
year and she would be unable to drive during that period, the trial court excluded the breath test results because
the State failed to present clear and convincing evidence that the defendant freely and voluntarily consented to
the breath test.111

The absence of a duty to give implied consent warnings or to make certain that the suspect understands them,
which is illustrated in some of these cases, stems from the fact that when a person accepts the privilege of
driving in this state, that person agrees to submit to the test under certain circumstances. 112 There is no legal right
to refuse a breath test under the implied consent law, only the option to refuse.113

Trial courts have also considered a form of physical coercion. In two cases, the court dealt with the officers’
refusal to allow the defendant to go to the bathroom as it impacted the validity of implied consent. In one case,
despite defendant’s urgent request, officers refused to allow him to use the restroom facilities until he gave two
breath samples.114 The court concluded that this caused the defendant extreme discomfort and violated his right
to due process. Thus, the court suppressed the breath test results. In another case, 115 the defendant said she
needed to urinate and because of a bladder infection this condition was causing her pain. This happened with
five minutes remaining in the observation period. The officer told her that if she was going to take the breath
test she would have to wait the five minutes. She complied. Witnesses did not recall that the defendant showed
any distress. The trial judge found that the evidence did not justify the conclusion that there was an emergency
as in other cases, and that the evidence supported the conclusion that the defendant took the test for the right
reasons, not because of her need to use the restroom. The court found that this went to the weight of the
evidence, rather than its admissibility.

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

A presentation of implied consent would be incomplete without consideration of issues unique to urine tests.
Officers may demand a urine test only when there are reasonable grounds to believe that the defendant is under
the influence of chemicals or control substances. 116 Most courts apply a probable cause standard to this
determination,117 but some trial judges have concluded that this standard is less than probable cause and the
equivalent of reasonable suspicion. 118 Regardless of the definition of the standard, it is clear that the officer must
be aware by training or observation of facts that suggest the defendant’s impaired condition is a product of
chemicals or control substances.119 It is possible that the facts support both a breath and urine test. 120 But more
often than not, the county and circuit courts have looked to whether there is evidence suggesting impairment
unexplained by alcohol. This is sometimes accomplished by looking at indicators of impairment combined with
alcohol levels below .08.121 But one judge specifically rejected a per se rule that impairment combined with an
alcohol level below .08 establishes reasonable grounds for a urine test.122

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.1932(1)(a)1.a., Fla. Stat.
2
§ 316.1932(1)(a)1.b., Fla. Stat.
3
§§ 316.1932(1)(c) and 316.1933(1)(a), Fla. Stat.
4
See explanation in section 5.2.
5
State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So. 3d 111 (Fla. 2012);
State v. Hilton, 498 So. 2d 698 (Fla. 5th DCA 1986), review denied, 506 So. 2d 1041 (Fla. 1987);
Thomas v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 911 (Fla. 9th Cir. Ct.
June 20, 2005)Thomas v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 911
(Fla. 9th Cir. Ct. June 20, 2005); State v. Bokilo, 23 Fla. L. Weekly Supp. 289 (Fla. Brevard Cty. Ct.
May 11, 2015)State v. Bokilo, 23 Fla. L. Weekly Supp. 289 (Fla. Brevard Cty. Ct. May 11, 2015).
6
§ 316.1932(1)(c), Fla. Stat.
7
§ 316.1932(1)(c), Fla. Stat.
8
§ 316.1932(1)(c), Fla. Stat.
9
State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000).
10
State v. Kliphouse, 771 So. 2d 16, 30-32 (Fla. 4th DCA 2000) (J. Klein concurring).
11
State v. Kliphouse, 771 So. 2d 16, 24-30 (Fla. 4th DCA 2000) (J. Farmer dissenting). See also State
v. Bundy, 22 Fla. L. Weekly Supp. 654 (Fla. Brevard Cty. Ct. Sept. 26, 2014)J. Farmer dissenting). See
also State v. Bundy, 22 Fla. L. Weekly Supp. 654 (Fla. Brevard Cty. Ct. Sept. 26, 2014) ; State v. Diaz,
19 Fla. L. Weekly Supp. 572 (Fla. Hillsborough Cty. Ct. Feb. 28, 2012)State v. Diaz, 19 Fla. L. Weekly
Supp. 572 (Fla. Hillsborough Cty. Ct. Feb. 28, 2012) (two county court judges agreed with Judge
Farmer and applied a reasonable suspicion standard to urine tests).
12
See §§ 4:15 and 5:5.

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

13
State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000).
14
State v. Kliphouse, 771 So. 2d 16, 24 (Fla. 4th DCA 2000). See also State v. Bokilo, 23 Fla. L.
Weekly Supp. 289 (Fla. Brevard Cty. Ct. May 11, 2015)State v. Bokilo, 23 Fla. L. Weekly Supp. 289
(Fla. Brevard Cty. Ct. May 11, 2015) (officer did not have reasonable cause where the defendant’s
vehicle had rolled over three times, but there was no evidence of erratic driving; one officer smelled
alcohol on defendant’s breath, noticed she had tired appearance and slurred speech; another officer did
not smell alcohol, but noticed she seemed “‘shaken up,’” was slow in responses and had watery eyes;
there were no field sobriety exercises; court could not tell whether condition resulted from crash or
alcohol); State v. Swalina, 20 Fla. L. Weekly Supp. 430 (Fla. Volusia Cty. Ct. Jan. 9, 2013)State v.
Swalina, 20 Fla. L. Weekly Supp. 430 (Fla. Volusia Cty. Ct. Jan. 9, 2013) (officer did not have probable
cause necessary to secure blood test where at a crash scene defendant was sitting in vehicle with keys in
ignition and car off; only thing officer had to say about impairment was defendant’s speech was slurred
so officer could not understand her and she had difficulty staying awake; there was no other evidence as
to damage or injury and the officer did not detect an odor of alcohol); State v. Heim, 11 Fla. L. Weekly
Supp. 138 (Fla. Hillsborough Cty. Ct. Oct. 30, 2003)State v. Heim, 11 Fla. L. Weekly Supp. 138 (Fla.
Hillsborough Cty. Ct. Oct. 30, 2003) (insufficient evidence of probable cause where the State failed to
present any evidence other than an odor of alcohol and a crash). But see State, Dept. of Highway Safety
and Motor Vehicles, Div. of Driver Licenses v. Possati, 866 So. 2d 737, 740 (Fla. 3d DCA 2004)
(officer had probable cause based on odor of alcohol on defendant’s breath, his bloodshot and watery
eyes, and the fact that he had just crashed into a parked police vehicle); State v. Morros, 24 Fla. L.
Weekly Supp. 276 (Fla. 17th Cir. Ct. Feb. 26, 2016)State v. Morros, 24 Fla. L. Weekly Supp. 276 (Fla.
17th Cir. Ct. Feb. 26, 2016) (officer had reasonable cause to take a blood sample based on the odor of
alcohol on defendant’s person combined with the fact that defendant was looking down to get his cell
phone and rear-ended a tractor trailer causing, or at a minimum contributing to, his own serious injuries;
it was impossible or impractical to take a breath sample; therefore, the sample was permissible pursuant
to § 316.1932(1)(c), Fla. Stat.).
15
State v. Hall, 2 Fla. L. Weekly Supp. 228 (Fla. Palm Beach Cty. Ct. March 22, 1994)State v. Hall, 2 Fla.
L. Weekly Supp. 228 (Fla. Palm Beach Cty. Ct. March 22, 1994). See also State v. Burrier, 19 Fla. L.
Weekly Supp. 415 (Fla. Pinellas County Ct. Jan. 6, 2012)State v. Burrier, 19 Fla. L. Weekly Supp. 415
(Fla. Pinellas County Ct. Jan. 6, 2012) (request for blood test was unauthorized where the defendant
suffered from a medical condition that prevented submission to breath test; but there was no accident,
serious bodily injury or fatality; no treatment at any medical facility nor was breath or urine test
impractical or impossible); State v. Melvin, 16 Fla. L. Weekly Supp. 436 (Fla. Leon Cty. Ct. Feb. 11,
2008)State v. Melvin, 16 Fla. L. Weekly Supp. 436 (Fla. Leon Cty. Ct. Feb. 11, 2008) (blood test was
inadmissible where defendant was transported to hospital only because she was agitated and emotional;
she was conscious, but remained silent when officer asked her to submit to blood test).
16
Quinn v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1116 (Fla. 4th Cir. Ct.
Jan. 30, 2012) (request for blood sample was lawful where defendant was arrested at the scene of an
accident; he was at the jail 30 to 40 minutes during which time he was searched and examined; officer
took defendant to the emergency room, turned him over to the hospital security guard, read implied
consent and ask for a blood test, which defendant refused).
17
State v. Galliano, 37 Fla. Supp. 2d 214 (Fla. Dade Cty. Ct. 1989) (finding that the fire rescue unit and
the paramedics constituted a “medical facility” as that term was used in the statute).
18
State v. Renwick, 7 Fla. L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000)State v. Renwick, 7 Fla.
L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000).
19
State v. Renwick, 7 Fla. L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000)State v. Renwick, 7 Fla.
L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000). See also Stone v Dep’t of Highway Safety &
Motor Vehicles, 18 Florida L. Weekly Supp. 570 (Fla. 6th Cir. Ct. April 7, 2011) (breath or urine test
was impractical or impossible despite petitioner’s indication that he needed no medical attention where
he couldn’t follow simple instructions and had trouble standing and walking and was transported to the
police department only after he was medically released).
20
State v. Renwick, 7 Fla. L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000)State v. Renwick, 7 Fla.

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000).

21
Thomas v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 911 (Fla. 9th Cir. Ct.
June 20, 2005)Thomas v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 911
(Fla. 9th Cir. Ct. June 20, 2005). See also Hale v. Dep’t of Highway Safety & Motor Vehicles, 21
Florida L. Weekly Supp. 1 (Fla. 6th Cir. Ct. Oct. 4, 2013) (breath or urine test was impractical or
impossible because petitioner could not be timely transported where she was hospitalized with a head
injury; “she was either awaiting or receiving treatment when the officer requested the blood sample …
more than an hour post-accident. One and one-half hours ensued … before her arrest, and one and one-
half half more before she was booked.”).
22
State v. Renwick, 7 Fla. L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000)State v. Renwick, 7 Fla.
L. Weekly Supp. 406 (Fla. Dade Cty. Ct. April 4, 2000). See also State v. Ingram, 10 Fla. L. Weekly
Supp. 270 (Fla. Indian River Cty. Ct. March 5, 2003)State v. Ingram, 10 Fla. L. Weekly Supp. 270 (Fla.
Indian River Cty. Ct. March 5, 2003) (holding that blood test was proper because it was impossible or
impractical to administer a breath test when the defendant originally refused treatment, but later fell
down, said he was hurt, and was transported to the hospital at his own request).
23
Stocker v. State, 10 Fla. L. Weekly Supp. 487 (Fla. 19th Cir. Ct. April 21, 2003)Stocker v. State, 10 Fla.
L. Weekly Supp. 487 (Fla. 19th Cir. Ct. April 21, 2003) (defendant was in accident, had no apparent
injuries, but went to the hospital; and officer testified that he did not have access to a breath testing
instrument at the hospital and that a urine test would not be effective because his concern was with
alcohol). See also Maingot v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 425
(Fla. 9th Cir. Ct. Jan. 15, 2008)Maingot v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L.
Weekly Supp. 425 (Fla. 9th Cir. Ct. Jan. 15, 2008) (blood test properly ordered where officer had
probable cause to believe defendant was driving or in actual physical control, defendant was in hospital
for injuries sustained in crash, and defendant admitted consuming three or four beers); State v. Hughes,
14 Fla. L. Weekly Supp. 1002 (Fla. 6th Cir. Ct. March 23, 2007) (breath and urine test was impractical
where defendant was admitted to the hospital and the defendant kept slipping in and out of
consciousness).
24
Ryan v. State, 15 Fla. L. Weekly Supp. 688 (Fla. 6th Cir. Ct. April 9, 2008)Ryan v. State, 15 Fla. L.
Weekly Supp. 688 (Fla. 6th Cir. Ct. April 9, 2008) (blood test was proper where officer saw defendant at
emergency room, defendant was tied to stretcher, wearing a neck brace, and could not get up because he
had not been treated yet and there was no breathalyzer at the hospital). See also Murphy v. Dep’t of
Highway Safety & Motor Vehicles, 24 Fla. L. Weekly 782 (Fla. 6th Cir. Ct. Dec. 7, 2016) (blood sample
was properly taken pursuant to § 316.1932(1)(c), Fla. Stat. where defendant rear-ended vehicle on
the shoulder of the interstate, had a strong odor of alcohol and other indicators of DUI and was taken to
the hospital and placed in a neck brace; trooper requested a blood test 2½ hours after the crash due to
time delay and uncertainty as to whether defendant would be admitted); State v. Jones, 22 Fla. L.
Weekly Supp. 130 (Fla. Palm Beach Cty. June 9, 2014)State v. Jones, 22 Fla. L. Weekly Supp. 130 (Fla.
Palm Beach Cty. June 9, 2014) (breath test was impractical where defendant was in an accident,
complained of foot pain, and was taken to medical center; “the officer was fully informed at all times
regarding the status of Defendant’s treatment and her anticipated release from the hospital. Given the
information provided by hospital staff (two-hour hospital stay) and factoring in all the practical and
logistical actual and potential delays, the officer’s request was reasonable under the totality of
circumstances and complied with the statute.”); State v. Williams, 8 Fla. L. Weekly Supp. 573 (Fla.
Monroe Cty. Ct. June 22, 2001)State v. Williams, 8 Fla. L. Weekly Supp. 573 (Fla. Monroe Cty. Ct.
June 22, 2001) (breath test was impractical where the defendant was in emergency room, immobilized in
bed, being treated by nurses and doctors, and there was no intoxilyzer in hospital).
25
Dault v. State, 14 Fla. L. Weekly Supp. 1003 (Fla. 6th Cir. Ct. May 21, 2007) (blood test was proper
where deputy arrived at hospital about a half hour after defendant was transported; defendant was on a
gurney, immobilized, wearing a neck brace, and seemed to be in pain; after deputy had been at hospital
for 40 minutes, deputy opined that defendant would be in hospital for several hours or might be admitted
and that the defendant could not submit to a breath test). But see State v. Bokilo, 23 Fla. L. Weekly
Supp. 289 (Fla. Brevard Cty. Ct. May 11, 2015)State v. Bokilo, 23 Fla. L. Weekly Supp. 289 (Fla.
Brevard Cty. Ct. May 11, 2015) (“Although Officer … did testify that the Defendant was secured to a
backboard on a gurney in the hospital emergency room, additional specific evidence would be needed to
determine if a breath test would have been practical under these circumstances. Such information might
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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

include: medical input as to the Defendant’s condition and anticipated release time, availability of
mobile breath test units, and the distance of the hospital to the police department. In the absence of such
information, the Court finds that the State has failed to establish that the administration of a breath test
was impractical.”)
26
State v. Morris, 12 Fla. L. Weekly Supp. 679 (Fla. 17th Cir. Ct. Sept. 13, 2004)State v. Morris, 12 Fla.
L. Weekly Supp. 679 (Fla. 17th Cir. Ct. Sept. 13, 2004). See also Jordan v. Dep’t of Highway Safety &
Motor Vehicles, 19 Fla. L. Weekly Supp. 778 (Fla. 11th Cir. Ct. July 12, 2012)Jordan v. Dep’t of
Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 778 (Fla. 11th Cir. Ct. July 12, 2012)
(blood test was not properly administered based on the claim that it was impractical or impossible to
administer a breath test where the sole reason officer called fire rescue to take a blood sample was
because the defendant’s bottom lip started bleeding before the breath test could be administered; the
defendant was not admitted for medical treatment); Curry v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 421 (Fla. 6th Cir. Ct. Nov. 22, 2004)Curry v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 421 (Fla. 6th Cir. Ct. Nov. 22, 2004) (State failed to
meet burden where Department speculated that transport to breath testing facility would have placed an
undue burden on law enforcement, would have interfered with treatment, and the alcohol would have
dissipated over time where there was insufficient evidence of any of these things); State v. McKendrick,
12 Fla. L. Weekly Supp. 336 (Fla. 17th Cir. Ct. Nov. 30, 2004)State v. McKendrick, 12 Fla. L. Weekly
Supp. 336 (Fla. 17th Cir. Ct. Nov. 30, 2004) (State failed to meet burden of showing that breath test was
impractical or impossible where trooper said he could not have gotten a breath sample because the jail
would never have taken the defendant in his condition, but there was no testimony as to jail policy or
that the trooper asked anyone at the jail); State v. O’Brien, 12 Fla. L. Weekly Supp. 217 (Fla. 13th Cir.
Ct. Nov. 1, 2004)State v. O’Brien, 12 Fla. L. Weekly Supp. 217 (Fla. 13th Cir. Ct. Nov. 1, 2004) (same
holding as in McKendrick).
27
State v. Rolon, 15 Fla. L. Weekly Supp. 290 (Fla. Monroe Cty. Ct. Oct. 19, 2007)State v. Rolon, 15 Fla.
L. Weekly Supp. 290 (Fla. Monroe Cty. Ct. Oct. 19, 2007). See also Mejia v. Dep’t of Highway Safety
& Motor Vehicles, 25 Fla. L. Weekly Supp. 781 (Fla. 15th Cir Ct. Nov. 28, 2017)Mejia v. Dep’t of
Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 781 (Fla. 15th Cir Ct. Nov. 28, 2017)
(suspension for refusal to submit to blood test was improper because breath test was not impossible or
impractical; Petitioner injured himself during a DUI investigation and had blood in his mouth; breath
test operator sent him to the hospital to be medically cleared; while waiting, Petitioner refused officer’s
request for a blood test; there was no evidence Petitioner was unconscious or immobile or that officer
inquired of medical personnel as to how long Petitioner would be at the hospital or as to treatment; need
for medical clearance alone is insufficient and the delay of about two and half hours from arrest to the
return to the jail did not justify a blood test); Gracia v. State, 21 Fla. L. Weekly Supp. 875 (Fla. 15th Cir.
Ct. May 8, 2014)Gracia v. State, 21 Fla. L. Weekly Supp. 875 (Fla. 15th Cir. Ct. May 8, 2014) (breath
test was not impractical or impossible where defendant was not in accident, was mobile, taken for breath
test, but had blood in his mouth and had to be medically cleared; officer took defendant to hospital
where he was medically cleared; officer did not inquire of medical staff or know time or treatment
before asking for blood and was in car when test was administered; there was no evidence concerning
dissipation of alcohol level; after defendant was medically cleared, officer took him back to the BAT,
but there was no breath test even though defendant was able and it was within three hours of initial
contact, a reasonable time); Dente v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly
Supp. 1158 (Fla. 6th Cir. Ct. July 22, 2010) (record did not show that it was impractical or impossible to
administer a breath or urine test where before trooper’s request for blood the defendant had been
transported to a hospital, treated, and apparently released, and then was arrested and transported to jail
without a request for a breath or urine sample); State v. Gentile, 25 Fla. L. Weekly Supp. 540 (Fla.
Volusia Cty. Ct. August 22, 2017)State v. Gentile, 25 Fla. L. Weekly Supp. 540 (Fla. Volusia Cty. Ct.
August 22, 2017) (judge granted motion to suppress blood test results; Defendant-motorcyclists was
taken to the hospital because of a swollen ankle; the blood test was not proper under § 316.1932(1)
(c) because the State failed to show that breath test was impractical or impossible where Defendant was
conscious and able to provide breath samples; officer made no effort before blood test to find out how
long Defendant would be at hospital; breath testing facility and operator were nearby and nothing
indicated it was unavailable; Defendant left hospital within two hours and 50 minutes after arrest); State
v. Garrett, 25 Fla. L. Weekly Supp. 71 (Fla. Orange Cty. Ct. Feb. 17, 2017)State v. Garrett, 25 Fla. L.
Weekly Supp. 71 (Fla. Orange Cty. Ct. Feb. 17, 2017) (after an accident the defendant was taken to the
hospital, but the blood sample was not properly taken pursuant to § 316.1932(1)(c), Fla. Stat. even
though the officer testified it was impossible or impractical to administer a breath test; there was no
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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

evidence as to why that was the case; the court could not make such a finding in the absence of evidence
as to defendant’s medical condition, likelihood of hospitalization, and knowledge of the officer of the
condition); State v. Swalina, 20 Fla. L. Weekly Supp. 430 (Fla. Volusia Cty. Ct. Jan. 9, 2013) State v.
Swalina, 20 Fla. L. Weekly Supp. 430 (Fla. Volusia Cty. Ct. Jan. 9, 2013) (officer believed defendant
was under the influence of narcotics, but the officer acted improperly in ordering EVAC personnel to
draw blood, because there was no evidence as to why a urine test could not be done; court rejected
argument that the fact defendant was in an ambulance and was taken to the hospital without being
arrested established that a urine test was impractical or impossible); State v. Wilson, 19 Fla. L. Weekly
Supp. 1028 (Fla. Palm Beach Cty. Ct. Aug. 1, 2012) (breath test was not impractical or impossible
where officer arrived at the hospital about 66 minutes after accident, a breath testing facility was no
more than 15 minutes away and a 20 minute observation period was required, so that the breath test
could have been completed within two hours); State v. Bice, 19 Fla. L. Weekly Supp. 661 (Fla. Palm
Beach Cty. Ct. April 25, 2012)State v. Bice, 19 Fla. L. Weekly Supp. 661 (Fla. Palm Beach Cty. Ct.
April 25, 2012) (same situation and results as in Donnino, infra, but Brice arrived at breath testing
facility three hours after driving); State v. Donnino, 18 Fla. L. Weekly Supp. 1200 (Fla. Palm Beach
Cty. Ct. Sept. 20, 2011) (refusal to submit to blood test suppressed because record did not show that it
was impractical or impossible to administer a breath test where defendant was taken to hospital after
accident, refused blood test, was able to take breath test and was at facility where the necessary breath
testing equipment was available less than two hours after crash, and was not offered breath test).
28
Thomas v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 911 (Fla. 9th Cir. Ct.
June 20, 2005)Thomas v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 911
(Fla. 9th Cir. Ct. June 20, 2005); Stocker v. State, 10 Fla. L. Weekly Supp. 487 (Fla. 19th Cir. Ct. April
21, 2003)Stocker v. State, 10 Fla. L. Weekly Supp. 487 (Fla. 19th Cir. Ct. April 21, 2003); State v. Hess,
10 Fla. L. Weekly Supp. 481 (Fla. 15th Cir. Ct. May 20, 2003)State v. Hess, 10 Fla. L. Weekly Supp.
481 (Fla. 15th Cir. Ct. May 20, 2003) (“when a person suspected of driving under the influence of
alcohol [not controlled substances] appears for treatment at a hospital and a breath test is impractical or
impossible, that person is deemed to have consented to a blood test to determine the alcohol content of
the blood.”); State v. Scott, 7 Fla. L. Weekly Supp. 605 (Fla. 15th Cir. Ct. June 27, 2000)State v. Scott, 7
Fla. L. Weekly Supp. 605 (Fla. 15th Cir. Ct. June 27, 2000); State v. Lear, 7 Fla. L. Weekly Supp. 509
(Fla. 18th Cir. Ct. Dec. 8, 1999)State v. Lear, 7 Fla. L. Weekly Supp. 509 (Fla. 18th Cir. Ct. Dec. 8,
1999) (three-judge appellate panel ruled that urine test was not practical because it did not measure
alcohol content and that was what the officer believed was affecting defendant); Wells v. Dep’t of
Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 669 (Fla. 9th Cir. Ct. May 25, 1999) Wells v.
Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 669 (Fla. 9th Cir. Ct. May 25,
1999); State v. Peterson, 7 Fla. L. Weekly Supp. 632 (Fla. Broward Cty. Ct. May 4, 2000)State v.
Peterson, 7 Fla. L. Weekly Supp. 632 (Fla. Broward Cty. Ct. May 4, 2000); State v. Alden, 6 Fla. L.
Weekly Supp. 45 (Fla. Palm Beach Cty. Ct. Sept. 23, 1998)State v. Alden, 6 Fla. L. Weekly Supp. 45
(Fla. Palm Beach Cty. Ct. Sept. 23, 1998).
29
Kaminski v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 513 (Fla. 9th Cir. Ct.
Dec. 3, 2014)Kaminski v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 513
(Fla. 9th Cir. Ct. Dec. 3, 2014) (Petitioner admitted being on bad narcotics, there was a syringe filled
with a clear substance in the vehicle, he had “‘track’” marks on his arm; his behavior and driving was
crazy, including leaving his running car on a railroad track and climbing a six to eight foot wall; he fell
from the wall, complained of pain and was taken to the hospital; a urine sample could not be secured
because he was so combative and had to be restrained and a breath test would not have revealed
narcotics). Compare Nishman v. State, 25 Fla. L. Weekly Supp. 936 (Fla. 11th Cir. Ct. Jan.10,
2018)Nishman v. State, 25 Fla. L. Weekly Supp. 936 (Fla. 11th Cir. Ct. Jan.10, 2018) (where Defendant
was unable to produce a urine sample at police station after two unsuccessful attempts in an hour, a
blood sample could not be taken pursuant to § 316.1932(1)(c) because the evidence suggested that a
urine test could have been administered within a reasonable time; so it did not establish that it was
impractical or impossible to secure a urine sample; and Defendant was not at a medical facility and did
not require treatment when officer contacted fire rescue to take blood sample at the police station).
30
Bedell v. State, 250 So.3d 146 (Fla. 1st DCA 2018).
31
§ 316.1932(1)(a)1.a., Fla. Stat.

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32
§ 316.1932(1)(a)1.b., Fla. Stat.
33
Koegler v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L Weekly Supp. 403 (Fla. 4th Cir. Ct.
2006)Koegler v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L Weekly Supp. 403 (Fla. 4th Cir.
Ct. 2006). Contrast Price v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 113
(Fla. 4th Cir. Ct., October 28, 2005)13 Fla. L. Weekly Supp. 113 (Fla. 4th Cir. Ct., October 28, 2005)
(suspension invalid because there was no evidence any information from arresting officer was
communicated to the breath test operator prior to the test).
34
Graham v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 109 (Fla. 4th Cir. Ct.
Nov. 13, 2007)Graham v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 109
(Fla. 4th Cir. Ct. Nov. 13, 2007); Rush v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L Weekly
Supp. 1031 (Fla. 4th Cir. Ct. May 22, 2006). See also Pagnotto v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L Weekly Supp. 115 (Fla. 4th Cir. Ct. Dec. 4, 2006)Cir. Ct. May 22, 2006). See also
Pagnotto v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L Weekly Supp. 115 (Fla. 4th Cir. Ct.
Dec. 4, 2006); Green v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L Weekly Supp. 43 (Fla.
4th Cir. Ct. Oct. 9, 2006)Green v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L Weekly Supp.
43 (Fla. 4th Cir. Ct. Oct. 9, 2006); Hamlin v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L
Weekly Supp. 1028 (Fla. 4th Cir. Ct. Aug. 14, 2006).
35
Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla. 4th Cir. Ct.
March 14, 2016)Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla.
4th Cir. Ct. March 14, 2016).
36
Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla. 4th Cir. Ct.
March 14, 2016)Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla.
4th Cir. Ct. March 14, 2016).
37
Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla. 4th Cir. Ct.
March 14, 2016)Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla.
4th Cir. Ct. March 14, 2016).
38
Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla. 4th Cir. Ct.
March 14, 2016)Franke v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 1 (Fla.
4th Cir. Ct. March 14, 2016).
39
State v. Ortiz-Rotger, 15 Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. Feb. 6, 2008)State v. Ortiz-Rotger,
15 Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. Feb. 6, 2008).
40
State v. Ortiz-Rotger, 15 Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. Feb. 6, 2008)State v. Ortiz-Rotger,
15 Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. Feb. 6, 2008). See also State v. Angel, 16 Fla. L. Weekly
Supp. 506 (Fla. Dade Cty. Ct. April 3, 2009)State v. Angel, 16 Fla. L. Weekly Supp. 506 (Fla. Dade
Cty. Ct. April 3, 2009).
41
§ 316.1932(1)(a)1.a., Fla. Stat.; State, Dept. of Highway Safety & Motor Vehicles v. Whitley, 846
So. 2d 1163, 1167 (Fla. 5th DCA 2003), review denied, 858 So. 2d 333 (Fla. 2003). See also State v.
Serrago, 875 So. 2d 815, 818 (Fla. 2d DCA 2004).
42
§ 316.1932(1)(a)1.b., Fla. Stat.; State, Dept. of Highway Safety & Motor Vehicles v. Whitley, 846
So. 2d 1163, 1167 (Fla. 5th DCA 2003), review denied, 858 So. 2d 333 (Fla. 2003). See also Dep’t
of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008), review denied,
984 So. 2d 519 (Fla. 2008); State v. Serrago, 875 So. 2d 815, 818 (Fla. 2d DCA 2004).
43
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
44
State v. Serrago, 875 So. 2d 815 (Fla. 2d DCA 2004); Kenson v. State, 577 So. 2d 694 (Fla. 3d DCA
1991); State v. Hilton, 498 So. 2d 698 (Fla. 5th DCA 1986), review denied, 506 So. 2d 1041 (Fla. 1987).
See also State v. Kliphouse, 771 So. 2d 16, 20 (Fla. 4th DCA 2000); Maingot v. Dep’t of Highway

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 425 (Fla. 9th Cir. Ct. Jan. 15, 2008)Maingot v. Dep’t
of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 425 (Fla. 9th Cir. Ct. Jan. 15, 2008);
State v. Lambertus, 13 Fla. L. Weekly Supp. 81 (Fla. 17th Cir. Ct. Nov.17, 2005)State v. Lambertus, 13
Fla. L. Weekly Supp. 81 (Fla. 17th Cir. Ct. Nov.17, 2005); State v. Garrett, 25 Fla. L. Weekly Supp. 71
(Fla. Orange Cty. Ct. Feb. 17, 2017)State v. Garrett, 25 Fla. L. Weekly Supp. 71 (Fla. Orange Cty. Ct.
Feb. 17, 2017).
45
Filmon v. State, 336 So. 2d 586 (Fla. 1976).
46
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
47
State, Dept. of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 (Fla. 5th DCA
2003), review denied, 858 So. 2d 333 (Fla. 2003) (see cases cited therein at footnote 2).
48
State v. Rivas–Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996). See also Mathis v. Coats, 24 So. 3d 1284
(Fla. 2d DCA 2010); State, Dept. of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163,
1167 (Fla. 5th DCA 2003), review denied, 858 So. 2d 333 (Fla. 2003).
49
State v. Rivas—Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996). See also Mathis v. Coats, 24 So. 3d 1284
(Fla. 2d DCA 2010); State v. Francis, 18 Fla. L. Weekly Supp. 250 (Fla. 6th Cir. Ct. Dec. 16, 2010)State
v. Francis, 18 Fla. L. Weekly Supp. 250 (Fla. 6th Cir. Ct. Dec. 16, 2010) (defendant was arrested for
DUI where officer had probable cause for DUI even if defendant was not told he was being arrested for
DUI, when defendant was placed in the back of cruiser to be transported to central breath testing; the
issue was whether officer’s discovery of drugs in car was lawful based on search incidental to arrest for
DUI pursuant to Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 47 A.L.R. Fed.
2d 657 (2009) and drugs were seen in open view from outside the car where the defendant was initially
advised that he was being arrested for DWLS); Ahmed v. Dep’t of Highway Safety & Motor Vehicles,
20 Fla. L. Weekly Supp. 37 (Fla. 17th Cir. Ct. Oct. 11, 2012)Ahmed v. Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 37 (Fla. 17th Cir. Ct. Oct. 11, 2012) (although the officer did
not tell the defendant that she was under arrest handcuffing her and putting her in the back of the patrol
car was sufficient; defendant complied with the officer’s instruction and asked why she was under
arrest). But see Lampert v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 246
(Fla. 11th Cir. Ct. Jan. 6, 2011)Lampert v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L.
Weekly Supp. 246 (Fla. 11th Cir. Ct. Jan. 6, 2011) (requirement that breath test be incidental to an arrest
was not met where officer transported defendant for a breath test rather than administer FSEs, because
of defendant’s physical and medical limitations; trooper said defendant was not placed under arrest
before transport, defendant was not told he was under arrest, and purpose of breath test was to determine
whether arrest should be made; despite probable cause, this was not an arrest).
50
State, Dept. of Highway Safety and Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 (Fla. 5th DCA
2003), review denied, 858 So. 2d 333 (Fla. 2003); Bruland v. Dep’t of Highway Safety & Motor
Vehicles, 19 Fla. L. Weekly Supp. 911 (Fla. 11th Cir. Ct. July 26, 2012)Bruland v. Dep’t of Highway
Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 911 (Fla. 11th Cir. Ct. July 26, 2012) (suspension
invalidated because the arrest was not before the test was refused; record showed that the time of refusal
was before the time on the citation).
51
State, Dept. of Highway Safety and Motor Vehicles v. Whitley, 846 So. 2d 1163 (Fla. 5th DCA 2003),
review denied, 858 So. 2d 333 (Fla. 2003).
52
State, Dept. of Highway Safety and Motor Vehicles v. Whitley, 846 So. 2d 1163 (Fla. 5th DCA 2003),
review denied, 858 So. 2d 333 (Fla. 2003); State v. Richison, 25 Fla. L. Weekly Supp. 745 (Fla. Volusia
Cty. Ct. Oct. 19, 2017)State v. Richison, 25 Fla. L. Weekly Supp. 745 (Fla. Volusia Cty. Ct. Oct. 19,
2017) (trial judge relied on Whitley to find that breath test after arrest for fleeing and eluding was
permitted; court concluded that decision in Montes-Valeton did not change that ruling). But see State v.
Gowins, 19 Fla. L. Weekly Supp. 48 (Fla. Brevard Cty. Ct. Oct. 13, 2011) State v. Gowins, 19 Fla. L.
Weekly Supp. 48 (Fla. Brevard Cty. Ct. Oct. 13, 2011) (refusal to submit to breath test offered after
arrest on DWLS and VOP, but before arrest on DUI was inadmissible despite decision in Whitley).
53
State v. Rivas—Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996).

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54
State v. Rivas—Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996).
55
State v. Rivas—Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996). Compare Eller v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 753 (Fla. 4th Cir. Ct. Aug. 11 2003) Eller v. Dep’t of
Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 753 (Fla. 4th Cir. Ct. Aug. 11 2003) (court
distinguished Rivas-Marmol in holding that the defendant was not placed under arrest when he was
placed in the back of the police vehicle, because, unlike the facts in Rivas-Marmol, the defendant in
Eller was not handcuffed, and Eller was transported for safety reasons before performing field sobriety
tests).
56
§ 322.2615, Fla. Stat.
57
Florida Dept. of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011), as
revised on denial of reh’g, (Nov. 10, 2011). See also Carrizosa v. Dep’t of Highway Safety & Motor
Vehicles, 124 So. 3d 1017 (Fla. 2d DCA 2013); Dodson v. Dep’t of Highway Safety & Motor Vehicles,
111 So. 3d 266 (Fla. 1st DCA 2013) (these cases hold that Hernandez also applies to cases where the
defendant has a breath test result over the legal limit).
58
§ 316.1932(1)(a), (c), Fla. Stat. Cases dealing with breath tests, hold that the statute does not require
advising the defendant of these provisions, if the defendant submits before being advised. Those cases
are discussed elsewhere in this section.
59
§ 316.1932(1)(a), (c), Fla. Stat.
60
§ 316.1932(1)(c), Fla. Stat.; State v. Zeiger, 6 Fla. L. Weekly Supp. 684 (Fla. 17th Cir. Ct. Aug. 6,
1999)State v. Zeiger, 6 Fla. L. Weekly Supp. 684 (Fla. 17th Cir. Ct. Aug. 6, 1999). See also State v.
Monastersky, 9 Fla. L. Weekly Supp. 138 (Fla. Palm Beach Cty. Ct. Dec. 28, 2001)State v.
Monastersky, 9 Fla. L. Weekly Supp. 138 (Fla. Palm Beach Cty. Ct. Dec. 28, 2001).
61
State v. Dubiel, 958 So. 2d 486 (Fla. 4th DCA 2007); State v. Garcia, 14 Fla. L. Weekly Supp. 1080
(Fla. 6th Cir. Ct. Aug. 2, 2007); State v. Lambertus, 13 Fla. L. Weekly Supp. 81 (Fla. 17th Cir. Ct.
Nov.17, 2005)State v. Lambertus, 13 Fla. L. Weekly Supp. 81 (Fla. 17th Cir. Ct. Nov.17, 2005) . See
also State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18
Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010); Shulman v. Dep’t of Highway Safety &
Motor Vehicles, 17 Fla. L. Weekly Supp. 439 (Fla. 17th Cir. Ct. Feb. 18, 2010)Shulman v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 439 (Fla. 17th Cir. Ct. Feb. 18, 2010) . But
see State v. Bokilo, 23 Fla. L. Weekly Supp. 289 (Fla. Brevard Cty. Ct. May 11, 2015)23 Fla. L. Weekly
Supp. 289 (Fla. Brevard Cty. Ct. May 11, 2015) (trial judge concluded that defendant should have been
advised of the consequences of refusing a blood test under the implied consent law, even though she did
not object to the blood being withdrawn).
62
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
63
McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), review granted, 2018 WL 3342880 (Fla.
Opinion Filed July 09, 2018) (the court held that Fla. Stat. Ann. § 316.1932(1)(c), permitting a
warrantless blood extraction from an unconscious person does not violate the Fourth Amendment; see
detailed discussion in section 5:2 of this Chapter).
64
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
65
State v. Burnett, 536 So. 2d 375 (Fla. 2d DCA 1988) (warnings should not have been given where there
was no basis for taking a blood sample under the implied consent law, and the warnings made any
consent involuntary). See also Montes-Valeton v. State, 216 So.3d 475, 480-81 (Fla. 2017); State v.
Amesquita, 14 Fla. L. Weekly Supp. 781 (Fla. Palm Beach Cty. Ct. May 22, 2007)State v. Amesquita,
14 Fla. L. Weekly Supp. 781 (Fla. Palm Beach Cty. Ct. May 22, 2007) ; State v. Baines, 10 Fla. L.
Weekly Supp. 371 (Fla. Broward Cty. Ct. March 24, 2003)State v. Baines, 10 Fla. L. Weekly Supp. 371

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

(Fla. Broward Cty. Ct. March 24, 2003); State v. Arthur, 9 Fla. L. Weekly Supp. 875 (Fla. Broward Cty.
Ct. Oct. 29, 2002)State v. Arthur, 9 Fla. L. Weekly Supp. 875 (Fla. Broward Cty. Ct. Oct. 29, 2002).
66
Birchfield v. North Dakota, 136 S.Ct. 2160, 2179, 195 L.Ed. 2d 560 (2016).
67
§ 322.2615(7)(b), Fla. Stat.
68
§ 316.1932(1)(a) 1., Fla. Stat.
69
State v. Cawthon, 16 Fla. L. Weekly Supp. 910 (Fla. 7th Cir. Ct. Feb 6, 1995)State v. Cawthon, 16 Fla.
L. Weekly Supp. 910 (Fla. 7th Cir. Ct. Feb 6, 1995); State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla.
Volusia Cty. Ct. June 15, 2017)State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June
15, 2017).
70
§ 322.2615(7)(a), Fla. Stat.
71
§ 316.1932(1), Fla. Stat.
72
State v. Young, 483 So. 2d 31 (Fla. 5th DCA 1985), review dismissed, 517 So. 2d 691 (Fla. 1988);
Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983); State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA
1981); Wood v. State, 2 Fla. L. Weekly Supp. 140 (Fla. 15th Cir. Ct. Feb. 22, 1994) Wood v. State, 2
Fla. L. Weekly Supp. 140 (Fla. 15th Cir. Ct. Feb. 22, 1994); State v. Pinder, 10 Fla. L. Weekly Supp.
448 (Fla. Palm Beach Cty. Ct. April 1, 2003)State v. Pinder, 10 Fla. L. Weekly Supp. 448 (Fla. Palm
Beach Cty. Ct. April 1, 2003) (no requirement that officer advise the defendant of the suspension for
refusal or for an unlawful breath or blood alcohol level); State v. Buttner, 2 Fla. L. Weekly Supp. 382
(Fla. Palm Beach Cty. Ct. Aug. 3, 1994)State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach
Cty. Ct. Aug. 3, 1994).
73
State v. Amesquita, 14 Fla. L. Weekly Supp. 781 (Fla. Palm Beach Cty. Ct. May 22, 2007)State v.
Amesquita, 14 Fla. L. Weekly Supp. 781 (Fla. Palm Beach Cty. Ct. May 22, 2007) (defendant spoke
Spanish and could not understand consequences of refusal which were read by an Italian speaking
deputy); State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994) State v.
Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994). See also State v. Reyes, 4
Fla. L. Weekly Supp. 689 (Fla. 13th Cir. Ct. April 29, 1997)State v. Reyes, 4 Fla. L. Weekly Supp. 689
(Fla. 13th Cir. Ct. April 29, 1997) (court reversed suppression of breath test despite trial judge’s finding
that the implied consent warnings were incorrectly read to a Spanish speaker; proper remedy for failure
to read or understand warnings is denial of refusal suspension); State v. Garcia, 19 Fla. L. Weekly Supp.
414 (Fla. Brevard Cty. Ct. Jan. 13, 2012)State v. Garcia, 19 Fla. L. Weekly Supp. 414 (Fla. Brevard Cty.
Ct. Jan. 13, 2012) (even if Spanish speaker did not fully understand translation of implied consent
warnings, breath test results were still admissible); State v. Stessens, 18 Fla. L. Weekly Supp. 85 (Fla.
Dade Cty. Ct. July 30, 2010)State v. Stessens, 18 Fla. L. Weekly Supp. 85 (Fla. Dade Cty. Ct. July 30,
2010) (defendant challenged accuracy of translation; court denied motion to suppress breath test results
because officer was not even required to read warnings). Contra State v. Hernandez, 9 Fla. L. Weekly
Supp. 633 (Fla. Monroe Cty. Ct. Nov. 19, 1999)State v. Hernandez, 9 Fla. L. Weekly Supp. 633 (Fla.
Monroe Cty. Ct. Nov. 19, 1999) (trial judge suppressed test results because the interpretation of
warnings for Spanish speaking defendant was inaccurate).
74
Griffin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 17 (Fla. 17th Cir. Ct.
Nov. 4, 2003)Griffin v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 17 (Fla.
17th Cir. Ct. Nov. 4, 2003).
75
State v. Hood, 11 Fla. L. Weekly Supp. 159 (Fla. Broward Cty. Ct. Dec. 11, 2003)State v. Hood, 11 Fla.
L. Weekly Supp. 159 (Fla. Broward Cty. Ct. Dec. 11, 2003). See also Yaron v. Dep’t of Highway Safety
& Motor Vehicles, 12 Fla. L. Weekly Supp. 630 (Fla. 10th Cir. Ct. April 27, 2005) Yaron v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 630 (Fla. 10th Cir. Ct. April 27, 2005).
76
State v. Iaco, 906 So. 2d 1151 (Fla. 4th DCA 2005). See also State v. Conti, 18 Fla. L. Weekly Supp.
717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct.
August 11, 2010); Sauereisen v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp.

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

47 (Fla. 20th Cir. Ct. Oct. 25, 2007)Sauereisen v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L.
Weekly Supp. 47 (Fla. 20th Cir. Ct. Oct. 25, 2007); Risher v. Dep’t of Highway Safety & Motor
Vehicles, 15 Fla. L. Weekly Supp. 45 (Fla. 20th Cir. Ct. Oct. 25, 2007)Risher v. Dep’t of Highway
Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 45 (Fla. 20th Cir. Ct. Oct. 25, 2007) ; Wrege v. State,
15 Fla. L. Weekly Supp. 41 (Fla. 18th Cir. Ct. Nov. 7, 2007)Wrege v. State, 15 Fla. L. Weekly Supp. 41
(Fla. 18th Cir. Ct. Nov. 7, 2007); Miller v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 439 (Fla. 12th Cir. Ct. Dec. 29, 2004)Miller v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 439 (Fla. 12th Cir. Ct. Dec. 29, 2004) ; State v. Pruneau, 11 Fla. L.
Weekly Supp. 1090 (Fla. Palm Beach Cty. Ct. Oct. 1, 2004) (failure to advise defendant of
consequences of refusal did not preclude application of the presumption of impairment where defendant
took breath test); State v. Dean, 11 Fla. L. Weekly Supp. 1021 (Fla. Broward Cty. Ct. July 27, 2004).
77
State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA 1981).
78
State v. Iaco, 906 So. 2d 1151 (Fla. 4th DCA 2005). See also State v. Kohler, 14 Fla. L. Weekly Supp.
319 (Fla. 17th Cir. Ct. Jan. 17, 2007)State v. Kohler, 14 Fla. L. Weekly Supp. 319 (Fla. 17th Cir. Ct.
Jan. 17, 2007); State v. Bentley, 14 Fla. L. Weekly Supp. 139 (Fla. 17th Cir. Ct. Nov. 20, 2006) State v.
Bentley, 14 Fla. L. Weekly Supp. 139 (Fla. 17th Cir. Ct. Nov. 20, 2006) (test results admissible where
implied consent not read regardless of whether the defendant’s act of providing the breath sample is
characterized as “submission” or “consent”); Stallings v. Dep’t of Highway Safety & Motor Vehicles,
14 Fla. L. Weekly Supp. 40 (Fla. 20th Cir. Ct. Oct. 10, 2006)Stallings v. Dep’t of Highway Safety &
Motor Vehicles, 14 Fla. L. Weekly Supp. 40 (Fla. 20th Cir. Ct. Oct. 10, 2006); State v. Anderson, 13
Fla. L. Weekly Supp. 1217 (Fla. Bay Cty. Ct. Aug. 10, 2006) (test results admissible where implied
consent not read and trooper admitted that he does not read implied consent unless the arrestee refuses).
79
State v. Iaco, 906 So. 2d 1151, 1153 (Fla. 4th DCA 2005).
80
State v. Iaco, 906 So. 2d 1151 (Fla. 4th DCA 2005).
81
State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA 1981).
82
State v. Downs, 14 Fla. L. Weekly Supp. 607 (Fla. 17th Cir. Ct. April 18, 2007)State v. Downs, 14 Fla.
L. Weekly Supp. 607 (Fla. 17th Cir. Ct. April 18, 2007).
83
State v. Downs, 14 Fla. L. Weekly Supp. 607 (Fla. 17th Cir. Ct. April 18, 2007)State v. Downs, 14 Fla.
L. Weekly Supp. 607 (Fla. 17th Cir. Ct. April 18, 2007).
84
State v. Clukey, 14 Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007)State v. Clukey, 14
Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007).
85
State v. Iaco, 906 So. 2d 1151 (Fla. 4th DCA 2005).
86
State v. Clukey, 14 Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007)State v. Clukey, 14
Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007) (officer testified, “he requests general
consent as a habit in these type cases before ever addressing Implied Consent.”).
87
State v. Gonzalez, 7 Fla. L. Weekly Supp. 294 (Fla. Brevard Cty. Ct. Feb. 8, 2000)State v. Gonzalez, 7
Fla. L. Weekly Supp. 294 (Fla. Brevard Cty. Ct. Feb. 8, 2000). In Gonzalez, the court said:

Elaborating and, for that matter, simplifying the consequences of refusing

the test would necessarily alter or distort them to some extent. In the
instant case, where the defendant was initially properly advised, absent
evidence of any coercive effect of subsequent misinformation upon the
defendant, being misinformed does not constitute coercion, greater than
or independent of the compulsion implicit in the advise that the defendant
is required to receive under the statute.

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

88
State v. Young, 483 So. 2d 31 (Fla. 5th DCA 1985), review dismissed, 517 So. 2d 691 (Fla. 1988).
89
Martin v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 347 (Fla. 11th Cir. Ct.
Feb. 12, 2008)Martin v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 347 (Fla.
11th Cir. Ct. Feb. 12, 2008) (where accident caused only minor injury, it was not impossible or
impractical to administer breath or urine test, but officer told defendant he had to give a breath and
blood test, defendant gave both breath and blood test, administration of both blood and breath test was
improper). See also State v. Harper, 16 Fla. L. Weekly Supp. 434 (Fla. Leon Cty. Ct. Jan. 29, 2008)State
v. Harper, 16 Fla. L. Weekly Supp. 434 (Fla. Leon Cty. Ct. Jan. 29, 2008) (blood test results were
inadmissible where defendant was passed out in vehicle, deputy escorted him to ambulance, EMS
indicated defendant had no injuries, and the deputy could have administered breath test with intoxilyzer
in patrol car. Instead, deputy said that either a breath or blood test could be done and about five minutes
later the defendant consented to the blood test.).
90
State, Dept. of Highway Safety and Motor Vehicles v. Clark, 974 So. 2d 416, 418 (Fla. 4th DCA
2007), disapproved of by Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So. 3d 712
(Fla. 2012). See also Hrusovsky v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp.
798 (Fla. 19th Cir. Ct. April 7, 2008)Hrusovsky v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla.
L. Weekly Supp. 798 (Fla. 19th Cir. Ct. April 7, 2008).
91
Department of Highway Safety and Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009),
decision approved 87 So. 3d 712 (Fla. 2012). See also State, Dept. of Highway Safety and Motor
Vehicles v. Freeman, 63 So. 3d 23 (Fla. 3d DCA 2011).
92
Department of Highway Safety and Motor Vehicles v. Nader, 4 So. 3d 705, 706 (Fla. 2d DCA 2009) ,
decision approved 87 So. 3d 712 (Fla. 2012). See also Brown v. Dep’t of Highway Safety & Motor
Vehicles, 16 Fla. L. Weekly Supp. 525 (Fla. 6th Cir. Ct. March 11, 2009)Brown v. Dep’t of Highway
Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 525 (Fla. 6th Cir. Ct. March 11, 2009).
93
Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So. 3d 712 (Fla. 2012).
94
State, Dept. of Highway Safety and Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. 4th DCA 2007),
disapproved of by Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So. 3d 712 (Fla.
2012).
95
Department of Highway Safety and Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009),
decision approved, 87 So. 3d 712 (Fla. 2012).
96
State v. Shapiro, 7 Fla. L. Weekly Supp. 149 (Fla. Broward Cty. Ct. Nov. 22, 1999) State v. Shapiro, 7
Fla. L. Weekly Supp. 149 (Fla. Broward Cty. Ct. Nov. 22, 1999). But see State v. Vrana, 22 Fla. L.
Weekly Supp. 712 (Fla. Pinellas Cty. Ct. Nov. 19, 2014)State v. Vrana, 22 Fla. L. Weekly Supp. 712
(Fla. Pinellas Cty. Ct. Nov. 19, 2014) (breath test results excluded when officer told defendant
suspension for an excess BAL could be a couple of months, six months or a year and the suspension for
refusal was one year; trial judge found that “distorted the cost/benefit relationship that was carefully
constructed by the Florida Legislature when it drafted the Implied Consent warning” and it clearly
induced defendant to submit because he immediately agreed to provide the breath sample).
97
State v. Davis, 11 Fla. L. Weekly Supp. 658 (Fla. Bay Cty. Ct. March 9, 2004)State v. Davis, 11 Fla. L.
Weekly Supp. 658 (Fla. Bay Cty. Ct. March 9, 2004). See also State v. Ryan, 24 Fla. L. Weekly Supp.
452 (Fla. Manatee Cty. Ct. July 1, 2016)State v. Ryan, 24 Fla. L. Weekly Supp. 452 (Fla. Manatee Cty.
Ct. July 1, 2016) (the breath test results were inadmissible because, while the trooper did not expressly
say defendant could not get a hardship license if he refused, he gave that impression; the trooper did not
have to talk about that, but once he did, “he had an affirmative obligation to fully and correctly inform
the Defendant of the law.”); State v. Willert, 24 Fla. L. Weekly Supp. 54 (Fla. Pasco Cty. Ct. April 26,
2016)State v. Willert, 24 Fla. L. Weekly Supp. 54 (Fla. Pasco Cty. Ct. April 26, 2016) (trial judge

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

excluded breath test based on officer’s erroneous advice if defendant, who was from Michigan, refused
test he would not be eligible for a permit, but if he submitted, he would be eligible; expert witness
explained that Florida residents would be entitled to immediate permit either way; but out-of-state
drivers are not eligible regardless of whether they refuse or submit to the breath test); State v. Pennett,
20 Fla. L. Weekly Supp. 426 (Fla. Volusia Cty. Ct. Nov. 5, 2012) State v. Pennett, 20 Fla. L. Weekly
Supp. 426 (Fla. Volusia Cty. Ct. Nov. 5, 2012) (after the breath test, trooper asked for a urine sample;
even though trooper told defendant he would consider her silence a refusal, he repeatedly requested a
sample, and told her she would lose her license for 18 months and receive an additional charge for
refusing the urine test, but if she submitted to a urine test she could keep her license; trial judge
suppressed results because repeated requests and unintentional misstatement of the law made test
involuntary); State v. MacIntyre, 18 Fla. L. Weekly Supp. 892 (Fla. Brevard Cty. Ct. May 10,
2011)State v. MacIntyre, 18 Fla. L. Weekly Supp. 892 (Fla. Brevard Cty. Ct. May 10, 2011) (results
suppressed where deputy told defendant that if she did not take the test, her license would be
automatically suspended and that if she took the test she would be eligible for a work permit, but that
was up to the license bureau and if she refused, her license would be suspended for a year; thus,
incorrectly indicating that the defendant would be eligible for a work permit only if she took the test);
State v. Rouco, 18 Fla. L. Weekly Supp. 549 (Fla. Broward Cty. Ct. March 14, 2011)State v. Rouco, 18
Fla. L. Weekly Supp. 549 (Fla. Broward Cty. Ct. March 14, 2011) (giving implied consent advice
indicating that suspension is automatic if the reading exceeds the legal limit and there is no appeal
constitutes a misrepresentation of law resulting in exclusion of test results; additionally, the tone and
demeanor of officer was improperly coercive); State v. Bello, 18 Fla. L. Weekly Supp. 305 (Fla. Dade
Cty. Ct. Dec. 13, 2010)State v. Bello, 18 Fla. L. Weekly Supp. 305 (Fla. Dade Cty. Ct. Dec. 13, 2010)
(breath test results were suppressed because officer told defendant that if she submitted to the test she
would “‘get a permit’” to go to the school where she taught and her college classes; the fact that officer
acted in good faith did not change result); State v. Forman, 10 Fla. L. Weekly Supp. 47 (Fla. Dade Cty.
Ct. Oct. 31, 2002)State v. Forman, 10 Fla. L. Weekly Supp. 47 (Fla. Dade Cty. Ct. Oct. 31, 2002) (test
results were inadmissible where officer responded to the defendant’s hesitancy to take test by telling her
that if she refused she would lose her license for 12 months, but if she submitted, “there’s a procedure
for you to obtain a hardship license.”); State v. Cox, 9 Fla. L. Weekly Supp. 634 (Fla. Monroe Cty. Ct.
Feb. 7, 2002)State v. Cox, 9 Fla. L. Weekly Supp. 634 (Fla. Monroe Cty. Ct. Feb. 7, 2002) (results were
inadmissible where accused did not answer officer’s question whether he understood the warning until
the officer said: “If you don’t submit, you lose your license. If you do [submit to the test], then you
don’t.” Obviously, defendant would lose his license for an unlawful blood alcohol level.); State v.
Shuler, 14 Fla. L. Weekly Supp. 981 (Fla. Monroe Cty. Ct. May 8, 2007)State v. Shuler, 14 Fla. L.
Weekly Supp. 981 (Fla. Monroe Cty. Ct. May 8, 2007) (trial judge suppressed refusal where officer
interpreted implied consent warnings by telling defendant what result might or might not benefit him,
but officer did not restate that a refusal could be used as evidence of guilt). But see Corso v Dep’t of
Highway Safety & Motor Vehicles, 21 Florida L. Weekly Supp. 127 (Fla. 13th Cir. Ct. Nov. 4, 2013)
(officer’s statement that petitioner could get a business-purpose license if she submitted to a breath test
and lost her license, but he didn’t know if she could get one if she refused, was not a misstatement of
law because, if she met the requirements, she could get such a license either way); State v. Stone, 34 Fla.
Supp. 2d 132 (Fla. Palm Beach Cty. Ct. 1989) (test results were admissible despite misinformation that
the defendant’s license would be automatically suspended with no right to a work permit nor any
judicial review).
98
State v. Dennis, 12 Fla. L. Weekly Supp. 569 (Fla. Pinellas Cty. Ct. March 11, 2005)State v. Dennis, 12
Fla. L. Weekly Supp. 569 (Fla. Pinellas Cty. Ct. March 11, 2005).
99
State v. Roy, 8 Fla. L. Weekly Supp. 739 (Fla. Palm Beach Cty. Ct. Aug. 17, 2001) State v. Roy, 8 Fla.
L. Weekly Supp. 739 (Fla. Palm Beach Cty. Ct. Aug. 17, 2001). See also State v. Fox, 21 Florida L.
Weekly Supp. 358 (Fla. Palm Beach Cty. Ct. Oct. 16, 2013) (test results were admissible where officer
properly read implied consent, but in response to defendant’s inquiry, officer said what happened would
be up to the courts and did not mention six months suspension if defendant blew above .08; this was not
a misstatement of law).
100
Deering v. State, 8 Fla. L. Weekly Supp. 426 (Fla. 15th Cir. Ct. April 20, 2001) Deering v. State, 8 Fla.
L. Weekly Supp. 426 (Fla. 15th Cir. Ct. April 20, 2001). See also State v. Berg, 19 Fla. L. Weekly Supp.
733 (Fla. Leon Cty. Ct. April 23, 2012)State v. Berg, 19 Fla. L. Weekly Supp. 733 (Fla. Leon Cty. Ct.
April 23, 2012) (breath test results suppressed where in response to defendant’s inquiry about getting out
of jail, officer advised that it depended on the sample; defendant would have to stay in jail until it went

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

down below.08 or an eight hours minimum and that if she refused it would be the eight hours; the law
did not permit release until the reading went below 05 or eight hours, and there was no evidence that the
jail monitored the post-arrest readings and released people when they got below a certain level).
101
State v. Henry, 42 Fla. Supp. 2d 42 (Fla. 15th Cir. Ct. 1990) (stating, “[w]hat the arresting officer herein
told the defendant appellee was no less a misstatement of law than if he had told him he would be shot if
he refused the test.”)
102
State v. Henry, 42 Fla. Supp. 2d 42 (Fla. 15th Cir. Ct. 1990).
103
State v. Johnson, 6 Fla. L. Weekly Supp. 236 (Fla. Seminole Cty. Ct. Nov. 18, 1998)State v. Johnson, 6
Fla. L. Weekly Supp. 236 (Fla. Seminole Cty. Ct. Nov. 18, 1998). See also State v. Rome, 7 Fla. L.
Weekly Supp. 405 (Fla. Dade Cty. Ct. March 21, 2000)State v. Rome, 7 Fla. L. Weekly Supp. 405 (Fla.
Dade Cty. Ct. March 21, 2000) (test results were inadmissible where the defendant was concerned about
whether he might be charged with a felony and the officer told him that if he took the test he would only
be charged with a misdemeanor).
104
Vaughn v. State, 15 Fla. L. Weekly Supp. 647 (Fla. 6th Cir. Ct. Feb. 26, 2008)Vaughn v. State, 15 Fla.
L. Weekly Supp. 647 (Fla. 6th Cir. Ct. Feb. 26, 2008).
105
State v. Henry, 42 Fla. Supp. 2d 42 (Fla. 15th Cir. Ct. 1990).
106
Garrette v. State, 21 Florida L. Weekly Supp. 396 (Fla. 15th Cir. Ct. August 2, 2013).
107
Garrette v. State, 21 Florida L. Weekly Supp. 396 (Fla. 15th Cir. Ct. August 2, 2013) (results were
admissible where officers made an “earnest effort” to comply with the law but “made certain technically
imprecise comments as to administrative procedures that result from a refusal to take a breathalyzer test
and … were silent as to certain subjects”).
108
State v. Ellis, 9 Fla. L. Weekly Supp. 275 (Fla. 10th Cir. Ct. March 20, 2002) State v. Ellis, 9 Fla. L.
Weekly Supp. 275 (Fla. 10th Cir. Ct. March 20, 2002). See also State v. Willert, 24 Fla. L. Weekly
Supp. 54 (Fla. Pasco Cty. Ct. April 26, 2016)State v. Willert, 24 Fla. L. Weekly Supp. 54 (Fla. Pasco
Cty. Ct. April 26, 2016) (trial judge excluded breath test based on officer’s erroneous advice if
defendant, who was from Michigan, refused test he would not be eligible for a permit, but if he
submitted, he would be eligible; expert witness explained out-of-state drivers are not eligible regardless
of whether they refuse or submit to the breath test).
109
Betzold v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 528 (Fla. 9th Cir. Ct.
March 14, 2006)Betzold v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 528
(Fla. 9th Cir. Ct. March 14, 2006).
110
Betzold v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 528 (Fla. 9th Cir. Ct.
March 14, 2006)Betzold v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 528
(Fla. 9th Cir. Ct. March 14, 2006). See also Sterbenz v. State, 12 Fla. L. Weekly Supp. 612 (F1a. 6th
Cir. Ct. March 4, 2005)Sterbenz v. State, 12 Fla. L. Weekly Supp. 612 (F1a. 6th Cir. Ct. March 4, 2005)
(breath test results were admissible where officer correctly read implied consent warnings and the fact
that defendant had an Illinois license did not require that officer advise defendant as to the impact on
that license); State v. Heckel, 19 Fla. L. Weekly Supp. 584 (Fla. Sarasota Cty. Ct. March 20, 2012)State
v. Heckel, 19 Fla. L. Weekly Supp. 584 (Fla. Sarasota Cty. Ct. March 20, 2012) (defendant refused, but
officer did not wrongfully read implied consent even though the defendant did not have a Florida
license, because implied consent applies to anyone who accepts the privilege of driving in Florida,
including nonresidents); State v. Arthur, 9 Fla. L. Weekly Supp. 875 (Fla. Brevard Cty. Ct. Oct. 29,
2002)State v. Arthur, 9 Fla. L. Weekly Supp. 875 (Fla. Brevard Cty. Ct. Oct. 29, 2002) (breath test
results were admissible notwithstanding the fact that defendant had a Georgia license and Florida
implied consent warnings did not distinguish between the Florida and Georgia license and left defendant
with the erroneous impression that his Georgia license would be suspended if he refused).
111
State v. Kirpalani, 15 Fla. L. Weekly Supp. 1021 (Fla. Broward Cty. Ct. August 21, 2008), affirmed,
State v. Kirpalani, 18 Fla. L. Weekly Supp. 920 (Fla. 17th Cir. Ct. May 20, 2011) State v. Kirpalani, 18
Fla. L. Weekly Supp. 920 (Fla. 17th Cir. Ct. May 20, 2011). But in Kirpalani v. State Dept. of

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

Highway Safety and Motor Vehicles, 997 So. 2d 502 (Fla. 4th DCA 2008), on certiorari review of the
license suspension for having an unlawful breath alcohol level, the court found that the misadvice as to
the effect on the New Jersey license was of no significance because even if the defendant had refused
and not been “‘coerced,’” her license still would have been suspended for one year for the refusal.
112
State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994) State v. Buttner, 2
Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994).
113
State v. Young, 483 So. 2d 31 (Fla. 5th DCA 1985), review dismissed, 517 So. 2d 691 (Fla. 1988). See
also State v. McInnis, 581 So. 2d 1370 (Fla. 5th DCA 1991), cause dismissed, 584 So. 2d 998 (Fla.
1991); State v. Hoch, 500 So. 2d 597, 602 (Fla. 3d DCA 1986), review denied, 509 So. 2d 1118 (Fla
1987); Wrege v. State, 15 Fla. L. Weekly Supp. 41 (Fla. 18th Cir Ct. Nov. 7, 2007) Wrege v. State, 15
Fla. L. Weekly Supp. 41 (Fla. 18th Cir Ct. Nov. 7, 2007); State v. Henry, 42 Fla. Supp. 2d 42 (Fla. 15th
Cir. Ct. 1990); State v. McKinnon, 16 Fla. L. Weekly Supp. 329 (Fla. Duval Cty. Ct. Feb. 19, 2009)State
v. McKinnon, 16 Fla. L. Weekly Supp. 329 (Fla. Duval Cty. Ct. Feb. 19, 2009); State v. St. George, 16
Fla. L. Weekly Supp. 324 (Fla. Duval Cty. Ct. Jan. 29, 2009)State v. St. George, 16 Fla. L. Weekly
Supp. 324 (Fla. Duval Cty. Ct. Jan. 29, 2009); State v. Anderson, 13 Fla. L. Weekly Supp. 1217 (Fla.
Bay Cty. Ct. Aug. 10, 2006) (court recognized that consent is complete when one operates a motor
vehicle in Florida; the consent is irrevocable; the driver had a legal obligation to submit to a breath test
under the circumstances set forth in the statute); State v. Stone, 34 Fla. Supp. 2d 132 (Fla. Palm Beach
Cty. Ct. 1989). Contra State v. Downs, 14 Fla. L. Weekly Supp. 607 (Fla. 17th Cir. Ct. April 18,
2007)14 Fla. L. Weekly Supp. 607 (Fla. 17th Cir. Ct. April 18, 2007) (court seems to suggest that the
defendant must indicate consent to the breath test to the officer rather than simply submitting to the test).
114
State v. Krantz, 4 Fla. L. Weekly Supp. 325 (Fla. Palm Beach Cty. Ct. Sept. 19, 1996) State v. Krantz, 4
Fla. L. Weekly Supp. 325 (Fla. Palm Beach Cty. Ct. Sept. 19, 1996). See also State v. Barto, 20 Fla. L.
Weekly Supp. 161 (Fla. Broward Cty. Ct. Nov. 5, 2012)State v. Barto, 20 Fla. L. Weekly Supp. 161
(Fla. Broward Cty. Ct. Nov. 5, 2012) (submission to FSEs and breath test was involuntary because the
defendant was in pain from the need to urinate and repeatedly told the trooper; “denial of the bathroom
for over thirty (30) minutes … amount[ed] to de facto torture.”).
115
State v. Wosk, 6 Fla. L. Weekly Supp. 729 (Fla. Broward Cty. Ct. Aug. 2, 1999)State v. Wosk, 6 Fla. L.
Weekly Supp. 729 (Fla. Broward Cty. Ct. Aug. 2, 1999). See also State v. MacIntyre, 18 Fla. L. Weekly
Supp. 892 (Fla. Brevard Cty. Ct. May 10, 2011)State v. MacIntyre, 18 Fla. L. Weekly Supp. 892 (Fla.
Brevard Cty. Ct. May 10, 2011).
116
§ 316.1932(1)(a)1.b., Fla. Stat.; Kennedy v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 1110 (Fla. 4th Cir. Ct. August 2, 2012); Estrada v. State, 18 Fla. L. Weekly Supp. 579
(Fla. 11th Cir. Ct. April 18, 2011)Estrada v. State, 18 Fla. L. Weekly Supp. 579 (Fla. 11th Cir. Ct. April
18, 2011); State v. Simon, 15 Fla. L. Weekly Supp. 838 (Fla. Dade Cty. Ct. June 5, 2008)State v. Simon,
15 Fla. L. Weekly Supp. 838 (Fla. Dade Cty. Ct. June 5, 2008); State v. Alden, 6 Fla. L. Weekly Supp.
45 (Fla. Palm Beach Cty. Ct. Sept. 23, 1998)State v. Alden, 6 Fla. L. Weekly Supp. 45 (Fla. Palm Beach
Cty. Ct. Sept. 23, 1998).
117
Kennedy v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1110 (Fla. 4th Cir. Ct.
August 2, 2012); Estrada v. State, 18 Fla. L. Weekly Supp. 579 (Fla. 11th Cir. Ct. April 18,
2011)Estrada v. State, 18 Fla. L. Weekly Supp. 579 (Fla. 11th Cir. Ct. April 18, 2011); State v. Carlson,
19 Fla. L. Weekly Supp. 602 (Fla. Manatee Ct. Ct. April 3, 2012)State v. Carlson, 19 Fla. L. Weekly
Supp. 602 (Fla. Manatee Ct. Ct. April 3, 2012); State v. Redford, 19 Fla. L. Weekly Supp. 199 (Fla.
Volusia Cty. Ct. Nov. 17, 2011)State v. Redford, 19 Fla. L. Weekly Supp. 199 (Fla. Volusia Cty. Ct.
Nov. 17, 2011).
118
State v. Bundy, 22 Fla. L. Weekly Supp. 654 (Fla. Brevard Cty. Ct. Sept. 26, 2014) State v. Bundy, 22
Fla. L. Weekly Supp. 654 (Fla. Brevard Cty. Ct. Sept. 26, 2014) (reasonable cause is more than a hunch,
but less than probable cause); State v. Diaz, 19 Fla. L. Weekly Supp. 572 (Fla. Hillsborough Cty. Ct.
Feb. 28, 2012)State v. Diaz, 19 Fla. L. Weekly Supp. 572 (Fla. Hillsborough Cty. Ct. Feb. 28, 2012)
(reasonable cause standard in the statute should be applied in a manner similar to reasonable suspicion);
State v. Linaje, 15 Fla. L. Weekly Supp. 373 (Fla. Dade Cty. Ct. Jan. 25, 2008)State v. Linaje, 15 Fla. L.
Weekly Supp. 373 (Fla. Dade Cty. Ct. Jan. 25, 2008) (where officer did not have reasonable suspicion
that the defendant was under the influence of a controlled substance, the officer did not have the right to

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§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

demand a urine sample and refusal was inadmissible); State v. Desmaison, 14 Fla. L. Weekly Supp.
1060 (Fla. Dade Cty. Ct. Aug. 23, 2007) (same ruling as Linajie);
119
Burnett v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 933 (Fla. 6th Cir. Ct.
Nov. 27, 2017)Burnett v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 933
(Fla. 6th Cir. Ct. Nov. 27, 2017) (there was competent substantial evidence petitioner was driving while
under the influence of controlled substances and was required to submit to a urine test where petitioner
drove erratically and improperly; was hysterical, yelling that he was sorry for driving and admitted to
taking “ ‘medications’”; he fell asleep, woke up, and began crying and had no odor of alcohol, but
appeared to be intoxicated); Beller v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly
653 (Fla. 4th Cir. Ct. Dec. 22, 2016)Beller v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L.
Weekly 653 (Fla. 4th Cir. Ct. Dec. 22, 2016) (refusal was not improper where the defendant was asked
to take both a breath test and urine test, but the urine test was not authorized because the only drug that
was mentioned was Zoloft which was neither a chemical nor a controlled substance under Florida
statute); Estrada v. State, 18 Fla. L. Weekly Supp. 579 (Fla. 11th Cir. Ct. April 18, 2011) Estrada v.
State, 18 Fla. L. Weekly Supp. 579 (Fla. 11th Cir. Ct. April 18, 2011) (refusal to take urine test was
inadmissible where defendant was stopped through multiple light cycles, lying in driver’s seat with
ignition on and car in drive, appeared intoxicated, did not do well on FSES, blew a. 071 and a. 068;
officer saw that defendant had a cast on his finger and thought defendant said something about pain and
needing to take medication; but officer was not qualified to determine if defendant was under the
influence of narcotics and did not see any narcotics or outward signs of use); State v. Yates, 16 Fla. L.
Weekly Supp. 319 (Fla. 18th Cir. Ct. Feb. 6, 2009)State v. Yates, 16 Fla. L. Weekly Supp. 319 (Fla.
18th Cir. Ct. Feb. 6, 2009) (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 and did poorly on FSEs; 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); State v. Bundy, 22 Fla. L. Weekly Supp. 654 (Fla. Brevard Cty. Ct.
Sept. 26, 2014)State v. Bundy, 22 Fla. L. Weekly Supp. 654 (Fla. Brevard Cty. Ct. Sept. 26, 2014)
(judge applied a standard more than a hunch, but less than probable cause and found that urine test was
proper based on observations of defendant, officer’s experience with people under the influence of
chemical or controlled substances and lack of odor of beverage containing alcohol); State v. Chambliss,
22 Fla. L. Weekly Supp. 402 (Fla. Brevard Cty. Ct. Sept. 10, 2014)State v. Chambliss, 22 Fla. L.
Weekly Supp. 402 (Fla. Brevard Cty. Ct. Sept. 10, 2014) (refusal to submit to urine test was admissible
where defendant was obviously impaired, drove with no headlights on, hit parked car, ran on foot, had
odor of marijuana and alcohol on his person and only blew a .043 and .041; car smelled of burnt
cannabis,); State v. Carlson, 19 Fla. L. Weekly Supp. 602 (Fla. Manatee Ct. Ct. April 3, 2012)State v.
Carlson, 19 Fla. L. Weekly Supp. 602 (Fla. Manatee Ct. Ct. April 3, 2012) (urine test results
inadmissible where vehicle rolled over; there was evidence of alcohol use, including BALs of .059
and .050, no indication of drug use and deputy was not a DRE); State v. Redford, 19 Fla. L. Weekly
Supp. 199 (Fla. Volusia Cty. Ct. Nov. 17, 2011)State v. Redford, 19 Fla. L. Weekly Supp. 199 (Fla.
Volusia Cty. Ct. Nov. 17, 2011) (officer properly requested urine sample, which disclosed narcotics,
where defendant was driving erratically for 15 minutes over 21 miles; seemed “‘out of it,’” his pupils
were “‘pinpoint,’” he swayed slightly, and did not do FSES to the satisfaction of the officers, but the
breath alcohol was only.017; a slight odor of alcohol was coming from his person and an odor of burnt
marijuana was coming from vehicle; a bag of a commercially purchased herbal mixture was found in the
vehicle; court found p/c for urine test and that probative value was not outweighed by danger of unfair
prejudice).
120
§ 316.1932(1)(a) 1., Fla. Stat.; Nierwinski v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 1049 (Fla. 20th Cir. Ct. July 22, 2013). But see State v. Silva, 22 Fla. L. Weekly Supp. 74
(Fla. 17 th Cir. Ct. June 16, 2014)Cir. Ct. July 22, 2013). But see State v. Silva, 22 Fla. L. Weekly Supp.
74 (Fla. 17 th Cir. Ct. June 16, 2014) (where officer reasonably believed defendant was under the
influence of alcohol, but not controlled substances, but asked for both a breath and urine test, the refusal
to take either test was inadmissible).
121
Kennedy v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1110 (Fla. 4th Cir. Ct.
August 2, 2012) (officer had reasonable cause for urine test where defendant had bloodshot and watery
eyes, impairment on FSEs, slurred speech, flushed face, and admitted taking Theraflu and an unspecified
pain pill earlier; defendant blew .036 and .033, meaning there was a presumption his condition was due
to something other than alcohol); Nierwinski v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

Weekly Supp. 1049 (Fla. 20th Cir. Ct. July 22, 2013) (officer had probable cause to request a urine test
where defendant had watery eyes, slurred speech, an odor of alcoholic beverage, and performed poorly
on the FSEs, but the breath test reading was .037 and .037; defendant’s condition was consistent with
impairment by either alcohol or drugs; the positive breath test did not preclude the urine test and
Section 316.1932(1)(a) 1., specifically provides that one test does not preclude the other); State v. Diaz,
19 Fla. L. Weekly Supp. 572 (Fla. Hillsborough Cty. Ct. Feb. 28, 2012)State v. Diaz, 19 Fla. L. Weekly
Supp. 572 (Fla. Hillsborough Cty. Ct. Feb. 28, 2012) (urine test results were admissible where defendant
had .007 and .000 breath alcohol readings, which was inconsistent with defendant’s behavior, demeanor,
and FSE results and officer eliminated illness or injury as factors; judge concluded that statutory
reasonable cause requirement should be applied as reasonable suspicion standard and rejected defense
argument that grounds for requiring urine sample had to exist at time of arrest); State v. Redford, 19 Fla.
L. Weekly Supp. 199 (Fla. Volusia Cty. Ct. Nov. 17, 2011)State v. Redford, 19 Fla. L. Weekly Supp.
199 (Fla. Volusia Cty. Ct. Nov. 17, 2011) (officer properly requested urine sample, which disclosed
narcotics, where defendant was driving erratically for 15 minutes over 21 miles; seemed “‘out of it,’” his
pupils were “‘pinpoint,’” he swayed slightly, and did not do FSES to the satisfaction of the officers, but
the breath alcohol was only .017; a slight odor of alcohol was coming from his person and an odor of
burnt marijuana was coming from vehicle; a bag of a commercially purchased herbal mixture was found
in the vehicle; court found p/c for urine test and that probative value was not outweighed by danger of
unfair prejudice); State v. Hendricks, 16 Fla. L. Weekly Supp. 987 (Fla. Brevard Cty. Ct. July 23,
2009)State v. Hendricks, 16 Fla. L. Weekly Supp. 987 (Fla. Brevard Cty. Ct. July 23, 2009) (officer who
administered breath test properly requested a urine sample pursuant to the fellow officer rule where
other officers had observed conduct establishing probable cause for a DUI arrest, but the defendant’s
breath test results were only .044 and .045, so that “the breath test was not fully consistent with the
actions of the defendant.”). But see State v. Yates, 16 Fla. L. Weekly Supp. 319 (Fla. 18th Cir. Ct. Feb.
6, 2009)State v. Yates, 16 Fla. L. Weekly Supp. 319 (Fla. 18th Cir. Ct. Feb. 6, 2009) (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 and did poorly on FSEs; 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); State v. Mata, 14 Fla. L.
Weekly Supp. 440 (Fla. 17th Cir. Ct. March 12, 2007)State v. Mata, 14 Fla. L. Weekly Supp. 440 (Fla.
17th Cir. Ct. March 12, 2007) (affirming trial court’s suppression of refusal to submit to urine test,
where defendant had an odor of alcohol, had several indications of alcohol impairment, and had .077
and .082 breath test results); State v. Carlson, 19 Fla. L. Weekly Supp. 602 (Fla. Manatee Cty. Ct. April
3, 2012)State v. Carlson, 19 Fla. L. Weekly Supp. 602 (Fla. Manatee Cty. Ct. April 3, 2012) (court
suppressed results of urine test because there was no probable cause that defendant was under the
influence of drugs and the test was unauthorized where there was evidence of alcohol use, but no
evidence of drug use, breath test results were .059 and .050 and officer felt readings did not correlate to
performance on FSES); State v. Stanis, 13 Fla. L. Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 2,
2006)State v. Stanis, 13 Fla. L. Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 2, 2006) (defendant not
required to give urine sample where breath test results were .078 and .075, video of FSEs was consistent
with a person with that BAL, and there was no other evidence of drug use); State v. Byers, 13 Fla. L.
Weekly Supp. 635 (Fla. Broward Cty. Ct. Feb. 16, 2006)State v. Byers, 13 Fla. L. Weekly Supp. 635
(Fla. Broward Cty. Ct. Feb. 16, 2006) (urine test results were inadmissible where defendant was driving
in an unsafe manner, had an odor of alcohol on breath; a lot of vodka, including an empty pint was in the
car; deputies believed defendant was under the influence of alcohol; no one testified to a belief
defendant was under the influence of chemical or controlled substances; officer secured urine sample
after breath test registered .000).
122
State v. Morris, 21 Fla. L. Weekly Supp. 584 (Fla. Palm Beach Cty. Ct. Sept. 26, 2013)State v. Morris,
21 Fla. L. Weekly Supp. 584 (Fla. Palm Beach Cty. Ct. Sept. 26, 2013) (trial judge suppressed urine test
based on finding officer’s testimony concerning marijuana was not credible; the judge also concluded
that BAL readings of .071 and .068 were not sufficient alone to require a urine test and they indicated
“Defendant had consumed a sufficient amount of alcohol to have been influenced by alcohol;” the court
also rejected the police agency’s policy of requesting a urine test whenever BALs were below 0.08).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:4.Reliance on implied consent, 11 Fla. Prac., DUI Handbook § 5:4 (2018-2019 ed.)

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

§ 5:5. Reliance on voluntary consent

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 418, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1405, 1407 to 1421

Test results may be admissible even in the absence of compliance with the implied consent law, if the defendant
voluntarily consents to giving the sample. 1 In fact, in State v, Murray, 2 the court makes it clear that if the test
was taken as part of an investigation of some driving offense other than DUI and there was no probable cause
for DUI, the implied consent law does not apply at all and traditional consent analysis controls.

The determination of whether the defendant has voluntarily consented is a factual decision that the court must
make based on the totality of the circumstances. 3 If there has been no unlawful police activity, the State must
prove by a preponderance of the evidence that the defendant freely and voluntarily consented. 4 The State does
not meet this burden by proving mere submission to authority. 5 Schneckloth v. Bustamonte6 is the leading case
on these standards.

In instances where consent is obtained after illegal police activity, the consent is presumptively tainted. 7 In those
cases, the State must prove by clear and convincing evidence that there was “an unequivocal break in the chain
of illegality sufficient to dissipate the taint of prior illegal action.” 8 One way that the taint might be dissipated is
by the officer advising the defendant that there is a right to refuse consent before the defendant agrees. 9

These standards have been applied in several DUI cases, but in one case 10 the result is unclear. The officer told
the defendant that he could go home from the emergency room if he submitted to a blood test. The court ruled
that the test results were admissible. In making that ruling, the court found: (1) consent is irrelevant because
there is no federal or state constitutional prohibition against the taking of blood samples; (2) even if there were
Fourth Amendment issues, exigent circumstances justified the officer’s action; and (3) there was sufficient
evidence that the defendant consented.11

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

In other cases, the rationale is clearer. In Chu v. State, 12 the defendant submitted to a blood test that was not
authorized by the statute. The court held that the officer must fully advise the defendant that the implied consent
law requires submission only to a breath or urine test and that the blood test is offered only as an alternative.
Further, the court said that the consent must be voluntary and not merely acquiescence to lawful authority. 13
Accordingly, the blood test results were admissible where there was a one car accident, the officer had authority
to request a breath test, he read the implied consent law to the defendant and explained it in layman’s terms, and
the defendant did not challenge the voluntariness of her consent.14

In State v, Murray,15 the court suggested that the decision in Chu 16 was too broad. And that even if a blood
sample is secured outside the implied consent law, if the “test ‘was performed in a reasonable manner,’ (quoting
from Schmerber v. California,)17 the results should be admissible under traditional common law rules. If Chu is
read to require a contrary result, we acknowledge our direct and express conflict with it.” 18

Similarly, the meaning of Chu19 as it relates to traditional consent analysis was considered by a three judge
circuit court appellate panel in State v. Conti.20 That court concluded that in Chu,21 the issue was not whether the
accused consented to be tested at all, but rather, whether she consented to the type of test (blood) when under
the statute she was required to submit only to another type of test (breath or urine). 22 In Chu,23 an officer lawfully
detained the defendant based on probable cause for DUI; therefore, the defendant was required to submit to a
breath test, but not a blood test. The blood sample could be voluntarily provided only if the officer explained
that the defendant was required to submit only to a breath test. 24 Under such circumstances, the State would
benefit from the statutory presumptions if the defendant complied and sanctions in the event of a refusal. 25 In
contrast, in Conti,26 the officer did not have probable cause for DUI, so that the defendant was not required to
participate in any test at all, but nevertheless, on request provided a blood sample. The ruling in Chu27 would not
apply to such a situation, but traditional consent analysis would apply. 28 Additionally, the State would not
benefit from the presumptions and sanctions of the implied consent law.29

In another case,30 where the defendant appeared at a medical facility, the court held that advising the defendant
that his license would be suspended pursuant to the implied consent law, rendered the consent to a blood test
involuntary. The officer did not inform the defendant that the statute requires submission only to a breath or
urine test and that a blood test was offered as an alternative. The same point was made in another case 31 where
the defendant was involved in an accident not resulting in serious bodily injury, and it was not impractical or
impossible to administer a breath test. The fact that the officer told the defendant his license would be
suspended if he did not submit to a blood test, made submission to the test involuntary and the test results
inadmissible.

The courts have taken the same approach with breath and urine test results. Those test results may be
inadmissible because of noncompliance with some statutory or administrative testing provision. In such cases,
the court may, nevertheless, allow the results into evidence pursuant to the traditional scientific predicate.
However, if those samples were secured by advising the subject of the coercive elements of the implied consent
law, the results are inadmissible even if the state establishes that scientific predicate. 32 This problem arose where
the test was done on an improperly certified machine. The court concluded that there is no statutory implied
consent to this kind of testing; therefore, it was incorrect for the officer to tell the driver that failure to take this
test would result in the suspension of driving privileges. Thus, misinformation led to submission to the test and
it was involuntary. The test results were inadmissible.33

As previously explained, under the implied consent law an officer need not disclose the consequences of
refusing a breath test for the results to be admissible. 34 However, a trial judge concluded that if the officer also
fails to tell the accused that Florida law requires submission to the test or to address the issue in any way, and it
is clear that the officer is relying on voluntary consent, then traditional consent analysis applies. 35 In that same
case, the court concluded that the state failed to prove voluntary consent.36

In one case, the court considered the admissibility of consent to a prerelease breath test. 37 In that case,38 officers
enticed defendants into providing samples by telling them that if they provided the samples and the test results

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

were less than .05, they could go home. The state sought to use the results at trial. On appeal, the court ruled
that the results were inadmissible because the defendants could have viewed these tests as a “safe harbor,” 39
since they were not mandatory and the defendants were told only that they could go home. The court concluded
that use of the results would involve the type of trickery that would deny due process. Subsequently, the court
concluded that reliance on these prerelease tests is subject to harmless error analysis. 40

Similar issues apply to urine samples. A three-judge circuit court appellate panel ruled that the results of a urine
sample should have been suppressed where the urine was provided after two breath alcohol readings of .000,
officers repeatedly asked for urine and incorrectly implied that they had the authority to take the defendant to
the hospital for a blood test.41 The court found that the State failed to show voluntary consent by clear and
convincing evidence.42 Two of three circuit judges affirmed suppression of test results where the trial judge
ruled that the State failed to prove by a preponderance of the evidence that consent to a urine test using a
catheter was voluntary.43 Defendant was intoxicated, injured, and in pain while E.R. staff was treating him and
he initially consented to an officer’s request for the sample, but the defendant could not or did not urinate
naturally; consequently, hospital staff inserted a catheter without a request from the officer and the defendant
complained of discomfort.44

As the foregoing cases make clear, if the State is relying on voluntary consent as the basis for testing, one of the
most critical factors is the accuracy of the information the officer provides. Two extremely important recent
cases highlight that point.

The first case, is Montes-Valeton v. State.45 There, the Florida Supreme Court held that blood test results were
inadmissible because the trooper erroneously advised Defendant that the implied consent law required a blood
sample, and failure to comply would result in license suspension. The Court concluded that the information was
wrong because the trooper did not have probable cause Defendant was under the influence of alcohol, which
was necessary to require a blood sample under section 316.1933(1)(a). “The fact that Trooper Molina
improperly threatened Montes–Valeton with the suspension of his driver license for refusing to give consent to
the blood draw renders his consent involuntary.”46

The second case, Miller v. State,47 follows Montes-Valeton48 but the facts required a different result. In Miller, a
trooper was investigating a fatal accident. Defendant refused to provide a blood sample, but consented when the
trooper explained that he would have to get a warrant. In contrast, to the facts in Montes-Valeton49 the
“explanation did not amount to coercion or misrepresentation of authority because [the trooper] had probable
cause and accurately described … what would occur if a warrant were sought.” 50 Thus, the consent to the blood
test was free and voluntary.

The analysis of any samples that officers secure through voluntary consent must be limited to the scope of the
consent. Accordingly, it was impermissible for an officer to test a sample for drugs where the defendant
specifically consented to a test for alcohol.51

The purpose of the implied consent law is to secure evidence of impaired driving. Practitioners and judges
should not lose sight of the possibility that samples may have been secured by voluntary consent. In such cases,
the traditional methods of consent analysis apply.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983); State v. Williams, 417 So. 2d 755 (Fla. 5th DCA
1982); Kujawa v. State, 405 So. 2d 251 (Fla. 3d DCA 1981); State v. Gunn, 408 So. 2d 647 (Fla. 4th
DCA 1981). See also State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011), review dismissed, 88 So.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

3d 111 (Fla. 2012); State v. Murray, 51 So. 3d 593 (Fla. 5th DCA 2011), review denied, 63 So. 3d 750
(Fla. 2011).
2
State v. Murray, 51 So. 3d 593 (Fla. 5th DCA 2011), review denied, 63 So. 3d 750 (Fla. 2011)
(defendants were involved in a fatal accident as a result of street racing, but the officer had no probable
cause for a DUI and the defendants voluntarily consented to a blood test without being read implied
consent warnings).
3
See e.g. Washington v. State, 653 So. 2d 362, 364 (Fla. 1994), cert. denied, 516 U.S. 946, 116 S. Ct.
387, 133 L. Ed. 2d 309 (1995). See also Montes-Valeton v. State, 216 So.3d 475, 480 (Fla. 2017);
Jorgenson v. State, 714 So. 2d 423, 426 (Fla. 1998); Reynolds v. State, 592 So. 2d 1082, 1086 (Fla.
1992); State v. Hernandez, 146 So. 3d 163 (Fla. 3d DCA 2014), review denied, 160 So. 3d 895 (Fla.
2015).
4
See e.g. Washington v. State, 653 So. 2d 362, 364 (Fla. 1994), cert. denied, 516 U.S. 946, 116 S. Ct.
387, 133 L. Ed. 2d 309 (1995). See also Jorgenson v. State, 714 So. 2d 423 (Fla. 1998); Reynolds v.
State, 592 So. 2d 1082 (Fla. 1992); State v. Hall, 201 So.3d 66 (Fla. 3d DCA 2015).
5
See e.g. Washington v. State, 653 So. 2d 362, 364 (Fla. 1994), cert. denied, 516 U.S. 946, 116 S. Ct.
387, 133 L. Ed. 2d 309 (1995). See also Jorgenson v. State, 714 So. 2d 423 (Fla. 1998); Reynolds v.
State, 592 So. 2d 1082 (Fla. 1992).
6
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
7
State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994), review denied, 654 So. 2d 131 (Fla. 1995). See
also Salem v. State, 645 So. 2d 1023 (Fla. 2d DCA 1994); Barna v. State, 636 So. 2d 571 (Fla. 4th
DCA 1994).
8
State v. Paul, 638 So. 2d 537, 539 (Fla. 5th DCA 1994), review denied, 654 So. 2d 131 (Fla. 1995).
9
See e.g. State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994), review denied, 654 So. 2d 131 (Fla.
1995).
10
State v. McGarry, 477 So. 2d 1030 (Fla. 2d DCA 1985).
11
State v. McGarry, 477 So. 2d 1030 (Fla. 2d DCA 1985).
12
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988). See also State v. Dubiel, 958 So. 2d 486 (Fla. 4th
DCA 2007); State v. Schreiber, 835 So. 2d 344 (Fla. 4th DCA 2003), review denied, 882 So. 2d 386
(Fla. 2004); State v. McAvoy, 13 Fla. L. Weekly Supp. 332 (Fla. 17th Cir. Ct. Nov. 30, 2005)State v.
McAvoy, 13 Fla. L. Weekly Supp. 332 (Fla. 17th Cir. Ct. Nov. 30, 2005); State v. Lambertus, 13 Fla. L.
Weekly Supp. 81 (Fla. 17th Cir. Ct. Nov.17, 2005)State v. Lambertus, 13 Fla. L. Weekly Supp. 81 (Fla.
17th Cir. Ct. Nov.17, 2005); Witzigman v. State, 10 Fla. L. Weekly Supp. 232 (Fla. 13th Cir. Ct. Dec.
18. 2002)Witzigman v. State, 10 Fla. L. Weekly Supp. 232 (Fla. 13th Cir. Ct. Dec. 18. 2002); State v.
Ramsey, 22 Fla. L. Weekly Supp. 1095 (Fla. Palm Beach Cty. Ct. Nov. 4, 2014); State v. McOwen, 14
Fla. L. Weekly Supp. 105 (Fla. Brevard Cty. Ct. Oct. 12, 2006)State v. McOwen, 14 Fla. L. Weekly
Supp. 105 (Fla. Brevard Cty. Ct. Oct. 12, 2006); State v. Heim, 11 Fla. L. Weekly Supp. 138 (Fla.
Hillsborough Cty. Ct. Oct. 30, 2003)State v. Heim, 11 Fla. L. Weekly Supp. 138 (Fla. Hillsborough Cty.
Ct. Oct. 30, 2003); State v. Monastersky, 9 Fla. L. Weekly Supp. 138 (Fla. Palm Beach Cty. Ct. Dec. 28,
2001)State v. Monastersky, 9 Fla. L. Weekly Supp. 138 (Fla. Palm Beach Cty. Ct. Dec. 28, 2001) ; State
v. Bailey, 8 Fla. L. Weekly Supp. 254 (Fla. Palm Beach Cty. Ct. Jan. 26, 2001)State v. Bailey, 8 Fla. L.
Weekly Supp. 254 (Fla. Palm Beach Cty. Ct. Jan. 26, 2001).
13
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988). See also Gracia v. State, 21 Fla. L. Weekly Supp.
875 (Fla. 15th Cir. Ct. May 8, 2014)Gracia v. State, 21 Fla. L. Weekly Supp. 875 (Fla. 15th Cir. Ct. May

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

8, 2014) (consent to blood test was involuntary because the implied consent warning did not inform
defendant submission to a blood test was only an alternative to a breath or urine test nor was there
evidence in the record that indicated officer gave defendant such information); Houston v. State, 20 Fla.
L. Weekly Supp. 92 (Fla. 15th Cir. Ct. Oct. 23, 2012)Houston v. State, 20 Fla. L. Weekly Supp. 92 (Fla.
15th Cir. Ct. Oct. 23, 2012) (defendant voluntarily consented where she hit a pole, admitted taking
various drugs, and was impaired; officer testified that when he asked defendant if she would consent,
she did not refuse and defendant said she did not recall being asked for a sample and to her knowledge
did not give permission; but while she did not remember signing it, she admitted her signature was on
consent form); State v. McCotter, 17 Fla. L. Weekly Supp. 744 (Fla. 15 th Cir. Ct. May 11, 2010) State
v. McCotter, 17 Fla. L. Weekly Supp. 744 (Fla. 15 th Cir. Ct. May 11, 2010) (consent was involuntary
because officer did not tell defendant that implied consent law required submission only to a breath or
urine test and that the blood test was being offered as an alternative); State v. McAvoy, 13 Fla. L.
Weekly Supp. 332 (Fla. 17th Cir. Ct. Nov. 30, 2005)State v. McAvoy, 13 Fla. L. Weekly Supp. 332
(Fla. 17th Cir. Ct. Nov. 30, 2005); State v. Gentile, 25 Fla. L. Weekly Supp. 540 (Fla. Volusia Cty. Ct.
August 22, 2017)State v. Gentile, 25 Fla. L. Weekly Supp. 540 (Fla. Volusia Cty. Ct. August 22, 2017)
(judge granted motion to suppress blood test results; Defendant-motorcyclists was taken to the hospital
because of a swollen ankle; it was not impossible or impractical to administer a breath test and there was
no serious bodily injury; where the officer read implied consent and told Defendant the consequences of
refusal, the blood test was not justified by consent because the officer did not make clear to Defendant
that giving a blood sample was an alternative to providing a breath or urine sample and there would be
no consequences if he declined); State v. Gentile, 23 Fla. L. Weekly Supp. 580 (Fla. Duval Cty. Ct. Oct.
19, 2015)State v. Gentile, 23 Fla. L. Weekly Supp. 580 (Fla. Duval Cty. Ct. Oct. 19, 2015) (where State
relies on voluntary consent “it will have to prove the implied consent law was violated and then prove
Defendant’s ‘consent’ to testing was voluntary.”); State v. Sherrer, 20 Florida Law Weekly Supp. 997
(Fla. Palm Beach Cty. Ct. July 11, 2013) (consent to blood draw taken at scene of accident was
involuntary where officer did not advise defendant she was only required to submit to a breath or urine
test and that blood test was offered as an alternative, but not required; officer believed defendant was
impaired based on signs of impairment); State v. Figueroa, 20 Fla. L. Weekly Supp. 677 (Fla. Brevard
Cty. Ct. April 3, 2013)State v. Figueroa, 20 Fla. L. Weekly Supp. 677 (Fla. Brevard Cty. Ct. April 3,
2013) (blood test was voluntary where at the scene of an accident, the officer told defendant she had two
options; first, he could arrest her and do a breath test at the jail; second, she could go to the hospital for a
blood test and depending on the results, he might arrest her later; but the officer emphasized that she did
not have to take the blood test and he let the defendant’s sister drive her to the hospital); State v. Irons,
19 Fla. L. Weekly Supp. 864 (Fla. Brevard Cty. Ct. June 11, 2012)State v. Irons, 19 Fla. L. Weekly
Supp. 864 (Fla. Brevard Cty. Ct. June 11, 2012) (blood test was voluntary, where officer who was
investigating an accident, told defendant that if he arrested her she would have to take either a breath or
urine test or her license would be suspended for a year, but she could voluntarily submit to a blood test
as an alternative to the breath or urine test, the refusal of which would have no consequences); State v.
Sirney, 18 Fla. L. Weekly Supp. 242 (Fla. Brevard Cty. Ct. Oct. 28, 2010)State v. Sirney, 18 Fla. L.
Weekly Supp. 242 (Fla. Brevard Cty. Ct. Oct. 28, 2010); State v. Melvin, 16 Fla. L. Weekly Supp. 436
(Fla. Leon Cty. Ct. Feb. 11, 2008)State v. Melvin, 16 Fla. L. Weekly Supp. 436 (Fla. Leon Cty. Ct. Feb.
11, 2008) (blood test was inadmissible where defendant was transported to hospital only because she
was agitated and emotional; she was conscious, but remained silent when officer asked her to submit to
blood test); State v. Rolon, 15 Fla. L. Weekly Supp. 290 (Fla. Monroe Cty. Ct. Oct. 19, 2007)State v.
Rolon, 15 Fla. L. Weekly Supp. 290 (Fla. Monroe Cty. Ct. Oct. 19, 2007) (blood test results were
inadmissible where breath test was not impractical or impossible and trooper told defendant that if she
did not submit to a blood test her license would be suspended); State v. Bennett, 14 Fla. L. Weekly
Supp. 1147 (Fla. Manatee Cty. Ct. June 13, 2006) (test results were inadmissible where officer relied on
consent to blood test, but did not read implied consent and the defendant acquiesced to authority); State
v. McOwen, 14 Fla. L. Weekly Supp. 105 (Fla. Brevard Cty. Ct. Oct. 12, 2006)State v. McOwen, 14
Fla. L. Weekly Supp. 105 (Fla. Brevard Cty. Ct. Oct. 12, 2006) (threat of arrest made submission to
blood test involuntary); State v. Milledge, 12 Fla. L. Weekly Supp. 676 (Fla. Palm Beach Cty. Ct. March
1, 2005)State v. Milledge, 12 Fla. L. Weekly Supp. 676 (Fla. Palm Beach Cty. Ct. March 1, 2005); State
v. Thomas, 12 Fla. L. Weekly Supp. 369 (Fla. Pinellas Cty. Ct. Dec. 14, 2004) State v. Thomas, 12 Fla.
L. Weekly Supp. 369 (Fla. Pinellas Cty. Ct. Dec. 14, 2004); State v. Dittmer, 15 Fla. L. Weekly Supp.
737 (Fla. Palm Beach Cty. Ct. April 30, 2008)State v. Dittmer, 15 Fla. L. Weekly Supp. 737 (Fla. Palm
Beach Cty. Ct. April 30, 2008) (trial judge held blood test results admissible where there was no
statutory basis for taking blood, but officer had to get defendant medically cleared before taking him to
jail and officer told defendant his license could be suspended for not consenting to blood test; judge
construed State v. Dubiel, 958 So. 2d 486 (Fla. 4th DCA 2007) and State v. Iaco, 906 So. 2d 1151 (Fla.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

4th DCA 2005), as applying to voluntary consent cases and eliminating any requirement that officer
accurately advise accused of implied consent).
14
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
15
State v. Murray, 51 So. 3d 593 (Fla. 5th DCA 2011), review denied, 63 So. 3d 750 (Fla. 2011).
16
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
17
Schmerber v. California, 384 U.S. 757, 771, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
18
State v. Murray, 51 So. 3d 593, 596 (Fla. 5th DCA 2011), review denied, 63 So. 3d 750 (Fla. 2011).
19
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
20
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
21
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
22
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
23
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
24
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
25
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
26
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
27
Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
28
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
29
State v. Conti, 18 Fla. L. Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010)State v. Conti, 18 Fla. L.
Weekly Supp. 717 (Fla. 19th Cir. Ct. August 11, 2010).
30
State v. Burnett, 536 So. 2d 375 (Fla. 2d DCA 1988). See also Montes-Valeton v. State, 216 So.3d 475,
481 (Fla. 2017); State v. Nichols, 24 Fla. L. Weekly Supp. 935 (Fla. 7th Cir. Ct. Feb. 3, 2017)State v.
Nichols, 24 Fla. L. Weekly Supp. 935 (Fla. 7th Cir. Ct. Feb. 3, 2017); State v. Garrett, 25 Fla. L. Weekly
Supp. 71 (Fla. Orange Cty. Ct. Feb. 17, 2017)State v. Garrett, 25 Fla. L. Weekly Supp. 71 (Fla. Orange
Cty. Ct. Feb. 17, 2017); State v. Rolon, 15 Fla. L. Weekly Supp. 290 (Fla. Monroe Cty. Ct. Oct. 19,
2007)State v. Rolon, 15 Fla. L. Weekly Supp. 290 (Fla. Monroe Cty. Ct. Oct. 19, 2007); State v.
Hudson, 35 Fla. Supp. 2d 190 (Fla. Palm Beach Cty. Ct. 1989).
31
State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995). See also Nishman v. State, 25 Fla. L. Weekly
Supp. 936 (Fla. 11th Cir. Ct. Jan.10, 2018)Nishman v. State, 25 Fla. L. Weekly Supp. 936 (Fla. 11th Cir.
Ct. Jan.10, 2018) (where Defendant was unable to provide a urine sample after two unsuccessful
attempts in almost an hour, State failed to prove by a preponderance of the evidence that consent was
not submission to authority and that Defendant voluntarily consented to a blood test based on an
officer’s request for a blood sample and Defendant’s signature on the Implied Consent form without any
advice as to the consequences of refusal; this was coercive); Martin v. Dep’t of Highway Safety &

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

Motor Vehicles, 15 Fla. L. Weekly Supp. 347 (Fla. 11th Cir. Ct. Feb. 12, 2008)Martin v. Dep’t of
Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 347 (Fla. 11th Cir. Ct. Feb. 12, 2008)
(where accident caused only minor injury, it was not impossible or impractical to administer breath or
urine test, but officer told defendant he had to give a breath and blood test, defendant gave both,
administration of both blood and breath test was improper); State v. Baumer, 26 Fla. L. Weekly Supp.
39 (Fla. Sarasota Cty. Ct. March 6, 2018)State v. Baumer, 26 Fla. L. Weekly Supp. 39 (Fla. Sarasota
Cty. Ct. March 6, 2018) (court suppressed blood test results; after an accident, deputy took Defendant to
jail and read implied consent warnings; Defendant gave breath sample with .000 results; deputy
reasonably read implied consent warnings again and requested a urine sample; Defendant could not
comply because he had a catheter; deputy read implied consent a third time and asked for blood;
defendant agreed; but his consent to blood “cannot be said to have been given freely and voluntary,
because he was told that he must consent or face the consequences that go as far as to threaten criminal
liability”).
32
State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992); State v. Landrum, 18 Fla. L. Weekly Supp. 983
(Fla. 12th Cir. Ct. May 23, 2011)State v. Landrum, 18 Fla. L. Weekly Supp. 983 (Fla. 12th Cir. Ct. May
23, 2011) (where the breath test results were held inadmissible under the implied consent law, they were
also inadmissible pursuant to the traditional scientific predicate because the defendant was advised of
“the coercive elements of the Implied Consent Law”; therefore, the consent was involuntary); State v.
Kepics, 25 Fla. L. Weekly Supp. 893, (Fla. Leon Cty. Ct. Dec. 7, 2017)State v. Kepics, 25 Fla. L.
Weekly Supp. 893, (Fla. Leon Cty. Ct. Dec. 7, 2017) (trial judge concludes that the State cannot rely on
voluntary consent to a urine sample given after being advised of implied consent; Defendant acquiesced
to the coercive implied consent warnings). See also State v. Harrison, 19 Fla. L. Weekly Supp. 377 (Fla.
Duval Cty. Ct. Dec. 7, 2011)State v. Harrison, 19 Fla. L. Weekly Supp. 377 (Fla. Duval Cty. Ct. Dec. 7,
2011); State v. Gibson, 16 Fla. L. Weekly Supp. 91 (Fla. Escambia Cty. Ct. Nov. 6, 2008) State v.
Gibson, 16 Fla. L. Weekly Supp. 91 (Fla. Escambia Cty. Ct. Nov. 6, 2008); State v. Castillo, 10 Fla. L.
Weekly Supp. 439 (Fla. Dade Cty. Ct. April 14, 2003)State v. Castillo, 10 Fla. L. Weekly Supp. 439
(Fla. Dade Cty. Ct. April 14, 2003); State v. Del Toro, 10 Fla. L. Weekly Supp. 434 (Fla. Dade Cty. Ct.
March 24, 2003)State v. Del Toro, 10 Fla. L. Weekly Supp. 434 (Fla. Dade Cty. Ct. March 24, 2003) ;
State v. Velarde, 10 Fla. L. Weekly Supp. 355 (Fla. Dade Cty. Ct. March 7, 2003)State v. Velarde, 10
Fla. L. Weekly Supp. 355 (Fla. Dade Cty. Ct. March 7, 2003). But see State v. Brown, 25 Fla. L.
Weekly Supp. 786 (Fla. 17th Cir. Ct. Oct. 27, 2017)25 Fla. L. Weekly Supp. 786 (Fla. 17th Cir. Ct. Oct.
27, 2017) (trial judge concluded Defendant did not voluntarily submit to a breath test based on an
accident, deployed airbags, Defendant’s behavior and use of Xanax and granted a motion to suppress;
court reversed finding Defendant implicitly and explicitly voluntarily consented; initially, Defendant did
not respond when asked to take BAT, but after the officer read implied consent, including the
consequences of refusal, Defendant submitted; she was a licensed driver and there was no evidence she
ever withdrew her consent; while initially nonresponsive, when advised of implied consent, she
submitted; the court specifically concluded: “This is not coercive … rather, it is standard policy.”
Additionally, Court found Defendant explicitly consented when she said she couldn’t take the test while
in handcuffs and then specifically said yes to the test).
33
State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992). See also State v. Gibson, 16 Fla. L. Weekly
Supp. 91 (Fla. Escambia Cty. Ct. Nov. 6, 2008)State v. Gibson, 16 Fla. L. Weekly Supp. 91 (Fla.
Escambia Cty. Ct. Nov. 6, 2008) (test results involuntary where there was misinformation that test was
approved and intoxilyzer was not in substantial compliance).
34
State v. Iaco, 906 So. 2d 1151 (Fla. 4th DCA 2005).
35
State v. Clukey, 14 Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007)State v. Clukey, 14
Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007).
36
State v. Clukey, 14 Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007)State v. Clukey, 14
Fla. L. Weekly Supp. 800 (Fla. Broward Cty. Ct. June 11, 2007) (defendant responded to request for
breath test by saying only, “he agreed” after being arrested, handcuffed, surrounded by an unknown
number of officers, and held on the scene for an unknown time period).
37
That is one given pursuant to § 316.193(9), Fla. Stat., which requires that the defendant be held
without bail until he or she is no longer impaired, eight hours have passed, or he or she blows less

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§ 5:5.Reliance on voluntary consent, 11 Fla. Prac., DUI Handbook § 5:5 (2018-2019 ed.)

than .05 on the breath test.

38
State v. Talty, 692 So. 2d 936 (Fla. 4th DCA 1997).
39
This term comes from South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748
(1983).
40
Chambers v. State, 708 So. 2d 664 (Fla. 4th DCA 1998).
41
Bullock v. State, 19 Fla. L. Weekly Supp. 329 (Fla. 18th Cir. Ct. Nov. 17, 2011)Bullock v. State, 19 Fla.
L. Weekly Supp. 329 (Fla. 18th Cir. Ct. Nov. 17, 2011).
42
Bullock v. State, 19 Fla. L. Weekly Supp. 329 (Fla. 18th Cir. Ct. Nov. 17, 2011)Bullock v. State, 19 Fla.
L. Weekly Supp. 329 (Fla. 18th Cir. Ct. Nov. 17, 2011).
43
State v. Bottie, 18 Fla. L. Weekly Supp. 330 (Fla. 6th Cir. Ct. Feb. 8, 2011) State v. Bottie, 18 Fla. L.
Weekly Supp. 330 (Fla. 6th Cir. Ct. Feb. 8, 2011).
44
State v. Bottie, 18 Fla. L. Weekly Supp. 330 (Fla. 6th Cir. Ct. Feb. 8, 2011) State v. Bottie, 18 Fla. L.
Weekly Supp. 330 (Fla. 6th Cir. Ct. Feb. 8, 2011).
45
Montes-Valeton v. State, 216 So.3d 475, 480–81 (Fla. 2017).
46
Montes-Valeton v. State, 216 So.3d 475, 481 (Fla. 2017).
47
Miller v. State, 250 So.3d 144 (Fla. 1st DCA 2018).
48
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017).
49
Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017).
50
Miller v. State, 250 So.3d 144 (Fla. 1st DCA 2018).
51
State v. Demoya, 380 So. 2d 505 (Fla. 3d DCA 1980).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 5:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 5. Securing Samples for Chemical or Physical Testing

§ 5:6. Use of a warrant or other discovery tools to secure test results obtained for a purpose other than
prosecution

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 422.1, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1405, 1407 to 1421

Where there is a serious accident involving DUI, the only available blood test may have been done solely for
medical reasons. The implied consent law specifically provides: “the failure of a law enforcement officer to
request the withdrawal of blood shall not affect the admissibility of the test of blood withdrawn for medical
purposes.”1 Thus, where there was a fatal accident, the blood alcohol levels secured from blood samples taken
by a medical technologist at the hospital for medical purposes were admissible. 2 But when the sample is taken
for medical reasons, new problems develop.

Privilege and confidentiality is an issue and may be an obstacle in obtaining the blood alcohol information of a
defendant from a medical facility. Sections 316.1932(3) and 316.1933(4), Fla. Stat., provide:
[n]otwithstanding any provision of law pertaining to the confidentiality of hospital records or
other medical records, information relating to the alcoholic content of the blood or the presence of
chemical substances or controlled substances in the blood obtained pursuant to this section shall
be released to a court, prosecuting attorney, defense attorney, or law enforcement officer in
connection with an alleged violation of § 316.193, upon request for such information.3

It appears from this statutory language that blood alcohol information is to be released upon request without
regard to consent or notice, if the blood is withdrawn pursuant to one of the implied consent provisions. Other
statutes, however, suggest a different conclusion where the sample was secured for medical reasons.

The State may try to obtain a blood test report from a medical facility through the subpoena powers set forth in
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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

§ 27.04, Fla. Stat. However, § 395.30254 establishes a privilege as to hospital records.

An exception to the privilege allows patients’ records to be secured by subpoena in any civil or criminal case
without the consent of the patient upon “proper notice by the party seeking such records to the patient or his
legal representative.”5 Where the State fails to give such notice, the test results should be suppressed. 6 Where a
subpoena is issued without the required notice it will be quashed. 7 Additionally, a trial court found that the State
must comply with the Florida Rules of Civil Procedure, Rule 1.351.8

As one trial court9 recognized, the statute does not define “proper notice.” The court ruled that notice by U.S.
Mail was sufficient and personal service of the notice was not required. Even less formal notification has been
approved. Thus, in one case the court upheld the denial of a motion to suppress hospital records where the trial
judge found that the necessary notice of the state’s interest to subpoena the records had been given at a status
conference.10 On the other hand, where the State sent the notice to the wrong address and took no precautions to
avoid this error, the notice was insufficient and the test results inadmissible. 11

If the defendant objects to the issuance of the subpoena, the State must also show relevance. 12 That is not the
same as probable cause.13 The State must demonstrate that the involved documents might tend to prove or
disprove a material fact in issue. The State must meet this burden with evidence showing a connection between
the sought after medical records and the involved criminal investigation. No statute or rule describes the type of
evidentiary procedure that the trial court must follow, but it is clear that the court must consider some sort of
evidence. In McAlevy v. State,14 the court noted that in Hunter15 the court found no error in issuance of a
subpoena based just on an accident report and the fact that the other driver died. In McAlvey,16 the court agreed,
and concluded that in deciding whether the records are relevant the trial judge need not consider live testimony,
but could rely on the State’s argument and the probable cause affidavit. However, in Guardado v. State, 17 the
court held that the State cannot meet its burden to secure a subpoena for medical blood draw results by reliance
solely on an unlawful legal blood draw. And the court also makes it clear that a crash and death, standing alone,
provide only part of the basis for relevance; there must still be some other evidence, which may be set forth in
accident reports, probable cause affidavits, or similar documents.18

This process is necessary to protect the patient’s privacy interests under Art I, § 23, Fla. Const. The court must
act as a shield and not permit any invasion of these rights until after finding “a compelling state interest and that
the information is relevant.”19

It is somewhat unclear, what the “compelling state interest” requirement is in these cases. In other contexts, that
means that the State must show that it has an important objective that cannot be achieved through any less
intrusive means.20 In State v. Johnson,21 the Court provided guidance on this issue. The Court said:
Clearly, the control and prosecution of criminal activity is a compelling state interest, and this
Court has held that a subpoena issued during an ongoing criminal investigation satisfies a
compelling state interest when there is a clear connection between illegal activity and the person
whose privacy has allegedly been invaded.22

State v. Rutherford23 clarified the meaning of this phrase in a DUI case. The court said that in such a case, the
State must show that the police had a reasonably founded suspicion that the protected material contained
relevant information. Further, to show that the least intrusive means have been used to gather this evidence, the
state must demonstrate merely that it has followed the proper procedure before securing the subpoena. That
means that the State secured court approval. Thus, “the two procedural gateways” for the State are notice and, if
the defendant objects, a finding by a trial judge that the records are relevant.

If the medical records and reports are directly related to the incident, the relevancy test is met, and the fact that
the State has other incriminating evidence, including other alcohol test results, is not a proper basis for the court
to prevent issuance of the subpoena.24 Thus, the fact that the officer could have secured a blood sample based on
some provision of the implied consent law, such as forcible extraction arising out of a serious accident, does not

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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

prevent the State from securing a medical blood draw. 25 But a trial judge rejected the contention that the
relevancy test was met based solely on the State’s desire to secure the names of witnesses who might have seen
the defendant at the hospital.26 The judge observed that “if a general search for witnesses is sufficient to obtain
the medical records then medical records could be obtained in all cases since there would always be the
potential of witness discovery.”27

There is no doubt that the State must either have the defendant’s consent or issue the required notice before
serving the subpoena. Furthermore, if the State fails to follow the proper procedure, Rutherford holds that the
State cannot cure the problem by giving notice and having a relevancy determination made preceding the
issuance of a second subpoena.28 However, State v. Manney holds that the State can cure the problem by
compliance, but it must show relevance by reliance on a source other than the improperly secured test results. 29

In State v. Johnson,30 the Court resolved the conflict between the district courts. The Court disapproved the
position in Rutherford that the State can never cure its error by properly securing and executing a second
subpoena. However, the Court also disapproved the position in Manney that the State can always cure its error
by properly securing and executing a second subpoena. Instead, the Court ruled that the State will be barred
from curing its error only where it does not make a good faith effort to comply with the procedural requirements
of the statute.31

In State v. Johnson,32 the Court gave an idea of what would be considered a good faith attempt to comply with
the statute. The Court specifically declined to find that the State failed to make such an attempt. 33 “An important
consideration in this case is the State’s repeated attempts to meet the statutory requirements, and the fact that
some of the effort was misdirected is not dispositive and should not result in a per se rule that prohibits future
compliance.”34

In contrast to the situation in Johnson, in State v. Cashner,35 the court found substantial competent evidence that
the State did not act in good faith, where the State provided a notice to the defendant that was so defective it
was tantamount to no notice at all,36 and the prosecutor’s investigator even refused to speak to the defendant
unless he was brought in for an interview. Thus, the court upheld the trial court’s suppression of the medical
records. Also, in Mullis v. State,37 the court rejected the State’s claim of good faith where a detective
acknowledged that he made absolutely no effort to give notice or secure a subpoena as required by statute.

Whether the State acted in good faith is generally based solely on analysis of factual missteps; however, in
Sneed v. State,38 a second degree murder case, the court considered a claim of good faith based on a detective’s
lack of knowledge of the law. In that case, a detective secured the defendant’s medical records from a hospital
without complying with notice requirements or securing a subpoena. The State later followed the proper
procedure. The detective swore that he did this without consulting with the State Attorney and without
knowledge of the statutory requirements. Ultimately, the trial judge found that the State did not act in good
faith. On appeal, the court affirmed.39 Thus, the State was improperly given a second bite at the apple.

In Povilaitis v. State,40 the court considered a DUI where the investigating officer did as the detective in Sneed,
but, unlike the detective in Sneed, the officer knew that he was required to secure a subpoena. Indeed, that is
precisely what the officer said. Instead, the doctor showed the results of the defendant’s blood tests to the
officer and provided him with a copy of the urinalysis results. The defendant filed a motion to suppress the test
results that the officer had seen. After that, the State filed a motion for authorization to issue a subpoena for
those records. The trial judge denied the defense motion and granted the prosecution’s motion. On appeal, the
court reversed on the grounds that the Supreme Court’s decision in Johnson41 was not controlling, because the
State made no good faith effort to secure the records by subpoena until after the defendant’s privacy rights had
been violated. In fact, the State made no effort at all to comply with the law before the improper police
conduct.42

Two district court cases have also addressed the state’s reliance on ignorance in a DUI case as a method of
meeting the good faith requirement of Johnson. In State v. Kutik,43 the officer was investigating an accident
resulting in death and serious bodily injury and had probable cause to order a legal blood draw, but failed to do

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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

so. Instead, almost two days later the officer secured the medical records and medical blood draw results
without the defendant’s permission. He mistakenly used a form that was supposed to be used to request a legal
blood draw. Fourteen months later the State sought a subpoena for the defendant’s medical records and gave
proper notice pursuant to § 395.3025, Fla. Stat. to the defendant’s lawyer. The defendant objected because
the officer failed to act in good faith when he first secured the medical records and the medical blood draw
results. The court agreed and said: “Although [the officer] may not have known the statutory requirements of
section 395.3025, that ignorance does not establish good faith.”44

The court reached the same conclusion in Frank v. State.45 The court rejected the argument that the trial court’s
finding that the officer did not act in bad faith was the same as finding that the officer acted in good faith. The
court took this position because:

Florida law holds that police officers are charged with knowledge of the law. See Doctor v.
State, 596 So. 2d 442, 447 (Fla. 1992). The ‘good faith’ exception is based on an objective
standard and expects officers to know the law. (citation omitted) Consequently, a law enforcement
officer’s misapprehension of the law does not equate to good faith. (citation omitted). 46

Both Kutik and Frank and the other authorities discussed herein make it clear that there is no premium on lack
of knowledge in dealing with this issue. It may well lead to the exclusion of otherwise admissible blood test
results.

State v. Salle-Green47 involves a fatality and confusion. The trial judge suppressed both legal and medical blood
draw results for the same reason—there were no facts at the initial hearing showing a factual basis for either
blood draw and the trooper could not remember why he ordered the legal blood draw. The State sought
rehearing as to the medical blood test results and presented facts establishing probable cause. Although the trial
judge acknowledged that the ruling might have been different if the facts had been presented, the judge denied
the State’s motion. On appeal, the court concluded that the State should have had a second chance to get the
medical blood test results in evidence because there was no indication the trooper acted improperly. By statute,
he could have properly sought a blood sample if medical personnel had told him that the defendant’s blood
alcohol level was above the legal limit. The trooper and nurse testified that a legal blood draw was done, but
they could not remember whether it was because of the medical test results. “The trooper’s actions do not
amount to bad faith requiring the suppression of [the defendant’s] medical records.” 48

The circuit and county courts have also considered the evidence that the State must produce to meet its burden
for issuance of a subpoena. One trial court ruled that medical records were relevant and subject to a Section
27.04 subpoena even though the defendant was hospitalized after the arrest for reasons other than being in an
accident.49 In another case,50 the trial court ruled that the State met the necessary standards of relevance for
issuance of a subpoena where the evidence showed that the suspect was at fault in a motor vehicle accident in
Florida, and at the time, he was under the influence of alcohol to some extent. In another case, 51 the court found
that the medical records of the defendant’s minor child were relevant and a subpoena could be issued for those
records. The evidence showed that the defendant was driving at the time of a crash, was under the influence of
alcohol to some extent, and had a .08 or above blood alcohol reading. The evidence also showed that the minor
child was injured in the accident. Thus, the court found that the child’s medical records were relevant to the
severity of the injuries and the possibility of a more serious DUI charge. The court also found that the State met
its burden where the bad driving, indicia of alcohol impairment, and admissions established relevancy. 52

Usually, the issue of notice involves some direct effort by the State to secure medical records. In one instance,
however, a civil lawyer, who had secured the defendant’s medical records pursuant to a civil subpoena, turned
part of them over to the prosecutor. 53 The State requested the rest of the records. The court found that the civil
attorney may have violated the statutory notice requirements, but he was not the State’s agent and the State
committed no error in accepting the records.

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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

The Legislature has crafted a limited exception to these confidentiality rules in the determination of probable
cause.54 The statute55 permits disclosure to law enforcement officers of blood alcohol level results by health care
providers. Those results may be used solely for the purpose of providing an officer with reasonable cause to
request a blood sample. This limited exception applies only where the defendant was being treated at a health
care facility when the sample was secured. The defendant must have been injured in a motor vehicle crash.
Within a reasonable time after the health care provider gets results that are above the legal limit, the health care
provider may give notice to law enforcement. The notice may contain only the name of the patient, the name of
the person who drew the blood, the blood alcohol level, and the date and time of the test. The statute
specifically exempts health care providers from any statutory confidentiality provisions under these limited
circumstances. It also provides for immunity from civil, criminal, or administrative action for anyone
participating in good faith in providing or failing to provide the statutory notice.

There is authority suggesting that officers need not rely on this statutory exception to confidentiality nor do they
need to go through the procedure of getting a subpoena, if they already have probable cause before securing a
blood sample or a medical blood test result. Thus, in Thomas v. State,56 the court stated that where an officer
could have lawfully secured a blood sample pursuant to the implied consent law, the fact that he verbally
requested and obtained the results of a medical blood draw from a nurse, instead of requesting a legal blood
draw, did not justify “exclusion of the medical records subsequently obtained pursuant to the state’s
subpoena.”57 The court noted that section 316.1933(2)(a) provides: “the failure of a law enforcement officer
to request the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical
purposes.”58 Perhaps of even greater importance, the court concluded that even if the officer had made the verbal
request without probable cause, the request would not justify exclusion of medical records subsequently secured
by subpoena with prior notice to the defendant. The court relied on State v. Johnson59 to support this conclusion.

The holding in Thomas finds additional support in Cameron v. State60 which was a boating while under the
influence case. In Cameron, after a fatal boating accident, an officer lawfully requested a hospital nurse to draw
a blood sample from the defendant, but the nurse actually secured the blood sample before the officer requested
it. Subsequently, the officer got the sample from the hospital by court order issued pursuant to the implied
consent law and it was tested. Since the sample was not taken in response to the officer’s request and it was a
medical blood draw, the defendant argued that the test results should have been excluded. As in Thomas,61 the
court rejected this contention. The decision was based on these statutory provisions: (1) everyone operating a
vessel in this state impliedly consents to the taking of a sample under the circumstances that were present in this
case; (2) despite confidentiality provisions, information relating to the alcoholic content of the blood or breath
shall be released upon request to a court, prosecuting attorney, defense attorney, or law enforcement officer in
connection with an alleged violation of the BUI law; and (3) the failure of an officer to request a blood draw
does not affect the admissibility of results from a medical blood draw.62

In State v. Kutik,63 the State relied on Thomas64 in support of its argument that the trial judge erred in suppressing
blood test results contained in medical records. As in Thomas, an officer secured the test results from the
hospital without notice or subpoena. Months later, the State secured the medical records by subpoena with
proper notice to the defendant. Unlike Thomas,65 in Kutik,66 the court concluded that the fact that the officer
secured the results of the medical blood test before issuance of the subpoena required suppression of the
medical records secured by the subpoena. In Kutik,67 the court observed that the statute allows disclosure of
medical blood alcohol test results to law enforcement without a subpoena when the patient is in a motor vehicle
accident, the patient’s blood alcohol level exceeds the legal limit, and the information is provided to officers a
reasonable time after the results become known to medical personnel. But the court stressed that this is only for
the purpose of establishing probable cause for a legal blood draw pursuant to the implied consent law. 68
According to the ruling in Kutik,69 an officer’s failure to secure a legal blood draw under the implied consent
law does not permit him to secure a medical blood draw without following the proper procedure. Additionally,
such a failure does not establish good faith allowing the State to secure the medical records with notice to the
defendant at a later time.70

If the foregoing rules and procedures are followed, a medical blood test result is usually going to be admissible
upon establishing the foundations discussed in other parts of this book. Those would include either the
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traditional scientific predicate or the business records predicate. The fact that a legal blood sample could not be
secured under the implied consent law does not generally affect the State’s right to subpoena the results of a
voluntary medical blood test.71 Similarly, the fact that the defendant’s license was suspended for failure to
comply with the officer’s request for a blood draw under the implied consent law does not preclude the State
from using a lawfully secured medical blood test. 72 However, some county judges concluded that where the
defendant refused a blood test at the hospital, medical test results were inadmissible because it would punish the
defendant twice and nullify the defendant’s right to refuse to submit to the blood test. 73 Recently, the Second
District specifically rejected those decisions and ruled that medical test results are admissible notwithstanding a
refusal to submit to a blood test.74

A three-judge circuit court appellate panel 75 considered a claim that medical blood test results should be
excluded because the officer had transported the defendant to the hospital just to manufacture evidence. The
court rejected this contention because the defendant had minor facial injuries that prevented him from giving a
breath sample, but the detention facility would not accept the defendant until he received treatment for his
injuries. Thus, the court found that the deputy was following the admissions policy at the jail and not trying to
manufacture medical records. A trial judge reached the same conclusion under very similar circumstances
where the State had followed the proper procedure to subpoena medical records. 76

Although all of the foregoing rules and procedures generally deal with medical records or reliance on those
records, the defendant in one case77 argued that they also applied to the medical personnel’s observations of the
defendant. The court rejected this contention and ruled that Rutherford78 does not apply to such evidence.

The State may choose a more intrusive method than a subpoena for securing medical records. It may seek a
search warrant for those records. While this procedure has a much broader potential impact on the privacy
interest of those whose property is subject to the warrant, in Limbaugh v. State,79 the court held that the state’s
authority to seize medical records with a warrant is not affected by any right of privacy in the records. The court
concluded that Florida Constitution, Article I, Section 23 (Florida’s privacy provision); § 395.3025(4), Fla.
Stat.; and § 456.057(5)(a), Fla. Stat. all apply only to the State’s use of its subpoena power to secure medical
records.80 They do not apply to the State’s use of search warrants to secure those records. 81 The court recognized
that individuals may seek subsequent relief from the court to ensure that all of the seized records are within the
scope of the warrant and to prevent improper disclosures of irrelevant records. 82

The State put the foregoing rules to the test in a DUI case in Farrall v. State.83 There the State initially gave the
defendant a 10 day notice that it intended to subpoena his hospital records. Before a hearing, the State got the
records with a valid search warrant. As in Limbaugh,84 the court ruled that this use of the warrant was proper,
and the statutory notice requirement only applies to subpoenas. “Obtaining a search warrant … requires a higher
threshold of proof. The state must show probable cause that the records are relevant to the commission of a
crime. See § 933.02(3), Fla. Stat. (2000). As a result, no notice or adversarial hearing is required.”85

Notwithstanding the foregoing rules governing collection of medical test results, traditional discovery rules
apply to such results once the State secures them. Thus, in State v. Eaton,86 the court held that the trial judge
improperly excluded the test results in a pretrial hearing where the State willfully failed to provide notice of
intent to use test results as required by Fla. R. Crim. P. 3.220(b). The court found that this was an extreme
sanction because any prejudice could have been cured by ordering production of the test results and continuing
the trial.87

Different standards apply to legal blood and medical blood draws. 88 In State v. Sclafani89 the court said that the
former must comply with administrative regulations, but the latter must comply with the traditional predicate
for scientific evidence. The Florida Supreme Court has made it clear that this language was dicta and the
standard for the admissibility of medical blood draws is much easier.90

In Baber v. State,91 the Court concluded that its previous ruling that the proponent of blood evidence in criminal
cases must show reliability, the technician’s qualifications, and the meaning of the test results was superseded

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by its decision in Love v. Garcia,92 holding that blood alcohol test results contained in medical records are
admissible as business records in civil cases.

In Baber v. State,93 the Supreme Court concluded that the Confrontation Clause does not bar the introduction of
such records in criminal cases and Love94 applies to criminal cases, but the defendant must be given a full and
fair opportunity to contest the trustworthiness of the records before they are admitted. After Baber,95 the United
Stated Supreme Court rendered its decision in Crawford v. Washington,96 where the Court held that the
Confrontation Clause bars the introduction of many out-of-court statements made in anticipation of litigation.

After Crawford,97 in Johnson v. State,98 the Court reaffirmed its position: “The record in Baber was produced for
the purpose of diagnosis and treatment and not at the behest of law enforcement officers.” However, given the
developments in Fourth Amendment law, there are new incentives for law enforcement to encourage medical
blood draws that may not truly be needed for a medical purpose, which may raise Crawford99 issues.

But right now it is clear that the State can introduce medical blood alcohol test results simply through the
hospital custodian of records. Nevertheless, a wealth of authority holds that no statutory presumption arises
from a blood test administered outside of the implied consent law. 100 Thus, the State is not entitled to the
statutory presumptions when it must rely on the traditional scientific predicate to establish a foundation for the
introduction of test results.101 The same would seem to apply to test results from medical records introduced
merely through the custodian. Given the recent change in the standard jury instructions eliminating the statutory
presumption of impairment, the significance of this is no longer clear.102

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.1933(2)(a), Fla. Stat.
2
Lawlor v. State, 538 So. 2d 86 (Fla. 1st DCA 1989) (technician took two samples for medical purposes
and two in anticipation of a request from law enforcement and they were all found admissible).
3
§ 316.1932(1)(c), Fla. Stat. deals with the withdrawal of blood where the defendant is admitted to a
medical facility and it is impractical or impossible to administer a breath or urine test. § 316.1933,
Fla. Stat. deals with the withdrawal of blood where the defendant is involved in an accident resulting in
death or serious bodily injury.
4
Formerly § 395.017, Fla. Stat.
5
§ 395.3025, Fla. Stat.; § 456.057, Fla. Stat. (formerly § 455.667, formerly § 455.241), includes a
similar provision.
6
State v. Wenger, 560 So. 2d 347 (Fla. 5th DCA 1990).
7
Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994), review denied, 649 So. 2d 233 (Fla. 1994). See
also Cerroni v. State, 823 So. 2d 150 (Fla. 5th DCA 2002); State v. Rivers, 787 So. 2d 952 (Fla. 2d
DCA 2001); State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997) (disapproved of on other
grounds by, State v. Johnson, 814 So. 2d 390 (Fla. 2002)); Ussery v. State, 654 So. 2d 561 (Fla.
4th DCA 1995).
8
In Re Investigation of Daniel William Mannings, 20 Fla. L. Weekly Supp. 623 (Fla. Leon Cty. Ct.

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March 13, 2013)Investigation of Daniel William Mannings, 20 Fla. L. Weekly Supp. 623 (Fla. Leon
Cty. Ct. March 13, 2013) (subpoena quashed because State did not give 10-day notice, subpoena was not
attached to notice, only gave name of hospital and not a specific individual, nothing in subpoena said
that person who was to produce the documents had the right to object, and State sent a copy to the
medical records section at the hospital; since, the State had no explanation for these violations, the court
could not find that this was a good faith mistake; therefore, the State did not get a second chance and the
evidence was excluded).
9
State v. Bratkowski, 11 Fla. L. Weekly Supp. 452 (Fla. Dade Cty. Ct. March 26, 2004)State v.
Bratkowski, 11 Fla. L. Weekly Supp. 452 (Fla. Dade Cty. Ct. March 26, 2004) (the trial judge
specifically declined to rule that notice by U.S. Mail would be sufficient in all cases).
10
Devers–Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998).
11
Klossett v. State, 763 So. 2d 1159 (Fla. 4th DCA 2000).
12
McAlevy v. State, 947 So. 2d 525, 529 (Fla. 4th DCA 2006); Cerroni v. State, 823 So. 2d 150 (Fla.
5th DCA 2002). See also Faber v. State, 157 So. 3d 429 (Fla. 3d DCA 2015); Tyson v. State, 114 So. 3d
443, 445 (Fla. 5th DCA 2013).
13
McAlevy v. State, 947 So. 2d 525, 530 (Fla. 4th DCA 2006); Cerroni v. State, 823 So. 2d 150 (Fla.
5th DCA 2002).
14
McAlevy v. State, 947 So. 2d 525 (Fla. 4th DCA 2006). See also State v. Proeh, 25 Fla. L. Weekly
Supp. 428 (Fla. 17th Cir. Ct. March 31, 2017)State v. Proeh, 25 Fla. L. Weekly Supp. 428 (Fla. 17th Cir.
Ct. March 31, 2017) (court reversed order quashing subpoena for medical blood test results; after a one
car accident, Defendant was transported to the hospital where there was a medical blood draw;
Defendant argued that the compelling state interest requirement was not met because the State failed to
show relevancy; the court ruled: PC affidavit established relevance because it “alleged that the
Defendant was driving under the influence of alcohol, showed signs of impairment, and crashed into the
utility pole. The blood test results are relevant to determine the blood alcohol level of impairment in the
DUI investigation.”); State v. Rebholz, 24 Fla. L. Weekly Supp. 213 (Fla. 17th Cir. Ct. June 10,
2016)State v. Rebholz, 24 Fla. L. Weekly Supp. 213 (Fla. 17th Cir. Ct. June 10, 2016) (“court can rely
on the State’s argument and accident report or probable cause affidavit to establish relevance”).
15
Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994), review denied, 649 So. 2d 233 (Fla. 1994).
16
McAlevy v. State, 947 So. 2d 525 (Fla. 4th DCA 2006). See also Guardado v. State, 61 So. 3d 1210,
1213 (Fla. 4th DCA 2011).
17
Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA 2011) (State admitted that a legal blood draw had been
secured without probable cause and then relied solely on the results of the legal blood draw to secure a
subpoena for a medical blood draw; “no police reports, arrest affidavits, or other documents were
presented to the court.”).
18
Guardado v. State, 61 So. 3d 1210, 1214 (Fla. 4th DCA 2011). See also State v. Cooper, 25 Fla. L.
Weekly Supp. 1020 (Fla. Volusia Cty. Ct. Nov. 18, 2017) (court denied request for subpoena because
officer did not prove there was a reasonable suspicion of DUI, which was necessary to establish a
compelling State interest; accident report was the only evidence and it indicated Defendant appeared
“‘lethargic and spoke slowly’” and after a crash she went to the hospital; Defendant drifted partially into
a turn lane and struck the other vehicle from behind, but there was no argument or evidence that the
driving pattern or crash was evidence of impairment; crash alone without any evidence of impairment by
alcohol or controlled substances was insufficient to establish a compelling State interest).
19
Hunter v. State, 639 So. 2d 72, 74 (Fla. 5th DCA 1994), review denied, 649 So. 2d 233 (Fla. 1994).
See also Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA 2011); McAlevy v. State, 947 So. 2d 525,
529 (Fla. 4th DCA 2006); State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997) (disapproved of

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on other grounds by, State v. Johnson, 814 So. 2d 390 (Fla. 2002)); State v. Bratkowski, 11 Fla. L.
Weekly Supp. 452 (Fla. Dade Cty. Ct. March 26, 2004)State v. Bratkowski, 11 Fla. L. Weekly Supp.
452 (Fla. Dade Cty. Ct. March 26, 2004) (holding that not all the medical records would be relevant, and
the defendant’s privacy interests require that the state’s subpoena “be limited to those medical records
that contain information regarding the presence of alcohol, chemical substances or controlled
substances”).
20
Shaktman v. State, 553 So. 2d 148 (Fla. 1989). See also McAlevy v. State, 947 So. 2d 525, 529 (Fla.
4th DCA 2006).
21
State v. Johnson, 814 So. 2d 390 (Fla. 2002).
22
State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002).
23
State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997) (disapproved of on other grounds by,
State v. Johnson, 814 So. 2d 390 (Fla. 2002)). See also Tyson v. State, 114 So. 3d 443, 445 (Fla. 5th
DCA 2013); State v. Rivers, 787 So. 2d 952 (Fla. 2d DCA 2001); Clark v. State, 705 So. 2d 1057
(Fla. 4th DCA 1998), review denied, 718 So. 2d 171 (Fla. 1998).
24
State v. Rivers, 787 So. 2d 952 (Fla. 2d DCA 2001). See also State v. Rebholz, 24 Fla. L. Weekly
Supp. 213 (Fla. 17th Cir. Ct. June 10, 2016)State v. Rebholz, 24 Fla. L. Weekly Supp. 213 (Fla. 17th
Cir. Ct. June 10, 2016) (the trial judge’s belief that a breath test result alone provided enough evidence
did not justify a ruling that medical records were not relevant to the criminal investigation).
25
State v. Thomas, 7 Fla. L. Weekly Supp. 786 (Fla. 13th Cir. Ct. Aug. 30, 2000)State v. Thomas, 7 Fla.
L. Weekly Supp. 786 (Fla. 13th Cir. Ct. Aug. 30, 2000).
26
State v. Parker, 10 Fla. L. Weekly Supp. 644 (Fla. Bay Cty. Ct. June 2, 2003)State v. Parker, 10 Fla. L.
Weekly Supp. 644 (Fla. Bay Cty. Ct. June 2, 2003). See also State v. Welch, 12 Fla. L. Weekly Supp.
1186 (Fla. Bay Cty. Ct. Sept. 30, 2005).
27
State v. Parker, 10 Fla. L. Weekly Supp. 644 (Fla. Bay Cty. Ct. June 2, 2003)State v. Parker, 10 Fla. L.
Weekly Supp. 644 (Fla. Bay Cty. Ct. June 2, 2003).
28
State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997), disapproved of by State v. Johnson,
814 So. 2d 390 (Fla. 2002).
29
State v. Manney, 723 So. 2d 928 (Fla. 5th DCA 1999), disapproved of by State v. Johnson, 814
So. 2d 390 (Fla. 2002).
30
State v. Johnson, 814 So. 2d 390 (Fla. 2002).
31
As pointed out in Jenkins v. State, 924 So. 2d 20, 31-32 (Fla. 2d DCA 2006), decision approved, 978
So. 2d 116 (Fla. 2008), the Court in Johnson utilizes the exclusionary rule as a remedy for violation of
statutory rights, but only where the state fails to show good faith. See also State v. Kutik, 914 So. 2d
484, 488 (Fla. 5th DCA 2005).
32
State v. Johnson, 814 So. 2d 390 (Fla. 2002).
33
The State’s investigator first tried to find the defendant at the hospital, but she had been discharged. He
then tried to get her address from the state attorney’s database. He went to her last known address and
tried to personally serve her with notice, but she no longer lived there. The investigator secured
information that the defendant was in another city. He went there and unsuccessfully tried to get an
address from the local police. He also contacted others who might know where the defendant was, but
could not locate her. The investigator unwisely failed to check the state’s driver’s license records and to

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contact the post office for a forwarding address. Both of those sources would have produced the correct
address.
34
State v. Johnson, 814 So. 2d 390, 394 (Fla. 2002).
35
State v. Cashner, 819 So. 2d 227 (Fla. 4th DCA 2002).
36
“The responsible attorney’s name, Florida Bar number, room number, or even telephone number where
she or he could be reached, were not typed or printed on the notices. There was a signature, but it was
illegible.” Furthermore, since no charge had been filed, the defendant could not find a case number.
State v. Cashner, 819 So. 2d 227, 228 (Fla. 4th DCA 2002).
37
Mullis v. State, 79 So. 3d 747 (Fla. 2d DCA 2011) (Defendant was accused of securing prescriptions
by withholding information; detective obtained statements from defendant’s doctors without notice or a
subpoena in violation of § 456.057, Fla. Stat.). See also State v. Sun, 82 So. 3d 866 (Fla. 4th
DCA 2011) (same).
38
Sneed v. State, 876 So. 2d 1235 (Fla. 3d DCA 2004).
39
Sneed v. State, 876 So. 2d 1235 (Fla. 3d DCA 2004).
40
Povilaitis v. State, 10 Fla. L. Weekly Supp. 976 (Fla. 15th Cir. Ct. Oct. 3, 2003)Povilaitis v. State, 10
Fla. L. Weekly Supp. 976 (Fla. 15th Cir. Ct. Oct. 3, 2003).
41
State v. Johnson, 814 So. 2d 390 (Fla. 2002).
42
Povilaitis v. State, 10 Fla. L. Weekly Supp. 976 (Fla. 15th Cir. Ct. Oct. 3, 2003)Povilaitis v. State, 10
Fla. L. Weekly Supp. 976 (Fla. 15th Cir. Ct. Oct. 3, 2003) (the court did not comment on the
applicability of §§ 316.1932(1)(f)2.b. and 316.1933(2)(a)1., Fla. Stat., which permit disclosure of
blood alcohol level test results to officers, and is explained hereafter in this section). See also State v.
Zutell, 17 Fla. L. Weekly Supp. 504 (Fla. 2d Cir. Ct. March 26, 2010)State v. Zutell, 17 Fla. L. Weekly
Supp. 504 (Fla. 2d Cir. Ct. March 26, 2010) (where officer secured Marchman Act records, including
b.a.l., without a subpoena or warrant, the trial judge properly suppressed test results; to have a second
opportunity to properly subpoena records, the State had to show a good faith attempt, and since there
was no showing how the officer got the records without a subpoena or warrant, there was no showing of
good faith; the absence of bad faith is not the same as good faith); State v. Meany, 13 Fla. L. Weekly
Supp. 1106 (Fla. Broward Cty. Ct. July 12, 2006) (failure to send notice to defendant until two days
after officer retrieved hospital records, warranted exclusion of medical records).
43
State v. Kutik, 914 So. 2d 484, 488 (Fla. 5th DCA 2005).
44
State v. Kutik, 914 So. 2d 484, 488 (Fla. 5th DCA 2005).
45
Frank v. State, 912 So. 2d 329 (Fla. 5th DCA 2005).
46
Frank v. State, 912 So. 2d 329, 331 (Fla. 5th DCA 2005).
47
State v. Salle-Green, 93 So. 3d 1169 (Fla. 2d DCA 2012).
48
State v. Salle-Green, 93 So. 3d 1169, 1173 (Fla. 2d DCA 2012).
49
State v. Schoen, 6 Fla. L. Weekly Supp. 512 (Fla. Palm Beach Cty. Ct. May 6, 1999)State v. Schoen, 6
Fla. L. Weekly Supp. 512 (Fla. Palm Beach Cty. Ct. May 6, 1999).
50
In re: A Pending Criminal Investigation, 6 Fla. L. Weekly Supp. 344 (Fla. Palm Beach Cty. Ct. March
24, 1999)A Pending Criminal Investigation, 6 Fla. L. Weekly Supp. 344 (Fla. Palm Beach Cty. Ct.
March 24, 1999).
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51
In re: A Pending Criminal Investigation, 6 Fla. L. Weekly Supp. 176 (Fla. 15th Cir. Ct. Dec. 22, 1998)A
Pending Criminal Investigation, 6 Fla. L. Weekly Supp. 176 (Fla. 15th Cir. Ct. Dec. 22, 1998).
52
State v. Silvestri, 8 Fla. L. Weekly Supp. 573 (Fla. Palm Beach Cty. Ct. June 29, 2001)State v. Silvestri,
8 Fla. L. Weekly Supp. 573 (Fla. Palm Beach Cty. Ct. June 29, 2001) (“The defendant’s vehicle drifted
off the road onto the median then back to the road, the defendant put on his left turn signal from the right
lane, crossed three lanes of traffic to make U–Turn, while attempting U–Turn, the defendant again
crossed three lanes of traffic going into the hazard lane and back into the road, the officer detected a
strong odor of alcohol, slurred speech, flushed face, red and watery eyes, the defendant had trouble with
his balance, refused to do roadside sobriety tasks, and stated that he had a couple of drinks and had been
at three bars.”).
53
State v. Edwards, 650 So. 2d 630 (Fla. 2d DCA 1994).
54
In the case probably leading to this change, the court relied on Wenger to justify the conclusion that an
officer could not rely on the defendant’s treating physician’s statement, which was based solely on the
results of diagnostic tests, to establish probable cause. The doctor provided the information in violation
of the doctor/patient privilege set forth in § 395.017(3)(d), Fla. Stat. State v. Buchanon, 610 So. 2d 467
(Fla. 2d DCA 1992), review denied, 623 So. 2d 495 (Fla. 1993). This has been changed by the
Legislature.
55
§§ 316.1932(1)(f)2.b., 316.1933(2)(a)1., Fla. Stat.
56
Thomas v. State, 820 So. 2d 382, 384 (Fla. 2d DCA 2002), review denied, 894 So. 2d 973 (Fla.
2006).
57
Thomas v. State, 820 So. 2d 382, 384 (Fla. 2d DCA 2002), review denied, 894 So. 2d 973 (Fla.
2006). See also State v. Salle-Green, 93 So. 3d 1169 (Fla. 2d DCA 2012); State v. Price, 11 Fla. L.
Weekly Supp. 354 (Fla. Monroe Cty. Ct. Feb. 10, 2004)State v. Price, 11 Fla. L. Weekly Supp. 354 (Fla.
Monroe Cty. Ct. Feb. 10, 2004).
58
Thomas v. State, 820 So. 2d 382, 384 (Fla. 2d DCA 2002), review denied, 894 So. 2d 973 (Fla.
2006).
59
State v. Johnson, 814 So. 2d 390 (Fla. 2002).
60
Cameron v. State, 804 So. 2d 338 (Fla. 4th DCA 2001), review denied, 832 So. 2d 103 (Fla. 2002).
61
Thomas v. State, 820 So. 2d 382 (Fla. 2d DCA 2002), review denied, 894 So. 2d 973 (Fla. 2006).
62
Cameron v. State, 804 So. 2d 338 (Fla. 4th DCA 2001), review denied, 832 So. 2d 103 (Fla. 2002).
63
State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005).
64
Thomas v. State, 820 So. 2d 382 (Fla. 2d DCA 2002), review denied, 894 So. 2d 973 (Fla. 2006).
65
Thomas v. State, 820 So. 2d 382 (Fla. 2d DCA 2002), review denied, 894 So. 2d 973 (Fla. 2006).
66
State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005).
67
State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005).
68
State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005).

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69
State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005).
70
State v. Kutik, 914 So. 2d 484 (Fla. 5th DCA 2005).
71
Schirle v. State, 12 Fla. L. Weekly Supp. 440 (Fla. 15th Cir. Ct. Feb. 23, 2005)Schirle v. State, 12 Fla.
L. Weekly Supp. 440 (Fla. 15th Cir. Ct. Feb. 23, 2005).
72
State v. Horn, 12 Fla. L. Weekly Supp. 130 (Fla. 17th Cir. Ct. Nov. 2, 2004)State v. Horn, 12 Fla. L.
Weekly Supp. 130 (Fla. 17th Cir. Ct. Nov. 2, 2004).
73
State v. Makin, 16 Fla. L. Weekly Supp. 430 (Fla. Leon Cty. Ct. July 15, 2008)State v. Makin, 16 Fla. L.
Weekly Supp. 430 (Fla. Leon Cty. Ct. July 15, 2008); State v. Godfrey, 7 Fla. L. Weekly Supp. 627 (Fla.
Broward Cty. Ct. June 12, 2000)State v. Godfrey, 7 Fla. L. Weekly Supp. 627 (Fla. Broward Cty. Ct.
June 12, 2000).
74
Laws v. State, 145 So. 3d 937 (Fla. 2d DCA 2014). See also State v. Trent, 20 Fla. L. Weekly Supp. 110
(Fla. 20th Cir. Ct. May 17, 2012)State v. Trent, 20 Fla. L. Weekly Supp. 110 (Fla. 20th Cir. Ct. May 17,
2012).
75
State v. Doolittle, 7 Fla. L. Weekly Supp. 721 (Fla. 15th Cir. Ct. Aug. 24, 2000) State v. Doolittle, 7 Fla.
L. Weekly Supp. 721 (Fla. 15th Cir. Ct. Aug. 24, 2000). See also State v. Tuttle, 20 Fla. L. Weekly
Supp. 108 (Fla. 15th Cir. Ct. June 11, 2012)State v. Tuttle, 20 Fla. L. Weekly Supp. 108 (Fla. 15th Cir.
Ct. June 11, 2012) (even though defendant had been medically cleared at the scene of an accident and
there was no written policy concerning admission to the jail, court would not disapprove jail nurse’s
decision to require medical clearance before allowing defendant into custody or suppress subsequent
medical blood draw; such matters are within “the province of the executive and legislative branches of
government.”).
76
State v. Hartley, 14 Fla. L. Weekly Supp. 1165 (Fla. Brevard Cty. Ct. Sept. 18, 2007) (after lawful arrest
for DUI and possession of marijuana, defendant refused breath test and started vomiting and going in
and out of consciousness; jail staff (may have been nurses) would not accept defendant until he was
medically cleared; deputy had never had that happen before, but was aware of jail policy; without
request from defendant, deputy took defendant to emergency room; hospital took blood and urine
samples; deputy did not ask for the tests, but was present because defendant was in custody); State v.
Tuttle, 20 Fla. L. Weekly Supp. 108 (Fla. 15th Cir. Ct. June 11, 2012)State v. Tuttle, 20 Fla. L. Weekly
Supp. 108 (Fla. 15th Cir. Ct. June 11, 2012) (defendant, who had been in an accident, would not let jail
nurse examine him so he was taken to the hospital; ER personnel drew blood for medical purposes and
not at the request of the officer; there was no Fourth Amendment violation because the people who drew
the blood were not officers nor were they acting at the request or encouragement of the police; the
officer’s mere presence did not change the character of the blood draw; the result was properly secured
by subpoena). But see State v. McKendrick, 12 Fla. L. Weekly Supp. 336 (Fla. 17th Cir. Ct. Nov. 30,
2004)State v. McKendrick, 12 Fla. L. Weekly Supp. 336 (Fla. 17th Cir. Ct. Nov. 30, 2004) (State failed
to meet burden of showing that breath test was impractical or impossible where trooper said he could not
have gotten a breath test because the jail would never have taken the defendant in his condition, but
there was no testimony as to jail policy or that the trooper asked anyone at the jail); State v. O’Brien, 12
Fla. L. Weekly Supp. 217 (Fla. 13th Cir. Ct. Nov. 1, 2004)State v. O’Brien, 12 Fla. L. Weekly Supp.
217 (Fla. 13th Cir. Ct. Nov. 1, 2004) (same holding as in McKendrick).
77
State v. Zezzo, 7 Fla. L. Weekly Supp. 539 (Fla. 20th Cir. Ct. June 2, 2000)State v. Zezzo, 7 Fla. L.
Weekly Supp. 539 (Fla. 20th Cir. Ct. June 2, 2000).
78
State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997) (disapproved of on other grounds by,
State v. Johnson, 814 So. 2d 390 (Fla. 2002)).
79
Limbaugh v. State, 887 So. 2d 387 (Fla. 4th DCA 2004), review denied, 903 So. 2d 189 (Fla. 2005).
See also State v. Crumbley, 143 So. 3d 1059 (Fla. 2d DCA 2014), review denied, 157 So.3d 1042 (Fla.
2014); State v. Rattray, 903 So. 2d 1015 (Fla. 4th DCA 2005) (where the medical records being seized
were those of patients of a doctor who was the focus of the investigation, there was a privacy interest
that had to be addressed in a post-seizure proceeding, but this is unlikely to come up in a DUI case).
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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

80
Limbaugh v. State, 887 So. 2d 387 (Fla. 4th DCA 2004), review denied, 903 So. 2d 189 (Fla. 2005).
81
Limbaugh v. State, 887 So. 2d 387 (Fla. 4th DCA 2004), review denied, 903 So. 2d 189 (Fla. 2005).
82
Limbaugh v. State, 887 So. 2d 387 (Fla. 4th DCA 2004), review denied, 903 So. 2d 189 (Fla. 2005).
83
Farrall v. State, 902 So. 2d 820 (Fla. 4th DCA 2004).
84
Limbaugh v. State, 887 So. 2d 387 (Fla. 4th DCA 2004), review denied, 903 So. 2d 189 (Fla. 2005).
85
Farrall v. State, 902 So. 2d 820, 821 (Fla. 4th DCA 2004).
86
State v. Eaton, 868 So. 2d 650 (Fla. 2d DCA 2004).
87
State v. Eaton, 868 So. 2d 650 (Fla. 2d DCA 2004).
88
State v. Sclafani, 704 So.2d 128 (Fla. 4th DCA 1997).
89
State v. Sclafani, 704 So.2d 128 (Fla. 4th DCA 1997).
90
Baber v. State, 775 So. 2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149 L.
Ed. 2d 758 (2001).
91
Baber v. State, 775 So. 2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149 L.
Ed. 2d 758 (2001).
92
Love v. Garcia, 634 So. 2d 158 (Fla. 1994).
93
Baber v. State, 775 So. 2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149 L.
Ed. 2d 758 (2001).
94
Love v. Garcia, 634 So. 2d 158 (Fla. 1994).
95
Baber v. State, 775 So. 2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149 L.
Ed. 2d 758 (2001).
96
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
97
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
98
State v. Johnson, 982 So.2d 672, 676 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S.Ct. 28, 171
L.Ed.2d 930 (2008).
99
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
100
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 108 (Fla. 2018) ; State v.
Miles, 775 So. 2d 950 (Fla. 2000); Townsend v. State, 774 So. 2d 693 (Fla. 2000); State v. Sandt, 774
So. 2d 692 (Fla. 2000); Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992); State v. Strong, 504

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§ 5:6.Use of a warrant or other discovery tools to secure..., 11 Fla. Prac., DUI...

So. 2d 758, 759-60 (Fla. 1987); State v. Bender, 382 So. 2d 697, 700 (Fla. 1980); Goodman v.
Florida Dept. of Law Enforcement, 203 So.3d 909, 913 (Fla. 4th DCA 2016); Bruch v. State, 954 So. 2d
1242 (Fla. 4th DCA 2007), review denied, 966 So. 2d 965 (Fla 2007), cert. denied, 128 S. ct. 515, 169
L. Ed 2d 342 (2007); Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002), decision vacated on
other grounds, 896 So. 2d 704 (Fla. 2005) (giving erroneous instruction on presumptions did not
constitute fundamental error even though the opinion declaring such an instruction erroneous was
rendered in another case, while this case was on appeal).
101
State v. Miles, 775 So. 2d 950 (Fla. 2000); Townsend v. State, 774 So. 2d 693 (Fla. 2000); State v.
Sandt, 774 So. 2d 692 (Fla. 2000); State v. Murray, 51 So. 3d 593 (Fla. 5th DCA 2011), review denied,
63 So. 3d 750 (Fla. 2011); Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002), decision vacated
on other grounds, 896 So. 2d 704 (Fla. 2005). In Wilson v. State, 812 So. 2d 452 (Fla. 5th DCA 2002),
dismissed, 833 So. 2d 775 (Fla. 2002), and Curtis v. State, 805 So. 2d 995 (Fla. 1st DCA 2001), review
denied, 821 So. 2d 294 (Fla. 2002), the courts held that these decisions do not apply retroactively.
102
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).

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Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 6 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 6 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

Introduction

INTRODUCTION
Formerly, the Legislature required that all breath and blood tests be administered according to techniques and
methods approved by the Department of Health and Rehabilitative Services (HRS). Subsequently, the
Legislature substituted the Florida Department of Law Enforcement (FDLE) for HRS. 1 Whenever the word
“Department” is used in this text, it is a reference to HRS or FDLE. The statute sets forth in detail the authority
and responsibility of the alcohol testing program, which is operated by the Department of Law Enforcement. 2

Over the years, defendants have attacked the validity of the regulations promulgated pursuant to the statutes on
various grounds. Some of these grounds are discussed in this chapter.

Such regulations are critical because the statute specifically mandates compliance with them for test results to
be admissible.3 Furthermore, as explained in this chapter, if there is statutory compliance, the State is relieved of
the burden of establishing the traditional scientific predicate and receives the benefits of the statutory
presumptions.4 These regulations, and cases interpreting them, are explained in detail in this chapter.

For many years, Florida law enforcement used two breath testing machines—the Intoxilyzer 5000 (I5000) and
the Intoxilyzer 8000 (I8000). Consequently, there were rules for both models. Ultimately, the I8000 replaced
the I5000, but the rules for both instruments were maintained and cases dealing with both instruments were
included in this chapter. In July of 2015 the rules were revised so that all references to the I5000 were
eliminated. In light of the rule revision, there has been an effort to eliminate opinions dealing with the
I5000. Some of those opinions have been retained because they include analysis that might also apply to the
I8000 or may be of some historical significance. And all of the old cases are available in earlier editions.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§§ 316.1932(1)(b) 2., 316.1932(1)(f)1., 316.1933(2)(b), 316.1934(3), Fla. Stat.
2
See appendix for language of the law set forth in § 316.1932(1)(a) 2., Fla. Stat. See also § 322.63,
Fla. Stat.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 6 Introduction (2018-2019 ed.)

3
§§ 316.1932(1)(b) 2., 316.1932(1)(f)1., 316.1933(2)(b), 316.1934(3), Fla. Stat. See also
Gonzalez v. State, 7 Fla. L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999)Gonzalez v. State, 7 Fla.
L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999).
4
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 108 (Fla. 2018); Cardenas v.
State, 867 So. 2d 384 (Fla. 2004); State v. Miles, 775 So. 2d 950 (Fla. 2000); Townsend v. State, 774
So. 2d 693 (Fla. 2000); State v. Sandt, 774 So. 2d 692 (Fla. 2000); Robertson v. State, 604 So. 2d
783 (Fla. 1992); Dodge v. State, 805 So. 2d 990, 994 (Fla. 4th DCA 2001); Tyner v. State, 805 So. 2d
862, 864 (Fla. 2d DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002). But see the recent change to
jury instructions striking the presumption favorable to the State and noting: “It is not necessary to
instruct on the ‘prima facie evidence of impairment’ in § 316.1934(2)(c), Fla. Stat. if the State
charged the defendant with driving with a blood or breath-alcohol level of .08 or over.” In re Standard
Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190, 1198 (Fla. 2016).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:1. Validity of regulations

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 422

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

Over the years there have been many cases dealing with attacks on the implied consent rules. These attacks
have accomplished two things. First, they have established certain principles that control trial court review of
administrative regulations. Second, they have disposed of some attacks that might be made on the existing
administrative scheme.

Consider the general principles that have been established or clarified concerning trial court review of
administrative rules. The trial court may rule on challenges to the validity of administrative rules in a criminal
case.1 In Lanoue v. Florida Dep’t of Law Enforcement,2 the court held that one charged with DUI and having his
or her license administratively suspended at the time of arrest after submitting to an intoxilyzer, has standing to
raise the validity of the administrative rules regardless of the reading. However, defendants are not required to
seek administrative relief prior to obtaining a judicial determination of their claims. 3 The trial court has inherent
authority to do what is reasonably necessary to carry out its jurisdiction. 4 The void for vagueness doctrine does
not apply to regulations dealing with the evidentiary predicate for the introduction of test results. 5 The courts
have articulated these principles of general application in dealing with attacks on the implied consent
administrative regulations.

These attacks applied to the rules before the switch from HRS to FDLE and the January 1, 1997, amendments to
the rules. The rules were substantially changed in 2001, new regulations were approved in 2002, and subsequent
amendments were adopted.6 Many of these attacks have dealt with the Intoxilyzer 5000, but the legal analysis is
still useful.

One of the main issues in such cases is who should hear the argument. A trial court ruled that when a party

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

attacks the validity of an administrative rule, the party must exhaust all administrative remedies. 7 Thus, the court
refused to hear a motion claiming that Form 39 for the Intoxilyzer 8000 is inadequate. 8

Another trial judge also declined to exercise jurisdiction over an attack on administrative rules that are intended
to ensure the accuracy and reliability of the Intoxilyzer 8000. 9 The judge concluded that the court shared
concurrent jurisdiction with the Division of Administrative Hearings, but the doctrine of primary jurisdiction 10
justified deference to the administrative body. The judge recognized that the effect of this approach is to
postpone judicial consideration of the case during administrative review.11

In the first case contesting the validity of the old regulations, the court found the regulations dealing with the
monthly and annual inspections of the Intoxilyzer 5000 void for vagueness. 12 The court took this position
because there was no definition of “accuracy” as it related to annual inspections. 13 Furthermore, the definition of
“accuracy” as it related to monthly inspections was found in a form which had been promulgated as a rule, but
the breath test in this case had been done pursuant to a revised form that had not been enacted as a rule. 14 There
were some differences between the two forms and there was no expert testimony that those differences were
insubstantial.15 Since the burden of proof was on the State, the court found that the test results should have been
excluded.16

That decision was consistently rejected for one reason or another by other district courts and the Supreme Court.
Several courts found that the provisions that were at issue in Reisner17 were not void for vagueness.18 In one such
case, the court found that, unlike the situation in Reisner, there was expert testimony showing that any deviation
between the two forms was insubstantial. 19 The court also rejected the defense claim that the defendant was
denied equal protection because some agencies in the state used a form involving an acetone test, while other
agencies used a form not involving such a test.20

There have also been attacks on the rules dealing with blood testing. The old regulations recognized two
methods for testing blood.21 The district courts that considered these rules found that they were adequate to
comply with statutory requirements.22 In Mehl v. State,23 the Florida Supreme Court reached a slightly different
conclusion. The Court concluded that the Legislature intended for HRS to specify precisely the tests that could
be used, as well as the method for all evidentiary blood tests. 24 Like the district courts, the Supreme Court held
that the rule authorizing two procedures for the testing of blood met this statutory requirement. 25 The Court also
held that the rule met the statutory requirement of providing an approved method of administration because it
required that the Department approve the applicant’s proposed methodology and required proficiency testing
before issuing a permit.26 Nevertheless, the Court held that the public, as well as those who may want to secure a
permit, should be apprised in advance of all approved methods of administering the test. Thus, the Court
required that by April 1, 1994, as a condition for the state continuing to receive the benefit of the statutory
presumptions, the Department establish reasonably definite rules on the precise methods of testing, and that the
state substantially comply with them.27 Effective January 1, 1997, the Department adopted rules specifying the
minimum requirements applicants must meet in describing their proposed procedures. 28 A trial court ruled that
those regulations complied with the requirements of Mehl.29

The courts recognized another problem with the regulations on blood samples. The district courts 30 held that the
rules31 on the handling of blood samples were insufficient to satisfy the core policies of the implied consent
law.32 Those courts held that the regulations at the time on collection, storage, and transportation did not provide
sufficient guidance to ensure the scientific reliability of the test.33

The most recent attack on blood collection regulations came in Goodman v. Florida Dept. of Law
Enforcement.34 In an administrative proceeding, Petitioner argued: (1) Rule 11D-8.012 35 is invalid because it
does not specify a needle size for withdrawing blood and the technician did not use a standard needle and (2)
Rule 11D-8.01336 is “inadequate because it fails to specify that analysts must screen, document, and reject unfit
samples.”37 The administrative law judge (ALJ) rejected both contentions after an evidentiary hearing. On
appeal, to the Fourth District the court affirmed and the matter went before the Florida Supreme Court on
certification of two questions of great public interest.38

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

As to Rule 11D-8.012, the Court observed that there was disputed evidence as to the effect of differences in the
needle sizes and as to the impact of clotting on test results. 39 Additionally, the evidence revealed that the nature
of the sample (i.e. whole blood versus serum) impacts the effect of clotting. 40 The Court identified a variety of
procedures recognized by the ALJ to deal with the effects of clotting. 41 And concluded that the Rule is
consistent with the core policy of the implied consent law to ensure reliability. 42 Therefore:
To be sure, there is no Rule regulating needle gauge or tourniquet usage; still, Rule 11D-8.012
adequately ensures reliable results…. In any situation, a defendant could challenge the accuracy of
the test or qualifications of the analyst, which has been the law in Florida for nearly forty years.
See Bender, 382 So.2d at 699. Accordingly, we conclude that Rule 11D-8.012 facially ensures
reliable blood test results and any question as to the accuracy of a particular test is best determined
on a case-by-case basis.43

As to Rule 11D-8.013,44 which provides procedures for permitting those drawing blood under the implied
consent law, the Florida Supreme Court rejected an argument that the Rule is inadequate for failure to require
that analysts must screen, document, and reject unfit samples. 45 The rationale for this decision is that experts are
already doing what is necessary and the rules do not have to cover every detail. 46 Furthermore, as the Fourth
District commented, Rule 11D-8.013, “is not meant to be the only source of guidance for analysts, but is instead
meant to supplement and reinforce sound scientific principles and laboratory practices.” 47

The Florida Supreme Court concluded with this important observation:

Taking Goodman’s contention to its logical conclusion, Rule 11D-8.013 could be inadequate for
an unending litany of reasons. For example, the Rule does not require blood analysts to wear
rubber gloves to prevent contamination. Under Goodman’s reasoning, even if it is conclusively
proven that each and every blood analyst in Florida wears rubber gloves when handling samples,
the Rule would be inadequate for failing to require them. Although it may be preferable for FDLE
to promulgate a Rule that specifically lays out every minute detail of a test, this Court is not
positioned to make that determination. Further, such an exercise “would swiftly devolve into a
hopeless endeavor and serve only to expand [FDLE’s] regulations to epic lengths.” Goodman,
203 So.3d at 915.48

Urine test results have posed special problems. In State v. Bodden,49 the Second District concluded that urine
tests should be treated the same as breath and blood tests, and administrative procedures must be established for
urine tests in order for the results to be admissible. In State v. Montello50 and State v. Pierre,51 the Fourth and
Fifth Districts, disagreed with the Second District and ruled that, unlike breath test results, urine test results are
admissible despite the lack of any regulations. In State v. Bodden,52 the Florida Supreme Court resolved this
conflict by ruling that the statutes do not require the Department to adopt regulations for the administration of
urine tests. Additionally, the Legislature addressed this issue in the 2003 session and made it clear that its intent
was not to require the creation of administrative regulations for urine tests.53

The provision on urine testing did the following: (1) removed any reference to urine tests from the subsection
dealing with breath tests; (2) removed any reference to testing for chemical or controlled substances from the
subsection dealing with breath tests; (3) created a subsection dealing exclusively with urine tests to detect the
presence of chemical or controlled substances; (4) provided for implied consent to urine tests just as with breath
tests, but the focus is exclusively on chemical or controlled substances; (5) provided that a urine test does not
preclude the administration of another type of test; and (6) required that the individual be advised of the
consequences of refusal.54

The urine test may be administered at a detention facility or any other facility, mobile or otherwise, equipped to
administer the test at the request of a law enforcement officer who has reasonable cause to believe the person
was driving or was in actual physical control of a motor vehicle within this state while under the influence of a
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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

chemical substance or a controlled substance. That facility must be equipped to administer such tests in a
reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual. 55

One of the major attacks on regulations dealing with the Intoxilyzer 5000 involved former Fl. Admin. Code R.
11D–8.006(2) That rule provided: “The agency must use alcohol reference solution and/or alcohol stock
solution from a source approved by the department.” 56 The defense argued in the trial courts that this rule was
void for vagueness and improperly vested the department with unbridled discretion. 57 Only one trial court
acknowledged the well established proposition discussed earlier in this section 58 that the vagueness doctrine
does not apply to evidentiary foundations. 59 Some of these courts concluded that the previously mentioned
version of Fl. Admin. Code R.11D–8.006(2), was void for vagueness because it did not define “source,” and it
improperly vested the Department with unbridled discretion in the selection of the source and the proper
procedure.60 Others rejected this argument. 61 In one case, the court ruled that the appropriate remedy was
suppression of the test results.62 In another case, the court found that the result could be admitted upon proof of
the traditional predicate, and seemed to take the position that the statutory presumptions would also be
available.63

Another attack on the validity of the regulations, related to repair of intoxilyzers. The rules define an authorized
repair facility as “an entity authorized by the breath test instrument manufacturer to repair such breath test
instrument.”64 A defendant argued that the rule was defective because it did not establish criteria for approving
or selecting repair facilities, and it delegated this responsibility to the manufacturer. The trial court found this
claim to be without merit.65 The judge concluded that the definition made sense and that “the ultimate issue is
whether the repair that is done by that facility is satisfactory to ATP in terms of the testing of the Intoxilyzer.” 66
The court reached the same conclusion regarding preventive maintenance even though at that time it was not
authorized by the rules.67

Another trial court68 considered an attack on the use of the intoxilyzer and the regulations—the impact of radio
frequency interference (RFI). The defendant presented evidence to attempt to show the impact of such
interference, and argued that the lack of any rules for the inspection or testing of the RFI circuitry in the
intoxilyzer requires exclusion of the test results. The court rejected the defense argument. Another trial court
reached the same decision as to RFI’s impact as applied to the Intoxilyzer 8000. 69

Several trial courts found that breath test results on the Intoxilyzer 5000 were inadmissible because of variations
in the length of the blow. 70 One county judge reached the same conclusion as to the Intoxilyzer 8000. 71 In both
instances, a circuit judge considering the matter on appeal reversed. 72 The circuit judge agreed with those
decisions finding that a shorter blow benefits the defendant, but regardless of the length of the blow, the reading
still accurately reflects the defendant’s breath alcohol level. 73 In fact, the court concluded that having the subject
blow until running out of air makes the results more accurate and reliable and the operators are trained to follow
that procedure.74 Failure to do this is a violation of rules and procedure, but it does not mean that those rules and
procedure are unreliable.75 Additionally, the circuit judge found that the Intoxilyzer 8000 will not produce a
reading unless minimum requirements are met and there is no evidence to suggest that the reading that results
when those minimum standards are met is “scientifically unsound.” 76 All testing must meet this minimal
standard; therefore, the trial judge erred in finding that the rules fail to ensure a scientifically reliable result. 77

Another trial judge reached a similar conclusion as to Form 37. 78 The court rejected the claim that the form does
not ensure reliability of breath test results because the form does not specify the length of the blow and the
operator can manipulate the results. Based on the testimony of the program manager of the alcohol testing
program, the trial judge concluded that the defendant failed to rebut the presumption of validity arising from
substantial compliance with the rules.79 In multiple cases, consolidated for consideration of common motions in
limine by six county judges sitting en banc, the judges reached essentially the same conclusion. 80 In that case,
the defendants also argued that a person with a fever will register a higher breath alcohol level, but the court
concluded, based on the evidence, that the temperature did not affect the accuracy of the Intoxilyzer 8000; it
will read higher because the alcohol content is higher.81

Defendants launched a myriad of challenges to the rules before one trial judge. 82 Those challenges generally

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

echoed the challenges described above. “It is the defendants’ position, generally that the rules, or more precisely
the lack of rules, permit too much discretion to those who maintain the machine, test the machine, and operate
the machine.”83 This attack involved a variety of claims, including: (1) there is no rule that the operators must
require a breath volume beyond 1.1 liters; (2) there is no rule dealing with acetone detection; (3) there is no rule
on repair or recalibration of a malfunctioning I-8000; (4) there are no procedures as to what an operator is to do
when the machine fails an inspection; (5) there are no instructions limiting operators as to the time of a blow;
(6) there are no rules dealing with purging of residual alcohol; and (7) there are no proper procedures for a test
deficiency.84 Based on the testimony presented by the State, the trial judge rejected all of these claims and
concluded:
[T]he State relies upon rigorous testing, oversight, training and the common sense of its personnel,
rather than all encompassing rules …. The instrument flags such issues as purge failures, volume
not met, RFI detected, control volume not met, ambient air failure, and a myriad of other
problem[s] that arise in the day to day operation of the I-8000. [I]n most all of these instances, the
instrument is operating as it was designed. It is flagging the problems and preventing an invalid
test from being reported.85

Another county judge dealt with one of the early challenges to the Intoxilyzer 8000. 86 As in the foregoing case,
the defendant raised a variety of points. In that case there were six challenges to the regulatory scheme for the
Intoxilyzer 8000 and the judge found all six to be without merit. His decision was based on the requirement that
the defendant had the burden of showing by a preponderance of the evidence that the alleged defects affected
the reliability of the results.87 Laura Barfield, the director of FDLE’s alcohol testing program, testified at the
hearing.

First, the defendant claimed that the administrative scheme is defective because there is no way of alerting the
operator when the subject provides an insufficient sample. Ms. Barfield testified that this problem only applied
to those who provided a low volume breath sample and started blowing more than three minutes after the test
started, or started blowing before three minutes and continued blowing after three minutes had passed. Ms
Barfield also testified that this problem impacted less than one percent of all the tests in the State of Florida, the
machine accurately tested the sample that the defendant provided, no reading for a low volume sample could
ever be higher than the reading for an adequate sample, and the problem had been corrected. Accordingly, the
trial judge concluded that the defendant failed to show that there was a problem with the administrative scheme
impacting the reliability of the results.88

Second, each Intoxilyzer 8000 transmits data to a central computer in Tallahassee, but the defendant argued that
FDLE doesn’t adequately review and analyze the data. Unlike the Intoxilyzer 5000, the Intoxilyzer 8000 89 can
transmit data to the Department in Tallahassee on telephone lines. The inspectors do this each month when they
are doing their monthly agency inspection. While it is true there is no rule or procedure requiring review or
analysis of the data, the court concluded this did not affect the reliability of the results. In fact, the judge
suggested the availability of the data actually enhances the quality of the administrative scheme. 90

Third, the defendant contended that the Department has permitted people who are not certified maintenance
officers to “‘log’” in to the central computer in Tallahassee, creating a possibility that the computer program or
the data can be changed; therefore, making it unreliable. The evidence established that there are three levels of
access to the data and the first level, which includes anyone with access to an Intoxilyzer 8000, is not password
protected. The other two levels are more secure, but it is true there are no specific rules as to the log on process
and there is no testing to see if passwords are being improperly used. However, the evidence established that
there is no possibility that anyone logging on can change the data and affect reliability. 91

Fourth, the defendant asserted that the regulations were defective because the Intoxilyzer 8000 cannot
differentiate between acetone and alcohol. The evidence established that the Intoxilyzer 8000 eliminates the
possibility that acetone will be reported as alcohol and there is no negative impact on reliability. 92

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

Fifth, the defendant contended that the system was fatally flawed because there is no procedure to approve, test,
evaluate, or understand software changes made by the manufacturer. That is true. However, the court said:
Testing for functionality is in accord with common sense and consistent with the way most people
make important decisions impacting their own lives. There was no testimony or other evidence
presented at the hearing to suggest FDLE’s decision to test the instrument’s functionality, as
opposed to its software content, is technically or scientifically invalid, or that testing for
functionality alone significantly impacts the reliability of results. As such, defendant failed to
carry her burden of proof on this issue.93

Last, the accused maintained that the testing procedures for the Intoxilyzer 8000 allowed the instrument to
“‘pass’” an agency evaluation even though the Intoxilyzer 8000 might generate readings that would not comply
with accepted accuracy parameters for the Intoxilyzer 5000. The defendant claimed that was true because the
rules for the Intoxilyzer 5000 did not permit a retest if a test done as part of monthly inspection was out of
tolerance; whereas, the Intoxilzer 8000 did permit a one time retest. Ms. Barfield testified that this assertion was
wrong. Form 16 described the testing procedure for the Intoxilyzer 5000 and Form 39 describes the testing
procedure for the Intoxilyzer 8000. While Form 39 expressly states that the test can be repeated one time, Form
16 called for “corrective actions,” which Ms. Barfield believed allowed the test to be repeated. The judge was
unimpressed with the defendant’s focus on differences “between the verbiage in Form 16 and Form 39,” and
concluded that the defendant had failed to establish that the administrative scheme for the Intoxilyzer 8000 was
insufficient to ensure reliable results.94

There have been other challenges to the Intoxilyzer 8000. In one case, 95 the defendants sought to exclude
readings because of software problems, 96 which were corrected by a change in the software. Out of 33,097 cases
statewide, only 224 were affected, and none of the defendants were among those affected. The court found that
the rules were sufficient and the Intoxilyzer 8000 was in substantial compliance with the rules. Similarly, the
trial judge rejected defendants attack on the validity of the regulatory scheme based on “the puff problem.” 97
This defect affected 88 tests out of 56,000 throughout the state.98

In another case,99 the trial judge rejected the testimony of a defense expert that the Intoxilyzer 8000 produced
inaccurate results based on over reporting and under reporting. The court concluded that the procedures used by
the expert did not meet the test set forth in Frye v. United States100 for the admissibility of new or novel
scientific evidence. Furthermore, the court found that the expert’s claim about reporting of the reading was
without merit.

Several Broward County Judges dealt with multiple attacks. 101 The defense objections were: (1) forms 36, 37,
and 39 allows operators and inspectors to show instruments in compliance even after successive failed tests; (2)
the intoxilyzer is unable to take into account volatile organic compounds, including acetone; (3) inspectors
intentionally interrupt power to instruments during inspections to conceal failing inspections; (4) the way
inspectors test for mouth alcohol is not in substantial compliance with FDLE rules, and (5) FDLE rules offer no
guidance to operators concerning a control test failure or results outside of tolerance during a testing. The
judges rejected the defense arguments because they concluded that these issues should be decided by
administrative judges, the motions were too general and failed to set forth specifics related to the cases, and
there was substantial compliance. Some of these same challenges and others relating to approval or inspection
have been considered hereafter in § 6:3 on approval, registration, and inspections.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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1
Veilleux v. State, 635 So. 2d 977 (Fla. 1994); Carino v. State, 635 So. 2d 9 (Fla. 1994); State v. Folsom,
630 So. 2d 1129 (Fla. 2d DCA 1993), decision approved, 638 So. 2d 54 (Fla. 1994); State v. Reisner,
584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991); State v. Waller, 17 Fla.
L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v. Waller, 17 Fla. L. Weekly Supp. 139
(Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla. Broward
Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla. Broward Cty. Ct. July 7,
2009); State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009)State v.
Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009); State v. McNamer, 15 Fla.
L. Weekly Supp. 625 (Fla. Bay Cty. Ct. Feb. 20, 2008)State v. McNamer, 15 Fla. L. Weekly Supp. 625
(Fla. Bay Cty. Ct. Feb. 20, 2008); State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct.
Feb. 27, 2008)State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008); State
v. Mares, 15 Fla. L. Weekly Supp. 484 (Fla. Sarasota Cty. Ct. Dec 10, 2007)State v. Mares, 15 Fla. L.
Weekly Supp. 484 (Fla. Sarasota Cty. Ct. Dec 10, 2007); State v. Komara, 14 Fla. L. Weekly Supp. 653
(Fla. Hillsborough Cty. Ct. April 2, 2007)State v. Komara, 14 Fla. L. Weekly Supp. 653 (Fla.
Hillsborough Cty. Ct. April 2, 2007); State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough
Cty. Ct. Feb. 21, 2007)State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb.
21, 2007); State v. Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002)State v.
Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002).
2
Lanoue v. Florida Dept. of Law Enforcement, 751 So. 2d 94 (Fla. 1st DCA 1999) (The court also
ruled that Defendants do not have standing to challenge, “non-rule policies and statements utilized by
FDLE regarding the means, methods, and criteria for analyzing and approving the source of the alcohol
reference solution used to test the instruments.”). See also State v. Heimbegner, 25 Fla. L. Weekly Supp.
650 (Fla. Hillsborough Cty. Ct. Oct. 18, 2017)State v. Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla.
Hillsborough Cty. Ct. Oct. 18, 2017) (judge relied on ruling in Lanoue in support of holding that
Defendant attacking admissibility of test results based on non-compliance with an FDLE Standard
Operating Procedures, not a rule, lacked standing).
3
Veilleux v. State, 635 So. 2d 977 (Fla. 1994); Carino v. State, 635 So. 2d 9 (Fla. 1994); Department
of Highway Safety and Motor Vehicles, etc. v. Stevens, 820 So. 2d 322 (Fla. 5th DCA 2001); State v.
Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v. Waller, 17 Fla. L.
Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17 Fla. L. Weekly Supp.
50 (Fla. Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla. Broward
Cty. Ct. July 7, 2009); State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23,
2009)State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009); State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007)State v. Komara, 14
Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
4
Veilleux v. State, 635 So. 2d 977 (Fla. 1994).
5
Veilleux v. State, 635 So. 2d 977 (Fla. 1994)); Carino v. State, 635 So. 2d 9 (Fla. 1994); State v. Price,
637 So. 2d 383 (Fla. 2d DCA 1994); State v. Folsom, 630 So. 2d 1129 (Fla. 2d DCA 1993), decision
approved, 638 So. 2d 54 (Fla. 1994); State v. Hill, 618 So. 2d 742 (Fla. 2d DCA 1993); State v. Rothe,
15 Fla. L. Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008)State v. Rothe, 15 Fla. L. Weekly Supp.
464 (Fla. 19th Cir. Ct. Jan. 16, 2008). Contra State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991).
6
All the rules are set forth in the appendix.
7
State v. Ulhoa, 15 Fla. L. Weekly Supp. 463 (Fla. 17th Cir. Ct. Feb. 8, 2008)State v. Ulhoa, 15 Fla. L.
Weekly Supp. 463 (Fla. 17th Cir. Ct. Feb. 8, 2008), affirmed, 6 So. 3d 709 (Fla. 4th DCA 2009).
8
State v. Ulhoa, 15 Fla. L. Weekly Supp. 463 (Fla. 17th Cir. Ct. Feb. 8, 2008)State v. Ulhoa, 15 Fla. L.
Weekly Supp. 463 (Fla. 17th Cir. Ct. Feb. 8, 2008), affirmed, 6 So. 3d 709 (Fla. 4th DCA 2009).
9
State v. Gonzalez, 15 Fla. L. Weekly Supp. 480 (Fla. Dade Cty. Ct. June 19, 2007) State v. Gonzalez, 15
Fla. L. Weekly Supp. 480 (Fla. Dade Cty. Ct. June 19, 2007). See also State v. Desjardins, 18 Fla. L.
Weekly Supp. 191 (Fla. 18th Cir. Ct. July 22, 2010)State v. Desjardins, 18 Fla. L. Weekly Supp. 191
(Fla. 18th Cir. Ct. July 22, 2010). See also State v. Vuong, 20 Fla. L. Weekly Supp. 610 (Fla. Palm
Beach Cty. Ct. Aug. 15, 2012)State v. Vuong, 20 Fla. L. Weekly Supp. 610 (Fla. Palm Beach Cty. Ct.
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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

Aug. 15, 2012) (court granted a motion to invoke the doctrine of primary jurisdiction where “the heart of
the claims asserted by the Defendant is the insufficiency of existing Florida Department of Law
Enforcement (‘FDLE’) rules with regards to the flow sensor in the Intoxilyzer 8000 rather than a lack of
compliance with the rules.”); State v. Morales, 20 Fla. L. Weekly Supp. 608State v. Morales, 20 Fla. L.
Weekly Supp. 608 (Fla. L. Weekly Supp. 608 (Fla. Palm Beach Cty. Ct. Aug. 15, 2012) (same); State v.
Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v. Waller, 17 Fla. L.
Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17 Fla. L. Weekly Supp.
50 (Fla. Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla. Broward
Cty. Ct. July 7, 2009); State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23,
2009)State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009) (Waller, Lico-
Abeyta, and Sabates were cases in which the trial judges deferred to administrative judges where the
defendants were actually raising the sufficiency of the regulations, rather than compliance; the defense
objections were: (1) forms 36, 37, and 39 allow operators and inspectors to show instruments in
compliance even after successive failed tests; (2) the intoxilyzer is unable to take into account volatile
organic compounds, including acetone; (3) inspectors intentionally interrupt power to instruments during
inspections to conceal failing inspections; (4) the way inspectors test for mouth alcohol is not in
substantial compliance with FDLE rules, and (5) FDLE rules offer no guidance to operators concerning
a control test failure or results outside of tolerance during a testing.); State v. Gilliam, 15 Fla. L. Weekly
Supp. 471 (Fla. Hamilton Cty. Ct. Feb. 4, 2008)State v. Gilliam, 15 Fla. L. Weekly Supp. 471 (Fla.
Hamilton Cty. Ct. Feb. 4, 2008) (trial judge granted state’s motion to strike challenge to Form 37,
pursuant to Rule 11D-8.017, on grounds that it allows defendant to blow indefinitely because it should
be heard by administrative body); State v. Smith, 15 Fla. L. Weekly Supp. 471 (Fla. Columbia Cty. Ct.
Oct. 26, 2007)State v. Smith, 15 Fla. L. Weekly Supp. 471 (Fla. Columbia Cty. Ct. Oct. 26, 2007)
(challenge to rule on Intoxilyzer 8000 ( Fla. Admin. Code R.11D-8.017) allowing blow for indefinite
time period should be heard by administrative body, and judge agreed to stay the criminal case for such
purpose); State v. Ulam, 15 Fla. L. Weekly Supp. 394 (Fla. Broward Cty. Ct. Feb. 13, 2008)State v.
Ulam, 15 Fla. L. Weekly Supp. 394 (Fla. Broward Cty. Ct. Feb. 13, 2008) (claim that Form 37 is
defective because it does not require a blow for a definite time period and does not establish uniform
standards for testing should be considered by administrative agency); State v. Hasetey, 10 Fla. L.
Weekly Supp. 942 (Fla. Broward Cty Ct. Sept. 1, 2003)State v. Hasetey, 10 Fla. L. Weekly Supp. 942
(Fla. Broward Cty Ct. Sept. 1, 2003) (an attack on Form 23 regarding duration of the blow would be
more appropriately considered in an administrative forum).
10
“[D]ictates that when a party seeks to invoke the original jurisdiction of the trial court by asserting an
issue which is beyond the ordinary experience of judges and juries, but within an administrative
agency’s special competence, the court should refrain from exercising its jurisdiction over that particular
issue until … the issue has been ruled upon by the agency.” Goodman v. Florida Dept. of Law
Enforcement, 203 So.3d 909, 911 (Fla. 4th DCA 2016), approved, 238 So.3d 102 (Fla. 2018) (quoting
Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036-1037). See also State v. Gonzalez, 15 Fla. L. Weekly
Supp. 480 (Fla. Dade Cty. Ct. June 19, 2007)State v. Gonzalez, 15 Fla. L. Weekly Supp. 480 (Fla. Dade
Cty. Ct. June 19, 2007).
11
State v. Gonzalez, 15 Fla. L. Weekly Supp. 480 (Fla. Dade Cty. Ct. June 19, 2007) State v. Gonzalez, 15
Fla. L. Weekly Supp. 480 (Fla. Dade Cty. Ct. June 19, 2007) (the court felt that an administrative
remedy could be rapidly pursued and noted that assignment of an administrative law judge (ALJ) is
required within 10 days after receiving the petition challenging the rules; the hearing must be within 30
days of assignment of the ALJ; and the ALJ must render a written decision with reasoning within 30
days of the hearing).
12
State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991).
13
State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991).
14
State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991).
15
State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991).

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16
State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991).
17
State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1991), review denied, 591 So. 2d 184 (Fla. 1991).
18
Veilleux v. State, 635 So. 2d 977 (Fla. 1994); Carino v. State, 635 So. 2d 9 (Fla. 1994) (adopted opinion
in Rochelle, 609 So. 2d at 613–618); State v. Price, 637 So. 2d 383 (Fla. 2d DCA 1994); State v.
Folsom, 630 So. 2d 1129 (Fla. 2d DCA 1993), decision approved, 638 So. 2d 54 (Fla. 1994); State v.
Hill, 618 So. 2d 742 (Fla. 2d DCA 1993); State v. Rochelle, 609 So. 2d 613 (Fla. 4th DCA 1992),
opinion modified on denial of reh’g, (Nov. 18, 1992) and dismissed, 617 So. 2d 318 (Fla. 1993).
19
State v. Rochelle, 609 So. 2d 613 (Fla. 4th DCA 1992), opinion modified on denial of reh’g, (Nov.
18, 1992) and dismissed, 617 So. 2d 318 (Fla. 1993).
20
State v. Rochelle, 609 So. 2d 613 (Fla. 4th DCA 1992), opinion modified on denial of reh’g, (Nov.
18, 1992) and dismissed, 617 So. 2d 318 (Fla. 1993).
21
Former rule 10D–42.028 Fl. Admin. Code R.
22
Phillips v. State, 621 So. 2d 734 (Fla. 3d DCA 1993); State v. McRoberts, 621 So. 2d 528 (Fla. 2d DCA
1993); State v. Burke, 599 So. 2d 1339 (Fla. 1st DCA 1992), review denied, 609 So. 2d 40 (Fla. 1992).
23
Mehl v. State, 632 So. 2d 593 (Fla. 1993).
24
Mehl v. State, 632 So. 2d 593 (Fla. 1993).
25
Mehl v. State, 632 So. 2d 593 (Fla. 1993).
26
Mehl v. State, 632 So. 2d 593 (Fla. 1993).
27
Mehl v. State, 632 So. 2d 593 (Fla. 1993).
28
11D–8.013 Fl. Admin. Code R.
29
State v. Murray, 6 Fla. L. Weekly Supp. 214 (Fla. 18th Cir. Ct. Oct. 27, 1998)State v. Murray, 6 Fla. L.
Weekly Supp. 214 (Fla. 18th Cir. Ct. Oct. 27, 1998).
30
State v. Miles, 732 So. 2d 350 (Fla. 1st DCA 1999), approved in part, quashed in part, 775 So. 2d
950 (Fla. 2000). See also State v. Sandt, 751 So. 2d 136 (Fla. 2d DCA 2000), decision approved in
part, quashed in part, 774 So. 2d 692 (Fla. 2000); State v. Townsend, 746 So. 2d 495 (Fla. 2d DCA
1999), decision quashed, 774 So. 2d 693 (Fla. 2000); Dodge v. State, 805 So. 2d 990, 994 (Fla. 4th DCA
2001); Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001).
31
11D–8.012. In Sandt, the court referred to Rules 11D–8.011–014(1997). Rule 11D–8.012 was
significantly changed in 2001. Those changes are discussed later in the text.
32
Robertson v. State, 604 So. 2d 783 (Fla. 1992) (core values of implied consent law are to ensure
reliability and protect citizen’s health).
33
State v. Miles, 732 So. 2d 350 (Fla. 1st DCA 1999), approved in part, quashed in part, 775 So. 2d
950 (Fla. 2000). See also Rafferty v. State, 799 So. 2d 243, 106 A.L.R.5th 783 (Fla. 2d DCA 2001).
34
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102 (Fla. 2018).
35
Fla. Admin. Code Ann. R. 11D-8.012.
36
Fla. Admin. Code Ann. R. 11D-8.013.

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37
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102, 115 (Fla. 2018).
38
Goodman v. Florida Dept. of Law Enforcement, 203 So.3d 909, 914 (Fla. 4th DCA 2016), approved,
238 So.3d 102 (Fla. 2018). The two questions, which were answered in the negative by the Supreme
Court, were: “(1) Are the current rules … inadequate under State v. Miles, 775 So.2d 950 (Fla.
2000), for purportedly failing to sufficiently regulate proper blood draw procedures, as well as the
homogenization process to ‘cure’ a clotted blood sample? (2) Are the present rules similarly inadequate
for failing to specifically regulate the work of analysts in screening blood samples, documenting
irregularities, and rejecting unfit samples?”
39
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 104–105, 111–112 (Fla. 2018).
40
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 105, 111–112 (Fla. 2018).
41
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 111–115 (Fla. 2018).
42
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 112–114 (Fla. 2018).
43
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 114 (Fla. 2018).
44
Fla. Admin. Code Ann. R. 11D-8.013.
45
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 115 (Fla. 2018).
46
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 115–117 (Fla. 2018).
47
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102, 108 (Fla. 2018) (quoting Goodman
v. Florida Dept. of Law Enforcement, 203 So.3d at 914).
48
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 117 (Fla. 2018).
49
State v. Bodden, 872 So. 2d 916 (Fla. 2d DCA 2002), decision quashed, 877 So. 2d 680 (Fla. 2004),
cert denied, 543 U.S. 1003, 125 S. Ct. 628, 160 L. Ed. 2d 463 (2004).
50
State v. Montello, 867 So. 2d 613 (Fla. 4th DCA 2004), review denied, 891 So. 2d 551 (Fla. 2004).
51
State v. Pierre, 854 So. 2d 231 (Fla. 5th DCA 2003), review denied, 891 So. 2d 552 (Fla. 2004).
52
State v. Bodden, 877 So. 2d 680 (Fla. 2004), cert denied, 543 U.S. 1003, 125 S. Ct. 628, 160 L. Ed. 2d
463 (2004).
53
Ch. 2003–54, Laws of Florida. See § 316.1932(1)(a)1.b., Fla. Stat.
54
Ch. 2003–54, Laws of Florida. See § 316.1932(1)(a)1.b., Fla. Stat.
55
Ch. 2003–54, Laws of Florida. See § 316.1932(1)(a)1.b., Fla. Stat.
56
This provision in a modified form adopted in 2001, has been eliminated. See Fl. Admin. Code R.11D–
8.006.
57
See e.g. State v. Dauth, 6 Fla. L. Weekly Supp. 562 (Fla. Duval Cty. Ct. June 11, 1999) State v. Dauth, 6
Fla. L. Weekly Supp. 562 (Fla. Duval Cty. Ct. June 11, 1999); State v. Sogness, 7 Fla. L. Weekly Supp.
295 (Fla. Lee Cty. Ct. Feb. 3, 2000)State v. Sogness, 7 Fla. L. Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb.
3, 2000); State v. Smith, 7 Fla. L. Weekly Supp. 135 (Fla. Sarasota Cty. Ct. Nov. 5, 1999)State v. Smith,
7 Fla. L. Weekly Supp. 135 (Fla. Sarasota Cty. Ct. Nov. 5, 1999); State v. Vargas, 6 Fla. L. Weekly
Supp. 646 (Fla. Dade Cty. Ct. June 27, 1999)State v. Vargas, 6 Fla. L. Weekly Supp. 646 (Fla. Dade

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

Cty. Ct. June 27, 1999); State v. Skinner, 6 Fla. L. Weekly Supp. 518 (Fla. Clay Cty. Ct. May 21,
1999)State v. Skinner, 6 Fla. L. Weekly Supp. 518 (Fla. Clay Cty. Ct. May 21, 1999).
58
See authorities in note 5 of this section.
59
State v. Smith, 7 Fla. L. Weekly Supp. 135 (Fla. Sarasota Cty. Ct. Nov. 5, 1999)State v. Smith, 7 Fla. L.
Weekly Supp. 135 (Fla. Sarasota Cty. Ct. Nov. 5, 1999).
60
State v. Dauth, 6 Fla. L. Weekly Supp. 562 (Fla. Duval Cty. Ct. June 11, 1999)State v. Dauth, 6 Fla. L.
Weekly Supp. 562 (Fla. Duval Cty. Ct. June 11, 1999), State v. Skinner, 6 Fla. L. Weekly Supp. 518
(Fla. Clay Cty. Ct. May 21, 1999)State v. Skinner, 6 Fla. L. Weekly Supp. 518 (Fla. Clay Cty. Ct. May
21, 1999).
61
State v. Sogness, 7 Fla. L. Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb. 3, 2000)State v. Sogness, 7 Fla. L.
Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb. 3, 2000); State v. Smith, 7 Fla. L. Weekly Supp. 135, (Fla.
Sarasota Cty. Ct. Nov. 5, 1999)State v. Smith, 7 Fla. L. Weekly Supp. 135, (Fla. Sarasota Cty. Ct. Nov.
5, 1999); State v. Vargas, 6 Fla. L. Weekly Supp. 646 (Fla. Dade Cty. Ct. June 27, 1999)State v. Vargas,
6 Fla. L. Weekly Supp. 646 (Fla. Dade Cty. Ct. June 27, 1999).
62
State v. Skinner, 6 Fla. L. Weekly Supp. 518 (Fla. Clay Cty. Ct. May 21, 1999)State v. Skinner, 6 Fla. L.
Weekly Supp. 518 (Fla. Clay Cty. Ct. May 21, 1999).
63
State v. Dauth, 6 Fla. L. Weekly Supp. 562 (Fla. Duval Cty. Ct. June 11, 1999)State v. Dauth, 6 Fla. L.
Weekly Supp. 562 (Fla. Duval Cty. Ct. June 11, 1999).
64
Fl. Admin. Code R. 11D–8.002(13). This provision was amended in July of 2015 to include servicing
and the manufacturer as an authorized repair facility.
65
State v. Bell, 9 Fla. L. Weekly Supp. 715 (Fla. Palm Beach Cty. Ct. Aug. 6, 2002)State v. Bell, 9 Fla. L.
Weekly Supp. 715 (Fla. Palm Beach Cty. Ct. Aug. 6, 2002).
66
State v. Bell, 9 Fla. L. Weekly Supp. 715 (Fla. Palm Beach Cty. Ct. Aug. 6, 2002)State v. Bell, 9 Fla. L.
Weekly Supp. 715 (Fla. Palm Beach Cty. Ct. Aug. 6, 2002).
67
State v. Bell, 9 Fla. L. Weekly Supp. 715 (Fla. Palm Beach Cty. Ct. Aug. 6, 2002)State v. Bell, 9 Fla. L.
Weekly Supp. 715 (Fla. Palm Beach Cty. Ct. Aug. 6, 2002).
68
State v. Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002)State v. Barbuto, 9
Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002).
69
State v. Greenwood, 18 Fla. L. Weekly Supp. 904 (Fla. Santa Rosa Cty. Ct. May 31, 2011)State v.
Greenwood, 18 Fla. L. Weekly Supp. 904 (Fla. Santa Rosa Cty. Ct. May 31, 2011) (trial judge denied
suppression where defendant claimed inspector interfered with annual inspection by intentionally
exposing machine to RFI, but there was testimony that the interference came from a cell phone in the
room and even if there had been RFI, it would not have violated agency guidelines and would not have
let a defective instrument pass inspection. “No data is lost or destroyed with RFI. RFI … does not affect
the validity or accuracy of the instrument.”). See also State v. Philage, 25 Fla. L. Weekly Supp. 459 (Fla.
Pasco Cty. Ct. Dec. 8, 2014)State v. Philage, 25 Fla. L. Weekly Supp. 459 (Fla. Pasco Cty. Ct. Dec. 8,
2014) (court denied motion to suppress where the instrument indicated, “an inordinate amount” of radio
frequency in the months before and after Defendant’s test; but there was no such indication during
Defendant’s test; if there were, the operator would have been required to run the test again).
70
See e.g. State v. Arcement, 13 Fla. L. Weekly Supp. 1199 (Leon Cty. Ct. Sept. 8, 2006).
71
State v. Briggs, 14 Fla. l. Weekly Supp. 973 (Fla. Leon Cty. Ct. Aug. 20, 2007)State v. Briggs, 14 Fla. l.
Weekly Supp. 973 (Fla. Leon Cty. Ct. Aug. 20, 2007).
72
State v. Arcement, 16 Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009)State v. Arcement, 16
Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009); State v. Briggs, 15 Fla. L. Weekly Supp. 872
(Fla. 2d Cir. Ct. July 2, 2008)State v. Briggs, 15 Fla. L. Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2,

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

2008).
73
State v. Arcement, 16 Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009)State v. Arcement, 16
Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009); State v. Briggs, 15 Fla. L. Weekly Supp. 872
(Fla. 2d Cir. Ct. July 2, 2008)State v. Briggs, 15 Fla. L. Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2,
2008).
74
State v. Arcement, 16 Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009)State v. Arcement, 16
Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009).
75
State v. Arcement, 16 Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009)State v. Arcement, 16
Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009).
76
State v. Briggs, 15 Fla. L. Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2, 2008) State v. Briggs, 15 Fla. L.
Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2, 2008).
77
State v. Briggs, 15 Fla. L. Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2, 2008) State v. Briggs, 15 Fla. L.
Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2, 2008).
78
State v. Welch, 15 Fla. L. Weekly Supp. 475 (Fla. Alachua Cty. Ct. Jan. 14, 2008)State v. Welch, 15
Fla. L. Weekly Supp. 475 (Fla. Alachua Cty. Ct. Jan. 14, 2008). See also State v. Avery, 15 Fla. L.
Weekly Supp. 453 (Fla. 5th Cir. Ct. Jan. 30, 2008)State v. Avery, 15 Fla. L. Weekly Supp. 453 (Fla. 5th
Cir. Ct. Jan. 30, 2008); State v. Barton, 15 Fla. L. Weekly Supp. 721 (Fla. Volusia Cty. Ct. April 29,
2008)State v. Barton, 15 Fla. L. Weekly Supp. 721 (Fla. Volusia Cty. Ct. April 29, 2008) ; State v.
Buswell, 15 Fla. L. Weekly Supp. 713 (Fla. Pinellas Cty. Ct. April 18, 2008)State v. Buswell, 15 Fla. L.
Weekly Supp. 713 (Fla. Pinellas Cty. Ct. April 18, 2008); State v. McNamer, 15 Fla. L. Weekly Supp.
625 (Fla. Bay Cty. Ct. Feb. 20, 2008)State v. McNamer, 15 Fla. L. Weekly Supp. 625 (Fla. Bay Cty. Ct.
Feb. 20, 2008); State v. Kleckley, 15 Fla. L. Weekly Supp. 511 (Fla. Duval Cty. Ct. Jan. 28, 2008)State
v. Kleckley, 15 Fla. L. Weekly Supp. 511 (Fla. Duval Cty. Ct. Jan. 28, 2008); State v. Abate, 15 Fla. L.
Weekly Supp. 500 (Fla. Brevard Cty. Ct. Jan. 17, 2008)State v. Abate, 15 Fla. L. Weekly Supp. 500
(Fla. Brevard Cty. Ct. Jan. 17, 2008).
79
State v. Welch, 15 Fla. L. Weekly Supp. 475 (Fla. Alachua Cty. Ct. Jan. 14, 2008)State v. Welch, 15
Fla. L. Weekly Supp. 475 (Fla. Alachua Cty. Ct. Jan. 14, 2008) (program manager testified that the use
of Form 37 that only certified operators are permitted to perform the test and they are trained to require
the subject to continuously blow until told to stop and the rate and volume of breath varies depending on
the individual; a valid sample depends on time, volume, and slope; minimum time is two seconds and
minimum volume of breath is 1.1 liters; the slope is determined by a combination of time and volume;
once the slope is met, blowing more breath will not significantly increase the breath test results; blowing
too little will result in a low volume sample reading; “In any event, a test subject cannot blow long or
hard enough to achieve a breath test result that is higher than their actual breath alcohol content.”). See
also State v. Barton, 15 Fla. L. Weekly Supp. 721 (Fla. Volusia Cty. Ct. April 29, 2008) State v. Barton,
15 Fla. L. Weekly Supp. 721 (Fla. Volusia Cty. Ct. April 29, 2008); State v. Buswell, 15 Fla. L. Weekly
Supp. 713 (Fla. Pinellas Cty. Ct. April 18, 2008)State v. Buswell, 15 Fla. L. Weekly Supp. 713 (Fla.
Pinellas Cty. Ct. April 18, 2008) (court rejected claim that due process was denied because rules on
duration of blow are not uniform and operators can manipulate blow, causing variations in result; court
also rejected claim that variations in breath test volume makes results scientifically unreliable by causing
corresponding variations in air-to-alcohol partition ratio; opinion based on Barfield testimony and
includes useful and detailed discussion of details of process); State v. Kleckley, 15 Fla. L. Weekly Supp.
511 (Fla. Duval Cty. Ct. Jan. 28, 2008)State v. Kleckley, 15 Fla. L. Weekly Supp. 511 (Fla. Duval Cty.
Ct. Jan. 28, 2008) (“Form #37 provides enough guidance for a trained breath technician to obtain
scientifically accurate and reliable results; the form reminds the operator what procedure to follow while
their training (as set forth in the manuals submitted at the hearing) instructs the operator how to do so.”
(emphasis by court); State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27,
2008)State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008) (court rejected
attack based on insufficiency of sample: “[I]n these instances the instrument is operating as it was
designed and, therefore, provides a sufficient guarantee that a reasonably reliable breath result can be
obtained using 1.1 liters of breath in accordance with FDLE regulations.”); State v. Avery, 15 Fla. L.
Weekly Supp. 453 (Fla. 5th Cir Ct. Jan. 30, 2008)State v. Avery, 15 Fla. L. Weekly Supp. 453 (Fla. 5th
Cir Ct. Jan. 30, 2008).

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80
State v. Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty. Ct,. April 11, 2008)State v.
Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty. Ct,. April 11, 2008) (head of Alcohol
Testing Program testified that the rules provide for uniformity in the breath samples given and operators
cannot manipulate the results; machines make a tone indicating that there is a valid sample, which
causes the operator to tell the subject to stop blowing; operator cannot see the result until this process is
complete; “Variations, if any, work to a Defendant’s advantage.”). See also State v. Buswell, 15 Fla. L.
Weekly Supp. 713 (Fla. Pinellas Cty. Ct. April 18, 2008)Defendant’s advantage.”). See also State v.
Buswell, 15 Fla. L. Weekly Supp. 713 (Fla. Pinellas Cty. Ct. April 18, 2008) (operators cannot
manipulate readings because they never see the volume value and the Intoxilyzer 8000 does not display
result until sample accepted by instrument).
81
State v. Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty. Ct,. April 11, 2008)State v.
Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty. Ct,. April 11, 2008) (the defense argued that
a change in body temperature could cause “a variation in the amount of alcohol passing from the
Defendant’s blood to the Defendant’s lung”).
82
State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla.
L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008).
83
State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla.
L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008).
84
State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla.
L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008).
85
State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla.
L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008).
86
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
87
See also State v. Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v.
Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17
Fla. L. Weekly Supp. 50 (Fla. Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly
Supp. 50 (Fla. Broward Cty. Ct. July 7, 2009); State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla.
Broward Cty. Ct. June 25, 2009)State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct. June
25, 2009); State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009) State v.
Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009).
88
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
89
According to the evidence the judge heard, there were about 400 such units in use in Florida.
90
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
91
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
92
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
93
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007).
94
State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007) State v.
Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough Cty. Ct. Feb. 21, 2007). See also State v.
Arhangelski, 15 Fla. L. Weekly Supp. 474 (Fla. Pinellas Cty. Ct. June 24, 2007) State v. Arhangelski, 15

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§ 6:1.Validity of regulations, 11 Fla. Prac., DUI Handbook § 6:1 (2018-2019 ed.)

Fla. L. Weekly Supp. 474 (Fla. Pinellas Cty. Ct. June 24, 2007) (court found that monthly inspections
and Form 39 ensured accuracy and reliability of I8000).
95
State v. Ross, 14 Fla. L. Weekly Supp. 979 (Fla. Palm Beach Cty. Ct. June 11, 2007) State v. Ross, 14
Fla. L. Weekly Supp. 979 (Fla. Palm Beach Cty. Ct. June 11, 2007). See also State v. Harris, 15 Fla. L.
Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla. L. Weekly Supp. 486
(Fla. Monroe Cty. Ct. Feb. 27, 2008).
96
The machine had to receive one liter of deep lung air within three minutes. If it did not, the machine was
suppose to indicate, “‘low sample volume’” or “‘volume not met.’” The problem was that if three
minutes passed without production of the required quantity of air, the machine would not provide either
of the warnings, and the operator would not be told to secure another sample. See also State v. Harris, 15
Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla. L. Weekly Supp.
486 (Fla. Monroe Cty. Ct. Feb. 27, 2008).
97
State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla.
L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008) (“puff problem” happens when the defendant
stops blowing before completing a blow that gives a measurable reading and after a delay puffs a little
air into the mouthpiece; this results in a .000 reading and the machine indicates “‘volume not met’”).
98
State v. Harris, 15 Fla. L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla.
L. Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008).
99
State v. Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla. Hillsborough Cty. Ct. April 14, 2008) State v.
Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla. Hillsborough Cty. Ct. April 14, 2008).
100
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923).
101
State v. Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v. Waller, 17
Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17 Fla. L.
Weekly Supp. 50 (Fla. Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50
(Fla. Broward Cty. Ct. July 7, 2009); State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct.
June 25, 2009)State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct. June 25, 2009) ; State
v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009)State v. Sabates, 17 Fla. L.
Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009).

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Works.

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 6:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:2. Foundation for establishing compliance with regulations

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 422, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1405, 1407 to 1421

The statutory and administrative scheme known as the implied consent law relieves the State of the burden of
proving the traditional scientific predicate for the introduction of breath and blood test results. 1 That traditional
predicate is reliability, qualifications of the technician, and the meaning of the results. 2 That is not true for
properly secured medical records. In Baber v. State,3 the Court abrogated its previous ruling requiring proof of
these three elements for medical blood tests. Instead, the Court ruled that such test results are admissible upon
proof of the business records exception to the hearsay.4

To avoid the necessity of showing the traditional scientific predicate, the State must prove substantial
compliance with the regulations. The statute provides that insubstantial differences and defects will not
invalidate the test or test results. 5 The exact nature of the State’s burden is well defined in State v. Donaldson.6
That case sets forth several requirements. Before test results may be introduced, the State must present
probative evidence that the test was performed substantially in accordance with the methods and on a machine
approved by the department, by a person trained and qualified to conduct it. 7 The State must also produce
probative evidence that the involved machine has been calibrated, tested, and inspected in accordance with the
regulations.8 In a pretrial hearing on a motion to suppress test results, one case holds that the State can meet its
burden through hearsay.9

Donaldson anticipated the previously mentioned statutory change as to insubstantial differences. The Court
ruled that minor deviations from the regulations, such as storage location or absolute timeliness of inspection,
will not prevent introduction of the results, if there is evidence which would permit the factfinder to conclude
that the machine remains accurate.10

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

The focus on the impact of noncompliance was foreshadowed by the decision in Ridgeway v. State.11 There the
court found test results admissible despite noncompliance with the regulations because there was no evidence
that it was of “crucial significance.” 12 Courts have repeatedly relied upon this principle to justify introduction of
test results despite noncompliance.13 Similarly, many circuit and county courts have focused on whether the
noncompliance prejudiced the defendant by creating a legitimate question as to the authenticity or scientific
reliability of the test results.14

In Donaldson,15 the Court described how the State could present the necessary evidence. It could do so through
a person who tests or inspects the machine. In the alternative, if records of use and periodic testing were kept in
the regular course of business, the state could meet its burden by producing those records. 16

Pursuant to Donaldson,17 the State had to rely on various documents in establishing the necessary foundation for
the introduction of test results.18 The trial judge had discretion to allow the State to introduce those documents
after introduction of the test results unless the defendant could demonstrate prejudice. 19 The documents had to
be properly authenticated.20 In one case, the copy of the registration for the intoxilyzer did not contain the
attestation in the required form, and the custodian of the records had no idea where the document came from or
who signed it. The court held that the State was required to prove the fact of registration. Since there was no
authorized attestation and signature by the authorized custodian, the document was inadmissible as a business
record.21

Donaldson22 provides a textbook example of failure to meet the burden of showing substantial compliance in the
fashion required at that time. The breathalyzer operator testified that the test was performed in accordance with
the administrative procedures and the checklist (i.e. Form 1031 at that time) was completed. The operator noted
the model and serial number of the machine. The state presented no testimony concerning: (1) the general rules
for breath testing instruments as set forth in the administrative rules, (2) the maintenance procedures outlined in
the form dealing with preventive maintenance, (3) the maintenance of the involved machine, and (4) whether
the machine was registered with the department and approved for calibration and performance. The court said
this testimony omitted any evidence at all as to half of the approved testing process. The court rejected the
suggestion that these deficiencies constituted “insubstantial differences between approved techniques and actual
testing procedures.”23

According to the Supreme Court decision in Donaldson, after the State has met its burden and presented the
evidence, the defendant may attack the reliability of the testing procedures and the qualifications of the
operator.24 The defendant may also question compliance with the regulations and the effect on the integrity of
the test of failing to strictly follow the regulations.25

Much of the foregoing discussion on compliance in accord with Donaldson26 became less significant shortly
after the Supreme Court decision because the Legislature created a simplified method for the State to show
compliance.27 The procedure was intended to supersede the Donaldson requirements.28 It consists of the
introduction of an affidavit as an exception to the hearsay rule. The affidavit must include: (1) the type of test
administered, (2) the procedures followed, (3) the time of collection of the sample, (4) the numerical results of
the test, (5) the time and status of any permit issued by the Department that was held by the person who
performed the test, and (6) the date of the most recent required maintenance on the breath testing instrument. 29
In reviewing an administrative decision, a circuit court ruled there need only be a showing of compliance with
the statutes and rules on the affidavit.30

The fact that the breath test affidavit does not indicate the last inspection date does not invalidate the test results
and that date can be established by other evidence. 31 The State met its burden of showing compliance with Rule
11D-8.006(1) for the Intoxilyzer 8000 where the evidence showed that the machine was properly inspected the
month before, the month of, and the month after the breath test. 32 If the machine is within tolerance on the
monthly inspection preceding the test, but is out of tolerance the following month, the test results are still
admissible, but the problem can be considered at trial. 33 Further, the affidavit need not reflect the most recent
annual test where it discloses the most recent monthly test, which was more recent than the last annual test. 34

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

One court held that the inspection requirements set forth in the rules were designed to satisfy the maintenance
requirements set forth in this statute.35 In contrast to that ruling, another court held in reviewing an
administrative license suspension, that the Department failed to meet its burden where the breath test affidavit
set forth the date of the last inspection, but not the date of the last maintenance. 36 However, that ruling was
rejected by several cases from the same jurisdiction on the grounds that the inspection included maintenance;
therefore, the date of the last inspection included the date of the last maintenance. 37 In Dep’t of Highway Safety
& Motor Vehicles v. Falcone,38 the court resolved this conflict.

In Falcone,39 the court construed the statutory requirement that the affidavit for a breath test show “the date of
performance of the most recent required maintenance on such instrument.” 40 The court concluded that the rules
and forms require maintenance during the agency inspections. Also, Form 40 is to be used in reporting the
monthly inspection results. The court ruled that compliance with the agency inspection and reporting obligation
is sufficient to comply with the statutory affidavit requirement. 41 No specific reference to “maintenance” is
required.42

The affidavit statute also provides that the defendant can subpoena the person who performed the test as an
adverse witness.43 One district court ruled that this provision does not violate the Confrontation Clause of the
federal or state constitutions, nor does it shift the burden of proof to the defense. 44 However, there was a
subsequent problem with the availability of an affiant. In one location, the affiant for many DUI cases died.
Defendants argued that this deprived them of the right to confrontation, and the affidavit should be excluded. A
three judge circuit appellate panel rejected this argument, finding that there was an independent exception to the
hearsay rule that applied whether or not the declarant was available. 45 Some trial judges also rejected this
position for slightly different reasons and certified the question to the district court. 46 Subsequent developments
significantly impacted all of these rulings on the Confrontation Clause.

In light of the landmark decision of the United States Supreme Court in Crawford v. Washington,47 the affidavit
option provided in Florida Statutes, Sections 316.1934(5) and 90.803(8), and that was the subject of the
foregoing rulings, has been significantly limited. In Crawford, the Court ruled:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford
the States flexibility in their development of hearsay law—as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause scrutiny altogether. Where
testimonial evidence is at issue, however the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination. We leave for another day
any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers,
it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.48

Thus, resolution of whether Crawford bars the use of affidavits depends initially on whether they are
determined to be “testimonial,” as the Court uses that term. It is also important that the U.S. Supreme Court
includes affidavits in “ex parte in-court testimony or its functional equivalent.”49

The impact of Crawford50 in DUI cases was made clearer by two district court decisions. In Shiver v. State,51 the
first district concluded that parts of the breath test affidavit constituted testimonial hearsay evidence. The court
only addressed that part of the trooper’s affidavit that stated the date of the most recent maintenance. The
trooper who prepared the affidavit had not performed the maintenance; therefore,
he was not qualified to testify as to whether the instrument met the required statutory predicates.
Because Appellant was unable to challenge the accuracy of the instrument by the constitutionally
mandated method of cross-examination of the person who performed the maintenance,
introduction of the affidavit violated Appellant’s right to confront witnesses.52

The fact that the trooper testified and was subject to cross-examination did not solve the problem because the
trooper was just confirming the conclusion of the person who actually performed the maintenance. 53

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

In Belvin v. State,54 in contrast to the First District, the Fourth District dealt exclusively with the portion of the
affidavit relating to the administration of the breath test, and did not consider the portion concerning
maintenance. Unlike the trooper in Shiver,55 the technician who prepared the affidavit in Belvin56 did not testify
at trial. The court in Belvin ruled that the portion of the affidavit dealing with the breath test was testimonial 57 as
that term is defined in Crawford.58

The Fourth District certified this question to the Florida Supreme Court:
Does admission of those portions of the breath test affidavit pertaining to the breath test operator’s
procedures and observations in administering the breath test constitute testimonial evidence and
violate the Sixth Amendment’s Confrontation Clause in light of the United States Supreme
Court’s holding in Crawford v. Washington, 541 U.S. 36 (2004)?59

The Florida Supreme Court approved the decision of the Fourth District in Belvin60 and answered this question
in the affirmative.

In answering the certified question, the Court focused on the United States Supreme Court’s decision in Davis
v. Washington,61 There were actually two cases in Davis. Each case involved statements made by victims of
domestic violence. In deciding which statements were testimonial, the Court considered the purpose of the
statements as they related to the emergency nature of the contact. In Belvin,62 the Florida Supreme Court relied
on this language from Davis63:
Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 64

The Florida Supreme Court concluded that the primary purpose of the breath test affidavit was to prove past
events for a DUI prosecution. This conclusion was based on these facts: (1) the affidavit was effectively a
witness against the defendant; (2) the affidavit was not related to an emergency nor was it created
contemporaneously with the DUI, but rather it was created after the offense; and (3) the affidavit was created at
the request of an officer for use in the DUI prosecution. 65 Thus, the portions of the breath test affidavit prepared
by the breath test operator were testimonial.

In Belvin,66 it was clearly established that the breath test operator was unavailable. That is critical. This
requirement does not refer to whether the declarant is going to be at the trial. If the person is going to be at the
trial to testify, confrontation is not an issue. Unavailability in this context refers to whether despite a good faith
effort, the State was unable to secure the attendance of the witness. 67 Thus, in State v. Johnson,68 the Court
concluded that an FDLE lab report was testimonial, and the confrontation clause barred its introduction through
a lab supervisor because the State could have secured the attendance of the person who did the lab test and
prepared the report. The State chose not to have that person present due to the expense. Similarly, in Melendez-
Diaz v. Massachusetts,69 the United States Supreme Court concluded that certificates of analysis of narcotics
sworn by analysts were like affidavits and were testimonial for purposes of the Confrontation Clause.

In Smith v. State,70 the Court explained that the foregoing cases do not bar the testimony of a supervisor who is
present at trial and subject to cross-examination as to her own conclusions drawn from data produced by a
person “under her supervision and control.” And recently, in Calloway v. State,71 the Court took another step;
ruling that the Confrontation Clause does not bar the testimony of a medical examiner who did not perform the
autopsy, prepare the report, or supervise the person who did. The testifying examiner gave his independent
opinion as to cause of death and victim injuries based on crime scene photos and the autopsy report, but the
report was not introduced through the substitute medical examiner.

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

The situation and results were different in Bullcoming v. New Mexico.72 In a DUI, one analyst, who was
allegedly unavailable and had not been cross-examined by the defendant, did a blood test and certified to the
report to prove a fact at the criminal trial. A different analyst testified at trial for the purpose of introducing the
report but he, “did not sign the certification or personally perform or observe the performance of the test
reported in the certification.”73 The United States Supreme Court ruled that the Confrontation Clause barred
introduction of the report through the testifying analyst and the fact that the certification was unsworn did not
change the result.74

In Belvin,75 the State argued that the affidavit was admissible because defendant had a full opportunity to cross-
examine the witness during a deposition. The Supreme Court rejected this proposition. 76 The Court also
considered and rejected the suggestion that the affidavit could be treated as a business record and was,
therefore, nontestimonial.77

Subsequent to the decisions in Shiver78 and Belvin,79 the Second District briefly addressed this issue in Williams
v. State.80 Pursuant to Crawford v. Washington,81 the court held that the admission of a breath test affidavit
through a person other than the one who administered the test and prepared the affidavit violates the
Confrontation Clause. In State v. Belvin,82 the Florida Supreme Court relied on Williams and agreed with the
Second District’s analysis.

There is no doubt that Crawford83 bars use of the affidavit authorized by Florida Statutes, Sections
316.1934(5) and 90.803(8), by itself to establish the foundation for the introduction of breath test results.
However, some authority allows the introduction of the affidavit through the testimony of those who actually
have personal knowledge of the facts alleged in the affidavit. Thus, in State v. Creo,84 a Broward County judge
issued a well thought out opinion applying to multiple cases holding:

If, as required by Belvin, the State presents the testimony from the breath technician
who administered the test and, as required by Shiver, the agency inspector who
inspected the instrument the months prior to and subsequent to the defendant’s
breath test, and satisfies the other requirements of F.S.S. 316.1934(5), said affidavit
shall be admitted with the results therein, without requiring an additional showing
that the instrument passed an annual inspection.

Additionally, in State v. Creo,85 the court rejected the defense argument that the State must present the results of
the annual inspection, notwithstanding the absence of any such requirement in the statute. However, in State v.
Pena,86 another county judge from the same jurisdiction disagreed with this conclusion. The court ruled that for
the State to rely on the breath test affidavit it must present evidence of the most recent required maintenance,
the monthly agency inspections, and the annual department inspection. 87 The court also stressed that those
inspections are testimonial in nature and subject to a Confrontation Clause challenge. 88

In State v. Buttolph,89 the court resolved this conflict as to whether the report of the annual inspection must be
introduced into evidence. The court ruled that it was not required. “Returning to section 316.1934(5), Florida
Statutes, which specifies the ‘most recent required maintenance,’ we conclude that the most recent could be
either the monthly, or the annual inspection, if the annual was the most recent.” 90

This issue of whether Crawford91 applies to the annual inspections has been considered in other cases. In State
v. Tapp,92 the defense sought to expand the rulings in Shiver93 and Belvin94 to include all of the documents
relating to the required maintenance, which, according to the defense, would require the State to produce the
FDLE employee who performed the annual inspection. The defense also argued that the certificate of assurance
relating to alcohol reference solutions was testimonial and the FDLE program manager would be required to
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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

testify. The court rejected the defense argument and ruled that those records were non-testimonial; therefore,
they were admissible pursuant to the business records and public records provisions of the hearsay rule. 95

The application of the Confrontation Clause to the annual inspections was addressed by the district court in
Pflieger v. State.96 The court recalled that in Crawford,97 the Court established the concept of a “’common
nucleus’”98 in deciding whether a statement was testimonial. It “centers on the reasonable expectation of an
objective declarant that the declarant’s statement may later be used in the investigation or prosecution of a
crime.”99 Applying this concept to annual inspections, the court concluded that they were nontestimonial. 100 The
court said:
An inspection report, like the hospital record of a blood test, is intended for the non-testimonial
purpose of making sure the machine is working properly or for accurate medical treatment,
respectively. Using these reports for a litigation purpose is a secondary purpose and therefore does
not raise the concerns expressed in Crawford of unreliability.101

DUI cases will also involve lab reports where the charge is that the accused was impaired by chemical or
controlled substances. The courts have considered the impact of Crawford102 on such reports. In State v.
Johnson,103 the Supreme Court recognized that its decision in Baber v. State104 held that admission of a medical
record reflecting the amount of alcohol in the defendant’s system in a DUI manslaughter as a business record
did not violate the Confrontation Clause. The salient fact was that the medical record was generated for medical
treatment.105 In contrast, a FDLE report prepared to show the illegal nature of a substance is made for purposes
of a criminal prosecution. It “is the functional equivalent of an affidavit submitted instead of testimony from a
live witness.”106 As such it is testimonial. And if the witness is unavailable and the defendant did not have a
prior opportunity for cross-examination, the Confrontation Clause bars consideration of the FDLE report. 107

While not related to proof of alcohol levels or drugs in the system, the recent case of Peterson v. State108
considers the application of the Confrontation Clause to another form of scientific evidence in a DUI
Manslaughter—the airbag control system report. 109 The court ruled that the report did not violate the
Confrontation Clause because the expert who printed the report testified at trial. Furthermore, it was not
testimonial in that it contained only objective data and nothing suggesting the driver committed a crime. 110

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
See e.g. Robertson v. State, 604 So. 2d 783 (Fla. 1992); State v. Bender, 382 So. 2d 697 (Fla.
1980). See also Dodge v. State, 805 So. 2d 990, 994 (Fla. 4th DCA 2001); Rafferty v. State, 799 So. 2d
243, 247, 106 A.L.R.5th 783 (Fla. 2d DCA 2001); State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla.
Hillsborough Cty. Ct. Feb. 21, 2007)State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough
Cty. Ct. Feb. 21, 2007).
2
See e.g. Robertson v. State, 604 So. 2d 783 (Fla. 1992); State v. Bender, 382 So. 2d 697 (Fla.
1980). See also Dodge v. State, 805 So. 2d 990, 994 (Fla. 4th DCA 2001); Rafferty v. State, 799 So. 2d
243, 247, 106 A.L.R.5th 783 (Fla. 2d DCA 2001); State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla.
Hillsborough Cty. Ct. Feb. 21, 2007)State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough
Cty. Ct. Feb. 21, 2007).
3
Baber v. State, 775 So.2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149
L.Ed. 2d 748 (2001).

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

4
Baber v. State, 775 So.2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149
L.Ed. 2d 748 (2001).
5
“Any insubstantial differences between approved techniques and actual testing procedures or any
insubstantial defects concerning the permit issued by the department, in any individual case do not
render the test or test results invalid.” § 316.1934(3), Fla. Stat.
6
State v. Donaldson, 579 So. 2d 728 (Fla. 1991). See also Goodman v. Florida Department of Law
Enforcement, 238 So.3d 102 (Fla. 2018); State v. Gillman, 390 So. 2d 62 (Fla. 1980); State v.
Bender, 382 So. 2d 697 (Fla. 1980); Bedell v. State, 250 So.3d 146 (Fla. 1st DCA 2018); State v.
Roose, 450 So. 2d 861 (Fla. 3d DCA 1984), review denied, 451 So. 2d 850 (Fla. 1984); Beasley v. Mitel
of Delaware, 449 So. 2d 365 (Fla. 1st DCA 1984); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983);
Campbell v. State, 423 So. 2d 488 (Fla. 1st DCA 1982); State v. Wills, 359 So. 2d 566 (Fla. 2d DCA
1978).
7
State v. Donaldson, 579 So. 2d 728 (Fla. 1991). See also Belvin v. State, 922 So. 2d 1046 (Fla.
4th DCA 2006), decision approved, 986 So. 2d 516 (Fla. 2008).
8
State v. Donaldson, 579 So. 2d 728 (Fla. 1991). See also Bell v. Dep’t of Highway Safety & Motor
Vehicles, 12 Fla. L. Weekly Supp. 602 (Fla. 4th Cir. Ct. April 13, 2005)Bell v. Dep’t of Highway Safety
& Motor Vehicles, 12 Fla. L. Weekly Supp. 602 (Fla. 4th Cir. Ct. April 13, 2005).
9
State v. Snowden, 18 Fla. L. Weekly Supp. 170 (Fla. 17th Cir. Ct. Nov. 5, 2010)State v. Snowden, 18
Fla. L. Weekly Supp. 170 (Fla. 17th Cir. Ct. Nov. 5, 2010) (in pretrial hearing, State can prove
substantial compliance by reliance on hearsay and that does not violate the Confrontation Clause; trial
court could properly consider certified letter from FDLE showing that the defendant’s breath test results
were not among those that may have been defective).
10
State v. Donaldson, 579 So. 2d 728 (Fla. 1991). See also Bedell v. State, 250 So.3d 146 (Fla. 1st
DCA 2018).
11
Ridgeway v. State, 514 So. 2d 418 (Fla. 1st DCA 1987).
12
Ridgeway v. State, 514 So. 2d 418 (Fla. 1st DCA 1987).
13
State v. Jessup, 40 Fla. Supp. 2d 28 (Fla. 15th Cir. Ct. 1989) (failure to comply with time requirement in
second test); State v. Kapoor, 36 Fla. Supp. 2d 78 (Fla. 17th Cir. Ct. 1989) (failure to comply with the
requirement that the percentage on the acetone test be recorded); State v. Walsh, 21 Fla. L. Weekly
Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013)State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla.
Volusia Cty. Ct. August 28, 2013) (results were admissible where failure to input new dry gas cylinder
number into intoxilyzer had no impact on test and evidence supported the finding that a new cylinder
had been installed); State v. Hamant, 8 Fla. L. Weekly Supp. 210 (Fla. Brevard Cty. Ct. Dec. 8,
2000)State v. Hamant, 8 Fla. L. Weekly Supp. 210 (Fla. Brevard Cty. Ct. Dec. 8, 2000) (breath test
affidavit properly allowed in evidence where it mistakenly indicated the last inspection date, but
testimony explained that the date was actually the most recent maintenance date); State v. Conyers, 2
Fla. L. Weekly Supp. 439 (Fla. Dade Cty. Ct. Sept. 2, 1994)State v. Conyers, 2 Fla. L. Weekly Supp.
439 (Fla. Dade Cty. Ct. Sept. 2, 1994) (low sample volume); State v. Rockwerk, 2 Fla. L. Weekly Supp.
223 (Fla. Palm Beach Cty. Ct. March 4, 1994)State v. Rockwerk, 2 Fla. L. Weekly Supp. 223 (Fla. Palm
Beach Cty. Ct. March 4, 1994) (failure to comply with twenty minute waiting period).
14
Smith v. Davis, 16 Fla. L. Weekly C94 (Fla. 7th Cir. Ct. June 13, 1991)Smith v. Davis, 16 Fla. L.
Weekly C94 (Fla. 7th Cir. Ct. June 13, 1991); State v. Giangrande, 36 Fla. Supp. 2d 67 (Fla. 17th Cir.
Ct. 1989); State v. Collie, 4 Fla. L. Weekly Supp. 338 (Fla. Palm Beach Cty. Ct. Sept. 19, 1996)State v.
Collie, 4 Fla. L. Weekly Supp. 338 (Fla. Palm Beach Cty. Ct. Sept. 19, 1996); State v. Rockwerk, 2 Fla.
L. Weekly Supp. 223 (Fla. Palm Beach Cty. Ct. March 4, 1994)State v. Rockwerk, 2 Fla. L. Weekly
Supp. 223 (Fla. Palm Beach Cty. Ct. March 4, 1994); State v. Beets, 2 Fla. L. Weekly Supp. 39 (Fla.

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

Palm Beach Cty. Ct. Nov. 2, 1993)State v. Beets, 2 Fla. L. Weekly Supp. 39 (Fla. Palm Beach Cty. Ct.
Nov. 2, 1993); State v. McDevitt, 40 Fla. Supp. 2d 139 (Fla. Palm Beach Cty. Ct. 1990); State v.
Mathias, 36 Fla. Supp. 2d 129 (Fla. Palm Beach Cty. Ct. 1989); State v. Rinaldi, 34 Fla. Supp. 2d 122
(Fla. Palm Beach Cty. Ct. 1989); State v. Bennett, 32 Fla. Supp. 2d 56 (Fla. Volusia Cty. Ct. 1988).
15
State v. Donaldson, 579 So. 2d 728 (Fla. 1991).
16
State v. Donaldson, 579 So. 2d 728 (Fla. 1991).
17
Donaldson v. State, 561 So. 2d 648 (Fla. 4th DCA 1990), decision approved, 579 So. 2d 728
(Fla. 1991).
18
These documents would generally be produced as part of discovery, which is discussed in more detail in
§ 6:3, Approval, registration, and inspections.
19
Romo v. State, 9 Fla. L. Weekly Supp. 826 (Fla. 19th Cir. Ct. Sept. 26, 2002)Romo v. State, 9 Fla. L.
Weekly Supp. 826 (Fla. 19th Cir. Ct. Sept. 26, 2002).
20
Turk v. State, 403 So. 2d 1077 (Fla. 1st DCA 1981).
21
Boyd v. State, 40 Fla. Supp. 2d 58 (Fla. 7th Cir. Ct. 1987).
22
Donaldson v. State, 561 So. 2d 648 (Fla. 4th DCA 1990), decision approved, 579 So. 2d 728
(Fla. 1991).
23
Donaldson v. State, 561 So. 2d 648 (Fla. 4th DCA 1990), decision approved, 579 So. 2d 728
(Fla. 1991).
24
State v. Donaldson, 579 So. 2d 728 (Fla. 1991).
25
State v. Donaldson, 579 So. 2d 728 (Fla. 1991).
26
State v. Donaldson, 579 So. 2d 728 (Fla. 1991).
27
§§ 316.1934(5), 90.803(8), Fla. Stat.
28
State v. Irizarry, 698 So. 2d 912 (Fla. 4th DCA 1997). See also Department of Highway Safety and
Motor Vehicles v. Dehart, 799 So. 2d 1079 (Fla. 5th DCA 2001); State v. Davis, 15 Fla. L. Weekly
Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007)State v. Davis, 15 Fla. L. Weekly Supp. 101 (Fla.
Broward Cty. Ct. Nov. 5 2007).
29
§ 316.1934(5), Fla. Stat.
30
Scoma v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 31 (Fla. 9th Cir. Ct.
June 23, 2014)Scoma v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 31 (Fla.
9th Cir. Ct. June 23, 2014).
31
Wright v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 879 (Fla. 18th Cir. Ct.
Aug. 26, 2003)Wright v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 879 (Fla.
18th Cir. Ct. Aug. 26, 2003) See also Lee v. State, 12 Fla. L. Weekly Supp. 194 (Fla. 6th Cir. Ct. Sept.
29, 2004)Lee v. State, 12 Fla. L. Weekly Supp. 194 (Fla. 6th Cir. Ct. Sept. 29, 2004) (defects in the
breath test affidavit can be cured by other evidence; thus, the state met its burden through the testimony
of the officer who conducted the inspection); State v. Hildreth, 13 Fla. L. Weekly Supp. 1237 (Fla.
Brevard Cty. Ct. Sept 20, 2006) (the failure to disclose certain documents was trivial, inadvertent, and
nonprejudicial; the documents were not essential to the introduction of the breath test because the State
properly relied on testimony of officers who inspected, maintained, and operated the instrument to

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

establish the foundation, and the State may rely on such testimony instead of the documentation).
32
State v. Valdez, 18 Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Dec. 2, 2010)State v. Valdez, 18
Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Dec. 2, 2010). See also State v. Mack, 18 Fla. L.
Weekly Supp. 1196 (Fla. Brevard Cty. Ct. Sept. 19, 2011) (I8000 passed inspections in several months
preceding the test; it failed inspections after the test and was repaired; “Any alleged deficiencies in a
monthly inspection after [defendant] submitted to the breath test is irrelevant for purposes of
admissibility, but may, if properly substantiated and admitted, be used in an attempt to discredit the
breath test results before the jury.”).
33
State v. Laghi, 18 Fla. L. Weekly Supp. 294 (Fla. Pinellas Cty. Ct. Dec. 22, 2010) State v. Laghi, 18 Fla.
L. Weekly Supp. 294 (Fla. Pinellas Cty. Ct. Dec. 22, 2010) (inspection successfully performed Nov. 19,
test was Dec. 19, subsequent inspection was Dec. 22 and test was out of tolerance so it was taken out of
service and Department inspector was notified as required by Form 40; since the rule only requires the
monthly inspections and not that the machine “‘pass’” the defense did not meet the “‘burden of
production’” necessary to shift the burden to the State to prove substantial compliance; although the
deficiency probably would be admissible at trial). See also State v. McAndrews, 18 Fla. L. Weekly
Supp. 315 (Fla. Broward Cty. Ct. Oct. 5, 2010)State v. McAndrews, 18 Fla. L. Weekly Supp. 315 (Fla.
Broward Cty. Ct. Oct. 5, 2010) (a proper and successful monthly inspection was performed on the I8000
prior to the breath test, but the machine was out of compliance in the monthly inspection following the
involved test and there was no intervening annual inspection; neither the statute nor the rules require
exclusion of the test results and the deficiency only goes to the weight of the evidence).
34
Kim v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 956 (Fla. 7th Cir. Ct. June
23, 2010)Kim v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 956 (Fla. 7th Cir.
Ct. June 23, 2010).
35
Wooster v. State, 6 Fla. L. Weekly Supp. 59 (Fla. 9th Cir. Ct. Oct. 21, 1998)Wooster v. State, 6 Fla. L.
Weekly Supp. 59 (Fla. 9th Cir. Ct. Oct. 21, 1998).
36
Thompson v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 686 (Fla. 4th Cir.
Ct. May 19, 2005)Thompson v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp.
686 (Fla. 4th Cir. Ct. May 19, 2005).
37
Koegler v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 403 (Fla. 4th Cir. Ct.
2006)Koegler v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 403 (Fla. 4th Cir.
Ct. 2006) (see cases cited therein). See also Avery v. Dep’t of Highway Safety & Motor Vehicles, 14
Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct. Dec. 7, 2006)Avery v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct. Dec. 7, 2006).
38
Department of Highway Safety and Motor Vehicles v. Falcone, 983 So. 2d 755 (Fla. 2d DCA 2008).
39
Department of Highway Safety and Motor Vehicles v. Falcone, 983 So. 2d 755 (Fla. 2d DCA 2008). See
also State v. Buttolph, 969 So. 2d 1209 (Fla. 4th DCA 2007).
40
Department of Highway Safety and Motor Vehicles v. Falcone, 983 So. 2d 755, 756 (Fla. 2d DCA 2008)
(citing § 316.1933, Fla. Stat.).
41
Department of Highway Safety and Motor Vehicles v. Falcone, 983 So. 2d 755 (Fla. 2d DCA 2008). See
also State v. Buttolph, 969 So. 2d 1209 (Fla. 4th DCA 2007).
42
Department of Highway Safety and Motor Vehicles v. Falcone, 983 So. 2d 755 (Fla. 2d DCA 2008). See
also State v. Buttolph, 969 So. 2d 1209 (Fla. 4th DCA 2007).
43
§ 316.1934(5), Fla. Stat.
44
Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995). See also Luscombe v. State, 8 Fla. L.
Weekly Supp. 21 (Fla. 17th Cir. Ct. June 13, 2000)Luscombe v. State, 8 Fla. L. Weekly Supp. 21 (Fla.
17th Cir. Ct. June 13, 2000).

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

45
Vargas v. State, 8 Fla. L. Weekly Supp. 426 (Fla. 15th Cir. Ct. April 12, 2001)Vargas v. State, 8 Fla. L.
Weekly Supp. 426 (Fla. 15th Cir. Ct. April 12, 2001).
46
State v. Zimmerman, 7 Fla. L. Weekly Supp. 407 (Fla. Palm Beach Cty. Ct. March 20, 2000) State v.
Zimmerman, 7 Fla. L. Weekly Supp. 407 (Fla. Palm Beach Cty. Ct. March 20, 2000); State v. Cook, 7
Fla. L. Weekly Supp. 284 (Fla. Palm Beach Cty. Ct. Jan. 10, 2000)State v. Cook, 7 Fla. L. Weekly Supp.
284 (Fla. Palm Beach Cty. Ct. Jan. 10, 2000); State v. Kilbourne, 7 Fla. L. Weekly Supp. 215 (Fla. Palm
Beach Cty. Ct. Dec. 6, 1999)State v. Kilbourne, 7 Fla. L. Weekly Supp. 215 (Fla. Palm Beach Cty. Ct.
Dec. 6, 1999).
47
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
48
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 63 Fed. R.
Evid. Serv. 1077 (2004).
49
Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 63 Fed. R.
Evid. Serv. 1077 (2004).
50
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
51
Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005).
52
Shiver v. State, 900 So. 2d 615, 617-18 (Fla. 1st DCA 2005). See also Tull v. State, 23 Fla. L.
Weekly Supp. 658 (Fla. 2d. Cir. Ct. Sept. 22, 2015)Tull v. State, 23 Fla. L. Weekly Supp. 658 (Fla. 2d.
Cir. Ct. Sept. 22, 2015); State v. Tapp, 12 Fla. L. Weekly Supp. 978 (Fla. Sarasota Cty. Ct. July 8,
2005)State v. Tapp, 12 Fla. L. Weekly Supp. 978 (Fla. Sarasota Cty. Ct. July 8, 2005).
53
Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005).
54
Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006), decision approved, 986 So. 2d 516 (Fla.
2008).
55
Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005).
56
Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006), decision approved, 986 So. 2d 516 (Fla.
2008).
57
Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006), decision approved, 986 So. 2d 516 (Fla.
2008). See also Schools v. State, 13 Fla. L. Weekly Supp. 243 (Fla. 15th Cir. Ct. Dec. 8, 2005)Schools
v. State, 13 Fla. L. Weekly Supp. 243 (Fla. 15th Cir. Ct. Dec. 8, 2005) (court ruled the entire affidavit
was testimonial and inadmissible).
58
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
59
State v. Belvin, 986 So. 2d 516, 518 (Fla. 2008).
60
Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006), decision approved, 986 So. 2d 516 (Fla.
2008).
61
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224, 70 Fed. R. Evid. Serv. 472,

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

30 A.L.R.6th 599 (2006).

62
State v. Belvin, 986 So. 2d 516 (Fla. 2008).
63
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224, 70 Fed. R. Evid. Serv. 472,
30 A.L.R.6th 599 (2006).
64
State v. Belvin, 986 So. 2d 516, 521 (Fla. 2008) (quoting Davis, 547 U.S. at 822, 126 S. Ct.
2266).
65
State v. Belvin, 986 So. 2d 516 (Fla. 2008).
66
State v. Belvin, 986 So. 2d 516 (Fla. 2008).
67
State v. Johnson, 982 So. 2d 672 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S. Ct. 28, 171 L. Ed.
2d 930 (2008).
68
State v. Johnson, 982 So. 2d 672 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S. Ct. 28, 171 L. Ed.
2d 930 (2008).
69
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). But see
State v. Scarboro, 18 Fla. L. Weekly Supp. 832 (Fla. 18th Cir. Ct. June 30, 2011)State v. Scarboro, 18
Fla. L. Weekly Supp. 832 (Fla. 18th Cir. Ct. June 30, 2011) (trial judge upheld §§ 316.1934(2),
316.1934(3), and 316.1934(5), Fla. Stat. against a claim that they violated the Confrontation Clause and
refused to extend Melendez-Diaz and Belvin to everyone involved in the underlying blood testing
procedure, including the developers of standards; Melendez-Diaz only required the analyst who actually
did the drug test to testify and Belvin only required the person who prepared the breath test affidavit to
testify); State v. Martinez, 19 Fla. L. Weekly Supp. 297 (Fla. Hillsborough Cty. Ct. Jan. 20 2012)State v.
Martinez, 19 Fla. L. Weekly Supp. 297 (Fla. Hillsborough Cty. Ct. Jan. 20 2012) (trial judge rejected
argument that I8000 violated Confrontation Clause and right to compulsory process and due process
because defendant cannot cross-examine the machine about its calculations and interpretations; judge
also rejected argument that all the data generated during the test must be provided pursuant to
Section 316.1932(1)(f)(4)(b)); State v. Dawes, 18 Fla. L. Weekly Supp. 1204 (Fla. Brevard Cty. Ct. Oct.
4, 2011).
70
Smith v. State, 28 So. 3d 838, 855 (Fla. 2009).
71
Calloway v. State, 210 So.3d 1160, 1193-95 (Fla. 2017).
72
Bullcoming v. New Mexico, 564 U.S. 647, 657, 131 S. Ct. 2705, 2713, 180 L. Ed. 2d 610 (2011).
73
Bullcoming v. New Mexico, 564 U.S. 647, 657, 131 S. Ct. 2705, 2713, 180 L. Ed. 2d 610 (2011).
74
Bullcoming v. New Mexico, 564 U.S. 647, 664, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610 (2011).
75
State v. Belvin, 986 So. 2d 516 (Fla. 2008).
76
State v. Belvin, 986 So. 2d 516 (Fla. 2008). See also Corona v. State, 64 So. 3d 1232 (Fla. 2011);
State v. Contreras, 979 So. 2d 896 (Fla. 2008); Blanton v. State, 978 So. 2d 149 (Fla. 2008);
State v. Lopez, 974 So. 2d 340 (Fla. 2008) (In Blanton v. State, 978 So. 2d 149 (Fla. 2008), Court
concluded that neither a discovery deposition nor rule allowing perpetuation of testimony provided prior
opportunity for cross).

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

77
This is covered in more detail later in this section and in § 8:2, Evidentiary problems with documentary
and physical evidence.
78
Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005).
79
Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006), decision approved, 986 So. 2d 516 (Fla.
2008).
80
Williams v. State, 933 So. 2d 1283 (Fla. 2d DCA 2006), review denied, 3 So. 3d 1247 (Fla. 2008).
81
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
82
State v. Belvin, 986 So. 2d 516 (Fla. 2008).
83
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
84
State v. Creo, 14 Fla. L. Weekly Supp. 681 (Fla. Broward Cty. Ct. May 2, 2007)State v. Creo, 14 Fla. L.
Weekly Supp. 681 (Fla. Broward Cty. Ct. May 2, 2007). See also Grant v. State, 17 Fla. L. Weekly
Supp. 932 (Fla. 18th Cir. Ct. March 1, 2010)Grant v. State, 17 Fla. L. Weekly Supp. 932 (Fla. 18th Cir.
Ct. March 1, 2010); State v. Ford, 14 Fla. L. Weekly Supp. 1052 (Fla. 17th Cir. Ct. Aug. 2, 2007); State
v. Davis, 15 Fla. L. Weekly Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007)State v. Davis, 15 Fla. L.
Weekly Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007) (court rejected argument that § 316.1934(5),
Fla. Stat. was unconstitutional since the State can no longer introduce affidavit); State v. Salesman, 14
Fla. L. Weekly Supp. 445 (Fla. Broward Cty. Ct. Feb. 23, 2007)State v. Salesman, 14 Fla. L. Weekly
Supp. 445 (Fla. Broward Cty. Ct. Feb. 23, 2007); State v. Evanchyk, 14 Fla. L. Weekly Supp. 392 (Fla.
Broward Cty. Ct. Jan. 10, 2007)State v. Evanchyk, 14 Fla. L. Weekly Supp. 392 (Fla. Broward Cty. Ct.
Jan. 10, 2007); State v. Tavernia, 14 Fla. L. Weekly Supp. 290 (Fla. Broward Cty. Ct. Jan. 4, 2007) State
v. Tavernia, 14 Fla. L. Weekly Supp. 290 (Fla. Broward Cty. Ct. Jan. 4, 2007).
85
State v. Creo, 14 Fla. L. Weekly Supp. 681 (Fla. Broward Cty. Ct. May 2, 2007)State v. Creo, 14 Fla. L.
Weekly Supp. 681 (Fla. Broward Cty. Ct. May 2, 2007). See also State v. Davis, 15 Fla. L. Weekly
Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007)State v. Davis, 15 Fla. L. Weekly Supp. 101 (Fla.
Broward Cty. Ct. Nov. 5 2007); State v. Daigle, 14 Fla. L. Weekly Supp. 789 (Fla. Bay Cty. Ct. April
30, 2007)State v. Daigle, 14 Fla. L. Weekly Supp. 789 (Fla. Bay Cty. Ct. April 30, 2007); State v.
Salesman, 14 Fla. L. Weekly Supp. 445 (Fla. Broward Cty. Ct. Feb. 23, 2007)State v. Salesman, 14 Fla.
L. Weekly Supp. 445 (Fla. Broward Cty. Ct. Feb. 23, 2007); State v. Evanchyk, 14 Fla. L. Weekly Supp.
392 (Fla. Broward Cty. Ct. Jan. 10, 2007)State v. Evanchyk, 14 Fla. L. Weekly Supp. 392 (Fla. Broward
Cty. Ct. Jan. 10, 2007); State v. Tavernia, 14 Fla. L. Weekly Supp. 290 (Fla. Broward Cty. Ct. Jan. 4,
2007)State v. Tavernia, 14 Fla. L. Weekly Supp. 290 (Fla. Broward Cty. Ct. Jan. 4, 2007).
86
State v. Pena, 14 Fla. L. Weekly Supp. 182 (Fla. Broward Cty. Ct. Dec. 29, 2006)State v. Pena, 14 Fla.
L. Weekly Supp. 182 (Fla. Broward Cty. Ct. Dec. 29, 2006).
87
State v. Pena, 14 Fla. L. Weekly Supp. 182 (Fla. Broward Cty. Ct. Dec. 29, 2006)State v. Pena, 14 Fla.
L. Weekly Supp. 182 (Fla. Broward Cty. Ct. Dec. 29, 2006).
88
State v. Pena, 14 Fla. L. Weekly Supp. 182 (Fla. Broward Cty. Ct. Dec. 29, 2006)State v. Pena, 14 Fla.
L. Weekly Supp. 182 (Fla. Broward Cty. Ct. Dec. 29, 2006).
89
State v. Buttolph, 969 So. 2d 1209 (Fla. 4th DCA 2007). See also Loman v Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 17 (Fla. 9th Cir. Ct. Oct. 4, 2012)Loman v Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 17 (Fla. 9th Cir. Ct. Oct. 4, 2012) (petitioner claimed
State was not in compliance because § 316.1934(5), Fla. Stat. requires the date of the most recent
inspection in the affidavit; court rejected argument because that can be the monthly or annual inspection;
the affidavit showed the date of the monthly inspection just before the involved breath test and petitioner

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§ 6:2.Foundation for establishing compliance with regulations, 11 Fla. Prac., DUI...

failed to present any evidence that the annual inspection was closer to the breath test date; many
opinions from the 9th circuit state the same holding); State v. Mack, 18 Fla. L. Weekly Supp. 1196 (Fla.
Brevard Cty. Ct. Sept. 19, 2011) (I8000 passed inspections in several months preceding the test; it failed
inspections after the test and was repaired; “Any alleged deficiencies in a monthly inspection after
[defendant] submitted to the breath test is irrelevant for purposes of admissibility, but may, if properly
substantiated and admitted, be used in an attempt to discredit the breath test results before the jury.”);
State v. Davis, 15 Fla. L. Weekly Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007)State v. Davis, 15 Fla.
L. Weekly Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007) (annual report not required; statute is
referring to monthly report because it is most recent).
90
State v. Buttolph, 969 So. 2d 1209, 1211 (Fla. 4th DCA 2007).
91
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
92
State v. Tapp, 12 Fla. L. Weekly Supp. 978 (Fla. Sarasota Cty. Ct. July 8, 2005) State v. Tapp, 12 Fla. L.
Weekly Supp. 978 (Fla. Sarasota Cty. Ct. July 8, 2005).
93
Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005).
94
Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006), decision approved, 986 So. 2d 516 (Fla.
2008).
95
State v. Tapp, 12 Fla. L. Weekly Supp. 978 (Fla. Sarasota Cty. Ct. July 8, 2005) State v. Tapp, 12 Fla. L.
Weekly Supp. 978 (Fla. Sarasota Cty. Ct. July 8, 2005). See also Kolb v. State, 15 Fla. L. Weekly Supp.
422 (Fla. 9th Cir Ct. Feb. 5 2008)Kolb v. State, 15 Fla. L. Weekly Supp. 422 (Fla. 9th Cir Ct. Feb. 5
2008) (laser certification for speed monitoring device was not prepared specifically to prove guilt of
defendant; rather it was done in order to ensure accuracy and maintenance of device; therefore it was
nontestimonial); Livesay v. State, 13 Fla. L. Weekly Supp. 1063 (Fla. Palm Beach Cty. Ct. Aug. 3,
2006); Saint Gerard v. State, 13 Fla. L. Weekly Supp. 871 (Fla. Palm Beach Cty. Ct. June 14,
2006)Saint Gerard v. State, 13 Fla. L. Weekly Supp. 871 (Fla. Palm Beach Cty. Ct. June 14, 2006). State
v. Bookspan, 13 Fla. L. Weekly Supp. 630 (Fla. Palm Beach Cty. Ct. March 14, 2006)13 Fla. L. Weekly
Supp. 630 (Fla. Palm Beach Cty. Ct. March 14, 2006), aff’d, 14 Fla. L. Weekly Supp. 426 (Fla. 15th Cir.
Ct. March 8, 2007)14 Fla. L. Weekly Supp. 426 (Fla. 15th Cir. Ct. March 8, 2007).
96
Pflieger v. State, 952 So. 2d 1251 (Fla. 4th DCA 2007). See also Hungerford v. State, 972 So. 2d
303, 304 (Fla. 4th DCA 2008); Rossini v. State, 15 Fla. L. Weekly Supp. 650 (Fla. 9th Cir. Ct. April 12,
2008)Rossini v. State, 15 Fla. L. Weekly Supp. 650 (Fla. 9th Cir. Ct. April 12, 2008) (“if the nature of
the statement is one that is intended to lodge a criminal accusation against a defendant, the statement is
testimonial”).
97
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
98
Pflieger v. State, 952 So. 2d 1251, 1252 (Fla. 4th DCA 2007) (quoting Crawford).
99
Pflieger v. State, 952 So. 2d 1251, 1252 (Fla. 4th DCA 2007).
100
Pflieger v. State, 952 So. 2d 1251 (Fla. 4th DCA 2007). See also Chepenik v. State, 16 Fla. L.
Weekly Supp. 707 (Fla. 6th Cir. Ct. March 27, 2009)Chepenik v. State, 16 Fla. L. Weekly Supp. 707
(Fla. 6th Cir. Ct. March 27, 2009) (monthly maintenance and inspection reports are admissible as
business records and they are not testimonial for purposes of the Confrontation Clause; the rational
applied in Pflieger to annual inspection reports applies to monthly maintenance reports). Contra State v.
Harkins, 21 Fla. L. Weekly Supp. 789 (Fla. Leon Cty. Ct. May 8, 2014)State v. Harkins, 21 Fla. L.
Weekly Supp. 789 (Fla. Leon Cty. Ct. May 8, 2014) (trial judge concluded that the court in Pflieger
incorrectly distinguished Shiver and that Shiver controlled so that Crawford applied to the agency
maintenance inspection affidavit).

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101
Pflieger v. State, 952 So. 2d 1251, 1254 (Fla. 4th DCA 2007).
102
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
103
State v. Johnson, 982 So. 2d 672 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S. Ct. 28, 171 L. Ed.
2d 930 (2008). See also Rivera v. State, 917 So. 2d 210 (Fla. 5th DCA 2005).
104
Baber v. State, 775 So. 2d 258, 260–261 (Fla. 2000). See also Sellers v. State, 973 So. 2d 543
(Fla. 1st DCA 2007) (blood test taken in emergency room at direction of doctor for diagnosis and
treatment of defendant’s injuries was not testimonial in DUI manslaughter case).
105
State v. Johnson, 982 So. 2d 672, 676–677 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S. Ct. 28,
171 L. Ed. 2d 930 (2008). See also State v. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010) (holding that it
was error to exclude medical test results based on defense claim that tests were ordered for prosecutorial
purposes without any evidence supporting the claim).
106
State v. Johnson, 982 So. 2d 672, 678 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S. Ct. 28, 171
L. Ed. 2d 930 (2008).
107
State v. Johnson, 982 So. 2d 672 (Fla. 2008), cert. dismissed, 554 U.S. 943, 129 S. Ct. 28, 171 L. Ed.
2d 930 (2008). See also Martin v. State, 936 So. 2d 1190 (Fla. 1st DCA 2006); Sobota v. State,
933 So. 2d 1277 (Fla. 2d DCA 2006), review denied, 988 So. 2d 623 (Fla. 2008) (same issues and ruling
as to a legal blood draw); Rivera v. State, 917 So. 2d 210 (Fla. 5th DCA 2005).
108
Peterson v. State, 129 So. 3d 451 (Fla. 2d DCA 2014), review denied, 147 So. 3d 526 (Fla. 2014).
109
The court explained that this is also known as the “‘black box’” or the “‘event data recorder.’” 129 So.
3d at 452.
110
Peterson v. State, 129 So. 3d 451, 453 (Fla. 2d DCA 2014), review denied, 147 So. 3d 526 (Fla. 2014).

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Works.

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§ 6:3.Approval, registration, and inspections, 11 Fla. Prac., DUI Handbook § 6:3...

11 Fla. Prac., DUI Handbook § 6:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:3. Approval, registration, and inspections

The rules require several forms of approval, registration, and inspection for breath and blood testing. Initially,
the Department must approve the testing methods and instruments. 1 The regulations contain all the approved
methods and instruments. The Department has approved one method for breath testing, the Infrared
spectroscopy, also known as Infrared Light Absorption Test 2 and one method for blood testing, Gas
Chromatography.3 The Department has also approved the CMI, Inc. Intoxilyzer 8000, using software approved
by the Department in accord with the Instrument Evaluation Procedures set forth in Form 34 (Rev. March
2004).4

There have been a number of cases focusing on the approval of the I8000. Some trial judges have rejected
defense claims that the Intoxilyzer 8000 was not properly approved.5 Others disagree.

One controversy has been over the requirement in Form 34 that the Intoxilyzer 8000 approved for use in Florida
be listed on the U.S. Department of Transportation’s Conforming Product List. Some courts have concluded
that the Intoxilyzer 8000 approved for use in Florida may not be one that is on the list because of differences
between the software and the size of micron bands between the approved version and the Intoxilyzers on the
list.6 Therefore, those courts have concluded that the Intoxilyzer 8000 in Florida has not been properly approved
and can only be used upon a showing of the traditional scientific predicate. 7 Based on evidence, other courts
have concluded that there is no significant difference and the Intoxilyzer 8000 has been properly approved for
use in Florida.8

In Dep’t of Highway Safety & Motor Vehicles v. Berne, 9 this conflict appears to have been at least partially
resolved. There, the court reversed a circuit court decision reversing a license suspension. The circuit court
relied on Atkins10 in support of the conclusion that the Intoxilyzer 8000 was not properly approved because it
employed software version 8100.26, the reliability of which had not been established by an approval study or
independent scientific evidence. The district court reversed because the software did not have to be approved,
but only evaluated by FDLE and the evidence showed that it had been properly evaluated. 11 Furthermore, the
rule provides that a new software version does not negate the prior approval of the instrument. 12

Another approval controversy has to do with modifications to the I8000. Several trial court decisions have
considered whether a pin hole drilled into the purge valve of the I8000 without written notice to FDLE created a
different instrument from the one that was approved for evidentiary use and required re-approval. The courts
that have considered this controversy have ruled that it did not mean the I8000 in use in Florida is not an
approved instrument.13 This issue was brought before an Administrative Law Judge in a rule challenge. The
Fourth District upheld that judge’s rejection of the argument and finding that the evidence failed to show that
“the drilling of the hole affected breath test results ‘in any manner’ or rendered the results unreliable.” 14 The
court also affirmed the ALJ’s rejection of a claim that the rules were inadequate because of problems with the
flow sensors. The judge concluded there was no evidence the sensors were related to the scientific reliability of

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§ 6:3.Approval, registration, and inspections, 11 Fla. Prac., DUI Handbook § 6:3...

the test results in that the instrument would not give a result if the quantity of air was insufficient. 15

One county court decision recently affirmed by a circuit court appellate panel, holds that there have been so
many modifications to the I8000, which have not been submitted to N.H.T.S.A., “[t]here is no way to say that
the Intoxilyzer 8000 as modified is the same machine approved for use in the State of Florida in 2002. There is
no evidence before the Court to show how the modifications may affect the accuracy and reliability.” 16
Accordingly, for test results to be received in evidence the State must show the traditional scientific predicate. 17

There is no specific instrument approved for blood testing. Instead, the Department must approve each
individual tester’s procedure.18 This is accomplished by requiring that a candidate submit a detailed application
for a permit, on Form 4 including a complete description of the proposed analytical procedure. 19 The rule
describes in detail the procedures the Department will approve. 20 Once the Department issues a permit for blood
testing, the permittee must submit any substantial changes in the approved method, analytical procedure, or
laboratory facility for approval before the change is made. 21 The Department shall determine what is a
substantial change.22 Such changes cannot be used to determine blood alcohol level until the change is
approved.23 Thus, the Department has specifically set forth in detail the procedures that must be followed for
blood testing.

The Department approves all instruments to assure accuracy and reliability before they are placed into
evidentiary use.24 The Department shall do all evaluations for approval in accordance with Instrument
Evaluation Procedures FDLE/ATP Form 34.25 That form sets forth in great detail the exact procedures to be
followed in evaluating instruments. Those procedures include the requirement that the accuracy and precision of
the instrument be evaluated at least 25 times at several concentrations of alcohol reference solution and one dry
gas standard.26 “Accuracy” is defined as “the nearness of a measurement to a known concentration.” 27

To establish the accuracy of the instrument, the results of analysis at each of these concentrations must fall
within the following ranges:28
00.0 g/210L distilled29 or deionized water-all results must be 0.000 g/210L;

0.05 g/210L alcohol reference solution-range 0.045 to 0.055 g/210L;

0.08 g/210L alcohol reference solution-range 0.075 to 0.085 g/210L;

0.20 g/210L alcohol reference solution-range 0.190 to 0.210 g/210L;

0.08 g/210L dry gas standard—range 0.075 to 0.085 g/210L.

Precision is established by calculating the standard deviation for each of the above results, and determining that
the deviation does not exceed the manufacturer’s specifications for precision. 30

The Department must register and inspect each breath test instrument before it is used for evidentiary
purposes.31 The registration should include the registration date, the owner of the instrument, the serial number,
the manufacturer, and the model.32 The Department shall inspect the instrument at least once each calendar year,
and the instrument must be accessible to the Department for inspection.33

Obviously, intoxilyzers must be repaired.34 That has created a couple of issues. Defendants argued that it was
improper to use a common carrier to transport the intoxilyzer to a repair facility. That contention has been
repeatedly rejected.35

Defendants also raised an issue concerning inspections after repairs. That has created some confusion as to
when units can be returned to evidentiary use after repairs. Before July, 2015 the rule provided: “Any
evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the
Department prior to being placed in evidentiary use.” 36 This language created some disagreement as to when and
where a repaired unit must be inspected before being returned to evidentiary use.

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§ 6:3.Approval, registration, and inspections, 11 Fla. Prac., DUI Handbook § 6:3...

One court ruled that the inspection after repair could only take place at the testing facility. 37 Other courts ruled
that evidentiary use of the machine was proper even through the inspection had been done at the repair facility
before the unit was returned to the testing site. 38 This confusion was exacerbated by the fact that another
provision defined “authorized repair facility” as including the Department 39 and the Department started having
all intoxilyzers shipped to Tallahassee for the annual inspection. So an issue arose as to whether the Department
had to do an annual inspection in Tallahassee and then right away perform a second inspection when the unit
arrived back at the testing site.40

Hopefully, this disagreement has been resolved by the recent amendment to the rules. It now reads: “A
department inspection must be conducted subsequent to repair and prior to being placed in evidentiary use.” 41
The rule no longer focuses on the return of the machine as the potential triggering event for an inspection after
repair, but now focuses exclusively on the time of repair.

Whether the Department is conducting an annual inspection or an inspection subsequent to repair, standard
forms must be used. Inspection of the Intoxilyzer 8000 must be done in accordance with Form 36 and reported
on Form 41.42

Changes in approved breath testing instruments can have significant consequences. The courts have found
breath test results inadmissible where such changes in a breath testing device have made it different from the
one the Department originally certified. 43 Thus, the court sustained exclusion of breath test results when the
agency changed a I–3000 to bypass a t-cell, and an expert testified that the change made the device
scientifically unreliable.44 It follows that retesting is required only where a change affects the machines method
of breath analysis.45 Changes in the Intoxilyzer 8000 may only require evaluation not retesting.46

The individual agencies are also required to conduct inspections. The agency inspector 47 shall inspect each
instrument once each calendar month using forms 39 and 40.48 One month does not mean 30 days.49 If any breath
testing instrument is removed from evidentiary use, the agency must do an inspection. 50 The agency must also
inspect the instrument before it is returned to evidentiary use.51

The inspections and evaluations of the Intoxilyzer 8000 are done with alcohol reference solutions and dry gas
standards.52 The Department shall approve a source of dry gas standards that meets very specific and detailed
requirements set forth in the rules. 53 “Dry gas standard” is “a mixture of alcohol and gas which produces a
known alcohol vapor concentration used to verify the calibration of a breath test instrument.” 54

As to the alcohol reference solutions, the rule lays out in detail the requirements that the source must meet.
They are: (1) be capable of making a minimum of 800 bottles in a batch, each containing at least 500 milliliters,
to produce vapor alcohol concentrations of: 0.05g/210L, 0.08g/210L, 0.20g/210L; 55 and (2) perform and
document tests showing that the alcohol reference solutions are reliable for at least two years from the date of
manufacture.56

The Department must approve each lot of alcohol reference solution before distribution. 57 The Department must
determine the alcohol concentration in at least 10 sample bottles of each alcohol reference solution using gas
chromatography or other scientifically accepted method.58

The Department will perform duplicate analyses on each sample bottle of the alcohol reference solution. 59 All
analyses must fall within the alcohol reference solution acceptable range, which for the alcohol reference
solution gas chromatographic results, is: “0.0605 g/100mL range is 0.0586 to 0.0623 g/100mL; 0.0968 g/100
mL range is 0.0938 to 0.0997 g/100mL; 0.2420 g/100mL range is 0.2347 to 0.2492 g/100mL.” 60 Previously, the
Rule required that all samples must pass the test the first time and there could be no retesting. 61 In September of
2016, a rule change took effect. 62 It requires that if any sample fails, a second set of analyses will be done. 63 If all
the samples fall within the acceptable range the second time, the alcohol reference solution shall be approved,
but if any fail, the solution shall be disapproved.64

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§ 6:3.Approval, registration, and inspections, 11 Fla. Prac., DUI Handbook § 6:3...

Upon approval, the Department shall notify the source that the approved lots may be distributed in Florida and
issue Form 32, which is a certificate of assurance. 65 An approved lot can only be used for two years. 66 Approval
is based on the standards and procedures in effect at the time a lot is submitted for approval and no post-
approval analysis is required.67

Despite all of the detail in the Rule, in State v. Heimbegner68 two county judges recently were compelled to
consider an attack on the alcohol reference solutions based not on the rules, but rather on the Department’s
Alcohol Testing Procedures Manual. A large group of defendants argued that their test results were inadmissible
because the Department failed to independently analyze distilled or deionized water, as set forth in section 2.18
of its procedure manual. Defendants claimed that this failure invalidated the approval process for the alcohol
reference solutions, mouth alcohol solutions, and acetone stock solutions used at the time of the breath tests.
The judges presided over an extensive hearing and wrote a detailed and thorough opinion in which they rejected
the defense arguments. While the judges identified many reasons for their ruling, of particular importance is the
conclusion that the tests complied with Rule 11D-8.0035. If judges or counsel have a similar issue involving
FDLE’s Standard Operating Procedures this opinion would be helpful.

As with alcohol reference solutions, the rules also lay out in detail the requirements that the source must meet
with dry gas standards.69 Those requirements are: (1) produce dry gas standards that comply with specifications
of the National Institute of Standards and Technology; 70 (2) certify each dry gas cylinder as to its contents and
vapor alcohol concentration;71 (3) be capable of making a minimum of 300 cylinders of dry gas standard during
a thirty day period to produce a vapor alcohol concentration of 0.08 g/210L; 72 (4) perform and document tests
showing that the dry gas standards are reliable for at least two years from the date of manufacture. 73 Dry gas
standard cylinders produced by the approved source must not be used beyond the expiration date. 74

There are very specific requirements concerning records management. The agency must maintain the records of
inspection for at least three years from the date of the last entry. 75 That requirement includes agency inspection
reports and breath test instrument repair records. 76 The instrument registration must be retained for at least three
years after the instrument is removed from evidentiary use. 77 Dry gas standard certificates of analysis shall be
retained by the agency for at least three years after receipt. 78 All of these records must be available to the
Department upon request.79 At least once every calendar month each agency shall electronically transmit all
breath tests conducted on the Intoxilyzer 8000 to the Department. 80 It is particularly important, that the rules
specifically provide that these records management requirements are for regulatory and administrative purposes,
but any violation of the requirements will not affect the admissibility, validity, or reliability of test results. 81

The rules on inspections must be interpreted in light of the substantial compliance requirement. Thus, where the
inspector did the inspection outside the calendar month by a matter of days and there was no evidence that the
noncompliance was of “crucial significance,” the test results were still admissible. 82 And the failure to sign a
monthly inspection report with a written signature was not significant. 83 Similarly, in another case, 84 the court
found that there were no grounds to exclude the breath test results where the machine was moved from one
location to another even though no inspection was done prior to the move. However, the evidence showed that:
(1) an inspection was performed a little over a month before the move; (2) no evidentiary tests were done
between that inspection and the move; (3) the instrument was inspected when it was installed at the new
location and before the defendant’s tests; and (4) the purpose of the inspection before a move is to “ ‘close out’
and preserve the integrity and reliability of any” tests taken at the previous location.

Defendants have made general attacks on the reliability of the inspection procedure without success. 85 However,
where an intoxilyzer consistently registered an inaccurate high reading on the monthly tests and nothing was
done to correct it, the court found that the machine was not in substantial compliance. 86 Similarly, where during
each of five monthly inspections the inspector discovered a variety of printer problems, which could have
resulted from a malfunction of the instrument’s microprocessor or computer functions, the trial judge found that
the test results were unreliable and excluded them from evidence. 87 A trial judge reached the same conclusion
where there had been a variety of problems relating to machine inspection. 88 The judge said, “the State lacked
the evidence to meet its burden of demonstrating substantial compliance with the administrative rules given the
number and scope of irregularities associated with the testing and maintenance of the intoxilyzer.” 89

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§ 6:3.Approval, registration, and inspections, 11 Fla. Prac., DUI Handbook § 6:3...

The courts have also considered several challenges to the use of stock solutions in these inspections. Although
the rules subsequently eliminated references to alcohol stock solution, these decisions may be of value for their
legal principles, analyses, and possible relevance to other aspects of testing. The courts have ruled that the
Department need not promulgate and adopt regulations setting forth the procedures it adopts and employs in
preparing such solutions.90 “[P]rocedures that are implicit and incidental to procedures otherwise explicitly
provided for in a properly adopted rule or regulation do not require further codification by a further adopted rule
or regulation.”91

The courts have also considered the sufficiency of the solutions. Defendants have argued that the solutions were
not adequate because they had not been tested for shelf-life integrity. One court rejected that contention for
several reasons.92 First, the evidence showed that inspectors used the solutions shortly after they arrived in the
field.93 Second, the testimony established that results were consistent and that any alleged problem was
“theoretical and speculative.”94 Third, no rules or regulations required that the solutions be used within a set
period and the evidence did not reveal any need for such rules or regulations. 95 This situation has changed by
virtue of the shelf-life requirement that has been adopted.96

A trial court has considered the significance of the shelf-life requirement. 97 The court ruled that the state failed
to meet its burden of showing substantial compliance, where the FDLE representative testified only that he
“believed” Stiefel Research Institute did a shelf-life study and that Guth Laboratories did not do a shelf-life
study.98 However, when a qualified FDLE representative testified that such tests were in fact done and presented
a written letter confirming that fact, a three judge circuit appellate panel ruled that the State had met its burden. 99

Defendants have also challenged the use of stock solutions on the grounds that they were prepared with
concentrations of alcohol that were within a range that might fail to detect an inaccuracy in the test machine. 100
These solutions were prepared by a Department agent for use by technicians in the field, as the rule provided at
the time.101 That agent considered stock solutions containing a mixture within a range of .116g/210L to
.126g/210L102 to be scientifically reliable. However, an agent explained that “a high reading machine, tested on a
.116 stock solution, could be testing plus .008 rather than .005, the acceptable range established by the Rules—a
variance of .003.”103 For several reasons, the court rejected the claim that this potential extra variance required
exclusion of test results.104 First, there was no rule on the composition of stock solutions. Second, the agent’s
testimony that the range of accuracy for the stock solution was scientifically reliable was unrebutted. Third, the
alleged effect of the variance in range was speculative and theoretical.

The court recognized that the additional variance in the acceptable range would only be a problem for
defendants with readings of .082 or less. These readings “may theoretically have been pushed up to the statutory
level of presumed intoxication (.08) by the variation in batches of stock solution.” 105 Those actual readings could
be below .08. In such cases, the state should not benefit from the statutory presumption that one is impaired if
that person has a breath alcohol level of .08 or higher.106

In such cases, however, the court recognized a way the State might still benefit from the statutory presumption.
It could produce the chromatography analysis for the batch of test solution last used to test the involved
machine and show that the stock solution was close to the agent’s target level of .1215, which would produce
a .100 reading.107 Such proof would validate the test, and the State would once again be entitled to the benefit of
the statutory presumption of impairment. Under no circumstances, however, could the State attempt to move up
a reading that was below the unlawful level by reliance on the possibility that a high-level ethanol stock solution
was used to test the involved machine.

A similar problem has arisen with the alcohol reference solutions distributed by Guth. The procedure used in
testing the solutions could result in a variance between the actual alcohol content of the samples versus the
content that the manufacturer represented. One trial court 108 applied the ruling and rationale in State v.
Friedrich109 to this situation to conclude that the variance would have little effect on high readings, such as in
the involved case.110 Similarly, another trial judge ruled that if the defendant’s readings fall into the small range
affected by the variance, based on Friedrich, the State would not be entitled to an instruction on the statutory

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presumptions.111

Defendants have also attacked the validity of breath test readings based on the way that inspectors used stock
solutions in the field.112 In one instance, a DUI technician testified that she mixed the stock solution with water
by using a pipette at the different levels of .05, .10, and .20. The defendant argued that this visceral
measurement was insufficient because the rule contemplated testing with mixtures verified to the third degree.
Although the rule113 spoke in general terms of testing for readings to the third decimal, the court found that no
rule required that the reading go beyond the second decimal. 114 In fact, the court found that the rule
contemplated some leeway. Furthermore, in the absence of controlling administrative rules, the court found that
it was appropriate to follow the procedures set forth in the operator’s manual. 115 The manual did not require that
the technician determine the third decimal in preparing the testing solutions. Finally, the court noted that if there
were any differences between the technician measuring the stock solution to the second decimal and the
requirements of the rule, it would not cause any prejudice to the defendant. 116

Before the change,117 the rules simply directed that the Department select the source of alcohol reference
solution.118 Tom Wood, an FDLE agent, was in charge of that activity. He entered into a contract with Guth
Laboratories to have the solution provided. 119 It distributed solution manufactured by Steiffel Research
Institute.120 The regulations have never named the actual source, but they have included specific requirements
concerning the source selection.121 This has generated a great deal of litigation in the trial courts and extensive
disagreement. These cases have become known as the “Guth” cases.

The trial courts have split as to whether the proper procedural mechanism in cases involving alleged rule
violations or deficiencies is a motion in limine or a motion to suppress. 122 They have also been a little unclear as
to the burden of proof. Some courts hold that on a motion in limine raising regulatory deficiencies, the
defendant must prove his or her allegations by a preponderance of the evidence. 123 Other courts have ruled that
the State has the initial burden of showing compliance with the regulations, and then the burden shifts to the
defense to rebut the presumption of admissibility. 124 Other courts have ruled that this is true even if the defense
is claiming that the rules are deficient for failure to include a rule where one is required. 125 Another court
followed this basic principle, but concluded that where the defense is arguing that test results are inadmissible
because of a failure to adopt rules, the defense has the burden. 126 That has been the core of the debate over the
Guth solutions.

Prior to July 1999, there was no rule as to the selection of a source for the alcohol reference solution, the
method of preparation of the solution, testing for accuracy and reliability of the solution, or the distribution of
the solution. Tom Wood, the supervising FDLE agent, developed his own procedures, including accepting a
wider margin for error than specified in the contract with Guth Laboratories. Mr. Wood developed a certificate
of assurance to be used in conjunction with his procedures, and to show that each lot of alcohol reference
solution distributed by Guth Laboratories was proper for use. None of this was in a rule. Thus, the defense
sought to exclude breath test results in many cases based on the argument that all of these procedures had to be
in a rule.127

The trial courts split on this claim. Some of them ruled, pursuant to Wissel v. State,128 that the authority to select
Guth Laboratories was implicit in the rules, and the company need not be named in the rules. 129 Similarly, some
courts ruled that neither the certificate of assurance nor the procedure it led to, constituted an unpromulgated
rule, and they were implicit in the rules.130 In contrast, some courts ruled that the certificate of assurance and the
procedures followed by Tom Wood leading up to the certificate of assurance were unpromulgated rules, in
violation of the Administrative Procedure Act (APA).131

The trial courts that agreed with the defense argument as to the failure to promulgate a rule provided different
remedies. In the absence of a showing that the breath tests were affected by the lack of a rule, one court
concluded that the appropriate remedy was prospective only. 132 The Department could not rely on the certificate
of assurance or the related procedures in approving distribution of alcohol reference solution in the future. 133
Other courts ruled that the lack of a rule would not require exclusion of the breath test results, if the State could
establish the traditional scientific predicate set forth in State v. Bender,134 but the State could not benefit from the

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statutory presumptions.135 One court agreed as to the traditional scientific predicate, but seemed to allow reliance
on the statutory presumptions.136 Another court simply suppressed the breath test without any leeway. 137 Still
other courts applied the rationale in State v. Friedrich138 to the situation, and ruled that if the defendant could
show that the results would have been affected by the inappropriate deviation, the statutory presumptions would
not apply.139

The conflict among the trial courts on all three issues 140 discussed above was resolved by the First District in
Jenkins v. State.141 In Jenkins, the court ruled that the selection of Guth as the source for the alcohol reference
solutions was “a one-time event with no general applicability, and therefore, that does not meet the statutory
definition of a rule.”142 The court went on to rule that the creation and use of the certificate of assurance “did
constitute action pursuant to a ‘rule’ as defined by the APA.” 143 Finally, the court ruled that despite the lack of a
rule adopting the certificate of assurance at the time the tests in questions were administered, the results were
still admissible and the state was entitled to the benefit of the statutory presumptions. 144 The court took this
position because the evidence established that the failure to adopt the rule had no impact on the reliability of the
test results, and the Department subsequently cured the problem by the adoption of the rule. 145

Besides the various inspection issues previously discussed relating to both the Intoxilyzer 5000 and the
Intoxilyzer 8000, a trial judge has considered the application of the rules for the Intoxilyzer 8000 to inspection
failures in two other cases. Those cases are State v. Wright146 and State v. Hanna.147

In Wright,148 the judge excluded results where the Intoxilyzer 8000 was not taken out of service after a failed test
and retest, reflecting a problem, which the agency inspector allegedly cured. The inspector began the inspection
at 11:53 p.m. on April 30. The instrument did not detect acetone in any of the solutions. Neither a retest, which
Form 39 authorizes to be done once, nor a post-inspection diagnostic check, worked properly. And then the
machine terminated the inspection and turned itself off. The officer began another test at 12:20 a.m. on May 1
and that test was normal. The next test in June was also normal. Between the April 30 test and the May 1 test
the inspector fixed the problem. The court concluded that the May 1 test was unauthorized because the
procedures set forth on Form 39 required that when the machine terminated the inspection it was not in
compliance, and the instrument had to be removed from service and the department inspector notified. This did
not occur. Furthermore, the inspector failed to enter the reason for the retest in the remarks section of Form 40
as required by the procedures included in Form 39. Thus, the court concluded: “differences between approved
techniques and actual testing procedures in this case” were in fact substantial. 149

There was similar noncompliance in State v. Hanna.150 As in Wright,151 the machine twice failed a test, but the
agency inspector dealt with the noncompliance by addressing the problem without taking the instrument out of
service and contacting the department inspector. The training course for the agency inspector’s certification
includes a checklist for troubleshooting, but it was not on any form or in any other rule for the Intoxilyzer 8000,
and the agency inspector followed that procedure. The State argued that subsequent test results should not be
excluded for three reasons. First, the problem was caused by the simulator rather than the instrument. The trial
judge concluded that this argument was speculative and was immaterial because the instrument was not in
compliance after the retest. Second, the state argued that the troubleshooting protocol was incorporated into the
rule because the rule required that the agency inspector take the training course, which included the
troubleshooting protocol. The trial judge rejected that argument because there was no reference anywhere in the
forms or rules to the troubleshooting checklist; therefore, it was not incorporated by reference. Finally, the state
argued that it would be absurd to preclude the agency inspector from following the troubleshooting procedure
because the department inspector has so many instruments to deal with. The trial judge rejected that argument
because it is inconsistent with the plain language of the rule included in Form 39 requiring that once a check or
test has been subjected to one retest the instrument must be removed from service and the department inspector
contacted. For all those reasons, the trial judge found that the Intoxilyzer 8000 was not in substantial
compliance and excluded the test results.152

But in a series of trial court decisions from Broward County, 153 the judges rejected a variety of attacks on the
Intoxilzer 8000. Those attacks were: (1) forms 36, 37, and 39 allow operators and inspectors to show
instruments in compliance even after successive failed tests; (2) the intoxilyzer is unable to take into account

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volatile organic compounds, including acetone; (3) inspectors intentionally interrupt power to instruments
during inspections to conceal failing inspections; (4) the way inspectors test for mouth alcohol is not in
substantial compliance with FDLE rules, and (5) the rules offer no guidance to operators concerning a control
test failure or results outside of tolerance. The judges rejected the defense arguments because they concluded
that these issues should be decided by administrative judges, the motions were too general and failed to set forth
specifics related to the cases, and there was substantial compliance. Where the Broward County Courts did
consider the merits of the claim that the inspector did not properly inspect the Intoxilzer 8000 for mouth
alcohol, many of those courts held there was no substantial compliance.154

The matter of disruption of power during inspection mentioned above has been considered both in Broward
County Courts and other courts with different results. In one case, where the evidence revealed that the
disruption was intentional, the court found that the effect of the misconduct was to keep inspection reports for
the Intoxilyzer 8000 from being uploaded to Tallahassee as required by the rules. 155 The court concluded that
there was no compliance and that is inconsistent with substantial compliance; therefore, the test results could
only be admitted upon a showing of the traditional predicate. 156 A Broward County trial judge ruled to the
contrary because there was no evidence that the improper conduct by the inspector actually occurred in Broward
County.157 Additionally, where the testing machine failed to upload a monthly inspection report because the
battery for the internal clock got low, the failure to send the machine off to change the battery was held not to
be a substantial deviation.158

The foregoing discussion has dealt extensively with the many issues relating to official inspections, including
agency and departmental inspections. However, some courts have been open to a different kind of inspection—
discovery inspections. One early trial court opinion 159 included in the appendix provides an excellent example of
the type of detailed order that might be appropriate. Since this decision, a number of decisions have allowed
some form of discovery inspections.160 Other courts have refused to permit inspection of the intoxilyzer under
various circumstances.161 In seeking inspection, defendants should keep in mind the status of the sheriff. A three-
judge circuit court panel ruled that if the sheriff claims ownership of the intoxilyzer, the sheriff has standing to
object to inspection of the machine and due process requires that the sheriff be given notice and an opportunity
to be heard.162

In one case,163 the defense sought to inspect the manuals for the Intoxilyzer 5000, and the trial judge ordered that
the State produce five different manuals. The judge did this based on the following language from Florida
Statutes, section 316.1932(1)(f)(4): “Upon the request of the person tested, full information concerning the test
taken at the direction of the law enforcement officer shall be made available to the person or his or her
attorney.”164 Another trial court subsequently ruled that the schematics for the Intoxilyzer 5000 and any other
documents which the manufacturer submitted to FDLE to comply with the administrative regulations, must be
produced.165 A third trial judge disagreed with the foregoing rulings, and held that the defendant has no right to
production of manuals because the defendant is only entitled to information as to the specific test and not
general information as to the intoxilyzer.166

The fifth district considered this issue in State v. Muldowny.167 In Muldowny, the defendants sought production
of “the operator’s manuals, maintenance manuals and schematics of the intoxilyzer” for inspection and
reproduction. The State refused to produce the documents. On appeal, the court held that a defendant is “entitled
to inspect and copy and potentially use at trial or hearing the operator’s manual, maintenance manuals and
schematics of the intoxilyzer used to test the defendant when the results of the test are intended for use to affect
the driving privileges of or assess penalties against that defendant.” 168 Furthermore, in Muldowny, the court held
that the appropriate remedy pursuant to Rule 3.220(n)(1), Florida Rules of Criminal Procedure, was exclusion
of the breath test results because the defendants wanted the documents to explore whether the intoxilyzer had
been modified by the inclusion of parts, and they were unable to pursue that defense. 169

One trial judge extended the ruling in Muldowny170 to the software source code for the Intoxilyzer 5000. 171 The
judge said if the defendant could not get the software he or she “would only get the results of a mystical
machine that inhales breath samples and produces a report specifying a degree of intoxication without knowing
if it was an approved machine or how the result was produced. This is precisely what Muldowny … was trying
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to prevent.”172 Where the State failed to comply, the court excluded the evidence of the breath test results. 173 The
same judge entered a lengthy order in which he ruled that the State’s persistent refusal to provide the software
source code as ordered by the court was not excused by the fact that FDLE had purportedly entered into an
agreement with the manufacturer not to disclose the information. 174 The State’s refusal was willful and justified
exclusion of all mention of the breath test and the field sobriety exercises. 175

Two trial judges,176 in essentially identical detailed opinions, agreed with their colleague that the failure to
disclose the software source code was a discovery and statutory violation, despite the fact that the software
source code was a trade secret.177 But they disagreed with their colleague that the appropriate remedy was
exclusion of the test results. Instead, they ruled that the State could introduce the test results if it could establish
the traditional scientific predicate, but the State would be unable to rely on the statutory presumptions. 178

In contrast, multiple trial judges agreed to entry of a single order in which they concurred 179 that Muldowny180 did
not entitle the defendant to discover the source code for the software for these reasons: (1) the source code was
in the sole possession of the manufacturer and was not accessible to any law enforcement agency; (2) the State
had cooperated in producing other required documents; (3) the evidence established that software changes had
not affected the method of analysis nor adversely affected the intoxilyzer’s reliability; and (4) the defendant was
not prejudiced because any changes in the source code did not impact the reliability of the instrument or the
results.181 Similarly, in State v. Smith, 182 the court denied a motion to compel the State to produce the source
code because: (1) the evidence did not show that it was in possession of the State; (2) it is considered
proprietary and a trade secret by the manufacturer; (3) the statute does not permit disclosure; and (4) due
process does not require disclosure because the defense did not make a showing that the machine was not
working properly or that disclosure would lead to exculpatory and material evidence, rather than just possibly
helpful evidence. The hope that it might be helpful to the defense was not enough.183

The district courts have spoken to this issue. In Moe v. State,184 the court concluded that its decision in State v.
Muldowny185 does not require the State to produce the source code. The court noted that it is without dispute that
the State does not have possession of the source code because it belongs to the manufacturer. The source code is
a trade secret of the manufacturer and the company has invoked its privilege not to disclose it. Therefore, the
State cannot get the source code and cannot be compelled to produce it. 186 In State v. Vanhaezebrouck,187 the
court concluded that the Moe188 decision also applies to materials besides the source code like schematics and
wiring diagrams. If the State does not have possession and control of such records they are not required to
produce them even if they are in the manufacturer’s offices.189

In one case,190 the defendant took a unique path in an effort to secure the source code. The defendant argued that
the intoxilyzer was the equivalent of an expert witness because the results are admissible based on the affidavit
without the testimony of an expert, and the source code is like the facts or data underlying an expert’s opinion. 191
Therefore, the source code should be produced. The court rejected the contention that the intoxilyzer was akin
to an expert witness. The court also concluded that even if it accepted the argument, the rules on experts would
not entitle defendant to pretrial disclosure of the source code.192

In some cases, defendants got favorable results by seeking the source code directly from the manufacturer. They
did this in two ways. First, by invoking the procedures for securing the attendance of employees of the
manufacturer pursuant to Florida Statutes, section 942.03, which establishes a method for securing the
attendance of material witnesses from other states. 193 Second, moving for a subpoena duces tecum to the
manufacturer as a corporation registered to do business in Florida. 194 In other cases, courts have rejected such
efforts.195

In some cases where the defendants have experienced success, the county judges held the manufacturer in
contempt and imposed a daily fine when the manufacturer secured an order of an out-of-state judge quashing
the subpoenas and did not appear before the Florida judges on an order to show cause. 196 The manufacturer made
several arguments to a three judge panel on appeal, but the court ruled that the manufacturer waived those
arguments by failing to appear and the trial judges had not committed fundamental error. 197

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A circuit court refused to grant certiorari to the manufacturer where the county court ordered it to produce the
source code and object code for the Intoxilyzer 8000.198 The court ruled that the county court did not depart from
the essential requirements of law in finding that the source code was material and reasonably necessary for the
defendants. Further, since the manufacturer had agreed to produce the source code if a protective order and non-
disclosure agreement were executed, there would be no material injury from the disclosure. 199 Finally, the court
found that the county court’s requirement that the manufacturer submit to the jurisdiction of the court by
executing the non-disclosure and confidentiality agreement detailed in the order, applied only to resolution of
any disputes about that agreement, and that was reasonable.200

It is apparent that county and circuit courts held divergent views on the State’s and manufacturer’s duty to share
various items, particularly the source code, with the defense. Obviously, there was uncertainty as to the
procedures that were available to secure such documents.

The decision in State v. Bastos201 should have provided some consistency or, at least, changed the debate. There,
the court considered how § 942.03, Fla. Stat., the Uniform Law to Secure the Attendance of Witnesses from
Within or Without a State in Criminal Proceedings, applied to source codes. There were two issues: (1) whether
the statute applies to production of documents combined with testimony; (2) whether the source codes for the
Intoxilyzer 5000 were material, which is a requirement for use of the procedure set forth in § 942.03, Fla. Stat.202
The court ruled that the Uniform Law could be used to secure documents along with live testimony. 203 As to
whether the source codes were material, the court concluded:204

[W]e cannot accept the proposition that simply because a piece of testing equipment
is used in a criminal case, it follows that the source code for its computer must be
turned over. There would need to be a particularized showing demonstrating that
observed discrepancies in the operation of the machine necessitate access to the
source code. We are unable to see that any such evidence was brought forth in the
evidentiary hearing below.

The testimony in the trial court made clear that the problem of false positives is
inherent in the design of the infrared portion of the machine. In the absence of a
more particularized showing, we are unable to conclude that the materiality standard
was met. We therefore answer the second question “no.”

Subsequently, in CMI, Inc. v. Landrum, 205 the Second District considered whether the subpoena power could be
used in a criminal case to secure just documents, not testimony, from a foreign corporation authorized,
registered, and doing business in Florida or whether the defendant had to resort to the Uniform Law. The court
held that the defendant did not have to resort to the Uniform Law. 206 That means that if the source codes were
otherwise discoverable they could be secured by subpoena duces tecum. In CMI, Inc. v. Ulloa, 207 the Fifth
District disagreed with the Second District and ruled that the source codes for the Intoxilyzer 8000 could not be
secured by service of a subpoena duces tecum on the registered agent for CMI, Inc. 208 “[T]he Uniform Law
applies not only to out-of-state witnesses, but also to out-of-state corporations which possess documents
material to a criminal case.”209

Recently, in Ulloa v. CMI, Inc.,210 the Court affirmed the district court decision in Ulloa211 and disapproved the
decision in Landrum.212 The Court wrote:
[W]e hold that the procedures of the Uniform Law apply even when the subpoena involved is a
subpoena duces tecum seeking a witness to only produce documents…. [W]e conclude that parties
must follow the procedures of the Uniform Law when seeking to obtain documents located out-of-
state from an out-of-state, nonparty witness through a subpoena duces tecum, as well when

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seeking testimony or seeking both testimony and documents.213

Clearly, the courts have done extensive work on the issue of whether software source codes must be produced.
But, except for due process and rule issues, which have been discussed in some cases included in this edition,
the matter has been addressed by a statutory change effective October 1, 2006. It amended the DUI and BUI
laws to restrict the scope of the statutory term, “full information” as interpreted by State v. Muldowny214 and
some county courts.

The provision does three things. First, it limits the required disclosure to “full information concerning the results
of the test,” whereas, before the required disclosure applied to “full information concerning the test.” 215 Second,
the amendment precisely defines “full information.” It says:

Full information is limited to the following: a. The type of test administered and the procedures
followed. b. The time of the collection of the blood or breath sample analyzed. c. The numerical
results of the test indicating the alcohol content of the blood and breath. d. The type and status of
any permit issued by the Department of Law Enforcement which was held by the person who
performed the test. e. If the test was administered by means of a breath testing instrument, the date
of performance of the most recent required inspection of such instrument.216

Finally, the amendment specifically excludes material that Muldowny required and other material some county
courts required, when its says: “Full information does not include manuals, schematics, or software of the
instrument used to test the person or any other material that is not in the actual possession of the state.
Additionally, full information does not include information in the possession of the manufacturer of the test
instrument.”217

One county court applied this statute retrospectively to cases where the defendant was arrested prior to the
passage of the statute.218 The court also interpreted the phrase, “the procedures followed,” as referring “to the
steps taken by the individual administering the test, such as reading implied consent and conducting the twenty-
minute observation period.”219 The court held that this phrase does not include data as to the volume of the
defendant’s breath samples, machine malfunction, low volume sample, or data logged into the Implied Consent
Program.220

Defendants have sought to inspect a variety of documents besides those specifically authorized by rule or
statute. These demands are often based on Fla. R. Crim. P. 3.220(f)221 or due process. Sometime, these discovery
efforts have been unsuccessful. Courts have rejected them for failure to show materiality, 222 failure to show any
more than a mere possibility that the information or documents would be helpful to the defendant, 223 failure to
produce any evidence that a specific breath test result was even suspect, 224 and failure to show lack of
availability to defendant or opportunity to question test results.225

The court refused to require production of the ee-proms and software discs for software versions of the
Intoxilyzer 8000 even though the State had them. 226 The evidence showed that by looking at these materials one
could determine whether there had been a change in the software, but not the nature of any change. Since the
evidence had disclosed that there had been changes, the court concluded that nothing could be gained by
requiring production of the items.227 Therefore, they were not material or significant to the defense. 228 On the
other hand, a trial judge concluded that where the manufacturer of the I8000 made changes to a purge valve and
the length of a screw, there was a discovery violation. 229 FDLE had actual notice but not written notice and the
court denied a motion to suppress.

Some defendants have claimed that failure to produce materials like software, source codes and ee-proms,
required suppression of the test results as a matter of due process because the Intoxilyzer 8000 has had problems
and the production of these materials was necessary to test the reliability of the machine. 230 This contention has

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been rejected because there was no evidence that the machines actually involved in the case before the courts
were unreliable, and the defendants had access to a variety of materials and methods for questioning the
reliability of the machines.231

Notwithstanding the decision in State v. Bastos232 and the statutory changes on discovery, the courts continue to
struggle with discovery requirements. In fact, several county judges appear to have changed their positions. In
State v. Allen,233 three judges decided en banc that the operating software for the Intoxilyzer 8000 was material
and the State was required to provide it to the defendants because the State was in possession of the software.
The judges concluded that the software was material because it governs the operation of the machine that
produces breath test results leading to a conviction; therefore, the machine essentially constitutes a prosecution
witness.234 Defendants cannot adequately challenge the results without having an expert examine the software. 235
Furthermore, the judges found that recent developments suggest a need to more closely examine the software. 236
The judges also decided that § 316.1932(1)(f), Fla. Stat. is intended to excuse the State from producing only
material not in the State’s possession.237

In State v. McGratty,238 the court followed a similar path and affirmed orders requiring production of many
items excluded by the statute and allowing an expert to examine a download of certain software disks and ee-
proms. The court concluded that the decision in Moe 239 and the statute240 only bar disclosure of material
documents when they are not in the State’s possession and these documents were in the State’s possession.
Additionally, the court concluded that pursuant to Muldowny, 241 the defense may use the discovery process to
determine the reliability of the test and whether the device was properly approved and that cannot be done
without reviewing the software. The court found the claim that the software was a trade secret unconvincing
because the State presented no authority or evidence indicating that the software itself is copyrighted or that the
license agreement precluded defendants from examining the software. 242

Other judges have taken the position that the source code for the intoxilyzer met the test of materiality set forth
in Bastos243 where the court required “a particularized showing demonstrating that observed discrepancies in the
operation of the machine necessitate access to the source code.” 244 In State v. Alamrez,245 the court found that this
test was met and held that if the source code was not produced the State would be denied the statutory
presumptions and would have to rely on the traditional scientific predicate. Ten county judges sitting en banc
had previously reached that same conclusion in State v. Atkins.246

The judges in Atkins247 considered defense requests for production of several items, including the source code
for the Intoxilyzer 8000. In a very detailed opinion, the judges explained that for several reasons they concluded
that the defendants had met the test of materiality required by Bastos248 and the Rules of Criminal Procedure. 249
Also, the decision in Moe v. State250 did not require a different result because in contrast to Atkins,251 in Moe,252
the parties stipulated that the instrument had been tested in accordance with the regulations and the tests
revealed that the results were in acceptable range.

In Atkins,253 the evidence established several reasons for questioning the reliability of the Intoxilyzer 8000.
Those reasons included: (1) doubts as to whether the Florida instruments are actually approved; 254 (2) issues in
testing the instruments for approval; (3) discovery of several problems with Orange County instruments, which
resulted in a change in software that did not resolve all of the problems; (4) no requirement for the I8000, as
there was for the I5000 for the manufacturer to notify FDLE in writing of proposed changes and for FDLE to
approve the modifications according to guidelines; (5) expert testimony that the problems with the machine
made it scientifically unreliable and were attributable to the software or source code, but he could not identify
the specific cause or extent of the problem without examining the software or source code; and (6) lack of
understanding by FDLE agents of the software or source code. The judges concluded:
Therefore, in the instant case, the Defendants must be allowed to see the source code and the
release notes and all requested documentation. Without them the Defendant will be unable to
“attack the reliability of the testing procedures and the standards establishing the zones of
intoxicant levels” which the Florida Supreme Court’s Bender decision clearly held to be required
to ensure fairness in the application of the provisions of Florida’s implied consent statute (

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sections 316.1932 and 316.1934, Florida Statutes). It may well be that this code, these notes
and supporting documentation do not reveal a “substantial” modification or problem—but based
on the evidence presented this information is material to the defense under the Florida Rules of
Criminal Procedure 3.220(f).255

The 10 judges concluded that the appropriate remedy was to require the State to establish the traditional
scientific predicate and to deprive the State of the benefit of the statutory presumptions until the State complied
with the court’s order.256

The decision in Atkins257 is of doubtful value to the extent that it is based on the conclusion that the Intoxilyzer
8000 was not properly approved because of an issue with the software. That is so because in Dep’t of Highway
Safety & Motor Vehicles v. Berne,258 the court found that the machine was properly approved and the software
need only be properly evaluated, as it had. Also, in that opinion, the court specifically referred to the decision in
Atkins.259 Berne260 may not impact the value of other parts of the opinion in Atkins 261 and it may not impact the
conclusions that the 10 judges reached on the discovery issue because some of the flaws perceived by the judges
may be useful to the defense at trial.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
See §§ 316.1932(1)(b), (1)(f) 1, and 316.1934(3), Fla. Stat.
2
Fl. Admin. Code R. 11D–8.003(1).
3
Fl. Admin. Code R. 11D–8.011.
4
Fl. Admin. Code R. 11D–8.003(2). All forms are set forth in appendix.
5
State v. Monkress, 20 Fla. L. Weekly Supp. 1003 (Fla. Brevard Cty. Ct. June 17, 2013) (Administrative
Law Judge rejected challenge to Rule 11D-8.003(2) that during rulemaking process, FDLE violated the
“‘detailed written statement of the facts and circumstances’” requirement of section 120.54(3)(a) and
(e); county court judge adopted the ALJ’s findings of fact and law based on doctrine of primary
jurisdiction); State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) State v.
Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) (three county judges rejected
contention that Intoxilyzer 8000 was not properly approved because it was not evaluated in accord with
prior versions of Fla. Admin. Code R. 11D-8.003 and found it was evaluated in accord with Form 34);
State v. Bain, 14 Fla. L. Weekly Supp. 657 (Fla. Duval Cty. Ct. April 30, 2007) State v. Bain, 14 Fla. L.
Weekly Supp. 657 (Fla. Duval Cty. Ct. April 30, 2007) (court concluded I8000 satisfied requirements of
Fla. Admin. Code R.11D-8.003 and Form 34 and rejected claim that the machine was not properly
approved because Fla. Admin. Code R. 11D-8.0036 dealing with testing of dry gas standards did not
exist).
6
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) (10 judges en banc). See also State v.
Landrum, 18 Fla. L. Weekly Supp. 983 (Fla. 12th Cir. Ct. May 23, 2011)State v. Landrum, 18 Fla. L.
Weekly Supp. 983 (Fla. 12th Cir. Ct. May 23, 2011) (trial court suppressed results because the software
in the approved I8000 was different from the software in the I8000 on the DOT Conformed Products
List and the evidence established that as a result of the failure to produce the source code it was
impossible to determine whether the difference was material); State v. Johnson, 16 Fla. L. Weekly Supp.
869 (Fla. Manatee Cty. Ct. June 30, 2009)State v. Johnson, 16 Fla. L. Weekly Supp. 869 (Fla. Manatee
Cty. Ct. June 30, 2009); State v. Buono, 16 Fla. L. Weekly Supp. 765 (Fla. Sarasota Cty. Ct. June 19,

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2009)State v. Buono, 16 Fla. L. Weekly Supp. 765 (Fla. Sarasota Cty. Ct. June 19, 2009).
7
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) (ten judges en banc). See also State v.
Johnson, 16 Fla. L. Weekly Supp. 869 (Fla. Manatee Cty. Ct. June 30, 2009)State v. Johnson, 16 Fla. L.
Weekly Supp. 869 (Fla. Manatee Cty. Ct. June 30, 2009); State v. Buono, 16 Fla. L. Weekly Supp. 765
(Fla. Sarasota Cty. Ct. June 19, 2009)State v. Buono, 16 Fla. L. Weekly Supp. 765 (Fla. Sarasota Cty.
Ct. June 19, 2009).
8
State v. Yapici, 17 Fla. L. Weekly Supp. 578 (Fla. 11th Cir. Ct. Feb. 3, 2010)State v. Yapici, 17 Fla. L.
Weekly Supp. 578 (Fla. 11th Cir. Ct. Feb. 3, 2010) (rejects micron band argument finding that there has
been only one model of the I8000 made and sold in the U.S. and all of them use micron band filters of
3.476 and 9.376 microns); Schamp v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly
Supp. 634 (Fla. 18th Cir. Ct. April 29, 2009)Schamp v. Dep’t of Highway Safety & Motor Vehicles, 16
Fla. L. Weekly Supp. 634 (Fla. 18th Cir. Ct. April 29, 2009) (as to the difference in the filters, court
found that the evidence supported the conclusion that there is only one I8000 and it is on the list in the
Federal Register on the Conforming Product List; and the micron wave lengths are the same and the
I8000 on the list had been approved); State v. Stenwall, 17 Fla. L. Weekly Supp. 691 (Fla. Palm Beach
Cty. Ct. March 3, 2010)State v. Stenwall, 17 Fla. L. Weekly Supp. 691 (Fla. Palm Beach Cty. Ct. March
3, 2010); State v. Bair, 16 Fla. L. Weekly Supp. 984 (Fla. Brevard Cty. Ct. August 10, 2009)State v.
Bair, 16 Fla. L. Weekly Supp. 984 (Fla. Brevard Cty. Ct. August 10, 2009) (eight county judges sitting
en banc); State v. McClung, 15 Fla. L. Weekly Supp. 908 (Fla. Duval Cty. Ct. July 23, 2008) State v.
McClung, 15 Fla. L. Weekly Supp. 908 (Fla. Duval Cty. Ct. July 23, 2008) (court says “micron” refers
to the filters that remove substances other than ethyl alcohol; court rejects argument that extremely small
deviations renders instrument nonconforming; DOT list does not specify a particular micron filter size
and the State presented a NHTSA study that shows the instrument in use meets Conforming Product List
requirements).
9
Department of Highway Safety and Motor Vehicles v. Berne, 49 So. 3d 779 (Fla. 5th DCA 2010),
review dismissed as improvidently granted, 84 So. 3d 257 (Fla. 2012). See also Department of Highway
Safety and Motor Vehicles v. Meinken, 55 So. 3d 629 (Fla. 5th DCA 2011) , review denied, 104 So. 3d
1085 (Fla. 2012).
10
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) (10 judges en banc).
11
Department of Highway Safety and Motor Vehicles v. Berne, 49 So. 3d 779 (Fla. 5th DCA 2010),
review dismissed as improvidently granted, 84 So. 3d 257 (Fla. 2012). See also Loman v Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 17 (Fla. 9th Cir. Ct. Oct. 4, 2012) Loman v
Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 17 (Fla. 9th Cir. Ct. Oct. 4, 2012) ;
Baker v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 3 (Fla. 12th Cir. Ct. Sept
6, 2012)Baker v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 3 (Fla. 12th Cir.
Ct. Sept 6, 2012); State v. Martinez, 19 Fla. L. Weekly Supp. 297 (Fla. Hillsborough Cty. Ct. Jan. 20
2012)State v. Martinez, 19 Fla. L. Weekly Supp. 297 (Fla. Hillsborough Cty. Ct. Jan. 20 2012) (relied
on Berne and reached the same conclusion as to software version 8100.27).
12
Department of Highway Safety and Motor Vehicles v. Berne, 49 So. 3d 779, 784 (Fla. 5th DCA 2010),
review dismissed as improvidently granted, 84 So. 3d 257 (Fla. 2012).
13
State v. Pinto, 25 Fla. L. Weekly Supp. 456 (Fla. Pinellas Cty. Ct. June 24, 2013)State v. Pinto, 25 Fla.
L. Weekly Supp. 456 (Fla. Pinellas Cty. Ct. June 24, 2013) (judge denied multiple motions to suppress
breath test results; Defendants sought suppression because of the lack of rules regulating the flow
sensor, and a post approval pin hole modification of the exhaust port check valve; Defendants failed to
meet the burden of showing that their tests were not performed in substantial compliance with the
Implied Consent Law and failed to show that the problems they observed affected, “the analytical
methodology or reliability of the Intoxilyzer 8000” or the instruments used in their cases); State v.
Fitzgerald, 20 Fla. L. Weekly Supp. 721 (Fla. Sarasota Cty. Ct. Aug. 16, 2012)State v. Fitzgerald, 20
Fla. L. Weekly Supp. 721 (Fla. Sarasota Cty. Ct. Aug. 16, 2012) (court rejected defense argument that
drilling a hole in the purge valve of the I8000 and replacing the long retaining screw with a shorter one
without providing written notice to FDLE, required suppression of breath test results; there had been

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substantial compliance in that FDLE had actual notice; the changed instrument had passed multiple
FDLE & US DOT evaluations; additionally since the changes did not affect the method of analysis,
formal approval through rule-making was not required, rather it was a reasonable interpretation of the
rules that approval is required for new instruments and evaluation is required for modification of
approved instruments to see whether the changes affected analytical methods or reliability); State v.
Ellis, 20 Fla. L. Weekly Supp. 612 (Fla. Monroe Cty. Ct. Dec. 13, 2012)State v. Ellis, 20 Fla. L. Weekly
Supp. 612 (Fla. Monroe Cty. Ct. Dec. 13, 2012) (court rejected the defense argument that due to a pin
hole change in the purge valve and failure to provide written notification to FDLE, the I8000 was not an
approved device; the court found that the I8000 first appeared as approved in 2002 before the pin hole
solution and at that time Rule 11D-8.003 required written notification of any modification to FDLE, but
the machine was not actually certified and approved for evidentiary use until 2006, after the pin holes
were made and by then Rule 11D-8.003 had been changed to require Department inspections and
evaluations of new instruments, which was done; therefore, I8000 with the pin hole was properly
certified and approved in compliance with the rules); State v. Longley, 20 Fla. L. Weekly Supp. 606
(Fla. Sarasota Cty. Ct. Dec. 19, 2012)State v. Longley, 20 Fla. L. Weekly Supp. 606 (Fla. Sarasota Cty.
Ct. Dec. 19, 2012) (after hearing evidence, the court rejected defense argument that a change by the
manufacturer in the I8000 to solve a calibration problem consisting of a pin hole in part of the device
which did not affect analytical reliability, was a design change requiring notice and retesting by
NHTSA; additionally, even if it were a design change, that would not necessarily mean that the
instrument would be removed from the approval list and NHTSA subsequently successfully tested two
of the instruments in the same way that it would have tested them had the agency been notified of the
pin hole modification).
14
Vuong v. Florida Dept. of Law Enforcement, 149 So. 3d 174, 176 (Fla. 4th DCA 2014).
15
Vuong v. Florida Dept. of Law Enforcement, 149 So. 3d 174, 176 (Fla. 4th DCA 2014).
16
State v. Garcia, 25 Fla. L. Weekly Supp. 205 (Fla. Collier Cty. Ct. 2012)State v. Garcia, 25 Fla. L.
Weekly Supp. 205 (Fla. Collier Cty. Ct. 2012), affirmed, 22 Fla. L. Weekly Supp. 209 (Fla. 20th Cir. Ct.
2014)22 Fla. L. Weekly Supp. 209 (Fla. 20th Cir. Ct. 2014).
17
State v. Garcia, 25 Fla. L. Weekly Supp. 205 (Fla. Collier Cty. Ct. 2012)State v. Garcia, 25 Fla. L.
Weekly Supp. 205 (Fla. Collier Cty. Ct. 2012), affirmed, 22 Fla. L. Weekly Supp. 209 (Fla. 20th Cir. Ct.
2014)22 Fla. L. Weekly Supp. 209 (Fla. 20th Cir. Ct. 2014).
18
Fl. Admin. Code R. 11D–8.013. “Rule 8.013 is not meant to be the only source of guidance for analysts,
but is instead meant to supplement and reinforce sound scientific principles and laboratory practices.”
Goodman v. Florida Dept. of Law Enforcement, 203 So.3d 909, 914-15 (Fla. 4th DCA 2016), review
granted, 2016 WL 9454220 (Fla. Opinion Filed Oct. 14, 2016).
19
Fl. Admin. Code R. 11D–8.013(1)(e).
20
Fl. Admin. Code R. 11D–8.013(2)(a) and (3).
21
Fl. Admin. Code R. 11D–8.013(4).
22
Fl. Admin. Code R. 11D–8.013(4).
23
Fl. Admin. Code R. 11D–8.013(4).
24
Fl. Admin. Code R. 11D–8003(3), (4), 11D–8.004(1).
25
Fl. Admin. Code R. 11D–8.003(2), (4). All forms are set forth in the appendix.
26
See Form 34. All forms are set forth in the appendix.
27
Fl. Admin. Code R. 11D–8.002(2).
28
See Form 34. All forms are set forth in the appendix.

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test results where the agency inspector used tap water in the monthly testing of the Intoxilyzer 5000.
There was a conflict in the evidence, but the defense expert testified that tap water could interfere with
the test and cause a false positive, or elevated reading. See also State v. LaPlante, 24 Fla. L. Weekly
Supp. 570 (Fla. Hillsborough Cty. Ct. Sept. 12, 2017)State v. LaPlante, 24 Fla. L. Weekly Supp. 570
(Fla. Hillsborough Cty. Ct. Sept. 12, 2017) (trial judge suppressed breath test results because FDLE
failed to follow its own policies and guidelines in that untested deionized water was used to analyze
certain alcohol reference solutions). Contrast State v. Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla.
Hillsborough Cty. Ct. Oct. 18, 2017)State v. Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla.
Hillsborough Cty. Ct. Oct. 18, 2017) (after an extensive hearing the trial judge rejected arguments that
failure to follow FDLE’S SOP 2:18 as to alcohol reference solutions invalidated test results, court
distinguished Cubic and LaPlante based on the evidence; in contrast to Cubic there was no evidence of a
rule violation in that, “there is no Rule requirement that the water be initially analyzed under section
2.18;” the evidence here was that acceptable procedures were used and in Cubic there was evidence of a
noncompliance that would cause an inaccurate reading; whereas, here that is theoretical and
speculative).
30
See Form 34. All forms are set forth in the appendix.
31
Fl. Admin. Code R. 11D–8.004(1).
32
Fl. Admin. Code R. 11D–8.004(1).
33
Fl. Admin. Code R. 11D–8.004(2).
34
See State v. Beaton, 15 Fla. L. Weekly Supp. 1208 (Fla. Sarasota Cty. Ct. Oct. 28, 2008) (replacement
of dry gas regulator in Intoxilyzer 8000 was a repair, not routine maintenance and required a Department
inspection before the machine could be returned to service despite agency interpretation to the contrary;
judge suppressed test results).
35
State v. Ledermann, 25 Fla. L. Weekly Supp. 151 (Fla. 17th Cir. Ct. Sept. 30, 2016)State v. Ledermann,
25 Fla. L. Weekly Supp. 151 (Fla. 17th Cir. Ct. Sept. 30, 2016); Gilbert v. Dep’t of Highway Safety &
Motor Vehicles, 23 Fla. L. Weekly Supp. 900 (Fla. 12th Cir. Ct. Feb. 24, 2016) Gilbert v. Dep’t of
Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 900 (Fla. 12th Cir. Ct. Feb. 24, 2016) ;
Oliveri v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 481 (Fla. 9th Cir. Ct.
Jan. 13, 2014)Oliveri v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 481 (Fla.
9th Cir. Ct. Jan. 13, 2014); State v. Drudy, 23 Fla. L. Weekly Supp. 477 (Fla. Hillsborough Cty. Ct. May
23, 2015)State v. Drudy, 23 Fla. L. Weekly Supp. 477 (Fla. Hillsborough Cty. Ct. May 23, 2015).
36
Fla. Admin. Code R. 11D-8.004(2) (prior to July, 2015).
37
Wilkenson v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 955 (Fla. 13th Cir.
Ct. July 29, 2013)Wilkenson v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp.
955 (Fla. 13th Cir. Ct. July 29, 2013) (machine was sent to repair facility before the involved test and it
was inspected while it was still at the facility and not after it was returned; thus the test results should
not have been considered because this violated Rule 11D-8.004(2)).
38
Gearity v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 8 (Fla. 6th Cir. Ct.
March 30, 2016)Gearity v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 8 (Fla.
6th Cir. Ct. March 30, 2016) (where I8000 was inspected in Tallahassee by the Department and the
agency inspected it upon its return, the Department did not have to inspect it a second time); Gilbert v.
Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 900 (Fla. 12th Cir. Ct. Feb. 24,
2016)Gilbert v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 900 (Fla. 12th Cir.
Ct. Feb. 24, 2016) (“Because … Rule 11D-8.004(2) is to ensure that the breath test instrument is
accurate and reliable following maintenance or repair, the location of the inspection—whether at the
repair facility prior to return, or at the agency after return—is of no consequence where the inspection
was made after maintenance or repair.”); Fletcher v. State, 23 Fla. L. Weekly Supp. 687 (Fla. 12th Cir.
Ct. Dec. 30, 2015)Fletcher v. State, 23 Fla. L. Weekly Supp. 687 (Fla. 12th Cir. Ct. Dec. 30, 2015)
(where the unit was repaired in Lakeland, sent to Tallahassee for a Departmental inspection and then
returned to the agency, the Department was not required to inspect it again); Harkins v. Dep’t of
Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 632 (Fla. 13th Cir. Ct. March 18,
2014)Harkins v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 632 (Fla. 13th
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was returned and an agency inspection nine days before the involved test, the test was valid; the fact that
the Department inspection “occurred at the repair facility rather than at the Hillsborough County
Sheriff’s Office constitutes an insubstantial difference.”); Torrence v. Dep’t of Highway Safety & Motor
Vehicles, 19 Fla. L. Weekly Supp. 698 (Fla. 6th Cir. Ct. May 14, 2012)Torrence v. Dep’t of Highway
Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 698 (Fla. 6th Cir. Ct. May 14, 2012) (St. Petersburg
machine was sent to Lakeland for repair and Department inspected the machine in Lakeland before it
was returned to service; the monthly agency inspection was done in St. Petersburg before petitioner’s
test; petitioner argued that Rule 11D-8.004(2) required that the Department inspect the machine again in
St. Petersburg; the hearing officer rejected that interpretation and the court found that the ruling was not
clearly erroneous). See also State v. Ledermann, 25 Fla. L. Weekly Supp. 151 (Fla. 17th Cir. Ct. Sept.
30, 2016)State v. Ledermann, 25 Fla. L. Weekly Supp. 151 (Fla. 17th Cir. Ct. Sept. 30, 2016); State v.
Philage, 25 Fla. L. Weekly Supp. 459 (Fla. Pasco Cty. Ct. Dec. 8, 2014)State v. Philage, 25 Fla. L.
Weekly Supp. 459 (Fla. Pasco Cty. Ct. Dec. 8, 2014); State v. Crist, 23 Fla. L. Weekly Supp. 491 (Fla.
Charlotte Cty. Ct. Jan. 23, 2015)State v. Crist, 23 Fla. L. Weekly Supp. 491 (Fla. Charlotte Cty. Ct. Jan.
23, 2015); State v. Drudy, 23 Fla. L. Weekly Supp. 477 (Fla. Hillsborough Cty. Ct. May 23, 2015)State
v. Drudy, 23 Fla. L. Weekly Supp. 477 (Fla. Hillsborough Cty. Ct. May 23, 2015); State v. Hart, 23 Fla.
L. Weekly Supp. 472 (Fla. Alachua Cty. Ct. July 8, 2015)State v. Hart, 23 Fla. L. Weekly Supp. 472
(Fla. Alachua Cty. Ct. July 8, 2015); State v. Cook, 23 Fla. L. Weekly Supp. 274 (Fla. Palm Beach Cty.
Ct. August 25, 2015)State v. Cook, 23 Fla. L. Weekly Supp. 274 (Fla. Palm Beach Cty. Ct. August 25,
2015); State v. Darr, 23 Fla. L. Weekly Supp. 267 (Fla. Hillsborough Cty. Ct. August 22, 2014)State v.
Darr, 23 Fla. L. Weekly Supp. 267 (Fla. Hillsborough Cty. Ct. August 22, 2014).
39
Fla. Admin. Code R. 11D-8.002(13) (prior to July, 2015).
40
State v. Messer, 22 Fla. L. Weekly Supp. 1055 (Fla. Escambia Cty. Ct. Dec. 10, 2014) (test results were
inadmissible pursuant to implied consent or the traditional scientific predicate in that the machine was
not approved because the Department did not follow its own rules in the annual inspection, which takes
place in Tallahassee; it did many things to the machine that went beyond what is authorized by the
adopted rules, did quality checks and used a form that constituted unadopted rules, and did not inspect
the unit again when it was returned to the testing facility; the Department is a repair facility and was
required to inspect the machine on its return; the evidence did not support the conclusion that the test
results were reliable). Contra State v. Remmie, 22 Fla. L. Weekly Supp. 255 (Fla. Escambia Cty Ct.
Dec. 10, 2014)State v. Remmie, 22 Fla. L. Weekly Supp. 255 (Fla. Escambia Cty Ct. Dec. 10, 2014)
(refusal was admissible even though machine was not inspected a second time after it was returned from
the Department in Tallahassee where the annual inspection had been done; notwithstanding the language
of Rule 11D-8.002(13), the Department did not act as a repair facility and further it is not the intent of
Rule 11D-8.002(2) that the machine be inspected a second time upon return to the testing facility).
41
Fla. Admin. Code. R. 11D-8.004(2) (as amended July, 2015).
42
Fla. Admin. Code. R. 11D-8.004(3). All forms are set forth in the appendix.
43
State v. Flood, 523 So. 2d 1180 (Fla. 5th DCA 1988).
44
State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992).
45
State v. Tucker, 4 Fla. L. Weekly Supp. 278 (Fla. Palm Beach Cty. Ct. Sept. 14, 1994)State v. Tucker, 4
Fla. L. Weekly Supp. 278 (Fla. Palm Beach Cty. Ct. Sept. 14, 1994).
46
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) (Form 34 only requires that a changed
Intoxilyzer 8000 be evaluated not retested).
47
Defined as “a person who has been issued an Agency Inspector permit by the Department.” 11D–
8.002(6), Fl. Admin. Code R. The qualifications for those permits are set forth in 11D–8.008(2), Fl.
Admin. Code R.
48
11D–8.006(1). All forms are set forth in the Appendix.
49
Walos v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 411 (Fla. 6th Cir. Ct.
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Feb. 28, 2008)Walos v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 411 (Fla.
6th Cir. Ct. Feb. 28, 2008).
50
11D–8.006(2), Fl. Admin. Code R.
51
11D–8.006(2), Fl. Admin. Code R.
52
Form 36 and Form 39. All forms are set forth in the appendix.
53
11D–8.0036, Fl. Admin. Code R. Information as to the source of dry gas standards is on the FDLE
website at www.fdle.state.fl.us/atp/dgs.htm.
54
11D–8.002(20), Fl. Admin. Code R.
55
11D–8.0035(1)(a), Fl. Admin. Code R.
56
11D–8.0035(1)(b), Fl. Admin. Code R.
57
11D–8.0035(2), Fl. Admin. Code R.
58
11D–8.0035(2)(a), Fl. Admin. Code R.
59
11D–8.0035(2)(a), Fl. Admin. Code R.
60
11D–8.0035(2)(a), Fl. Admin. Code R. and 11D–8.002(1), Fl. Admin. Code R.
61
Fla. Admin. Code Ann. R. 11D-8.035(2)(a); State v. Larkin, 23 Fla. L. Weekly Supp. 271 (Fla.
Hillsborough Cty. Ct. August 10, 2015)State v. Larkin, 23 Fla. L. Weekly Supp. 271 (Fla. Hillsborough
Cty. Ct. August 10, 2015) (the Department’s agent twice tested 10 bottles of a solution to be used in
inspection and one did not pass the test, so it was retested; that solution was used for inspection of the
involved machine; even though the FDLE Procedure Manual would permit retesting, that conflicts with
Rule 11D-8.0035(2)(b) and the Rule prevails; results suppressed). See also State v. Swindle, 23 Fla. L.
Weekly Supp. 613 (Fla. Manatee Cty. Ct. Sept. 22, 2015)State v. Swindle, 23 Fla. L. Weekly Supp. 613
(Fla. Manatee Cty. Ct. Sept. 22, 2015). (Cases predate change).
62
Fla. Admin. Code Ann. R. 11D-8.035(2)(a) (as amended Sept. 4, 2016).
63
Fla. Admin. Code Ann. R. 11D-8.035(2)(a) (as amended Sept. 4, 2016).
64
Fla. Admin. Code Ann. R. 11D-8.035(2)(a) (as amended Sept. 4, 2016).
65
11D–8.0035(2)(b), Fl. Admin. Code R.
66
11D–8.0035(3), Fl. Admin. Code R.
67
11D–8.0035(4), Fl. Admin. Code R.
68
State v. Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla. Hillsborough Cty. Ct. Oct. 18, 2017)State v.
Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla. Hillsborough Cty. Ct. Oct. 18, 2017).
69
11D–8.0036, Fl. Admin. Code R.
70
11D–8.0036(1)(a), Fl. Admin. Code R.
71
11D–8.0036(1)(b), Fl. Admin. Code R.
72
11D–8.0036(1)(c), Fl. Admin. Code R.
73
11D–8.0036(1)(d), Fl. Admin. Code R.

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74
11D–8.0036(2), Fl. Admin. Code R.
75
11D–8.0075(1), Fl. Admin. Code R.
76
11D–8.0075(1), Fl. Admin. Code R.
77
11D–8.0075(1), Fl. Admin. Code R.
78
11D–8.0075(1), Fl. Admin. Code R.
79
11D–8.0075(2), Fl. Admin. Code R.
80
11D–8.0075(2), Fl. Admin. Code R.
81
11D–8.0075(3), Fl. Admin. Code R. See also Koger v. Dep’t of Highway Safety & Motor Vehicles, 6
Fla. L. Weekly Supp. 448 (Fla. 7th Cir. Ct. April 30, 1999)R. See also Koger v. Dep’t of Highway
Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 448 (Fla. 7th Cir. Ct. April 30, 1999).
82
Ridgeway v. State, 514 So. 2d 418 (Fla. 1st DCA 1987). See also Suarez v. Dep’t of Highway Safety &
Motor Vehicles, 7 Fla. L. Weekly Supp. 588 (Fla. 11th Cir. Ct. June 20, 2000)Suarez v. Dep’t of
Highway Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 588 (Fla. 11th Cir. Ct. June 20, 2000); State
v. Roque, 25 Fla. L. Weekly Supp. 202 (Fla. Brevard Cty. Ct. May 11, 2016)State v. Roque, 25 Fla. L.
Weekly Supp. 202 (Fla. Brevard Cty. Ct. May 11, 2016) (judge rejected argument that result was
inadmissible where the instrument was not inspected during the calendar month that the test was
administered; five days before test, it passed monthly agency inspection; 26 days after the test another
monthly agency inspection showed noncompliance; it was taken out of service, but then a few days later
the problem was solved, it was inspected and was in compliance); State v. Gonzalez, 7 Fla. L. Weekly
Supp. 294 (Fla. Brevard Cty. Ct. Feb. 8, 2000)State v. Gonzalez, 7 Fla. L. Weekly Supp. 294 (Fla.
Brevard Cty. Ct. Feb. 8, 2000) (Adopts rule that inspection is required sometime the month before the
month of the test and sometime the month after the month of the test. Here, the instrument was tested
within 10 days of the test in question and results were admissible). Contra State v. Rousseaux, 4 Fla. L.
Weekly Supp. 742 (Fla. Dade Cty. Ct. June 3, 1997)State v. Rousseaux, 4 Fla. L. Weekly Supp. 742
(Fla. Dade Cty. Ct. June 3, 1997) (judge ruled that test results were inadmissible where the state could
not show that the machine passed its monthly inspection the month before and the month after the
involved test).
83
Kugel v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 450 (Fla. 18th Cir. Ct.
Feb. 17, 2005)Kugel v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 450 (Fla.
18th Cir. Ct. Feb. 17, 2005) (an italicized, typewritten name of the inspector was in the signature line).
See also Lee v. State, 12 Fla. L. Weekly Supp. 194 (Fla. 6th Cir. Ct. Sept. 29, 2004)Lee v. State, 12 Fla.
L. Weekly Supp. 194 (Fla. 6th Cir. Ct. Sept. 29, 2004) (failure of breath test affidavit to indicate last
inspection date did not invalidate the test results, where an officer’s testimony established that proper
inspections were done and the machine was operating properly; the failure to indicate the date was not
of crucial significance); State v. Raffa, 12 Fla. L. Weekly Supp. 260 (Fla. Collier Cty. Ct. Dec. 3,
2004)State v. Raffa, 12 Fla. L. Weekly Supp. 260 (Fla. Collier Cty. Ct. Dec. 3, 2004) (failure to inspect
machine before it was taken away for repairs was not of crucial significance where the agency inspected
the machine for the months, before, during, and after the defendant was tested and there was no
indication that the failure to do the one inspection made the results unreliable).
84
State v. Baez, 8 Fla. L. Weekly Supp. 28 (Fla. Monroe Cty. Ct. Aug. 14, 2001)State v. Baez, 8 Fla. L.
Weekly Supp. 28 (Fla. Monroe Cty. Ct. Aug. 14, 2001). See also Keen v. Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 15 (Fla. 9th Cir. Ct. Oct. 8, 2012) Keen v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 15 (Fla. 9th Cir. Ct. Oct. 8, 2012) (in one of many
similar cases, the defendant failed to show that the machine was not properly stored and inspected in
violation of Rule 11D-8.007(1) & (2) when it was sent and returned by common carrier to FDLE for the
Department inspection; after the Department inspection, it was sent back to the Sheriff’s Office and the
local inspector conducted an agency inspection before placing the machine back in service and the
defendant presented no evidence that the Department inspection was not completed before the machine
was returned).

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85
State v. Phillips, 3 Fla. L. Weekly Supp. 740 (Fla. Hillsborough Cty. Ct. April 1, 1996)State v. Phillips,
3 Fla. L. Weekly Supp. 740 (Fla. Hillsborough Cty. Ct. April 1, 1996). The rules were revised after this
case. In Dasher v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 417 (Fla. 11th
Cir. Ct. April 17, 2001)Dasher v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp.
417 (Fla. 11th Cir. Ct. April 17, 2001), the court also found that test results secured under new rules
were valid even though the machine was inspected when the rules may have been invalid, where the
inspection complied with the new rules.
86
State v. Maranda, 23 Fla. Supp. 2d 69 (Fla. Palm Beach Cty. Ct. 1987).
87
State v. McGrath, 9 Fla. L. Weekly Supp. 631 (Fla. Bay Cty. Ct. July 17, 2002)State v. McGrath, 9 Fla.
L. Weekly Supp. 631 (Fla. Bay Cty. Ct. July 17, 2002).
88
State v. Reich, 13 Fla. L. Weekly Supp. 631 (Fla. Monroe Cty. Ct. Jan. 9, 2006)State v. Reich, 13 Fla. L.
Weekly Supp. 631 (Fla. Monroe Cty. Ct. Jan. 9, 2006) (the deficiencies included the following: (1)
during the February of 2004 agency inspection, there was an out of tolerance reading of .086 and the
intoxilyzer maintenance witness did not catch it, so no corrective action was taken; (2) the mouth
alcohol test run in December of 2004 produced an incorrect result in that it produced an actual breath
alcohol reading without warning that mouth alcohol was detected; (3) there was an unexplained problem
with the alcohol free acetone test in January of 2005, for which the maintenance person could not recall
any corrective action; (4) the radio frequency interference tests were improperly conducted; (5) the
machine may have been moved from one location to another without being retested.) See also State v.
Stephenson, 13 Fla. L. Weekly Supp. 797 (Fla. 16th Cir. Ct. April 28, 2006)State v. Stephenson, 13 Fla.
L. Weekly Supp. 797 (Fla. 16th Cir. Ct. April 28, 2006) (based on numerous test failures plus evidence
that the machine had been moved without being reinspected, subsequent accurate test results were
properly excluded where the machine was not taken out of service and no repairs or adjustments were
made; court also stated that the failure to retest or reinspect the machine after its relocation or the failure
to conduct a monthly inspection were minor deviations that could be overcome by proof that subsequent
tests were accurate).
89
State v. Reich, 13 Fla. L. Weekly Supp. 631 (Fla. Monroe Cty. Ct. Jan. 9, 2006)State v. Reich, 13 Fla. L.
Weekly Supp. 631 (Fla. Monroe Cty. Ct. Jan. 9, 2006).
90
Wissel v. State, 691 So. 2d 507 (Fla. 2d DCA 1997). See also State v. Friedrich, 681 So. 2d 1157 (Fla.
5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).
91
Wissel v. State, 691 So. 2d 507 (Fla. 2d DCA 1997). See also Goodman v. Florida Dept. of Law
Enforcement, 238 So.3d 102, 116 (Fla. 2018); State v. Arcement, 16 Fla. L. Weekly Supp. 369 (Fla. 2d
Cir. Ct. Feb. 11, 2009)State v. Arcement, 16 Fla. L. Weekly Supp. 369 (Fla. 2d Cir. Ct. Feb. 11, 2009);
State v. Briggs, 15 Fla. L. Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2, 2008) State v. Briggs, 15 Fla. L.
Weekly Supp. 872 (Fla. 2d Cir. Ct. July 2, 2008) (holding that regulations need not state that officers are
not to manipulate the length of the blow); State v. Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla.
Hillsborough Cty. Ct. Oct. 18, 2017)State v. Heimbegner, 25 Fla. L. Weekly Supp. 650 (Fla.
Hillsborough Cty. Ct. Oct. 18, 2017) (trial court found that the scientific procedures set forth in FDLE’s
standard operating procedures are, “implicit and incidental to the procedures explicitly provided for in
the administrative rules.”); State v. Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10,
2009)State v. Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009) ; State v. Lico-
Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla. Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L.
Weekly Supp. 50 (Fla. Broward Cty. Ct. July 7, 2009); State v. Sabates, 17 Fla. L. Weekly Supp. 45
(Fla. Broward Cty. Ct. Sept. 23, 2009)State v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty.
Ct. Sept. 23, 2009) (Based on Wissel, in Waller, Lico-Abeyta, and Sabates the trial judges stated that a
rule was not required for every situation or aspect of testing and inspecting and defendants are not
entitled to perfection); State v. Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11,
2002)State v. Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002) (court applied
principle to conclude that no rule for the inspection and testing of Radio Frequency Interference (RFI)
was required).
92
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).
93
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).

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94
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).
95
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).
96
Fl. Admin. Code R. 11D–8.0035(3).
97
State v. Sogness, 7 Fla. L. Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb. 3, 2000)State v. Sogness, 7 Fla. L.
Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb. 3, 2000).
98
State v. Sogness, 7 Fla. L. Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb. 3, 2000)State v. Sogness, 7 Fla. L.
Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb. 3, 2000).
99
State v. Hare, 9 Fla. L. Weekly Supp. 28 (Fla. 20th Cir. Ct. Aug. 14, 2001)State v. Hare, 9 Fla. L.
Weekly Supp. 28 (Fla. 20th Cir. Ct. Aug. 14, 2001).
100
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).
101
Former Rule Fl. Admin. Code R. 11D–8.006(2).
102
g/210L refers to grams of alcohol per 210 liters of breath.
103
State v. Friedrich, 681 So. 2d 1157, 1163 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla.
1997).
104
State v. Friedrich, 681 So. 2d 1157, 1163 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla.
1997).
105
State v. Friedrich, 681 So. 2d 1157, 1164 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla.
1997).
106
State v. Friedrich, 681 So. 2d 1157, 1164 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla.
1997).
107
State v. Friedrich, 681 So. 2d 1157, 1164 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla.
1997).
108
State v. Parker, 6 Fla. L. Weekly Supp. 223, 224–225 (Fla. Polk Cty. Ct. Dec. 17, 1998)State v. Parker,
6 Fla. L. Weekly Supp. 223, 224–225 (Fla. Polk Cty. Ct. Dec. 17, 1998).
109
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So. 2d 1299 (Fla. 1997).
110
State v. Parker, 6 Fla. L. Weekly Supp. 223 (Readings were 283 and 274)State v. Parker, 6 Fla. L.
Weekly Supp. 223 (Readings were 283 and 274).
111
State v. Alioto, 7 Fla. L. Weekly Supp. 475, 478–479 (Fla. Palm Beach Cty. Ct. March 27, 2000)State v.
Alioto, 7 Fla. L. Weekly Supp. 475, 478–479 (Fla. Palm Beach Cty. Ct. March 27, 2000).
112
Department of Highway Safety & Motor Vehicles v. Johnson, 686 So. 2d 672 (Fla. 5th DCA 1996) . See
also State v. Gerena, 4 Fla. L. Weekly Supp. 51 (Fla. Hillsborough Cty. Ct. April 8, 1996)State v.
Gerena, 4 Fla. L. Weekly Supp. 51 (Fla. Hillsborough Cty. Ct. April 8, 1996) (cited in Johnson).
113
Department of Highway Safety & Motor Vehicles v. Johnson, 686 So. 2d 672 (Fla. 5th DCA 1996). The
Court refers to Rule 11D–8.006(1)(a). That was subsequently changed. The acceptable ranges are now
in 11D–8.002(1), Fl. Admin. Code R.
114
Department of Highway Safety & Motor Vehicles v. Johnson, 686 So. 2d 672, 674 (Fla. 5th DCA 1996).
115
Department of Highway Safety & Motor Vehicles v. Johnson, 686 So. 2d 672, 675 (Fla. 5th DCA 1996).

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116
Department of Highway Safety & Motor Vehicles v. Johnson, 686 So. 2d 672, 675 (Fla. 5th DCA 1996).
See also § 316.1934(3), Fla. Stat.; Ridgeway v. State, 514 So. 2d 418 (Fla. 1st DCA 1987) (cited in
Johnson).
117
11D–8.0035, Fl. Admin. Code R.
118
Former Rule 11D–8.006(2), Fl. Admin. Code R.
119
See e.g. State v. Parker, 6 Fla. L. Weekly Supp. 223 (Fla. Polk Cty. Ct. Dec. 17, 1998)State v. Parker, 6
Fla. L. Weekly Supp. 223 (Fla. Polk Cty. Ct. Dec. 17, 1998).
120
State v. Parker, 6 Fla. L. Weekly Supp. 223 (Fla. Polk Cty. Ct. Dec. 17, 1998)State v. Parker, 6 Fla. L.
Weekly Supp. 223 (Fla. Polk Cty. Ct. Dec. 17, 1998).
121
11D–8.0035, Fl. Admin. Code R.
122
See e.g. State v. Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000)State v.
Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000). See also State v. DeMauney,
25 Fla. L. Weekly Supp. 362 (Fla. Pinellas Cty. Ct. Oct. 7, 2016)State v. DeMauney, 25 Fla. L. Weekly
Supp. 362 (Fla. Pinellas Cty. Ct. Oct. 7, 2016) (court struck motion to suppress breath test based on
alleged administrative procedural violations and treated it as a motion in limine on which the defendant
had the burden; proper approach was a “contemporaneous objection at trial or in a pre-trial motion in
limine, not a motion to suppress.”); State v. Morales, 20 Fla. L. Weekly Supp. 608State v. Morales, 20
Fla. L. Weekly Supp. 608 (Fla. L. Weekly Supp. 608 (Fla. Palm Beach Cty. Ct. Aug. 15, 2012) (where
the defendant is attacking the admissibility of breath test evidence based on lack of rules dealing with
the flow sensor in the I8000, the defense should employ a motion in limine not a motion to suppress).
Contra State v. Ball, 23 Fla. L. Weekly Supp. 577 (Fla. Duval Cty. Ct. Oct. 29, 2015)State v. Ball, 23
Fla. L. Weekly Supp. 577 (Fla. Duval Cty. Ct. Oct. 29, 2015) (this is one of several Duval county court
cases where judges denied State’s motion to strike the motion to suppress; court ruled a motion to
suppress breath test on the grounds that machine was not properly registered or inspected as required by
the rules was procedurally correct; motion in limine not required); State v. Beatty, 20 Fla. L. Weekly
Supp. 616 (Fla. Alachua Cty. Ct. March 19, 2012)State v. Beatty, 20 Fla. L. Weekly Supp. 616 (Fla.
Alachua Cty. Ct. March 19, 2012) (based on Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994), a motion to
suppress rather than a motion in limine was proper where the defendant was seeking to exclude breath
test results based on a defective flow sensor); State v. Dawkins, 20 Fla. L. Weekly Supp. 170 (Fla.
Duval Cty. Ct. Oct. 23, 2012)State v. Dawkins, 20 Fla. L. Weekly Supp. 170 (Fla. Duval Cty. Ct. Oct.
23, 2012) (opinion dealing with who has the burden of proof and persuasion where the defendant attacks
the validity of the breath test, but the court says a motion to suppress rather a motion in limine is
appropriate because a breath test is a search).
123
State v. Nunez, 16 Fla. L. Weekly Supp. 1183 (Fla. Broward Cty. Ct. June 25, 2009); State v. Waller, 17
Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v. Waller, 17 Fla. L. Weekly Supp.
139 (Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla.
Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50 (Fla. Broward Cty. Ct.
July 7, 2009); State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct. June 10, 2009)State v.
Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct. June 10, 2009) ; State v. Sabates, 17 Fla. L.
Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009)State v. Sabates, 17 Fla. L. Weekly Supp. 45
(Fla. Broward Cty. Ct. Sept. 23, 2009); State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla.
Hillsborough Cty. Ct. Feb. 21, 2007)State v. Komara, 14 Fla. L. Weekly Supp. 648 (Fla. Hillsborough
Cty. Ct. Feb. 21, 2007); State v. Smith, 7 Fla. L. Weekly Supp. 135 (Fla. Sarasota Cty. Ct. Nov. 5,
1999)State v. Smith, 7 Fla. L. Weekly Supp. 135 (Fla. Sarasota Cty. Ct. Nov. 5, 1999); State v. Baldwin,
6 Fla. L. Weekly Supp. 97 (Fla. Hillsborough Cty. Ct. Oct. 27, 1998)State v. Baldwin, 6 Fla. L. Weekly
Supp. 97 (Fla. Hillsborough Cty. Ct. Oct. 27, 1998).
124
State v. Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002)State v. Barbuto, 9
Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002); State v. Alioto, 7 Fla. L. Weekly
Supp. 475 (Fla. Palm Beach Cty. Ct. March 27, 2000)State v. Alioto, 7 Fla. L. Weekly Supp. 475 (Fla.
Palm Beach Cty. Ct. March 27, 2000); State v. Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty.
Ct. Feb. 24, 2000)State v. Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000);
State v. Vargas, 6 Fla. L. Weekly Supp. 646, 647 (Fla. Dade Cty. Ct. June 27, 1999) State v. Vargas, 6

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Fla. L. Weekly Supp. 646, 647 (Fla. Dade Cty. Ct. June 27, 1999); State v. Walker, 6 Fla. L. Weekly
Supp. 715 (Fla. Dade Cty. Ct. Aug. 2, 1999)State v. Walker, 6 Fla. L. Weekly Supp. 715 (Fla. Dade Cty.
Ct. Aug. 2, 1999).
125
State v. Barbuto, 9 Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002)State v. Barbuto, 9
Fla. L. Weekly Supp. 787 (Fla. Broward Cty. Ct. Sept. 11, 2002); State v. Walker, 6 Fla. L. Weekly
Supp. 715 (Fla. Dade Cty. Ct. Aug. 2, 1999)State v. Walker, 6 Fla. L. Weekly Supp. 715 (Fla. Dade Cty.
Ct. Aug. 2, 1999).
126
State v. Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000) State v. Somarriba, 7
Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000).
127
All of the history on Tom Wood’s involvement and Guth Laboratories are in the opinions set forth
herein.
128
Wissel v. State, 691 So. 2d 507 (Fla. 2d DCA 1997).
129
State v. Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000) State v. Somarriba, 7
Fla. L. Weekly Supp. 467 (Fla. Dade Cty. Ct. Feb. 24, 2000); State v. Sogness, 7 Fla. L. Weekly Supp.
295 (Fla. Lee Cty. Ct. Feb. 3, 2000)State v. Sogness, 7 Fla. L. Weekly Supp. 295 (Fla. Lee Cty. Ct. Feb.
3, 2000); State v. Smith, 7 Fla. L. Weekly Supp. 135, 138 (Fla. Sarasota Cty. Ct. Nov. 5, 1999)State v.
Smith, 7 Fla. L. Weekly Supp. 135, 138 (Fla. Sarasota Cty. Ct. Nov. 5, 1999); State v. Walker, 6 Fla. L.
Weekly Supp. 715, 717 (Fla. Dade Cty. Ct. Aug. 2, 1999)State v. Walker, 6 Fla. L. Weekly Supp. 715,
717 (Fla. Dade Cty. Ct. Aug. 2, 1999); State v. Vargas, 6 Fla. L. Weekly Supp. 646, 647 (Fla. Dade Cty.
Ct. June 27, 1999)State v. Vargas, 6 Fla. L. Weekly Supp. 646, 647 (Fla. Dade Cty. Ct. June 27, 1999);
State v. Robinson, 6 Fla. L. Weekly Supp. 570, 571 (Fla. Dade Cty. Ct. June 21, 1999)State v. Robinson,
6 Fla. L. Weekly Supp. 570, 571 (Fla. Dade Cty. Ct. June 21, 1999); State v. Lopera, 6 Fla. L. Weekly
Supp. 440, 441 (Fla. Hillsborough Cty. Ct. April 16, 1999)State v. Lopera, 6 Fla. L. Weekly Supp. 440,
441 (Fla. Hillsborough Cty. Ct. April 16, 1999); State v. Parker, 6 Fla. L. Weekly Supp. 223, 224 (Fla.
Polk County Ct. Dec. 17, 1998)State v. Parker, 6 Fla. L. Weekly Supp. 223, 224 (Fla. Polk County Ct.
Dec. 17, 1998); State v. Baldwin, 6 Fla. L. Weekly Supp. 97 (Fla. Hillsborough Cty. Ct. Oct. 27,
1998)State v. Baldwin, 6 Fla. L. Weekly Supp. 97 (Fla. Hillsborough Cty. Ct. Oct. 27, 1998).
130
State v. McArthur, 7 Fla. L. Weekly Supp. 114 (Fla. 12th Cir. Ct. Nov. 15, 1999) State v. McArthur, 7
Fla. L. Weekly Supp. 114 (Fla. 12th Cir. Ct. Nov. 15, 1999); State v. Somarriba, 7 Fla. L. Weekly Supp.
467 (Fla. Dade Cty. Ct. Feb. 24, 2000)State v. Somarriba, 7 Fla. L. Weekly Supp. 467 (Fla. Dade Cty.
Ct. Feb. 24, 2000); State v. Smith, 7 Fla. L. Weekly Supp. 135, 138 (Fla. Sarasota Cty. Ct. Nov. 5,
1999)State v. Smith, 7 Fla. L. Weekly Supp. 135, 138 (Fla. Sarasota Cty. Ct. Nov. 5, 1999); State v.
Vargas, 6 Fla. L. Weekly Supp. 646, 648 (Fla. Dade Cty. Ct. June 27, 1999)State v. Vargas, 6 Fla. L.
Weekly Supp. 646, 648 (Fla. Dade Cty. Ct. June 27, 1999); State v. Robinson, 6 Fla. L. Weekly Supp.
570, 572 (Fla. Dade Cty. Ct. June 21, 1999)State v. Robinson, 6 Fla. L. Weekly Supp. 570, 572 (Fla.
Dade Cty. Ct. June 21, 1999).
131
State v. Wendland, 9 Fla. L. Weekly Supp. 5 (Fla. 7th Cir. Ct. Oct. 29, 2001)State v. Wendland, 9 Fla.
L. Weekly Supp. 5 (Fla. 7th Cir. Ct. Oct. 29, 2001); State v. Day, 7 Fla. L. Weekly Supp. 809 (Fla. Palm
Beach Cty. Ct. Sept. 7, 2000)State v. Day, 7 Fla. L. Weekly Supp. 809 (Fla. Palm Beach Cty. Ct. Sept.
7, 2000); State v. Alioto, 7 Fla. L. Weekly Supp. 475 (Fla. Palm Beach Cty. Ct. March 27, 2000) State v.
Alioto, 7 Fla. L. Weekly Supp. 475 (Fla. Palm Beach Cty. Ct. March 27, 2000); State v. Sogness, 7 Fla.
L. Weekly Supp. 295, 296 (Fla. Lee Cty. Ct. Feb. 3, 2000)State v. Sogness, 7 Fla. L. Weekly Supp. 295,
296 (Fla. Lee Cty. Ct. Feb. 3, 2000); State v. Goodwin, 7 Fla. L. Weekly Supp. 141 (Fla. Monroe Cty.
Ct. Sept. 16, 1999)State v. Goodwin, 7 Fla. L. Weekly Supp. 141 (Fla. Monroe Cty. Ct. Sept. 16, 1999);
State v. Walker, 6 Fla. L. Weekly Supp. 715, 717 (Fla. Dade Cty. Ct. Aug. 2, 1999)State v. Walker, 6
Fla. L. Weekly Supp. 715, 717 (Fla. Dade Cty. Ct. Aug. 2, 1999); State v. Dauth, 6 Fla. L. Weekly Supp.
562 (Fla. Duval Cty. Ct. June 11, 1999)State v. Dauth, 6 Fla. L. Weekly Supp. 562 (Fla. Duval Cty. Ct.
June 11, 1999); State v. Skinner, 6 Fla. L. Weekly Supp. 518 (Fla. Clay Cty. Ct. May 21, 1999)State v.
Skinner, 6 Fla. L. Weekly Supp. 518 (Fla. Clay Cty. Ct. May 21, 1999).
132
State v. Walker, 6 Fla. L. Weekly Supp. 715, 718–719 (Fla. Dade Cty. Ct. Aug. 2, 1999)State v. Walker,
6 Fla. L. Weekly Supp. 715, 718–719 (Fla. Dade Cty. Ct. Aug. 2, 1999). See also State v. Day, 7 Fla. L.
Weekly Supp. 809 (Fla. Palm Beach Cty. Ct. Sept. 7, 2000)State v. Day, 7 Fla. L. Weekly Supp. 809

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(Fla. Palm Beach Cty. Ct. Sept. 7, 2000); State v. Gonzalez, 7 Fla. L. Weekly Supp. 46 (Fla. Dade Cty.
Ct. Oct. 12, 1999)State v. Gonzalez, 7 Fla. L. Weekly Supp. 46 (Fla. Dade Cty. Ct. Oct. 12, 1999).
133
State v. Walker, 6 Fla. L. Weekly Supp. 715, 718–719 (Fla. Dade Cty. Ct. Aug. 2, 1999)State v. Walker,
6 Fla. L. Weekly Supp. 715, 718–719 (Fla. Dade Cty. Ct. Aug. 2, 1999). See also State v. Day, 7 Fla. L.
Weekly Supp. 809 (Fla. Palm Beach Cty. Ct. Sept. 7, 2000)State v. Day, 7 Fla. L. Weekly Supp. 809
(Fla. Palm Beach Cty. Ct. Sept. 7, 2000); State v. Gonzalez, 7 Fla. L. Weekly Supp. 46 (Fla. Dade Cty.
Ct. Oct. 12, 1999)State v. Gonzalez, 7 Fla. L. Weekly Supp. 46 (Fla. Dade Cty. Ct. Oct. 12, 1999).
134
State v. Bender, 382 So. 2d 697 (Fla. 1980) (State must prove: (1) test was reliable, (2) test was
performed with qualified operator with proper equipment, and (3) meaning of the test).
135
State v. Sogness, 7 Fla. L. Weekly Supp. 295, 297 (Fla. Lee Cty. Ct. Feb. 3, 2000) State v. Sogness, 7
Fla. L. Weekly Supp. 295, 297 (Fla. Lee Cty. Ct. Feb. 3, 2000); State v. Goodwin, 7 Fla. L. Weekly
Supp. 141, 143 (Fla. Monroe Cty. Ct. Sept. 16, 1999)State v. Goodwin, 7 Fla. L. Weekly Supp. 141, 143
(Fla. Monroe Cty. Ct. Sept. 16, 1999). See also State v. Baez, 8 Fla. L. Weekly Supp. 574 (Fla. Monroe
Cty. Ct. June 5, 2001)State v. Baez, 8 Fla. L. Weekly Supp. 574 (Fla. Monroe Cty. Ct. June 5, 2001)
(court ruled that the same principle applied even after the new rule was adopted because, while solutions
used for monthly inspections were retested under the new rule, the same was not true for solutions used
in the annual inspections).
136
State v. Dauth, 6 Fla. L. Weekly Supp. 562, 564 (Fla. Duval Cty. Ct. June 11, 1999)State v. Dauth, 6
Fla. L. Weekly Supp. 562, 564 (Fla. Duval Cty. Ct. June 11, 1999).
137
State v. Skinner, 6 Fla. L. Weekly Supp. 518, 521 (Fla. Clay Cty. Ct. May 21, 1999) State v. Skinner, 6
Fla. L. Weekly Supp. 518, 521 (Fla. Clay Cty. Ct. May 21, 1999).
138
State v. Friedrich, 681 So. 2d 1157 (Fla. 5th DCA 1996), review denied, 690 So.2d 1299 (Fla. 1997).
139
State v. Alioto, 7 Fla. L. Weekly Supp. 475, 478–79 (Fla. Palm Beach Cty. Ct. March 27, 2000)State v.
Alioto, 7 Fla. L. Weekly Supp. 475, 478–79 (Fla. Palm Beach Cty. Ct. March 27, 2000).
140
The three issues were: (1) whether the selection of Guth as the sole source for the alcohol reference
solution needed to be in a rule; (2) whether the certificate of assurance needed to be in a rule; and (3)
whether the appropriate remedy for failure to adopt such a rule was exclusion of the test.
141
Jenkins v. State, 855 So. 2d 1219 (Fla. 1st DCA 2003).
142
Jenkins v. State, 855 So. 2d 1219, 1226 (Fla. 1st DCA 2003).
143
Jenkins v. State, 855 So. 2d 1219, 1226 (Fla. 1st DCA 2003).
144
Jenkins v. State, 855 So. 2d 1219 (Fla. 1st DCA 2003).
145
Jenkins v. State, 855 So. 2d 1219 (Fla. 1st DCA 2003). See also State v. Bain, 14 Fla. L. Weekly Supp.
657 (Fla. Duval Cty. Ct. April 30, 2007)State v. Bain, 14 Fla. L. Weekly Supp. 657 (Fla. Duval Cty. Ct.
April 30, 2007) (court relied on Jenkins in ruling that lack of Fla. Admin. Code R.11D-8.0036 dealing
with testing of dry gas standards at the time I8000 was approved did not affect admissibility of results).
146
State v. Wright, 14 Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006)State v. Wright, 14
Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006).
147
State v. Hanna, 14 Fla. L. Weekly Supp. 493 (Fla. Volusia Cty. Ct. March 6, 2007)State v. Hanna, 14
Fla. L. Weekly Supp. 493 (Fla. Volusia Cty. Ct. March 6, 2007).
148
State v. Wright, 14 Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006)State v. Wright, 14
Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006). See also Bruns v. State, 15 Fla. L.
Weekly Supp. 958 (Fla. 8th Cir. Ct. Aug. 14, 2008)Bruns v. State, 15 Fla. L. Weekly Supp. 958 (Fla. 8th
Cir. Ct. Aug. 14, 2008).

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Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006). But see Thomas v Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 8 (Fla. 7th Cir. Ct. Sept 19, 2012)Thomas v Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 8 (Fla. 7th Cir. Ct. Sept 19, 2012)
(petitioner argued that the machine was not in substantial compliance because the inspection after
petitioner’s test showed that it was not in compliance; “merely asserting that the intoxilyzer machine
was out of compliance some time after the date of Petitioner’s breath test, without any proof that it was
out of compliance on the actual date of Petitioner’s test, is insufficient to overcome the presumption of
compliance.”); State v. Roque, 25 Fla. L. Weekly Supp. 202 (Fla. Brevard Cty. Ct. May 11, 2016) State
v. Roque, 25 Fla. L. Weekly Supp. 202 (Fla. Brevard Cty. Ct. May 11, 2016) (there was no violation of
Form 39 incorporated into rule 11D-8.006(1) or 11 D-8.006(2) where the instrument failed an agency
inspection, the inspector took it out of service, found that the problem was that he failed to tighten a nut,
talked to the department inspector in Tallahassee and pursuant to her instructions after tightening the
nut, inspected the instrument and when it pass, put it back in service).
150
State v. Hanna, 14 Fla. L. Weekly Supp. 493 (Fla. Volusia Cty. Ct. March 6, 2007)State v. Hanna, 14
Fla. L. Weekly Supp. 493 (Fla. Volusia Cty. Ct. March 6, 2007).
151
State v. Wright, 14 Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006)State v. Wright, 14
Fla. L. Weekly Supp. 167 (Fla. Volusia Cty. Ct. Dec. 15, 2006).
152
State v. Hanna, 14 Fla. L. Weekly Supp. 493 (Fla. Volusia Cty. Ct. March 6, 2007)State v. Hanna, 14
Fla. L. Weekly Supp. 493 (Fla. Volusia Cty. Ct. March 6, 2007). See also State v. Caracci, 19 Fla.
L.Weekly Supp. 1025 (Fla. Gadsden Cty. Ct. Aug. 23, 2012) (breath test results suppressed where July
5, 2011 inspection was good, the defendant was tested on July 21, but the August inspection was
noncompliant and then the machine had the highest number of “‘Control Outside Tolerance’” error
messages in the State for August 2011; the State had no explanation; there was no evidence presented
that this occurred after August so this opinion is limited to the breath samples from July 5, 2011 to
August 31, 2011); State v. Osorio, 19 Fla. L. Weekly Supp. 734 (Fla. Volusia Cty. Ct. May 18,
2012)State v. Osorio, 19 Fla. L. Weekly Supp. 734 (Fla. Volusia Cty. Ct. May 18, 2012) (test results
suppressed because State failed to show substantial compliance where a new agency inspector had to do
four tests to get a compliant result; on the first test the machine “‘times out,’” resulting in an aborted
noncompliant test; on the second test, trooper may have used too much mouth alcohol causing the
machine to indicate “‘slope not met’” so trooper aborted test instead of submitting another sample; the
third sample was aborted because of radio frequency interference and cell phones; trooper never took the
machine out of service or report to the Department inspector as Form 39 requires nor did the trooper put
the events down on Form 40 for several weeks); State v. Kurtz, 19 Fla. L. Weekly Supp. 491 (Fla.
Hillsborough Cty. Ct. March 7, 2012)State v. Kurtz, 19 Fla. L. Weekly Supp. 491 (Fla. Hillsborough
Cty. Ct. March 7, 2012) (trial judge suppressed breath test results secured from an I8000 which was one
of eight; during a one month period (May 2011) that particular machine showed an out of tolerance
anomaly on eight control tests whereas for the 14 months preceding May 2011 the combined anomalies
were eight and there was never more than one in any given month and in some there was none; changes
were made and there was no evidence that the anomalies continued on the machine in question after the
June 2011 inspection; the trial judge concluded that some factor was affecting the reliability of the
machine; suppression applied to the period where the anomalies appeared); State v. Gibson, 15 Fla. L.
Weekly Supp. 817 (Fla. Escambia Cty. Ct. June 19, 2008)State v. Gibson, 15 Fla. L. Weekly Supp. 817
(Fla. Escambia Cty. Ct. June 19, 2008) (machine not in substantial compliance for multiple tests during
period between last compliant inspection and next compliant inspection; tests excluded because of
cumulative effect of failure to secure Department approval after failed tests, failure to remove machine
from service when required, failure to obtain required inspections, inaccurate recording of paperwork,
lack of operator experience, repeated failures to pass part of inspections, and repeated unapproved
monthly tests).
153
State v. Waller, 17 Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009)State v. Waller, 17
Fla. L. Weekly Supp. 139 (Fla. Broward Cty. Ct. June 10, 2009); State v. Lico-Abeyta, 17 Fla. L.
Weekly Supp. 50 (Fla. Broward Cty. Ct. July 7, 2009)State v. Lico-Abeyta, 17 Fla. L. Weekly Supp. 50
(Fla. Broward Cty. Ct. July 7, 2009); State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct.
June 25, 2009)State v. Cacho, 17 Fla. L. Weekly Supp. 48 (Fla. Broward Cty. Ct. June 25, 2009) ; State
v. Sabates, 17 Fla. L. Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009)State v. Sabates, 17 Fla. L.
Weekly Supp. 45 (Fla. Broward Cty. Ct. Sept. 23, 2009).

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evidence supporting finding that the inspector did not rinse with solution and blow as the rules required,
but instead rubbed solution on her lips and gums); State v. Wollman, 18 Fla. L. Weekly Supp. 1124 (Fla.
17th Cir. Ct. Sept. 9, 2011) (no abuse of discretion where trial judge found lack of substantial
compliance where inspector tested I8000 reaction to mouth alcohol by rubbing FDLE alcohol solution
on lips and gums instead of rinsing in her mouth and blowing in the machine where State presented
evidence that results were secured in substantial compliance with approved methods and was accurate
and reliable; this is one of many opinions reaching the same conclusion in the 17th circuit). Contra State
v. Nunez, 16 Fla. L. Weekly Supp. 1183 (Fla. Broward Cty. Ct. June 25, 2009) (where, instead of
inspecting the I8000 by rinsing her mouth with the testing solution, the inspector applied the solution to
her lips and gums there is no substantial difference, since the purpose of the test is to check for whether
the machine responds to residual mouth alcohol). See also State v. Fernandez, 17 Fla. L. Weekly Supp.
708 (Fla. Broward Cty Ct. May 27, 2010)State v. Fernandez, 17 Fla. L. Weekly Supp. 708 (Fla. Broward
Cty Ct. May 27, 2010); State v. Chappell, 16 Fla. L. Weekly Supp. 1053 (Fla. Broward Cty. Ct. Sept.
23, 2009).
155
State v. Yount, 17 Fla. L. Weekly Supp. 1205 (Fla. 16th Cir. Ct. Sept. 3, 2010) (trial judge correctly held
that the State was not entitled to admission of test results under the implied consent law, but had to rely
on the traditional test for admission where the evidence supported a finding that inspector had
deliberately falsified inspection reports by turning off power so that failed inspections would not be
reported to FDLE as required by regulations and this was known by other inspectors, this had occurred
on a statewide basis; the judge correctly found that there had been no compliance which is inconsistent
with the substantial compliance standard). See e.g. State v. Hollman, 19 Fla. L. Weekly Supp. 774 (Fla.
17th Cir. Ct. May 1, 2012)State v. Hollman, 19 Fla. L. Weekly Supp. 774 (Fla. 17th Cir. Ct. May 1,
2012) (no abuse of discretion where trial judge accepted defense expert’s testimony over State’s expert
as to substantial compliance in “‘plug pull’” case and suppressed results for lack of substantial
compliance; this is one of numerous appellate cases from the 17th circuit rendering the same opinion).
156
State v. Yount, 17 Fla. L. Weekly Supp. 1205 (Fla. 16th Cir. Ct. Sept. 3, 2010). See also State v.
Gardella, 17 Fla. L. Weekly Supp. 1009 (Fla. 17th Cir. Ct. May 19, 2010) (court affirmed suppression of
breath tests where there were allegations that the inspector had disrupted power to the machine which
would destroy data and the evidence was in conflict). For cases agreeing with Gardella see: State v.
Brink, 20 Fla. L. Weekly Supp. 772 (Fla. 17th Cir. Ct. May 2, 2013)Gardella see: State v. Brink, 20 Fla.
L. Weekly Supp. 772 (Fla. 17th Cir. Ct. May 2, 2013); State v. Ikramelahai, 20 Fla. L. Weekly Supp.
772 (Fla. 17th Cir. Ct. April 17, 2013)State v. Ikramelahai, 20 Fla. L. Weekly Supp. 772 (Fla. 17th Cir.
Ct. April 17, 2013); State v. Viera, 20 Fla. L. Weekly Supp. 773 (Fla. 17th Cir. Ct. April 16, 2013) State
v. Viera, 20 Fla. L. Weekly Supp. 773 (Fla. 17th Cir. Ct. April 16, 2013).
157
State v. Fernandez, 17 Fla. L. Weekly Supp. 708 (Fla. Broward Cty. Ct. May 27, 2010)State v.
Fernandez, 17 Fla. L. Weekly Supp. 708 (Fla. Broward Cty. Ct. May 27, 2010) (trial court disagreed
with result in Gardella).
158
State v. Ditano, 18 Fla. L. Weekly Supp. 610 (Fla. Brevard Cty. Ct. April 4, 2011) State v. Ditano, 18
Fla. L. Weekly Supp. 610 (Fla. Brevard Cty. Ct. April 4, 2011).
159
State v. Barcol, 8 Fla. L. Weekly Supp. 390 (Fla. Orange Cty. Ct. March 15, 2001) State v. Barcol, 8 Fla.
L. Weekly Supp. 390 (Fla. Orange Cty. Ct. March 15, 2001).
160
State v. Colantonio, 18 Fla. L. Weekly Supp. 1100 (Fla. 18th Cir. Ct. August 31, 2011) (three judge
panel found no abuse of discretion in several county court orders granting production of I8000 for
inspection and testing; trial judges found that defendant had a due process right to inspect and test I8000
and defendants need not show that the inspection and testing would be likely to produce evidence
beneficial to the defendants); State v. Booher, 20 Fla. L. Weekly Supp. 709 (Fla. Brevard Cty. Ct. May
3, 2013)State v. Booher, 20 Fla. L. Weekly Supp. 709 (Fla. Brevard Cty. Ct. May 3, 2013) and State v.
Hutchison, 20 Fla. L. Weekly Supp. 168 (Fla. Brevard Cty Ct. Oct. 15, 2012)20 Fla. L. Weekly Supp.
168 (Fla. Brevard Cty Ct. Oct. 15, 2012) (trial judge approved some tests on the I8000 as reasonable and
necessary and disapproved others); State v. Loughlin, 9 Fla. L. Weekly Supp. 132 (Fla. Orange Cty. Ct.
Dec. 10, 2001)State v. Loughlin, 9 Fla. L. Weekly Supp. 132 (Fla. Orange Cty. Ct. Dec. 10, 2001) (court
used a shorter order to permit inspection).
161
State v. Martinez, 19 Fla. L. Weekly Supp. 297 (Fla. Hillsborough Cty. Ct. Jan. 20 2012)State v.

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Martinez, 19 Fla. L. Weekly Supp. 297 (Fla. Hillsborough Cty. Ct. Jan. 20 2012) (the statute does not
permit inspection, photographing or videotaping of two instruments under the “full information”
provision and the defense produced no evidence that the purpose was based on anything other than a
hunch that there might be differences in the instruments; records of repairs were available to the defense,
and the defense request posed an unreasonable burden to the agencies and could create harm to the
instruments); State v. Johnson, 14 Fla. L. Weekly Supp. 633 (Fla. 18th Cir. Ct. April 9, 2007) State v.
Johnson, 14 Fla. L. Weekly Supp. 633 (Fla. 18th Cir. Ct. April 9, 2007) (defense not entitled to
inspection of intoxilyzer where State announces that it will not be offering breath test results into
evidence); State v. Breaux, 20 Fla. L. Weekly Supp. 728 (Fla. Brevard Cty. Ct. Oct. 29, 2012) State v.
Breaux, 20 Fla. L. Weekly Supp. 728 (Fla. Brevard Cty. Ct. Oct. 29, 2012) (to inspect and test the
I8000, defense must prove that it would likely lead to the discovery of evidence favorable to the
defendant; thus, the court set a hearing for the defense to present evidence); State v. Bournos, 19 Fla. L.
Weekly Supp. 939 (Fla. Lake Cty. Ct. July 1, 2011)State v. Bournos, 19 Fla. L. Weekly Supp. 939 (Fla.
Lake Cty. Ct. July 1, 2011) (defendants failed to meet the burden in seeking to inspect I8000 on the
grounds that the one used in Florida and Lake County is not the same as the one on DOT’s Conforming
Product List; the one on the CPL was described as using “the 3.4 micron and the 9 micron band for
measurement of alcohol;” defendants presented documents showing the ones used in Florida and Lake
County use a “3.0, 3.4, or the 3.476 micron band and a 9.0, 9.3, 9.376 or the 9.4 micron band;” judge
said there was no evidence that no tolerance was allowed in numbers or that they did not conform with
the product code); State v. Monkress, 18 Fla. L. Weekly Supp. 418 (Fla. Brevard Cty. Ct. Nov. 2,
2010)State v. Monkress, 18 Fla. L. Weekly Supp. 418 (Fla. Brevard Cty. Ct. Nov. 2, 2010), ruling
confirmed, 20 Fla. L. Weekly 731 (Fla. Brevard Cty. Ct. Nov. 19, 2012) (due process did not entitle
defendants to inspect and test I8000 where they failed to show that the inspection and testing would
likely lead to discovery of admissible evidence; defendants did not give any specific reason or evidence
for concluding that machine was unreliable or did not perform properly); State v. Beise, 15 Fla. L.
Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007)State v. Beise, 15 Fla. L. Weekly Supp. 512
(Fla. Osceola Cty. Ct. May 14, 2007) (motion to inspect and photograph interior of local I8000 to
determine if it was consistent with approved I8000 denied by three county judges, because defendant
presented nothing showing it was inconsistent and showing that the defense request could be done
without undue burden or negative impact to machine); State v. Schwalbach, 12 Fla. L. Weekly Supp.
976 (Fla. Manatee Cty. Ct. July 11, 2005)State v. Schwalbach, 12 Fla. L. Weekly Supp. 976 (Fla.
Manatee Cty. Ct. July 11, 2005) (request to remove intoxilyzer shell and photograph interior was denied
where it was based solely on claim that the only way to tell if the test is approved is to visually inspect
interior of machine); State v. Cadima, 12 Fla. L. Weekly Supp. 783 (Fla. Dade Cty. Ct. June 2,
2005)State v. Cadima, 12 Fla. L. Weekly Supp. 783 (Fla. Dade Cty. Ct. June 2, 2005) (where defense
failed to make any showing that as of the time of the defendant’s test the intoxilyzer had been modified,
was not in compliance with the rules, or was unreliable, the law, including the decision in Muldowny,
gave the defendant no right to inspect the intoxilyzer); State v. Edelstein, 9 Fla. L. Weekly Supp. 867
(Fla. Hillsborough Cty. Ct. Aug. 29, 2002)State v. Edelstein, 9 Fla. L. Weekly Supp. 867 (Fla.
Hillsborough Cty. Ct. Aug. 29, 2002) (trial judge denied request for permission to photograph
Intoxilyzer 5000 based on claim that the same model instruments in two other counties had problems
where there was no evidence showing that the instruments (1) were made by the same manufacturer; (2)
made at or near the same time, date, and place; (3) shown by documentation to have had any problems
with the results); State v. Burnett, 9 Fla. L. Weekly Supp. 879 (Fla. Hendry Cty. Ct. Jan. 5, 2001)State v.
Burnett, 9 Fla. L. Weekly Supp. 879 (Fla. Hendry Cty. Ct. Jan. 5, 2001) (court would not allow defense
expert to inspect the instrument because the evidence indicated that he would be using tests other than
those required by the Florida Administrative Code, there was no evidence of a lack of substantial
compliance, and it appeared that the witness would be experimenting); State v. Mueller, 9 Fla. L.
Weekly Supp. 852 (Fla. Suwannee Cty. Ct. Feb. 6, 1995)State v. Mueller, 9 Fla. L. Weekly Supp. 852
(Fla. Suwannee Cty. Ct. Feb. 6, 1995) (defense request to examine interior of machine was without
merit where it was based purely on the unsupported assertion, “we don’t know if the machine in
question is of the approved configuration.”).
162
Beary, Sheriff of Orange Cty v. State, 15 Fla. L. Weekly Supp. 114 (Fla. 9th Cir. Ct. Oct. 24,
2007)Beary, Sheriff of Orange Cty v. State, 15 Fla. L. Weekly Supp. 114 (Fla. 9th Cir. Ct. Oct. 24,
2007) (the presence of an employee of the sheriff is not sufficient).
163
State v. Jensen, 10 Fla. L. Weekly Supp. 135 (Fla. Seminole Cty. Ct. Dec. 10, 2002)State v. Jensen, 10
Fla. L. Weekly Supp. 135 (Fla. Seminole Cty. Ct. Dec. 10, 2002).

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164
State v. Jensen, 10 Fla. L. Weekly Supp. 135 (Fla. Seminole Cty. Ct. Dec. 10, 2002)State v. Jensen, 10
Fla. L. Weekly Supp. 135 (Fla. Seminole Cty. Ct. Dec. 10, 2002).
165
State v. Smith, 10 Fla. L. Weekly Supp. 534 (Fla. Orange Cty. Ct. May 29, 2003)State v. Smith, 10 Fla.
L. Weekly Supp. 534 (Fla. Orange Cty. Ct. May 29, 2003).
166
State v. Supina, 11 Fla. L. Weekly Supp. 248 (Fla. Palm Beach Cty. Ct. Jan. 5, 2004)State v. Supina, 11
Fla. L. Weekly Supp. 248 (Fla. Palm Beach Cty. Ct. Jan. 5, 2004).
167
State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004).
168
State v. Muldowny, 871 So. 2d 911, 913 (Fla. 5th DCA 2004). See also State v. Balick, 12 Fla. L.
Weekly Supp. 582 (Fla. Broward Cty. Ct. Jan. 7, 2005)State v. Balick, 12 Fla. L. Weekly Supp. 582
(Fla. Broward Cty. Ct. Jan. 7, 2005) (State complied with Muldowny by producing a C–D ROM
containing items possessed by F.D.L.E. and described in accompanying letter, but the State was not
required to produce material specific to the intoxilyzer that was not in State’s possession or control).
169
State v. Muldowny, 871 So. 2d 911, 914 (Fla. 5th DCA 2004). See also Schools v. State, 13 Fla. L.
Weekly Supp. 243 (Fla. 15th Cir. Ct. Dec. 8, 2005)Schools v. State, 13 Fla. L. Weekly Supp. 243 (Fla.
15th Cir. Ct. Dec. 8, 2005) (State did not provide the most current versions of required material, but the
trial judge determined that the defendant was not prejudiced by the violation; affirmed on appeal); State
v. Ackerson, 13 Fla. L. Weekly Supp. 730 (Fla. Monroe Cty. Ct. March 29, 2006)State v. Ackerson, 13
Fla. L. Weekly Supp. 730 (Fla. Monroe Cty. Ct. March 29, 2006) (court entered a detailed order as to
the meaning of “schematics,” but after more than a year the State had not complied; therefore, the court
suppressed the breath test results); State v. Mullen, 13 Fla. L. Weekly Supp. 377 (Fla. Monroe Cty. Ct.
Dec. 20, 2005)State v. Mullen, 13 Fla. L. Weekly Supp. 377 (Fla. Monroe Cty. Ct. Dec. 20, 2005) (court
entered a detailed description of what “schematics” must be produced); State v. Bjorkland, 12 Fla. L.
Weekly Supp. 979 (Fla. Sarasota Cty. Ct. July 11, 2005)State v. Bjorkland, 12 Fla. L. Weekly Supp. 979
(Fla. Sarasota Cty. Ct. July 11, 2005) (where the defense sought exclusion of test results because State
failed to identify which intoxilyzer the schematics were for and failed to produce the software source
code for the EPROM, but the court could not determine the importance of this non-compliance; the
court ordered the state to determine whether any additional documents existed that were responsive to
the defense request and to produce them within 20 days; provide names of all FDLE or other State
personnel with knowledge of the subject of the defense request; if no such material existed, state that
fact in writing).
170
State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004).
171
State v. Guthrie, 12 Fla. L. Weekly Supp. 395 (Fla. Seminole Cty. Ct. Jan. 13, 2005)State v. Guthrie, 12
Fla. L. Weekly Supp. 395 (Fla. Seminole Cty. Ct. Jan. 13, 2005). See also State v. Boyle, 13 Fla. L.
Weekly Supp. 202 (Fla. Seminole Cty. Ct. October 26, 2005)State v. Boyle, 13 Fla. L. Weekly Supp.
202 (Fla. Seminole Cty. Ct. October 26, 2005) (fact that FDLE purportedly entered into a nondisclosure
agreement with manufacturer did not relieve the State from the duty to comply with statutory disclosure
requirements, which included the software source code).
172
State v. Guthrie, 12 Fla. L. Weekly Supp. 395 (Fla. Seminole Cty. Ct. Jan. 13, 2005)State v. Guthrie, 12
Fla. L. Weekly Supp. 395 (Fla. Seminole Cty. Ct. Jan. 13, 2005).
173
State v. Guthrie, 12 Fla. L. Weekly Supp. 501 (Fla. Seminole Cty. Ct. Feb. 8, 2005)State v. Guthrie, 12
Fla. L. Weekly Supp. 501 (Fla. Seminole Cty. Ct. Feb. 8, 2005). See also State v. Weiss, 12 Fla. L.
Weekly Supp. 807 (Fla. Seminole Cty. Ct. May 9, 2005)State v. Weiss, 12 Fla. L. Weekly Supp. 807
(Fla. Seminole Cty. Ct. May 9, 2005).
174
State v. Lentz, 12 Fla. L. Weekly Supp. 806 (Fla. Seminole Cty. Ct. May 27, 2005)State v. Lentz, 12
Fla. L. Weekly Supp. 806 (Fla. Seminole Cty. Ct. May 27, 2005). See also State v. Bjorkland, 13 Fla. L.
Weekly Supp. 170 (Fla. Sarasota Cty. Ct. Nov 5, 2005)State v. Bjorkland, 13 Fla. L. Weekly Supp. 170
(Fla. Sarasota Cty. Ct. Nov 5, 2005) (fact that software source code is a trade secret does not relieve the
State from its statutory duty to produce all information concerning the intoxilyzer, but the court
fashioned a tight order in an attempt to protect the trade secret).
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175
State v. Lentz, 12 Fla. L. Weekly Supp. 806 (Fla. Seminole Cty. Ct. May 27, 2005)State v. Lentz, 12
Fla. L. Weekly Supp. 806 (Fla. Seminole Cty. Ct. May 27, 2005).
176
State v. Almarez, 13 Fla. L. Weekly Supp. 724 (Fla. Manatee Cty. Ct. May 5, 2006)State v. Almarez, 13
Fla. L. Weekly Supp. 724 (Fla. Manatee Cty. Ct. May 5, 2006); State v. Irish, 13 Fla. L. Weekly Supp.
719 (Fla. Sarasota Cty. Ct. May 4, 2006)State v. Irish, 13 Fla. L. Weekly Supp. 719 (Fla. Sarasota Cty.
Ct. May 4, 2006) (the orders contain very useful discussions of all the rulings on this subject).
177
The courts recognized that there are well established ways of protecting trade secrets.
178
State v. Almarez, 13 Fla. L. Weekly Supp. 724 (Fla. Manatee Cty. Ct. May 5, 2006)State v. Almarez, 13
Fla. L. Weekly Supp. 724 (Fla. Manatee Cty. Ct. May 5, 2006); State v. Irish, 13 Fla. L. Weekly Supp.
719 (Fla. Sarasota Cty. Ct. May 4, 2006)State v. Irish, 13 Fla. L. Weekly Supp. 719 (Fla. Sarasota Cty.
Ct. May 4, 2006). See also State v. Benjamin, 13 Fla. L. Weekly Supp. 354 (Fla. Orange Cty. Ct. Jan.
31, 2006)State v. Benjamin, 13 Fla. L. Weekly Supp. 354 (Fla. Orange Cty. Ct. Jan. 31, 2006).
179
State v. Fuller, 12 Fla. L. Weekly Supp. 811 (Fla. Brevard Cty. Ct. May 11, 2005)State v. Fuller, 12 Fla.
L. Weekly Supp. 811 (Fla. Brevard Cty. Ct. May 11, 2005). See also State v. Castella, 13 Fla. L. Weekly
Supp. 707 (Fla. 17th Cir. Ct. May 3, 2006)State v. Castella, 13 Fla. L. Weekly Supp. 707 (Fla. 17th Cir.
Ct. May 3, 2006) (manufacturer claimed source code is a trade secret and the State is not in possession
or control of the source code); State v. Salesman, 13 Fla. L. Weekly Supp. 477 (Fla. 17th Cir. Ct. Feb.
28, 2006)State v. Salesman, 13 Fla. L. Weekly Supp. 477 (Fla. 17th Cir. Ct. Feb. 28, 2006) (same ruling
as in Salce set forth hereafter); State v. Salce, 13 Fla. L. Weekly Supp. 263 (Fla. 17th Cir. Ct. Dec. 16,
2005)State v. Salce, 13 Fla. L. Weekly Supp. 263 (Fla. 17th Cir. Ct. Dec. 16, 2005) (State not required
to produce software source code because it is “the secret intellectual property” of a private corporation
who will not produce it, and the State does not have it); State v. Bastos, 13 Fla. L. Weekly Supp. 1004
(Fla. Dade Cty. Ct. July 19, 2006) (court made the following rulings rejecting production of source code
for I5000 from state or manufacturer: neither discovery rule nor Muldowny require state to produce code
because it is not in state’s possession, defense failed to show that source code was material, due process
does not require production); State v. Fiveash, 13 Fla. L. Weekly Supp. 993 (Fla. Santa Rosa Cty. Ct.
July 21, 2006)State v. Fiveash, 13 Fla. L. Weekly Supp. 993 (Fla. Santa Rosa Cty. Ct. July 21, 2006)
(State not required to produce source code, schematics, and other material that is not in state’s
possession; additionally there were no allegations of fact suggesting that these items were material in
accord with Brady); State v. Plank, 13 Fla. L. Weekly Supp. 919 (Fla. Collier Cty. Ct. June 30,
2006)State v. Plank, 13 Fla. L. Weekly Supp. 919 (Fla. Collier Cty. Ct. June 30, 2006) (court denied
motion to compel production of source code for I5000 because the defense failed to show it was
material, where the evidence established a mere possibility that the source code would help the defense);
State v. Johnson, 13 Fla. L. Weekly Supp. 917 (Fla. Seminole Cty. Ct. June 19, 2006)State v. Johnson,
13 Fla. L. Weekly Supp. 917 (Fla. Seminole Cty. Ct. June 19, 2006) (State not required to disclose
operator’s manual, maintenance manual, schematics, and source code for the I8000 because they were
not in possession of FDLE); State v. Bastos, 13 Fla. L. Weekly Supp. 896 (Fla. Dade Cty. Ct. June 28,
2006)State v. Bastos, 13 Fla. L. Weekly Supp. 896 (Fla. Dade Cty. Ct. June 28, 2006) (neither discovery
rules nor Muldowny entitled defense to source code for I5000 because it was not in state’s possession or
control; defendants before the court failed to show that the source code was material, based on mere
possibility of favorable impact, but court recognized that certain defendants might be entitled to secure
source code from manufacturer); State v. Bastos, 13 Fla. L. Weekly Supp. 894 (Fla. Dade Cty. Ct. June
18, 2006)State v. Bastos, 13 Fla. L. Weekly Supp. 894 (Fla. Dade Cty. Ct. June 18, 2006) (in en mass
proceeding, court would not compel the State to produce source code not in State’s possession, but
recognized that there might be circumstances where the defense could properly attempt to secure the
source code from the manufacturer); State v. Hathaway, 13 Fla. L. Weekly Supp. 836 (Fla. Broward
Cty. Ct. May 18, 2006)State v. Hathaway, 13 Fla. L. Weekly Supp. 836 (Fla. Broward Cty. Ct. May 18,
2006) (manufacturer views source code for I5000 as trade secret and does not intend to turn source code
over to anyone; since state does not have access to code, state cannot be compelled to turn it over); State
v. Spalding, 13 Fla. L. Weekly Supp. 627 (Fla. Palm Beach Cty. Ct. Feb. 28, 2006)State v. Spalding, 13
Fla. L. Weekly Supp. 627 (Fla. Palm Beach Cty. Ct. Feb. 28, 2006) (no duty to disclose source code
under discovery rules because defense failed to show it was material, each party had same access to the
information, and defense was asking court to order private agency to produce material); State v. Greene,
13 Fla. L. Weekly Supp. 390 (Fla. Broward Cty. Ct. Dec 21, 2005)State v. Greene, 13 Fla. L. Weekly
Supp. 390 (Fla. Broward Cty. Ct. Dec 21, 2005) (manufacturer has never provided source code to the

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State, including FDLE and the court cannot require the State to produce what it doesn’t have); State v.
Bird, 13 Fla. L. Weekly Supp. 283 (Fla. Broward Cty Ct. Jan. 18, 2006)State v. Bird, 13 Fla. L. Weekly
Supp. 283 (Fla. Broward Cty Ct. Jan. 18, 2006) (in an order discussing many of the county court rulings
on this issue, the trial judge struck the defense motion to secure the software source code because the
State did not have it, it was a trade secret, and the defense failed to show that it was material).
180
State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004).
181
State v. Fuller, 12 Fla. L. Weekly Supp. 811 (Fla. Brevard Cty. Ct. May 11, 2005)State v. Fuller, 12 Fla.
L. Weekly Supp. 811 (Fla. Brevard Cty. Ct. May 11, 2005).
182
State v. Smith, 17 Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010) State v. Smith, 17
Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010). See also State v. Parlier, 18 Fla. L.
Weekly Supp. 52 (Fla. 18th Cir. Ct. Aug. 24, 2010)State v. Parlier, 18 Fla. L. Weekly Supp. 52 (Fla.
18th Cir. Ct. Aug. 24, 2010).
183
State v. Smith, 17 Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010) State v. Smith, 17
Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010).
184
Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006). See also Pflieger v. State, 952 So. 2d 1251,
1254 (Fla. 4th DCA 2007); Turner v. State, 951 So. 2d 1036 (Fla. 4th DCA 2007). See also Licari v.
State, 15 Fla. L. Weekly Supp. 646 (Fla. 6th Cir. Ct. March 31, 2008)Licari v. State, 15 Fla. L. Weekly
Supp. 646 (Fla. 6th Cir. Ct. March 31, 2008); State v. Kocis, 15 Fla. L. Weekly Supp. 470 (Fla. 18th Cir.
Ct. Jan 11, 2007)State v. Kocis, 15 Fla. L. Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007) ; State v.
Bournos, 19 Fla. L. Weekly Supp. 939 (Fla. Lake Cty. Ct. July 1, 2011) State v. Bournos, 19 Fla. L.
Weekly Supp. 939 (Fla. Lake Cty. Ct. July 1, 2011); State v. Dickson, 19 Fla. L. Weekly Supp. 867 (Fla.
Seminole Cty. Ct. July 11, 2012)State v. Dickson, 19 Fla. L. Weekly Supp. 867 (Fla. Seminole Cty. Ct.
July 11, 2012); State v. Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty. April 23, 2008)State
v. Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty. April 23, 2008) (county judges en banc
relied on decision in Moe to deny disclosure of scientific formula used by I8000 to convert breath
sample to a g/210L result); State v. Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla. Hillsborough Cty. Ct.
April 14, 2008)State v. Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla. Hillsborough Cty. Ct. April 14,
2008); State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) State v. Beise,
15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) (Moe applied to deny request for
I8000 source codes, e-proms, ee-proms, and software notwithstanding attack on scientific reliability of
results); State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007); State v. Anderson, 14
Fla. L. Weekly Supp. 792 (Fla. Bay Cty. Ct. April 2, 2007)State v. Anderson, 14 Fla. L. Weekly Supp.
792 (Fla. Bay Cty. Ct. April 2, 2007).
185
State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004).
186
Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006). See also Pflieger v. State, 952 So. 2d 1251,
1254 (Fla. 4th DCA 2007); Turner v. State, 951 So. 2d 1036 (Fla. 4th DCA 2007); State v. Smith, 17
Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010)State v. Smith, 17 Fla. L. Weekly
Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010).
187
State v. Vanhaezebrouck, 17 Fla. L. Weekly Supp. 775 (Fla. 20th Cir. Ct. Oct. 19, 2009)State v.
Vanhaezebrouck, 17 Fla. L. Weekly Supp. 775 (Fla. 20th Cir. Ct. Oct. 19, 2009).
188
Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006).
189
State v. Vanhaezebrouck, 17 Fla. L. Weekly Supp. 775 (Fla. 20th Cir. Ct. Oct. 19, 2009)State v.
Vanhaezebrouck, 17 Fla. L. Weekly Supp. 775 (Fla. 20th Cir. Ct. Oct. 19, 2009). See also State v.
Bournos, 19 Fla. L. Weekly Supp. 939 (Fla. Lake Cty. Ct. July 1, 2011) State v. Bournos, 19 Fla. L.
Weekly Supp. 939 (Fla. Lake Cty. Ct. July 1, 2011) (holding that under the statute, defendants were
entitled to a copy of the software because it was in the actual possession of the State even though it was
owned by the manufacturer; defendants were not entitled to the source code, because the evidence
showed that it was not in possession of the State; defendants were entitled to photo, copy, and inspect
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the I8000).
190
State v. Kocis, 15 Fla. L. Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007)State v. Kocis, 15 Fla. L.
Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007).
191
State v. Kocis, 15 Fla. L. Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007)State v. Kocis, 15 Fla. L.
Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007). Contra State v. Allen, 16 Fla. L. Weekly Supp. 598
(Fla. Osceola Cty. Ct. April 24, 2009)State v. Allen, 16 Fla. L. Weekly Supp. 598 (Fla. Osceola Cty. Ct.
April 24, 2009) (three judges concluded software was material because it governs the operation of the
machine that produces breath test results leading to a conviction; therefore, the machine essentially
constitutes a prosecution witness).
192
State v. Kocis, 15 Fla. L. Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007)State v. Kocis, 15 Fla. L.
Weekly Supp. 470 (Fla. 18th Cir. Ct. Jan 11, 2007).
193
State v. Bastos, 13 Fla. L. Weekly Supp. 897 (Fla. Dade Cty. Ct. June 16, 2006) State v. Bastos, 13 Fla.
L. Weekly Supp. 897 (Fla. Dade Cty. Ct. June 16, 2006) (source code for I5000 was material and
pursuant to 942.03 court certified to foreign court that employees of manufacturer were material
witnesses and asked that foreign court summon them to appear for Florida deposition).
194
State v. Baker, 14 Fla. L. Weekly Supp. 581 (Fla. Sarasota Cty. Ct. March 12, 2007) State v. Baker, 14
Fla. L. Weekly Supp. 581 (Fla. Sarasota Cty. Ct. March 12, 2007) (court would issue a subpoena duces
tecum to the manufacturer of I5000 where the company was registered to do business in Florida, and the
source code for the EPROM, versions 900.08 and 900.10 was material under the defense theory); State
v. Marsh, 14 Fla. L. Weekly Supp. 495 (Fla. Sarasota Cty. Ct. March 6, 2007) State v. Marsh, 14 Fla. L.
Weekly Supp. 495 (Fla. Sarasota Cty. Ct. March 6, 2007) (source code for I5000 is material and
subpoena duces tecum to manufacturer issued); State v. Fabian, 14 Fla. L. Weekly Supp. 480 (Fla.
Sarasota Cty. Ct. March 2, 2007)State v. Fabian, 14 Fla. L. Weekly Supp. 480 (Fla. Sarasota Cty. Ct.
March 2, 2007) (source code for I8000 is material based on source code irregularities acknowledged by
FDLE and subpoena duces tecum issued to manufacturer).
195
State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007)State v. Beise, 15 Fla.
L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) (court refused to issue subpoena for source
code because there was no showing of materiality). State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475
(Fla. Orange Cty. Ct. May 23, 2007)State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange
Cty. Ct. May 23, 2007) (court refused to issue subpoena for source code and other items relating to the
I8000 because the materials were excluded from discovery by § 316.1932(1)(f)(4), Fla. Stat., which
specifically excludes materials in the sole possession of the manufacturer, and the items were not
material).
196
CMI, Inc of Kentucky v. Fabian, 15 Fla. L. Weekly Supp. 573 (Fla. 12th Cir. Ct. March 31, 2008)CMI,
Inc of Kentucky v. Fabian, 15 Fla. L. Weekly Supp. 573 (Fla. 12th Cir. Ct. March 31, 2008).
197
CMI, Inc of Kentucky v. Fabian, 15 Fla. L. Weekly Supp. 573 (Fla. 12th Cir. Ct. March 31, 2008)CMI,
Inc of Kentucky v. Fabian, 15 Fla. L. Weekly Supp. 573 (Fla. 12th Cir. Ct. March 31, 2008).
198
CMI, Inc. Of Florida v. Almaraz, 15 Fla. L. Weekly Supp. 782 (Fla. 12th Cir. Ct. April 23, 2008) CMI,
Inc. Of Florida v. Almaraz, 15 Fla. L. Weekly Supp. 782 (Fla. 12th Cir. Ct. April 23, 2008).
199
CMI, Inc. Of Florida v. Almaraz, 15 Fla. L. Weekly Supp. 782 (Fla. 12th Cir. Ct. April 23, 2008) CMI,
Inc. Of Florida v. Almaraz, 15 Fla. L. Weekly Supp. 782 (Fla. 12th Cir. Ct. April 23, 2008).
200
CMI, Inc. Of Florida v. Almaraz, 15 Fla. L. Weekly Supp. 782 (Fla. 12th Cir. Ct. April 23, 2008) CMI,
Inc. Of Florida v. Almaraz, 15 Fla. L. Weekly Supp. 782 (Fla. 12th Cir. Ct. April 23, 2008).
201
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008).
202
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008).

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203
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008).
204
State v. Bastos, 985 So. 2d 37, 43 (Fla. 3d DCA 2008). See also State v. Bournos, 19 Fla. L. Weekly
Supp. 939 (Fla. Lake Cty. Ct. July 1, 2011)State v. Bournos, 19 Fla. L. Weekly Supp. 939 (Fla. Lake
Cty. Ct. July 1, 2011) (notwithstanding the statute, the rules would permit the discovery if it was
material, according to Bastos; even though defendants showed that there were four anomalies in
machines around the State, they presented no evidence that any of those anomalies impacted any of the
machines involved in these tests; therefore they failed to make a “more particularized showing”); State
v. Smith, 17 Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010) State v. Smith, 17 Fla. L.
Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010) (court denied motion to compel production of
source code because statute limits disclosure and excludes information not in actual possession of State
and there was no “‘particularized showing demonstrating that observed discrepancies in the operation of
the machine necessitate access to the source code,’” as required in Bastos).
205
CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010), disapproved of by Ulloa v. CMI, Inc.,
133 So. 3d 914 (Fla. 2013).
206
CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010), disapproved of by Ulloa v. CMI, Inc.,
133 So. 3d 914 (Fla. 2013). See also State v. Feller, 18 Fla. L. Weekly Supp. 600 (Fla. Duval Cty. Ct.
March 22, 2011)State v. Feller, 18 Fla. L. Weekly Supp. 600 (Fla. Duval Cty. Ct. March 22, 2011)
(Pursuant to Landrum, the Subpoenas Duces Tecum for trial to registered agent for CMI for documents
but no testimony, were valid and the Uniform Law did not apply; Landrum was not limited to discovery
subpoenas or cases where the trial judge makes a determination of materiality prior to issuance of
subpoena.).
207
CMI, Inc. v. Ulloa, 73 So. 3d 787 (Fla. 5th DCA 2011), decision approved, 133 So. 3d 914 (Fla.
2013).
208
CMI, Inc. v. Ulloa, 73 So. 3d 787 (Fla. 5th DCA 2011), decision approved, 133 So. 3d 914 (Fla.
2013).
209
CMI, Inc. v. Ulloa, 73 So. 3d 787 (Fla. 5th DCA 2011), and decision approved, 133 So. 3d 914 (Fla.
2013).
210
Ulloa v. CMI, Inc., 133 So. 3d 914 (Fla. 2013).
211
CMI, Inc. v. Ulloa, 73 So. 3d 787 (Fla. 5th DCA 2011).
212
CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010).
213
Ulloa v. CMI, Inc., 133 So. 3d 914, 924-25 (Fla. 2013).
214
State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004).
215
Ch. 2006–247, §§ 1 & 2, Laws of Florida (amending § 316.1932(1)(f) 4., Fla. Stat. (DUI) and §
327.352(1)(e), Fla. Stat. (BUI)).
216
Ch. 2006–247, §§ 1 & 2, Laws of Florida (amending § 316.1932(1)(f) 4., Fla. Stat. (DUI) and §
327.352(1)(e), Fla. Stat. (BUI)). See also State v. Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier
Cty. April 23, 2008)BUI)). See also State v. Maldonado, 15 Fla. L. Weekly Supp. 754 (Fla. Collier Cty.
April 23, 2008) (county judges en banc ruled that scientific formula used by I8000 to convert breath
sample to a g/210L result is not part of “full information”); State v. Hawkes, 15 Fla. L. Weekly Supp.
729 (Fla. Hillsborough Cty. Ct. April 14, 2008)State v. Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla.
Hillsborough Cty. Ct. April 14, 2008); State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty.
Ct. May 14, 2007)State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007)

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(three county judges ruled that source codes, e-proms, ee-proms, and software for I8000 was not part of
“full information”).
217
Ch. 2006–247, §§ 1 & 2, Laws of Florida (amending § 316.1932(1)(f) 4., Fla. Stat. (DUI) and §
327.352(1)(e), Fla. Stat. (BUI)). See also State v. Martinez, 19 Fla. L. Weekly Supp. 297 (Fla.
Hillsborough Cty. Ct. Jan. 20 2012)BUI)). See also State v. Martinez, 19 Fla. L. Weekly Supp. 297 (Fla.
Hillsborough Cty. Ct. Jan. 20 2012); State v. Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla. Hillsborough
Cty. Ct. April 14, 2008)State v. Hawkes, 15 Fla. L. Weekly Supp. 729 (Fla. Hillsborough Cty. Ct. April
14, 2008); State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) State v.
Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007); State v. Harris, 15 Fla. L.
Weekly Supp. 486 (Fla. Monroe Cty. Ct. Feb. 27, 2008)State v. Harris, 15 Fla. L. Weekly Supp. 486
(Fla. Monroe Cty. Ct. Feb. 27, 2008).
218
State v. Deville, 14 Fla. L. Weekly Supp. 191 (Fla. Collier Cty. Ct. Nov. 3, 2006)State v. Deville, 14
Fla. L. Weekly Supp. 191 (Fla. Collier Cty. Ct. Nov. 3, 2006). See also State v. Beise, 15 Fla. L. Weekly
Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007)State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla.
Osceola Cty. Ct. May 14, 2007); State v. Anderson, 14 Fla. L. Weekly Supp. 792 (Fla. Bay Cty. Ct.
April 2, 2007)State v. Anderson, 14 Fla. L. Weekly Supp. 792 (Fla. Bay Cty. Ct. April 2, 2007).
219
State v. Deville, 14 Fla. L. Weekly Supp. 191 (Fla. Collier Cty. Ct. Nov. 3, 2006)State v. Deville, 14
Fla. L. Weekly Supp. 191 (Fla. Collier Cty. Ct. Nov. 3, 2006).
220
State v. Deville, 14 Fla. L. Weekly Supp. 191 (Fla. Collier Cty. Ct. Nov. 3, 2006)State v. Deville, 14
Fla. L. Weekly Supp. 191 (Fla. Collier Cty. Ct. Nov. 3, 2006).
221
“On a showing of materiality,” Fla. R. Crim. P. 3.220(f) authorizes court to require production of “such
other discovery … as justice may require.” See State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008) in
this section for a discussion of the materiality of source codes.
222
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007) (defendant sought 40
items and simulator solutions, dry gas standards, eeproms or chips or their equivalent located in the
I8000, and source codes). See also State v. Smith, 17 Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct.
March 21, 2010)State v. Smith, 17 Fla. L. Weekly Supp. 484 (Fla. Brevard Cty. Ct. March 21, 2010)
(court denied motion to compel production of source code where State made no showing that I8000 did
not operate properly or reliably or that production of source code would lead to exculpatory evidence
that defendant could use at trial, rather than a mere possibility that such evidence would be discovered;
and there was no showing that source code was material to preparation of defense case as indicated in
Rule 3.220(f)).
223
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007). See also State v.
Adkins, 15 Fla. L. Weekly Supp. 501 (Fla. Charlotte Cty. Ct. June 25, 2007)State v. Adkins, 15 Fla. L.
Weekly Supp. 501 (Fla. Charlotte Cty. Ct. June 25, 2007) (defendant not entitled to subpoena duces
tecum for source code in the absence of a showing that it “will probably lead to evidence the defense
will use at trial as opposed to a mere possibility of the production of admissible evidence.”).
224
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007).
225
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007). See also State v.
Fernandez, 15 Fla. L. Weekly Supp. 485 (Fla. Monroe Cty. Ct. Feb. 23, 2007)State v. Fernandez, 15 Fla.
L. Weekly Supp. 485 (Fla. Monroe Cty. Ct. Feb. 23, 2007) (defendant not entitled to information
relating to I8000 from FDLE in a particular computer format to help preparation of a challenge because
data was available on internet website; State has no duty to provide material in a computer format even
if it would be costly for defendant to do so).
226
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007) (defendant failed to
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show that the source code was in state’s possession or unascertainable by defense and further defendant
had sufficient opportunity to question reliability of tests with source code).
227
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007).
228
State v. Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007)State v.
Abrahamsen, 15 Fla. L. Weekly Supp. 475 (Fla. Orange Cty. Ct. May 23, 2007).
229
State v. Fitzgerald, 20 Fla. L. Weekly Supp. 721 (Fla. Sarasota Cty. Ct. Aug. 16, 2012)State v.
Fitzgerald, 20 Fla. L. Weekly Supp. 721 (Fla. Sarasota Cty. Ct. Aug. 16, 2012) (the court did a
Richardson inquiry; the failure to disclose was not willful; since the modifications did not affect the
analytical reliability of the I8000, the failure to disclose was more insubstantial and immaterial than
substantial and material; there was no prejudice to defendant’s trial preparation since the changes did not
require formal approval by FDLE and did not affect the analytical reliability of the machine).
230
State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007)State v. Beise, 15 Fla.
L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007) (three county judges joined in this opinion).
231
State v. Beise, 15 Fla. L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007)State v. Beise, 15 Fla.
L. Weekly Supp. 512 (Fla. Osceola Cty. Ct. May 14, 2007).
232
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008).
233
State v. Allen, 16 Fla. L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009)State v. Allen, 16 Fla.
L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009).
234
State v. Allen, 16 Fla. L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009)State v. Allen, 16 Fla.
L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009).
235
State v. Allen, 16 Fla. L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009)State v. Allen, 16 Fla.
L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009).
236
State v. Allen, 16 Fla. L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009)State v. Allen, 16 Fla.
L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009).
237
State v. Allen, 16 Fla. L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009)State v. Allen, 16 Fla.
L. Weekly Supp. 598 (Fla. Osceola Cty. Ct. April 24, 2009).
238
State v. McGratty, 16 Fla. L. Weekly Supp. 813 (Fla. 9th Cir. Ct. June 29, 2009)State v. McGratty, 16
Fla. L. Weekly Supp. 813 (Fla. 9th Cir. Ct. June 29, 2009).
239
Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006).
240
§ 316.1932(1)(f) 4., Fla. Stat.
241
State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004).
242
State v. McGratty, 16 Fla. L. Weekly Supp. 813 (Fla. 9th Cir. Ct. June 29, 2009)State v. McGratty, 16
Fla. L. Weekly Supp. 813 (Fla. 9th Cir. Ct. June 29, 2009).
243
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008).
244
State v. Bastos, 985 So. 2d 37, 43 (Fla. 3d DCA 2008).
245
State v. Almarez, 16 Fla. L. Weekly Supp. 343 (Fla. Manatee Cty. Ct. Feb. 10, 2009)State v. Almarez,
16 Fla. L. Weekly Supp. 343 (Fla. Manatee Cty. Ct. Feb. 10, 2009).

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§ 6:3.Approval, registration, and inspections, 11 Fla. Prac., DUI Handbook § 6:3...

246
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).
247
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).
248
State v. Bastos, 985 So. 2d 37 (Fla. 3d DCA 2008).
249
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008). See also State v. Baker, 16 Fla. L.
Weekly Supp. 344 (Fla. Sarasota Cty. Ct. Feb. 6, 2009)State v. Baker, 16 Fla. L. Weekly Supp. 344 (Fla.
Sarasota Cty. Ct. Feb. 6, 2009).
250
Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006).
251
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008). See also State v. Baker, 16 Fla. L.
Weekly Supp. 344 (Fla. Sarasota Cty. Ct. Feb. 6, 2009)State v. Baker, 16 Fla. L. Weekly Supp. 344 (Fla.
Sarasota Cty. Ct. Feb. 6, 2009).
252
Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006).
253
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).
254
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) (since the evidence did not show that the
Florida Intoxilyzers used the same microns as the device that was on the DOT’s consumer list, and Form
34 required that the device be on that list, the instruments would be treated as if they were unapproved).
255
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).
256
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008). See also State v. Baker, 16 Fla. L.
Weekly Supp. 344 (Fla. Sarasota Cty. Ct. Feb. 6, 2009)State v. Baker, 16 Fla. L. Weekly Supp. 344 (Fla.
Sarasota Cty. Ct. Feb. 6, 2009).
257
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).
258
Department of Highway Safety and Motor Vehicles v. Berne, 49 So. 3d 779 (Fla. 5th DCA 2010),
review dismissed as improvidently granted, 84 So. 3d 257 (Fla. 2012).
259
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).
260
Department of Highway Safety and Motor Vehicles v. Berne, 49 So. 3d 779 (Fla. 5th DCA 2010),
review dismissed as improvidently granted, 84 So. 3d 257 (Fla. 2012).
261
State v. Atkins, 16 Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008) State v. Atkins, 16
Fla. L. Weekly Supp. 251 (Fla. Orange Cty. Ct. June 20, 2008).

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Works.

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

11 Fla. Prac., DUI Handbook § 6:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:4. Qualifications, training, and permitting requirements

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 423

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

To get a permit, those who administer breath and blood tests must meet certain requirements set forth in the
rule.1 A breath test operator must:2 (a) be 18 years of age or older; (b) have a high school diploma or its
equivalent; (c) be employed by an agency, or the Department, or the Criminal Justice and Training
Commission; (d) successfully complete the Breath Test Operator course approved by the Criminal Justice and
Training Commission, which means obtaining a passing score of at least 80% on a written examination,
properly operating an approved breath test instrument in accordance with the applicable procedures, and
properly completing the required forms; (e) submit to the Department a complete written application using
Form 8 within 90 days after completion of all requirements.

Inspectors must have a separate permit. Anyone who possesses a valid breath test operator permit is eligible for
an agency inspector permit.3 They must:4 (a) successfully complete the agency inspector course, which means
obtaining a passing score of at least 80% on a written examination, properly inspecting an approved breath test
instrument in accordance with the applicable procedures, and properly completing the required forms; (b)
submit to the Department a complete written application using Form 8 within 90 days after completion of all
requirements; and (c) be employed by an agency or the department.

Blood test personnel fall into two categories and must meet significantly different standards than those for
breath test personnel. The first category are those who are authorized to draw the blood sample. That includes
physicians, certified paramedics, registered nurses, licensed practical nurses, and other personnel authorized by
a hospital to draw blood.5 It also includes duly licensed clinical laboratory directors, supervisors, and
technologists or technicians.6 These people may withdraw blood at the request of a law enforcement officer for
the purpose of determining alcohol content or the presence of chemical or controlled substances. 7 Even in the

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

absence of a request by a law enforcement officer, a test on blood withdrawn for medical reasons is still
admissible.8 Where the blood sample was withdrawn by a person not authorized by the statute, one court found
the test results to be inadmissible.9

Other authority leaves no doubt that the restrictions on who may withdraw blood samples are critical. In
Robertson v. State,10 the Supreme Court ruled that where blood is not tested in compliance with the regulations,
the results are nonetheless admissible if the state establishes the traditional scientific predicate. 11 That is only
true, however, if the blood was withdrawn by someone authorized by the statute. 12 The Court found that this
restriction was intended by the Legislature to protect the health of the subject. 13

The second category of blood test personnel are those who are allowed to test blood for use as evidence. This
category may include those who are authorized to draw blood for testing, but they must meet many additional
requirements set forth in the rules. The candidates for this permit must submit an application on Form 4
approved by the Department.14 That application must contain a variety of information, including “a complete
description of proposed analytical procedure(s) to be used in determining blood alcohol level.” 15 The
Department must approve these procedures.16 The applicant must use these proposed procedures to determine
blood alcohol level to the satisfaction of the Department in five samples provided by the Department. 17
“Satisfactory determination of blood alcohol levels” is defined as reporting the results within the acceptable
range for samples.18 “Acceptable ranges” are determined in accord with a very precise and technical statistical
formula.19

In addition to the submission of testing procedures and successful completion of proficiency testing, the blood
testing candidates must meet other requirements. They must identify in the application at least one law
enforcement agency for which they will be doing blood analysis pursuant to Fla. Stat. Chs. 316, 322, and 327. 20
Finally, applicants must: (a) be licensed in clinical chemistry as a technologist, supervisor, or director under §
483, Fla. Stat.; (b) be licensed as a physician pursuant to § 458, Fla. Stat.; or (c) have completed a minimum of
60 semester hours or its equivalent of college, at least 15 hours of which is college chemistry. 21

The Department will “approve gas chromatographic analytical procedures which meet” the requirements set
forth in the rule.22 The requirements are: (1) the applicant’s procedures must include a description of the
approved method used, “and the equipment, reagents, standards, and controls used;” 23 (2) the applicant’s
procedure “[u]ses commercially-prepared standards and controls certified by the manufacturer or laboratory-
prepared standards and controls verified using gas chromatography against certified standards;” 24 (3) “[f]or
commercially-prepared standards and controls, the manufacturer, lot number and expiration date must be
documented for each sample or group of samples being analyzed;” 25 (4) “[f]or laboratory-prepared standards
and controls, date, person preparing the solution, method of preparation and verification must be documented;” 26
(5) the applicant must state the concentration range over which the procedure is calibrated and “[t]he calibration
curve must be linear over the stated range;” 27 (6) the applicant’s procedure must use “a new or existing
calibration curve;”28 (7) “[t]he new calibration curve must be generated using at least three (3) standards;” 29 (8)
the new calibration curve and the existing calibration curve must be verified using at least two controls; 30 (9) the
applicant’s procedures must include “the analysis of an alcohol-free control, and the analysis of a whole blood
or serum control;”31 (10) if the procedure is gas chromatographic, it “must discriminate between methanol,
ethanol, acetone and isopropanol and employ an internal standard technique.” 32 The emphasis on distinguishing
between the different forms of alcohol is critical because only ethyl alcohol, also known as ethanol, can be the
basis for the charge.33

Recently, in Goodman v. Florida Dept. of Law Enforcement 34 the Florida Supreme Court affirmed a decision of
the Fourth District35 that Rule 11D-8.013,36 is valid notwithstanding the absence of any requirement that analysts
screen, document, and reject unfit samples. 37 The rationale for this decision is that experts are already doing
what is necessary and the rules do not have to cover every detail. 38 Furthermore, the Supreme Court, reiterated
the Fourth District’s observation that Rule 11D-8.013, “is not meant to be the only source of guidance for
analysts, but is instead meant to supplement and reinforce sound scientific principles and laboratory practices.” 39

If applicants meet all of the relevant requirements they will be permitted to administer breath tests, or blood

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

tests, or to inspect breath test instruments, but those who become permitted must meet certain requirements to
maintain their status. Breath test operators and agency inspectors must meet continuing education
requirements.40 They must successfully complete the approved renewal course “by June 30 following the fourth
permit anniversary date, and at least once during each subsequent 4-year cycle.” 41 Failure to comply with the
continuing education requirement bars the person from performing any of their duties until they complete the
applicable renewal course required under the rules. 42 Renewal of an agency inspector permit automatically
renews that person’s breath test operator permit.43

The language on the continuing education requirement set forth above was included in the July, 2015
amendments. Before that change, the rule required completion of the requirement “by June 30 following the
fourth permit anniversary date, and during each subsequent four-year cycle.” The amendment in the rule is an
apparent attempt to resolve some confusion as the meaning of this older language. In fact, there seems to be
three different positions. Some courts have ruled that an operator must complete the first renewal by the first
June 30th coming four years after the issuance of the permit; each subsequent renewal must be completed
within four years of the preceding renewal.44 That is true even if the operator completes the renewal course
early; subsequent renewals would still be required within four years of completion of the last renewal course. 45
The second approach, which is favored by the State and FDLE, is interpretation of the rule as establishing fixed
four year cycles for completion of the renewal course, rather than having the four-year period vary based on the
completion date of the renewal course.46 According to this approach, if an operator was initially permitted in
August of 2004, the operator’s first renewal deadline would be the first June 30 after August of 2008 (four years
from the initial permit). Thus according to this approach, the first renewal would have to be done by June 30,
2009, and the next renewal would be required by June 30, 2013, and every four years thereafter no matter what
the actual date was that the operator completed the renewal course. 47 The third position is rejection of the State’s
and FDLE’s interpretation, finding the operator’s permit defective, but nevertheless, allowing the breath test
results in evidence because there was substantial compliance with the rules in the administration of the test. 48

Blood analysts must also meet requirements for renewal of their permit. They must satisfactorily determine the
blood alcohol level of at least two proficiency samples provided by the Department semiannually. 49
“Satisfactory determination shall be made by reporting results for blood alcohol proficiency samples within the
acceptable range for the samples.” The “acceptable range” is determined in accord with a very precise and
technical statistical formula.50 If the analyst fails to successfully test the two samples, the analyst shall be
required to satisfactorily determine the blood alcohol level of a second set of five proficiency samples provided
by the Department.51 The analyst who fails to complete a second set of proficiency samples, shall not perform
any duties authorized by the permit until the analyst satisfactorily determines the blood alcohol level of a set of
proficiency samples provided by the Department. 52 Failure to satisfactorily determine the blood alcohol level of
any four sets of proficiency samples in 12 months shall result in revocation. 53 In addition, the Department may
deny, revoke, or suspend the permit for a variety of reasons.54

The names and qualifications of the operator of the intoxilyzer and of the person drawing blood samples and
testing blood are critical. If the state fails to present evidence as to these matters, the test results may be
excluded.55

Licensing requirements for such individuals were treated differently than other test requirements. In Robertson
v. State,56 the Florida Supreme Court ruled that the substantial compliance requirement did not apply to
licensing. Thus, the law required strict compliance. Accordingly, a blood test was invalid when conducted by an
unpermitted person who was supervised by a permitted colleague. 57 However, the statute was amended to
provide that, “insubstantial defects concerning the permit … shall not render the test or test results invalid.” 58
Even after the change, a three judge circuit court panel 59 ruled that the state must show that a paramedic who
drew blood was properly certified. “There can be no ‘substantial compliance’ with this latter requirement; the
person who draws the blood is either statutorily authorized or they are not.” 60 Furthermore, whether one has a
valid permit is a question of law, not a question of fact.61

Some decisions that preceded both Robertson and the statutory changes provide insight into what might be
considered “insubstantial defects.” They deal primarily with the requirements for blood draws rather than the

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

actual testing. One court held that a person need not have a HRS permit to withdraw blood if he or she was in
one of the groups set forth in Florida Statutes, Section 316.1932(1)(f)(2).62 Another court held that a hospital
employee who had a letter from the Department authorizing him to serve as a clinical laboratory technologist
while completing his hospital internship, properly withdrew blood. 63 Similarly, the court ruled that a nurse, who
was functioning as an R.N., had a nursing diploma, had passed her boards, and was waiting to receive her
registered license, could properly withdraw a blood sample under the DUI law. 64 Likewise, the court found that
it was proper for a paramedic to draw a blood sample for alcohol testing despite the inadvertent failure of the
Legislature to include the previously established requirements for paramedic certification in an amendment to
the law.65 The court also noted that, although not registered to become licensed by the State Board of Medical
Examiners, a “resident” is considered a “physician” under Florida law. 66

In a different situation, the court considered the importance of the fact that the breath test operator’s valid
permit had accidentally been destroyed.67 The judge admitted the test results into evidence, because the rule did
not require that the officer have the certificate on his or her person. 68 Furthermore, the court held that the “best
evidence rule” did not apply because the contents of the permit were not in issue. 69 However, where the breath
test operator performed the involved test after completing the course, but before receiving his permit, the defect
was substantial because the operator had no permit at the time the operator administered the test. 70 This was true
even though the operator received the permit a week after the test, and it effectively was nunc pro tunc to a date
prior to the involved test.71

All of these decisions focus on qualifications, good faith, and lack of prejudice. It is likely that in applying the
“insubstantial defect” standard, the courts will continue to focus on these factors. 72

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Instructors must meet other standards covered in Rule Fl. Admin. Code R. 11D–8.010.
2
Fl. Admin. Code R. 11D–8.008(1).
3
Fl. Admin. Code R. 11D–8.008(2).
4
Fl. Admin. Code R. 11D–8.008(2).
5
§§ 316.1932(1)(f)2.a. and 316.1933(2)(a), Fla. Stat.
6
§§ 316.1932(1)(f)2.a. and 316.1933(2)(a), Fla. Stat.
7
§§ 316.1932(1)(f)2.a. and 316.1933(2)(a), Fla. Stat.
8
§§ 316.1932(1)(f)2.a. and 316.1933(2)(a), Fla. Stat.
9
Gulley v. State, 501 So. 2d 1388 (Fla. 4th DCA 1987) (decision was prior to the adoption of the
substantial compliance standard discussed earlier in this chapter).
10
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also Cardenas v. State, 867 So. 2d 384, 389
(Fla. 2004).
11
Robertson v. State, 604 So. 2d 783 (Fla. 1992).

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

12
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
13
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
14
Fl. Admin. Code R. 11D–8.013. All forms are set forth in the Appendix.
15
Fl. Admin. Code R. 11D–8.013(1)(e).
16
Fl. Admin. Code R. 11D–8.013(2)(a).
17
Fl. Admin. Code R. 11D–8.013(2)(b).
18
Fl. Admin. Code R. 11D–8.013(2)(b).
19
Fl. Admin. Code R. 11D–8.013(2)(b).
20
Fl. Admin. Code R. 11D–8.013(2)(c).
21
Fl. Admin. Code R. 11D–8.013(2)(d).
22
Fl. Admin. Code R. 11D–8.013(3).
23
Fl. Admin. Code R. 11D–8.013(3)(a).
24
Fl. Admin. Code R. 11D–8.013(3)(b).
25
Fl. Admin. Code R. 11D–8.013(3)(b).
26
Fl. Admin. Code R. 11D–8.013(3)(b).
27
Fl. Admin. Code R. 11D–8.013(3)(c).
28
Fl. Admin. Code R. 11D–8.013(3)(d).
29
Fl. Admin. Code R. 11D–8.013(3)(d). Those standards are: 0.05 g/100mL or less, between 0.05 and 0.20
g/100mL(inclusive), and one at 0.20 g/100mL or higher.
30
Fl. Admin. Code R. 11D–8.013(3)(d). One control must be 0.05 g/100mL or less, and one must be at
0.20 g/100mL or higher.
31
Fl. Admin. Code R. 11D–8.013(3)(e).
32
Fl. Admin. Code R. 11D–8.013(3)(f).
33
Fl. Admin. Code R. 11D–8.002(7).
34
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102 (Fla. 2018).
35
Goodman v. Florida Dept. of Law Enforcement, 203 So.3d 909 (Fla. 4th DCA 2016), approved, 238
So.3d 102 (Fla. 2018).
36
Fla. Admin. Code Ann. R. 11D-8.013.
37
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 115 (Fla. 2018).
38
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 115–117 (Fla. 2018).
39
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102, 108 (Fla. 2018) (quoting Goodman
v. Florida Dept. of Law Enforcement, 203 So.3d at 914).
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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

40
Fl. Admin. Code R. 11D–8.008(3).
41
Fl. Admin. Code R. 11D–8.008(3). See also State v. Mudge, 17 Fla. L. Weekly Supp. 1228 (Fla. Volusia
Cty. Ct. Aug. 3, 2010) (dispute was over whether earlier version of the rule applied; court held that the
current version applied; officer’s permit became inactive until he passed renewal course, but if he failed,
he would have to take the basic course for his permit to become active).
42
Fl. Admin. Code R. 11D–8.008(4). See also State v. Mudge, 17 Fla. L. Weekly Supp. 1228 (Fla. Volusia
Cty. Ct. Aug. 3, 2010).
43
Fl. Admin. Code R. 11D–8.008(3). See also Rogers v. Dep’t of Highway Safety & Motor Vehicles, 24
Fla. L. Weekly Supp. 410 (Fla. 7th Cir. June 8, 2016)Rogers v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 410 (Fla. 7th Cir. June 8, 2016) (inspector went 9 years between his
first two renewal courses; defendant argued based on Rule 11D-8008(7) that he was not authorized to
inspect intoxilyzers and the test results were invalid; court rejected this position based on Rule 11D-
8008(4) and concluded that the permit merely became inactive when the inspector did not complete the
renewal course four years after the first course; when he subsequently completed the renewal course his
permit became active without having to complete the inspector’s basic course again); Sobotka v. Dep’t
of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 402 (Fla. 4th Cir. Ct. April 7,
2016)Sobotka v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 402 (Fla. 4th Cir.
Ct. April 7, 2016) (officer took agency inspector’s course in 1997 and completed each required renewal;
court rejected argument that due to amendments the officer had to take the agency inspector’s course
again; the amendments provide that the permits remain valid as long as the officer completes continuing
education requirements under the current version of the rule); State v. Mudge, 17 Fla. L. Weekly Supp.
1228 (Fla. Volusia Cty. Ct. Aug. 3, 2010).
44
Young v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 1084 (Fla. 6th Cir. Ct.
August 24, 2011), cert. denied, 84 So. 3d 317 (Fla. 2d DCA 2012) (Rule 11D-8.008(3) provides:
“‘Continuing education requires successful completion of the applicable Commission-approved
Renewal Course by June 30 following the fourth permit anniversary date, and during each subsequent
four-year cycle.’” The four-year cycle runs from the date of the last renewal course; the original
permitting date is significant only in determining the first renewal date (i.e. June 30th following four
years from the date of permitting), but subsequently, the renewal course date is what determines the
following renewal dates (June 30th following four years from the date of the last renewal course); this is
a question of law not fact; court also rejected argument that operator’s permit is valid until it is
suspended even if the operator does not comply with renewal deadlines); State v. Davis, 18 Fla. L.
Weekly Supp. 1024 (Fla. Duval Cty. Ct. May 4, 2011) (operator was first certified on Dec. 17, 2003,
recertified in 2005, breath test was Dec. 9, 2010, more than four years after recertification; State argued
since operator was first certified in December of 2003, four years would have been up December of
2007 and she had until the next June 30th or June 30, 2008 and that the four year cycle would have
started to run from that date, meaning that she had until June 30, 2012 to renew her permit again and that
was not changed by the fact that she renewed earlier (2005) than required; court ruled that the four year
cycle began on recertification (2005) and thus the operator had to renew again in 2009 so she was
unqualified in 2010 when she administered the breath test; therefore, the court suppressed the results; the
four years ran from the date of the recertification regardless of when the original permit was). See also
Barton v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 163 (Fla. 4th Cir. Ct.
Nov. 10, 2011)Barton v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 163 (Fla.
4th Cir. Ct. Nov. 10, 2011) (agrees with Young and Davis).
45
Young v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 1084 (Fla. 6th Cir. Ct.
August 24, 2011), cert. denied, 84 So. 3d 317 (Fla. 2d DCA 2012); State v. Davis, 18 Fla. L. Weekly
Supp. 1024 (Fla. Duval Cty. Ct. May 4, 2011).
46
State v. Espy, 19 Fla. L. Weekly Supp. 993 (Fla. 6th Cir. Ct. Aug. 10, 2012)State v. Espy, 19 Fla. L.
Weekly Supp. 993 (Fla. 6th Cir. Ct. Aug. 10, 2012) (“Simply stated, FDLE’s interpretation is that the
four-year cycles run one after the other. A four-year cycle begins when the preceding four-year cycle
ends; not when the licensed person happens to complete an approved Renewal Course. FDLE’s
interpretation is not unreasonable and is not clearly erroneous. The trial court was required to afford
great deference to that interpretation.” the court characterized contrary language in Young as dicta);

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

State v. Allen, 20 Fla. L. Weekly Supp. 355 (Fla. 6th Cir. Ct. Dec. 26, 2012)State v. Allen, 20 Fla. L.
Weekly Supp. 355 (Fla. 6th Cir. Ct. Dec. 26, 2012) (same ruling as Espy); State v. Bryant, 19 Fla. L.
Weekly Supp. 870 (Fla. Brevard Cty. Ct. July 9, 2012)State v. Bryant, 19 Fla. L. Weekly Supp. 870
(Fla. Brevard Cty. Ct. July 9, 2012) (the trial judge found operator was properly permitted when the
breath test was administered (2011) even though he had not taken a renewal course for over six years;
the court rejected the defense argument that there had to be a renewal course every four years; instead,
the court accepted the State’s and FDLE’s analogy to Florida Bar reporting; the officer’s first permit
after the rule change was August 2004 and therefore, his first renewal was required June 30, 2009 (June
30th after expiration of four year cycle, which would have been August 2008), but he completed the
renewal for that cycle in 2005; his next reporting cycle began July 1, 2009 and his next renewal was not
required until June 30, 2013; therefore, the 2011 test results were admissible).
47
State v. Bryant, 19 Fla. L. Weekly Supp. 870 (Fla. Brevard Cty. Ct. July 9, 2012)State v. Bryant, 19 Fla.
L. Weekly Supp. 870 (Fla. Brevard Cty. Ct. July 9, 2012).
48
State v. Woldt, 19 Fla. L. Weekly Supp. 501 (Fla. Dade Cty-Ct Jan. 27, 2012)State v. Woldt, 19 Fla. L.
Weekly Supp. 501 (Fla. Dade Cty-Ct Jan. 27, 2012) (trial judge found the language from Gonzalez v.
State, 7 Fla. L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999)Gonzalez v. State, 7 Fla. L. Weekly
Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999), stating that the substantial compliance requirement does not
apply to permitting and discussed in this section, to be dicta; the standard is whether the defect
prejudiced the defendant and here the court found no prejudice; the court observed that the only reason
the permit was invalid was that the court disagreed with FDLE’s interpretation of the rule; sufficiency of
the testing procedure must be determined on a case by case basis; the trial judge recognized the
operator’s extensive qualifications, evidence that the test results were reliable and that the test was done
in a way to protect the health of the test subjects, which are the core values of the implied consent law).
49
Fl. Admin. Code R. 11D–8.014(1).
50
Fl. Admin. Code R. 11D–8.014(1).
51
Fl. Admin. Code R. 11D–8.014(2).
52
Fl. Admin. Code R. 11D–8.014(3).
53
Fl. Admin. Code R. 11D–8.014(4).
54
Fl. Admin. Code R. 11D–8.015.
55
State v. Roose, 450 So. 2d 861 (Fla. 3d DCA 1984) (in State v. Burke, 599 So. 2d 1339, 1342 (Fla.
1st DCA 1992), review denied, 609 So. 2d 406 (Fla. 1992) court suggests that Roose requires absolute
and strict compliance and it appears that it is no longer valid); Grala v. State, 414 So. 2d 621 (Fla. 3d
DCA 1982), implied overruling on other grounds recognized, Stancato v. State, 526 So.2d 723 (Fla. 3d
DCA 1988) (failure to do so may be harmless error). See also Soares v. State, 15 Fla. L. Weekly Supp.
768 (Fla. 6th Cir. Ct. April 17, 2008)Soares v. State, 15 Fla. L. Weekly Supp. 768 (Fla. 6th Cir. Ct. April
17, 2008) (blood test critical in this case; failure to provide qualifications of person who drew blood test
not harmless error).
56
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
57
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
58
§ 316.1934(3), Fla. Stat.; Ch. 93–124 section 4, Laws of Florida. In State v. Sewell, 10 Fla. L.
Weekly Supp. 766 (Fla. 9th Cir. Ct. July 8, 2003)Laws of Florida. In State v. Sewell, 10 Fla. L. Weekly
Supp. 766 (Fla. 9th Cir. Ct. July 8, 2003), the court exhaustively considers the application of “substantial
compliance” as it relates to an inspector’s permit.
59
Gonzalez v. State, 7 Fla. L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999)Gonzalez v. State, 7 Fla.
L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999).

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§ 6:4.Qualifications, training, and permitting requirements, 11 Fla. Prac., DUI Handbook...

60
Gonzalez v. State, 7 Fla. L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999)Gonzalez v. State, 7 Fla.
L. Weekly Supp. 91 (Fla. 11th Cir. Ct. Nov. 2, 1999).
61
Department of Highway Safety and Motor Vehicles, etc. v. Stevens, 820 So. 2d 322 (Fla. 5th DCA
2001) (holding that whether an inspector had a valid agency inspector permit was a question of law, and
that the circuit court’s reversal of a hearing officer’s decision was a matter of interpretation of the law
rather than reweighing the evidence). See also State v. Sewell, 10 Fla. L. Weekly Supp. 766 (Fla. 9th
Cir. Ct. July 8, 2003)State v. Sewell, 10 Fla. L. Weekly Supp. 766 (Fla. 9th Cir. Ct. July 8, 2003).
62
Kujawa v. State, 405 So. 2d 251 (Fla. 3d DCA 1981).
63
State v. Gillman, 390 So. 2d 62 (Fla. 1980). In contrast, a technician who had completed all required
training and had a letter from the department was not allowed to conduct a test because he did not have a
permit. See State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983).
64
Richwagon v. State, 466 So. 2d 10 (Fla. 4th DCA 1985), review denied, 476 So. 2d 675 (Fla. 1985).
65
State v. Miller, 468 So. 2d 1051 (Fla. 4th DCA 1985), review denied, 479 So. 2d 118 (Fla. 1985).
66
State v. Counts, 457 So. 2d 568 (Fla. 5th DCA 1984), review denied, 464 So. 2d 554 (Fla. 1985).
67
Cascante v. State, 2 Fla. L. Weekly Supp. 245 (Fla. 17th Cir. Ct. March 10, 1994)Cascante v. State, 2
Fla. L. Weekly Supp. 245 (Fla. 17th Cir. Ct. March 10, 1994).
68
Cascante v. State, 2 Fla. L. Weekly Supp. 245 (Fla. 17th Cir. Ct. March 10, 1994)Cascante v. State, 2
Fla. L. Weekly Supp. 245 (Fla. 17th Cir. Ct. March 10, 1994).
69
Cascante v. State, 2 Fla. L. Weekly Supp. 245 (Fla. 17th Cir. Ct. March 10, 1994)Cascante v. State, 2
Fla. L. Weekly Supp. 245 (Fla. 17th Cir. Ct. March 10, 1994).
70
State v. Oaksford, 8 Fla. L. Weekly Supp. 789 (Fla. Leon Cty. Ct. Sept. 4, 2001)State v. Oaksford, 8 Fla.
L. Weekly Supp. 789 (Fla. Leon Cty. Ct. Sept. 4, 2001).
71
State v. Oaksford, 8 Fla. L. Weekly Supp. 789 (Fla. Leon Cty. Ct. Sept. 4, 2001)State v. Oaksford, 8 Fla.
L. Weekly Supp. 789 (Fla. Leon Cty. Ct. Sept. 4, 2001).
72
See Ridgeway v. State, 514 So. 2d 418 (Fla. 1st DCA 1987).

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§ 6:5.Administration of breath and blood test, 11 Fla. Prac., DUI Handbook § 6:5...

11 Fla. Prac., DUI Handbook § 6:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:5. Administration of breath and blood test

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 422, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1405, 1407 to 1421

The administrative rules include the procedures to be followed by breath testing technicians. They also include
the procedures to be followed by blood testing personnel, but they require that the application for a permit to
test blood contain a description of the applicant’s proposed procedure. 1 The Department must approve these
procedures.2

Blood testing regulations have not enjoyed the same acceptance as breath test regulations. The First and Second
District courts ruled that blood testing regulations were insufficient, at least as to collection, storage, and
transportation.3 Those decisions have been affirmed on that point.4 The rules were subsequently amended.

But recently, in Goodman v. Florida Dept. of Law Enforcement 5 the Florida Supreme Court held that the blood
testing rules need not deal with every contingency. Specifically, the Court concluded that Rule 11D-8.013,6
providing procedures for permitting those drawing blood under the implied consent law, is not inadequate for
failure to require that analysts must screen, document, and reject unfit samples. The Court found it significant
that experts are already doing what is necessary and concluded that the rules do not have to cover every detail. 7
The Court observed that to hold otherwise would create an absurd result with the rule being invalidated for “an
unending litany of reasons” devolving “‘into a hopeless endeavor and serve only to expand [FDLE’s]
regulations to epic lengths.’” (quoting the Fourth District in Goodman, 203 So.3d at 915).8

The first requirement for breath testing has to do with the location of the equipment. Only validly permitted
individuals or those authorized by them, may have access to breath testing instruments that are being used to
generate evidence.9 The local agencies must maintain those instruments in a secure environment that limits
access to authorized personnel and keeps the equipment clean and dry. 10 All facilities, equipment, and supplies

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§ 6:5.Administration of breath and blood test, 11 Fla. Prac., DUI Handbook § 6:5...

are subject to inspection by the department. 11 Before the adoption of the substantial compliance standard, 12 one
court ruled that test results were inadmissible due to noncompliance with similar restrictions on location. 13 A
trial judge suppressed breath test results because unauthorized people were in the room with the equipment. 14

In discussing the substantial compliance standard, the Florida Supreme Court concluded that minor deviations
from regulations such as storage location will not prevent introduction of the test results, if there is evidence
which permits the fact finder to conclude that the machine remained accurate. 15 After adoption of the substantial
compliance standard, some courts have found that test results were admissible despite such noncompliance
where there was no claim or evidence that the machine had been tampered with or that the test results were
unreliable.16

The impact of the substantial compliance rule was illustrated by the old requirement for the Intoxilyzer 5000
that logs be maintained. Failure to always include all the information did not necessarily result in exclusion.
Thus, the operator’s failure to include the defendant’s name and test results in the log did not violate the
substantial compliance requirement where the same information was available through other documents
produced pursuant to the regulations, and the evidence did not show any impact on the authenticity or reliability
of the test results.17 On the other hand, the Department’s failure to require a record of malfunctions and repairs
denied the defendant a fair trial, cast doubt on the reliability of the instrument, and prejudiced the defendant’s
position.18

The breath test operator must be properly trained and permitted. 19 Those requirements have been discussed
previously in § 6:4. Additionally, the operator must observe the subject for a set period of time before the test. 20
That is explained in more detail in § 6:6. And the operator of the Intoxilyzer 8000 must follow the procedures
set forth in Form 37 and record the results on Form 38.21

As previously suggested, blood testing procedures are handled differently in the rules. While with breath testing
most of the procedures for sample collection are set down in forms, with blood testing most of the procedures
for sample collection are set down in the statutes and rules. Accordingly, in the labeling and collecting of blood
samples the rule requires that all vials or tubes be labeled with the following information: (a) the name of the
test subject, (b) the date and time the sample was collected, and (c) the initials of the person collecting the
sample.22

The Rule provides much more detail than it once did. The person collecting the sample must cleanse the
subject’s skin with non-alcoholic antiseptic.23 He or she must then collect the sample “in a glass evacuation tube
that contains a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate or EDTA
(ethylenediaminetetraacetic acid).”24 The Florida Supreme Court recently affirmed an administrative law judge’s
decision that the Rule is not invalid for failure to specify the needle size that must be used and one smaller than
the standard size may be used. 25 The stopper or label on the collection tube, documentation from the
manufacturer or distributor, or other evidence is sufficient to show compliance with this requirement. 26
“Immediately after collection, the tube must be inverted several times to mix the blood with the preservative
and anticoagulant.”27 The samples don’t have to be refrigerated if submitted for analysis within seven days of
collection, during transportation, examination, analysis, or subsequent to the initial analysis. 28 Otherwise, blood
samples must be refrigerated.29 Those samples must be hand-delivered or mailed for initial analysis within 30
days of collection.30 The facility conducting the analysis must do the analysis within 60 days of receipt. 31
Mailing must be “by priority mail, overnight delivery service, or other equivalent delivery service.” 32

Case law indicates that the failure to comply with the cleansing requirements, the collection procedures, and the
vial handling specifications requires exclusion of the test results. 33 However, the rule now provides that despite
the administrative rules, “any blood analysis results obtained, if proved to be reliable, shall be acceptable as a
valid blood alcohol level.”34

It is not necessary for the state to rely exclusively on the technician who collected the blood to establish
compliance with these requirements. In Morales v. State,35 the technician who collected the blood did not testify
that the vial contained anticoagulant nor did the toxicologist testify that the vial even contained blood.

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§ 6:5.Administration of breath and blood test, 11 Fla. Prac., DUI Handbook § 6:5...

Nevertheless, the court ruled that the state established the proper foundation because the toxicologist who
analyzed the blood testified that the substance was contained in gray stopper vials in a blood kit; he knew that
the manufacturer of the vials put anticoagulant into them; and he knew that there was anticoagulant in them
because the blood did not clot even a year later. Similarly, in Dodge v. State,36 the court ruled that it was proper
to allow blood test results into evidence based partially on the testimony of the supervisor of the nurse who
actually drew the defendant’s blood. She was not present when the blood was drawn. Nevertheless, the
supervising nurse’s testimony was important in establishing the foundation for blood tests because she
confirmed that the person who drew the blood was qualified and also identified his initials. Two other witnesses
established two important parts of the foundation.

A minor noncompliance with blood testing protocol may not result in exclusion of the test results. That was the
point in State v. St. Pierre.37 There, the analyst used a whole blood control, to show the separation between
methanol, acetone, ethanol, and isopropanol. The whole blood control had expired for the purpose of verifying
ethyl alcohol concentration. The analyst testified without contradiction, however, that the use of the expired
control did not affect the accuracy of the blood alcohol test results. 38 Furthermore, the court noted that the rule
does not set forth specific standards with regard to the whole blood control. 39 Under these circumstances, the
State proved substantial compliance.40

Similarly, in Bruch v. State,41 a blood alcohol testing kit was used to draw blood 28 days after the expiration
date the manufacturer had placed on the kit’s label. The defendant argued that the results should be presumed
unreliable notwithstanding the evidence to the contrary. The court rejected this contention because there was no
suggestion that the blood alcohol evidence was not in compliance with FDLE regulations, and those regulations
do not mandate that the kits must be used before the expiation date. 42 Furthermore, the use of such a kit does not
constitute a violation of due process where the scientific evidence supports the reliability of the test. 43

The foregoing cases involved narrow attacks on blood testing procedures. However, in one felony case the
defendant attacked the blood test on many grounds. 44 He argued: (1) that the involved gas chromatograph was
not properly calibrated and quality controls were expired; (2) the chemist obtained results beyond absolute and
relative error in quality control testing, used a whole blood control that provided readings outside of tolerance,
and conducted testing on blood samples in two other cases using a test kit without any required anticoagulant;
(3) the kite manufacturer’s certificate erroneously identified the tube manufacturer, which precluded its use to
establish the presence of the proper anticoagulant and preservative; and (4) the administrative rule requiring
anticoagulant, preservative, and inversion of the tube was unconstitutionally vague because it did not specify
the amount of the anticoagulant or the number of inversions. In a lengthy opinion the court rejected all of these
arguments, finding that any deviations were minor, there was substantial compliance, and the rules were not
unconstitutionally vague.45

The defendant also argued that the manufacturer’s certificate used to establish the presence of the proper
anticoagulant and preservative violated the Confrontation Clause in accord with Crawford v. Washington.46 The
trial judge concluded that the tube labels are not testimonial in that the manufacturer does not put the labels on
the tubes for the purpose of providing evidence in a criminal case. Rather, the labels are provided for many
purposes, including medical care and employee testing. 47 On a related point, the court rejected the defense
suggestion that the tube label was inadmissible under the business records exception to the hearsay rule 48
because the inaccuracy on the kit certificate bears on the reliability of the kit as whole, including the reliability
of the labels on the blood tubes. Finally, the court denied a defense argument that the tube label should be
excluded by § 90.403, Fla. Stat. The court concluded that the label was highly probative as to the required
anticoagulant and preservative and that the probative value was not outweighed by any of the other factors in §
90.403, Fla. Stat.49

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Footnotes

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§ 6:5.Administration of breath and blood test, 11 Fla. Prac., DUI Handbook § 6:5...

a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Fl. Admin. Code R. 11D–8.013.
2
Fl. Admin. Code R. 11D–8.013(2).
3
State v. Sandt, 751 So. 2d 136 (Fla. 2d DCA 2000), decision approved in part, quashed in part, 774
So. 2d 692 (Fla. 2000); Searles v. State, 750 So. 2d 667 (Fla. 2d DCA 1999); State v. Townsend, 746
So. 2d 495 (Fla. 2d DCA 1999), decision quashed, 774 So. 2d 693 (Fla. 2000); State v. Miles, 732
So. 2d 350 (Fla. 1st DCA 1999), approved in part, quashed in part, 775 So. 2d 950 (Fla. 2000).
4
State v. Miles, 775 So. 2d 950 (Fla. 2000); Townsend v. State, 774 So. 2d 693 (Fla. 2000); State v.
Sandt, 774 So. 2d 692 (Fla. 2000). But see Goodman v. Florida Dept. of Law Enforcement, 203
So.3d 909, 914 (Fla. 4th DCA 2016), review granted, 2016 WL 9454220 (Fla. Opinion Filed Oct. 14,
2016) (court rejected argument that Rule was invalid for failure “to require the screening, removal, or
documentation of flawed blood samples.”).
5
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102 (Fla. 2018).
6
Fla. Admin. Code Ann. R. 11D-8.013.
7
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 115–117 (Fla. 2018).
8
Goodman v. Florida Department of Law Enforcement, 238 So.3d 102, 117 (Fla. 2018).
9
Fl. Admin. Code R. 11D–8.007(1). This does not apply to machines being sent off for repair and only an
authorized repair facility may remove the top cover of an Intoxilyzer 8000 being used for evidentiary
purposes.
10
Fl. Admin. Code R. 11D–8.007(2).
11
Fl. Admin. Code R. 11D–8.007(2).
12
Standard was adopted for administration of tests in Ch. 82–155, § 5, Laws of Florida. It was adopted for
defects in permitting in Ch. 93–124, § 4, Laws of Florida.
13
State v. Wills, 359 So. 2d 566 (Fla. 2d DCA 1978).
14
State v. Bennett, 6 Fla. L. Weekly Supp. 43 (Fla. Clay Cty. Ct. Sept. 22, 1998)State v. Bennett, 6 Fla. L.
Weekly Supp. 43 (Fla. Clay Cty. Ct. Sept. 22, 1998).
15
State v. Donaldson, 579 So. 2d 728 (Fla. 1991). See also Goodman v. Florida Department of Law
Enforcement, 238 So.3d 102, 114 (Fla. 2018); Bedell v. State, 250 So.3d 146 (Fla. 1st DCA 2018).
16
State v. Kattengell, 7 Fla. Supp. 2d 139 (Fla. 11th Cir. Ct. 1984) (Key to breathalyzer room on a key
chain with key to jail cell). See also State v. Bennett, 32 Fla. Supp. 2d 56 (Fla. Volusia Cty. Ct. 1988).
17
State v. Hill, 26 Fla. Supp. 2d 82 (Fla. Palm Beach Cty. Ct. 1987).
18
State v. Bennett, 32 Fla. Supp. 2d 56 (Fla. Volusia Cty. Ct. 1988).
19
Fla. Admin. Code R. 11D-8.002(18).
20
Fla. Admin. Code R. 11D-8.007(3).
21
Fla. Admin. Code R. 11D-8.007(4). All forms are set forth in the appendix.

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§ 6:5.Administration of breath and blood test, 11 Fla. Prac., DUI Handbook § 6:5...

22
Fl. Admin. Code R. 11D–8.012(4).
23
Fl. Admin. Code R. 11D–8.012(1).
24
Fl. Admin. Code R. 11D–8.012(2).
25
Goodman v. Florida Dept. of Law Enforcement, 238 So.3d 102 (Fla. 2018).
26
Fl. Admin. Code R. 11D–8.012(2).
27
Fl. Admin. Code R. 11D–8.012(3).
28
Fl. Admin. Code R. 11D–8.012(5).
29
Fl. Admin. Code R. 11D–8.012(5).
30
Fl. Admin. Code R. 11D–8.012(6).
31
Fl. Admin. Code R. 11D–8.012(6).
32
Fl. Admin. Code R. 11D–8.012(6).
33
Gargone v. State, 503 So. 2d 421 (Fla. 3d DCA 1987). See also Gulley v. State, 501 So. 2d 1388 (Fla.
4th DCA 1987) (sample not collected in a vial containing anticoagulant) (As mentioned throughout this
chapter, decisions of the First and Second District courts cast doubt on the validity of these blood test
regulations.) See § 6:5, Administration of breath and blood test, note 3.
34
Fl. Admin. Code R. 11D–8.012(7).
35
Morales v. State, 785 So. 2d 612, 614 (Fla. 3d DCA 2001), as corrected on denial of reh’g, (May 30,
2001).
36
Dodge v. State, 805 So. 2d 990 (Fla. 4th DCA 2001).
37
State v. St. Pierre, 693 So. 2d 102 (Fla. 5th DCA 1997). See also Bedell v. State, 250 So.3d 146 (Fla. 1st
DCA 2018) (denial of motion to suppress affirmed where trial court found Defendant, “‘presented no
evidence of a substantial adverse effect’” from blood vials being tipped and moved immediately after
draw, but not “‘inverted several times’” as specified in the rules); State v. Kleiber, 175 So. 3d 319 (Fla.
5th DCA 2015) (the trial judge suppressed blood test results because trooper did not strictly comply with
the rule when he used a dry gauze pad rather than an antiseptic pad as required by Rule 11D-8.012(1);
court reversed and remanded for an evidentiary determination of whether there was substantial
compliance (i.e. whether the results would still be reliable)).
38
State v. St. Pierre, 693 So. 2d 102, 104 (Fla. 5th DCA 1997).
39
State v. St. Pierre, 693 So. 2d 102, 104 (Fla. 5th DCA 1997).
40
State v. St. Pierre, 693 So. 2d 102, 104 (Fla. 5th DCA 1997).
41
Bruch v. State, 954 So. 2d 1242 (Fla. 4th DCA 2007), review denied, 966 So. 2d 965 (Fla. 2007), cert.
denied, 552 U.S. 992, 128 S. Ct. 515, 169 L. Ed. 2d 342 (2007).
42
Bruch v. State, 954 So. 2d 1242 (Fla. 4th DCA 2007), review denied, 966 So. 2d 965 (Fla. 2007), cert.
denied, 552 U.S. 992, 128 S. Ct. 515, 169 L. Ed. 2d 342 (2007).
43
Bruch v. State, 954 So. 2d 1242 (Fla. 4th DCA 2007), review denied, 966 So. 2d 965 (Fla. 2007), cert.
denied, 552 U.S. 992, 128 S. Ct. 515, 169 L. Ed. 2d 342 (2007).
44
State v. Rothe, 15 Fla. L. Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008)State v. Rothe, 15 Fla. L.
Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008).

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§ 6:5.Administration of breath and blood test, 11 Fla. Prac., DUI Handbook § 6:5...

45
Some of the court’s findings were: (1) the fact that full calibration was one week overdue was
insubstantial; (2) there was no degradation of any quality controls; (3) the quality control standards were
well within the manufacturer’s range; (4) notwithstanding problems with the certificate on the test kits,
the State established that the tubes actually used contained the proper anticoagulant and preservatives;
and (5) the evidence established that the anticoagulant and preservative worked and the tube was
properly inverted.
46
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
47
State v. Rothe, 15 Fla. L. Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008)State v. Rothe, 15 Fla. L.
Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008).
48
State v. Rothe, 15 Fla. L. Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008)State v. Rothe, 15 Fla. L.
Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008).
49
State v. Rothe, 15 Fla. L. Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008)State v. Rothe, 15 Fla. L.
Weekly Supp. 464 (Fla. 19th Cir. Ct. Jan. 16, 2008).

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

11 Fla. Prac., DUI Handbook § 6:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:6. Observation period for breath test

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 422.1, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1405, 1407 to 1421

Regulations provide, “the breath test operator, agency inspector, arresting officer, or person designated by the
permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated
for at least twenty (20) minutes before administering the test.” 1 The observation period need not be repeated
before the operator secures a subsequent sample.2 And a circuit judge recently ruled that the test need not be
administered immediately after the completion of the observation period.3

The State has the burden of proving substantial compliance with this regulation. 4 The defendant does not have
the burden of proving lack of substantial compliance. Accordingly, where the State failed to show what
happened in the first three minutes of the observation period, when an unidentified person was watching the
defendant, the court found the test results invalid in an administrative proceeding.5

Two three-judge ninth circuit court appellate decisions state, however, that before the State must meet its
burden, the defense must make minimal allegations of noncompliance in a motion in limine. 6 Merely alleging
noncompliance with the observation period requirement is insufficient. 7 The defense must allege specific facts. 8
Based on Dep’t of Highway Safety & Motor Vehicles v. Farley,9 these circuit court decisions suggest that the
defense may have to allege the name of the breath technician, the period of observation and nonobservation, and
whether an unidentified person observed the defendant for any period of time. 10 However, according to one
three-judge circuit court panel,11 a defense motion raising the failure to comply with the observation period is a
motion to suppress, and once the defense makes the challenge, the State has the burden of presenting evidence
to show compliance.

The State’s burden does not require a showing that the observer looked the subject in the face for the entire

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

period.12 The operator’s presence within a few feet of the subject during the waiting period is sufficient. 13 A trial
judge relied on this ruling to allow test results in evidence even though the defendant claimed that she looked
away and regurgitated, and the deputy was preoccupied with paperwork. 14 The judge found that it was sufficient
for the deputy, who was nearby, to say that he or she did not see the defendant belch or regurgitate. 15 Similarly,
the trial court found the test results admissible where the officer continuously observed the defendant for over
20 minutes, and it was clear the defendant took nothing by mouth, but mentioned that he belched and “felt like
throwing up.”16 There was no visible evidence of regurgitation. The trial judge ruled that the officer’s ability to
make certain the defendant did not regurgitate, went to the weight of the evidence. 17

In contrast, one court held that the officer could not make certain that the defendant had not regurgitated during
the waiting period, when he was sitting about 20 feet away from the defendant filling out the machine log. 18
Similarly, a trial judge ruled that the officer failed to comply with the rule where the officer observed the
defendant during transport. The court concluded the officer was not in a position to adequately observe the
defendant.19 Two other trial judges reached the same conclusion where the evidence did not indicate that the
officers had been close enough to the defendants for the 20-minute period to be able to reasonably ensure that
the subject had not taken anything by mouth or regurgitated.20

In another case, however, the trial judge found that the observation period was sufficient despite the fact that a
large portion of it took place while the defendant was being transported in the back of a police cruiser. 21 The
basis for this decision was that the language of the rule was changed from “must make certain” to “reasonably
ensure,” and the standard is substantial compliance. 22 Similarly, the officer did substantially comply with the
rule by watching the subject for 24 minutes during the administration of the field sobriety exercises. 23 So too,
where the defendant covered his mouth for three to five seconds during the observation period, the court found
substantial compliance because the evidence supported the conclusion that the defendant yawned and did not
regurgitate.24 Also, where the defendant coughed and produced a little phlegm during the observation period, the
test results were admissible because there was no evidence that mouth alcohol could be brought up from the
lungs with phlegm.25 However, test results were inadmissible where one defendant chewed gum throughout the
observation period26 and another burped and testified that a liquid substance came up into her mouth and that
she had acid reflux.27 Additionally, the results were inadmissible where the trooper advised the defendant that
she only needed to tell him if she regurgitated a “ ‘solid.’ ” 28 The rule is not limited to solids. While the trooper
was not required to tell the accused anything about regurgitation, by misadvising the defendant he interfered
with the proper administration of the test.29

In Schofield v. State,30 the court made it clear that if the breath test was administered in accord with the statutes
and administrative rules, the results are going to be admissible despite other matters that the defendant argues
affected the test. In Schofield,31 the defendant initially registered an invalid reading and then took two additional
breath tests, which registered readings within .02 of each other. The defendant argued that the test results should
be excluded because she was wearing dentures, and if the officer had made inquiry, that fact would have been
revealed. On appeal, the court noted that there was a proper affidavit of compliance, the operator was qualified,
and the tests were performed in accord with the statutes and administrative rules. “Florida law does not require
the removal of dental devices nor does the law impose an obligation on the officer to inquire about the use of
the dentures prior to or during the administration of alcohol tests.” 32 The court concluded that such matters go to
the weight not the admissibility of the evidence. 33 In that regard, a trial judge 34 excluded expert testimony on the
effect of dentures for failure to meet the Daubert35 standards.

Logically, there appears to be no reason that the required observation period cannot consist of multiple periods
of observation by different observers. In fact, in one case, a trial judge found that officers substantially complied
with the rule where one officer properly observed the defendant for 10 minutes, and another officer properly
observed him for 15 minutes.36 However, the observation period was insufficient where one officer observed the
defendant for 19 minutes and another officer may have observed the defendant for additional time, but there
was no evidence that the observation was continuous.37

Obviously, as is often the case, the determination of whether the officer has substantially complied is a matter of
credibility.38 Thus, in one case the appellate court reversed an order of suppression because there was no

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

testimony impeaching, discrediting, controverting, or contradicting the officer’s testimony regarding

compliance with the observation period requirement. 39 On the other hand, one trial court suppressed test results
on a credibility issue.40 The observing officer did not testify, but the record established that he did not know why
he was observing the defendant. The officer who did testify was not credible, because she had nothing to do
with the observation period.41 Also, a trial judge excluded test results where the officer could not recall the case,
failed to record the time the observation period ended, and was only able to say that he “‘generally’” observes
the subject for twenty minutes.42

In some instances, courts have ruled that the test results were admissible despite the lack of a 20-minute
observation period. In one case, evidence showed that any effect from mouth alcohol would have been detected
by the machine, so that the defendant was not prejudiced by the rule violation. 43 In another case, the court found
that there was compliance, but also observed that there was no showing that any alleged noncompliance
affected the reliability of the test. 44 Similarly, another trial judge found that the officer complied with the rule,
but noted that the standard is whether an alleged noncompliance created legitimate questions as to the scientific
reliability of the results.45

The foregoing cases indicate that the required observation period has frequently been construed to permit
introduction of test results. The courts have looked at the reasonableness of the officers’ conduct and any
potential prejudice in the form of a negative impact on the reliability of the test results. However, one trial judge
in a thorough opinion46 took the position that observation for 17 minutes cannot be substantial compliance with
the observation requirement, and failure to comply with the 20-minute period bars introduction of breath test
results under the implied consent law. The trial judge observed: “[T]his Court finds that an observance of the
defendant for only 85% of the requisite period cannot be considered substantial compliance. There was a
continuous 3-minute period of observation wholly absent, and, as such, raises a legitimate question as to the
reliability of the test results.”47

A three-judge panel disagreed with the trial judge’s findings in Jones and reversed.48 The court said, “Under
certain circumstances, seventeen minutes of observation time can constitute substantial compliance if the state
presents evidence as to what occurred during the time at issue.” 49 The court concluded that the evidence
established substantial compliance, and that “[t]he Officer may have observed the defendant up to thirty-two
minutes.”50 The court concluded that the time discrepancy resulted from the fact that the officer’s watch was not
synchronized to the time on the intoxilyzer. For some reason, having found substantial compliance, the court
ruled that the test results were admissible only if the State established the traditional scientific predicate, and
then the State would not be entitled to an instruction on the statutory presumptions.51

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Fl. Admin. Code R. 11D–8.007(3). The rule previously said “make certain” rather than “reasonably
ensure” and that may explain some of the rulings included in this section. See State v. Cala, 7 Fla. L.
Weekly Supp. 342 (Fla. Dade Cty. Ct. March 6, 2000)State v. Cala, 7 Fla. L. Weekly Supp. 342 (Fla.
Dade Cty. Ct. March 6, 2000).
2
Fl. Admin. Code R. 11D–8.007(3).
3
Carle v. v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 925 (Fla. 12th Cir. Ct.
June 8, 2016)Carle v. v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 925 (Fla.
12th Cir. Ct. June 8, 2016) (the evidence clearly established that officers viewed the defendant for the
required 20 minute period, but the test was not administered until 9 minutes after completion of the
observation period; the court concluded that there is no requirement that the “test be administered
immediately at the expiration of the observation period”).

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

4
Department of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994).
5
Department of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994).
6
State v. Arnold, 7 Fla. L. Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999)State v. Arnold, 7 Fla. L.
Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999); State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th
Cir. Ct. Nov. 3, 1997)State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th Cir. Ct. Nov. 3, 1997) . See
also State v. Valdez, 18 Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Dec. 2, 2010)State v. Valdez,
18 Fla. L. Weekly Supp. 240 (Fla. Brevard Cty. Ct. Dec. 2, 2010).
7
State v. Arnold, 7 Fla. L. Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999)State v. Arnold, 7 Fla. L.
Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999); State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th
Cir. Ct. Nov. 3, 1997)State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th Cir. Ct. Nov. 3, 1997).
8
State v. Arnold, 7 Fla. L. Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999)State v. Arnold, 7 Fla. L.
Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999); State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th
Cir. Ct. Nov. 3, 1997)State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th Cir. Ct. Nov. 3, 1997); State
v. Nunez, 16 Fla. L. Weekly Supp. 1183 (Fla. Broward Cty. Ct. June 25, 2009).
9
Department of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994).
10
State v. Arnold, 7 Fla. L. Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999)State v. Arnold, 7 Fla. L.
Weekly Supp. 160 (Fla. 9th Cir. Ct. Oct. 26, 1999); State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th
Cir. Ct. Nov. 3, 1997)State v. Griese, 5 Fla. L. Weekly Supp. 137 (Fla. 9th Cir. Ct. Nov. 3, 1997).
11
State v. Brennan, 15 Fla. L. Weekly Supp. 555 (Fla. 9th Cir. Ct. March 10, 2008) State v. Brennan, 15
Fla. L. Weekly Supp. 555 (Fla. 9th Cir. Ct. March 10, 2008).
12
Kaiser v. State, 609 So. 2d 768 (Fla. 2d DCA 1992). See also State v. Williams, 23 Fla. L. Weekly Supp.
74 (Fla. 9th Cir. April 27, 2015)State v. Williams, 23 Fla. L. Weekly Supp. 74 (Fla. 9th Cir. April 27,
2015) (trial court erred in finding observation period insufficient based on four minute gap between end
of 20 minutes and the test; during that four minutes defendant walked in front of officer within arm’s
reach and they waited briefly in the test room; observation can be auditory and can be done anywhere;
during four minutes defendant’s face was visible to officer most of the time and he was in earshot);
Hamann v. Dep’t of Highway Safety and Motor Vehicles, 20 Fla. L. Weekly Supp. 315 (Fla. 9th Cir. Ct.
Oct. 18, 2012)Hamann v. Dep’t of Highway Safety and Motor Vehicles, 20 Fla. L. Weekly Supp. 315
(Fla. 9th Cir. Ct. Oct. 18, 2012) (“Continuous face to face observation is not required;” observation
sufficient where video showed officer could see if defendant had placed anything in his mouth or
regurgitated; defendant was seated directly in front of two officers; one officer worked on paper work
and computer and talked to other officer, but both were present with defendant for the 20 minutes;
defendant was within arm’s reach and within view of officer who explained process and conducted test;
video showed defendant did not place anything into his mouth or regurgitate); Vorias v. Dep’t of
Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 531 (Fla. 20th Cir. Ct. March 20,
2012)Vorias v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 531 (Fla. 20th Cir.
Ct. March 20, 2012) (where officer observed defendant for 20 minutes, the fact that there was a 30
second window in which there was not face-to-face observation after that 20 minute period did not mean
there was not substantial compliance); Pagnotto v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla.
L. Weekly Supp. 115 (Fla. 4th Cir. Ct. Dec. 4, 2006)Pagnotto v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 115 (Fla. 4th Cir. Ct. Dec. 4, 2006) (20-minute observation was
sufficient where deputy was three feet away and arresting officer was present; deputy did things that had
to be completed at the same time as the observation, made notes as to defendant’s appearance and
conduct, asked questions, recorded answers, and completed paperwork required for breath test); State v.
Linarte, 9 Fla. L. Weekly Supp. 13 (Fla. 11th Cir. Ct. Nov. 6, 2001)State v. Linarte, 9 Fla. L. Weekly
Supp. 13 (Fla. 11th Cir. Ct. Nov. 6, 2001) (breath test results were admissible where an officer testified
that he observed the defendant from three to five feet for 25 minutes, and the defendant did not ingest
anything or regurgitate. Other evidence as to defects in the officer’s recollection of the number of people
in the Bat mobile and the exact location of the defendant, or the fact that the officer was completing
paperwork went to the weight of the evidence); State v. Ramsay, 19 Fla. L. Weekly Supp. 396 (Fla.
Palm Beach Cty. Ct. Jan. 24, 2012)State v. Ramsay, 19 Fla. L. Weekly Supp. 396 (Fla. Palm Beach Cty.

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

Ct. Jan. 24, 2012) (trial court found that officer complied with rule where defendant was handcuffed
behind his back and there was no evidence anyone put anything in his mouth; officer completed
paperwork and used the copy machine, but was close to the defendant and periodically looked at him;
defendant spoke loudly and brought attention to himself; officer did not leave the observation area and
did not see defendant put anything in his mouth, regurgitate, or hear defendant belch; officer does not
have to stare at defendant continuously, but rather is only required to “‘reasonably ensure’” defendant
does not ingest anything or regurgitate during the time period).
13
Kaiser v. State, 609 So. 2d 768 (Fla. 2d DCA 1992).
14
State v. Milner, 2 Fla. L. Weekly Supp. 171 (Fla. Bay Cty. Ct. Dec. 30, 1993)State v. Milner, 2 Fla. L.
Weekly Supp. 171 (Fla. Bay Cty. Ct. Dec. 30, 1993).
15
State v. Milner, 2 Fla. L. Weekly Supp. 171 (Fla. Bay Cty. Ct. Dec. 30, 1993)State v. Milner, 2 Fla. L.
Weekly Supp. 171 (Fla. Bay Cty. Ct. Dec. 30, 1993).
16
State v. Deskins, 6 Fla. L. Weekly Supp. 660 (Fla. Brevard Cty. Ct. May 17, 1999) State v. Deskins, 6
Fla. L. Weekly Supp. 660 (Fla. Brevard Cty. Ct. May 17, 1999).
17
State v. Deskins, 6 Fla. L. Weekly Supp. 660 (Fla. Brevard Cty. Ct. May 17, 1999) State v. Deskins, 6
Fla. L. Weekly Supp. 660 (Fla. Brevard Cty. Ct. May 17, 1999).
18
State v. Martin, 29 Fla. Supp. 2d 43 (Fla. Volusia Cty. Ct. 1988).
19
State v. Call, 20 Fla. Supp. 2d 21 (Fla. Sarasota Cty. Ct. 1985). See also Hanna v. Dep’t of Highway
Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 334 (Fla. 16th Cir. Ct. Feb. 18, 2010)17 Fla. L.
Weekly Supp. 334 (Fla. 16th Cir. Ct. Feb. 18, 2010); State v. Partlow, 23 Fla. L. Weekly Supp. 252 (Fla.
Hernando Cty. Ct. August 7, 2015)State v. Partlow, 23 Fla. L. Weekly Supp. 252 (Fla. Hernando Cty.
Ct. August 7, 2015) (judge recognized that substantial compliance does not require full eye contact, but
the observation period was inadequate here because the arresting deputy lost sight of defendant on
several occasions; no indication that other deputies were watching defendant); State v. Trippany, 21 Fla.
L. Weekly Supp. 353 (Fla. Sarasota Cty. Ct. June 5, 2013)State v. Trippany, 21 Fla. L. Weekly Supp.
353 (Fla. Sarasota Cty. Ct. June 5, 2013) (court found that, while individual periods of lack of focus by
officer did not require exclusion of results, “the totality of ‘glitches’ during the” observation period
violated Rule 11D-8.007(3); defendant was transported in back of car but officer periodically saw him in
mirror; for less than a minute officer was about 12 feet from defendant with his back turned; defendant
was alone for almost a minute; seconds before giving samples, defendant coughed loudly); State v.
Jones, 20 Fla. L. Weekly Supp. 525 (Fla. Monroe Cty. Ct. March 12, 2013)State v. Jones, 20 Fla. L.
Weekly Supp. 525 (Fla. Monroe Cty. Ct. March 12, 2013) (breath test results suppressed where first
sample was taken after 18 minutes of the observation period and there were times when trooper and
deputy stepped out of the room; neither problem alone would require suppression, but taken together
they do).
20
State v. Fisher, 14 Fla. L. Weekly Supp. 471 (Fla. Leon Cty. Ct. Feb. 26, 2007)State v. Fisher, 14 Fla. L.
Weekly Supp. 471 (Fla. Leon Cty. Ct. Feb. 26, 2007); State v. Davis, 13 Fla. L. Weekly Supp. 1191
(Fla. Leon Cty. Ct. Sept. 13, 2006).
21
State v. Cala, 7 Fla. L. Weekly Supp. 342 (Fla. Dade Cty. Ct. March 6, 2000) State v. Cala, 7 Fla. L.
Weekly Supp. 342 (Fla. Dade Cty. Ct. March 6, 2000). See also Mason v. Dep’t of Highway Safety &
Motor Vehicles, 19 Fla. L. Weekly Supp. 998 (Fla. 11th Cir. Ct. Aug. 30, 2012)Mason v. Dep’t of
Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 998 (Fla. 11th Cir. Ct. Aug. 30, 2012) (the
time that defendant was transported could be included in the 20-minute observation period); State v.
Hurt, 19 Fla. L. Weekly Supp. 856 (Fla. Brevard Cty. Ct. June 18, 2012)State v. Hurt, 19 Fla. L. Weekly
Supp. 856 (Fla. Brevard Cty. Ct. June 18, 2012) (observation period was sufficient where officer was
consistently close to defendant during the investigation; after arrest, officer escorted defendant to back
seat and walked around to driver’s seat of the patrol car; during transport, officer looked back and forth
between defendant and the road while driving, “maintaining sufficient visual, auditory, and olfactory
contact with Mr. Hurt throughout the ride;” officer stopped the car, exited, walked around and adjusted
the handcuffs on Mr. Hurt; “Short periods of time which an officer did not directly observe a defendant
does not mean substantial compliance with the rule did not exist and does not render the test results

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

inadmissible.”); State v. Maynard, 8 Fla. L. Weekly Supp. 510 (Fla. Monroe Cty. Ct. May 22,
2001)State v. Maynard, 8 Fla. L. Weekly Supp. 510 (Fla. Monroe Cty. Ct. May 22, 2001) (observations
of defendant during transport were sufficient because, unlike Call, defendant’s hands were cuffed
behind him so that he couldn’t ingest anything, the officer could see the defendant in the rear view
mirror, and the officer had the dome light on).
22
State v. Cala, 7 Fla. L. Weekly Supp. 342 (Fla. Dade Cty. Ct. March 6, 2000) State v. Cala, 7 Fla. L.
Weekly Supp. 342 (Fla. Dade Cty. Ct. March 6, 2000).
23
Wilson v. State, 25 Fla. Supp. 2d 118 (Fla. 13th Cir. Ct. 1987). See also State v. Hurt, 19 Fla. L. Weekly
Supp. 856 (Fla. Brevard Cty. Ct. June 18, 2012)19 Fla. L. Weekly Supp. 856 (Fla. Brevard Cty. Ct. June
18, 2012) (State showed substantial compliance with observation period where officer monitored
defendant for 20 minutes before arrest and 16 minutes after arrest; “the pre-arrest observation time
sufficiently meets the regulatory standards in Fla. Admin. Code R. 11D-8.007.”).
24
State v. Rockwerk, 2 Fla. L. Weekly Supp. 223 (Fla. Palm Beach Cty. Ct. March 4, 1994) State v.
Rockwerk, 2 Fla. L. Weekly Supp. 223 (Fla. Palm Beach Cty. Ct. March 4, 1994).
25
State v. Fisher, 6 Fla. L. Weekly Supp. 650 (Fla. Broward Cty. Ct. June 7, 1999)State v. Fisher, 6 Fla. L.
Weekly Supp. 650 (Fla. Broward Cty. Ct. June 7, 1999).
26
State v. Abouelhosn, 7 Fla. L. Weekly Supp. 225 (Fla. Broward Cty. Ct. Dec. 22, 1999)State v.
Abouelhosn, 7 Fla. L. Weekly Supp. 225 (Fla. Broward Cty. Ct. Dec. 22, 1999).
27
State v. Morrison, 20 Fla. L. Weekly Supp. 277 (Fla. Escambia Cty. Ct. Oct. 5, 2012)State v. Morrison,
20 Fla. L. Weekly Supp. 277 (Fla. Escambia Cty. Ct. Oct. 5, 2012).
28
State v. Brown, 16 Fla. L. Weekly Supp. 430 (Fla. Leon Cty. Ct. Oct. 1, 2008)State v. Brown, 16 Fla. L.
Weekly Supp. 430 (Fla. Leon Cty. Ct. Oct. 1, 2008).
29
State v. Brown, 16 Fla. L. Weekly Supp. 430 (Fla. Leon Cty. Ct. Oct. 1, 2008)State v. Brown, 16 Fla. L.
Weekly Supp. 430 (Fla. Leon Cty. Ct. Oct. 1, 2008).
30
Schofield v. State, 867 So. 2d 446 (Fla. 3d DCA 2004).
31
Schofield v. State, 867 So. 2d 446 (Fla. 3d DCA 2004).
32
Schofield v. State, 867 So. 2d 446, 448 (Fla. 3d DCA 2004).
33
Schofield v. State, 867 So. 2d 446, 448 (Fla. 3d DCA 2004).
34
State v. Gonzalez, 21 Fla. L. Weekly Supp. 405 (Fla. 11th Cir. Ct. Dec. 19, 2013)State v. Gonzalez, 21
Fla. L. Weekly Supp. 405 (Fla. 11th Cir. Ct. Dec. 19, 2013). More detail as to the status of Daubert is
included in § 8.1§ 8.1.
35
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
36
State v. Mason, 27 Fla. Supp. 2d 87 (Fla. Palm Beach Cty. Ct. 1987).
37
Kay v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 773 (Fla. 9th Cir. Ct. July
9, 2004)Kay v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 773 (Fla. 9th Cir.
Ct. July 9, 2004). See also State v. Kozlak, 22 Fla. L. Weekly Supp. 607 (Fla. Volusia Cty. Ct. June 24,
2013)State v. Kozlak, 22 Fla. L. Weekly Supp. 607 (Fla. Volusia Cty. Ct. June 24, 2013) (20 minute
observation period was insufficient because multiple officers observed, but none were responsible for
any specific time so it was unclear as to who was in the physical presence of defendant at any particular
time); State v. Miller, 19 Fla. L. Weekly Supp. 593 (Fla. Sarasota Cty. Ct. Sept. 15, 2010)State v. Miller,
19 Fla. L. Weekly Supp. 593 (Fla. Sarasota Cty. Ct. Sept. 15, 2010) (trial judge found substantial
deviation where for six minutes of 20 minute observation period, defendant was talking to an unknown
officer and the responsible officer could not see defendant’s face or mouth; since this was a secure

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

facility, defendant was being watched by correctional staff, but there was no evidence that anyone other
than the officer conducting the observation was responsible for ensuring compliance; judge found it
could not reasonably be concluded that there was a group effort to ensure compliance); State v.
Williams, 19 Fla. L. Weekly Supp. 494 (Fla. Nassau Cty. Ct. Sept. 28, 2011)State v. Williams, 19 Fla.
L. Weekly Supp. 494 (Fla. Nassau Cty. Ct. Sept. 28, 2011) (trial judge suppressed results because State
failed to show compliance with 20 minute observation period where operator was with defendant
immediately before test for a little over 18 minutes, but before that a second officer took defendant to a
cell; the operator told the second officer to make sure to make sure defendant did not regurgitate or put
anything in his mouth, but the second officer did not testify and there was no other evidence that
operator confirmed compliance).
38
Wood v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 2 (Fla. 7th Cir. Ct. Oct.
28, 2003)Wood v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 2 (Fla. 7th Cir.
Ct. Oct. 28, 2003); Pritch v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 665
(Fla. 7th Cir. Ct. June 13, 2003)Pritch v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly
Supp. 665 (Fla. 7th Cir. Ct. June 13, 2003) (both of these cases are examples of situations where there
was a conflict in the evidence as to the observation period, and the court ruled that the fact finder (i.e.
the hearing officer) properly resolved the conflict).
39
State v. Davis, 16 Fla. L. Weekly C94 (Fla. 7th Cir. Ct. June 13, 1991)State v. Davis, 16 Fla. L. Weekly
C94 (Fla. 7th Cir. Ct. June 13, 1991).
40
State v. Tarajano, 6 Fla. L. Weekly Supp. 781 (Fla. Dade Cty. Ct. Sept. 22, 1999)State v. Tarajano, 6
Fla. L. Weekly Supp. 781 (Fla. Dade Cty. Ct. Sept. 22, 1999).
41
State v. Tarajano, 6 Fla. L. Weekly Supp. 781 (Fla. Dade Cty. Ct. Sept. 22, 1999)State v. Tarajano, 6
Fla. L. Weekly Supp. 781 (Fla. Dade Cty. Ct. Sept. 22, 1999).
42
State v. Patow, 17 Fla. L. Weekly Supp. 117 (Fla. Duval Cty. Ct. Sept. 28, 2009) State v. Patow, 17 Fla.
L. Weekly Supp. 117 (Fla. Duval Cty. Ct. Sept. 28, 2009).
43
State v. Rinaldi, 34 Fla. Supp. 2d 122 (Fla. Palm Beach Cty. Ct. 1989).
44
State v. Davis, 16 Fla. L. Weekly C94 (Fla. 7th Cir. Ct. June 13, 1991)State v. Davis, 16 Fla. L. Weekly
C94 (Fla. 7th Cir. Ct. June 13, 1991).
45
State v. Rockwerk, 2 Fla. L. Weekly Supp. 223 (Fla. Palm Beach Cty. Ct. March 4, 1994) State v.
Rockwerk, 2 Fla. L. Weekly Supp. 223 (Fla. Palm Beach Cty. Ct. March 4, 1994).
46
State v. Jones, 7 Fla. L. Weekly Supp. 747 (Fla. Dade Cty. Ct. Aug. 8, 2000) State v. Jones, 7 Fla. L.
Weekly Supp. 747 (Fla. Dade Cty. Ct. Aug. 8, 2000).
47
State v. Jones, 7 Fla. L. Weekly Supp. 747 (Fla. Dade Cty. Ct. Aug. 8, 2000) State v. Jones, 7 Fla. L.
Weekly Supp. 747 (Fla. Dade Cty. Ct. Aug. 8, 2000). See also State v. McMahan, 15 Fla. L. Weekly
Supp. 675 (Fla. 17th Cir. Ct. April 17, 2008)State v. McMahan, 15 Fla. L. Weekly Supp. 675 (Fla. 17th
Cir. Ct. April 17, 2008) (circuit judge in his appellate capacity affirmed motion to suppress and ruled 18
minutes is not sufficient); State v. Verdin, 22 Fla. L. Weekly Supp. 371 (Fla. Volusia Cty. Ct. July 29,
2014)State v. Verdin, 22 Fla. L. Weekly Supp. 371 (Fla. Volusia Cty. Ct. July 29, 2014) (20 minute
observation period was insufficient where officer left defendant five times, once for four minutes and a
total of five minutes; there was no evidence that any officer looked at defendant during that period);
State v. Petty, 22 Fla. L. Weekly Supp. 264 (Fla. Naussau Cty. Ct. Feb. 4, 2014)State v. Petty, 22 Fla. L.
Weekly Supp. 264 (Fla. Naussau Cty. Ct. Feb. 4, 2014) (17 minute observation period was insufficient;
trial judge rejected argument since the first blow was invalid, the time should not be deemed to have
commenced until the second blow); State v. Sadlier, 22 Fla. L. Weekly Supp. 107 (Fla. Marion Cty. Ct.
August 6, 2014)State v. Sadlier, 22 Fla. L. Weekly Supp. 107 (Fla. Marion Cty. Ct. August 6, 2014)
(there was conflict as to the times, but trial judge concluded at best it was 19 minutes and that did not
constitute substantial compliance).
48
State v. Jones, 9 Fla. L. Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001)State v. Jones, 9 Fla. L.
Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001).

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§ 6:6.Observation period for breath test, 11 Fla. Prac., DUI Handbook § 6:6...

49
State v. Jones, 9 Fla. L. Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001)State v. Jones, 9 Fla. L.
Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001).
50
State v. Jones, 9 Fla. L. Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001)State v. Jones, 9 Fla. L.
Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001).
51
State v. Jones, 9 Fla. L. Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001)State v. Jones, 9 Fla. L.
Weekly Supp. 82 (Fla. 11th Cir. Ct. Dec. 11, 2001).

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Works.

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§ 6:7.Number of tests, timing, and margin of errors, 11 Fla. Prac., DUI Handbook § 6:7...

11 Fla. Prac., DUI Handbook § 6:7 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:7. Number of tests, timing, and margin of errors

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 416, 422.1

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

The breath test operator must analyze at least two samples of breath collected within 15 minutes of each other
on an approved instrument.1 The results must be within +/–0.020g/210L reported as breath alcohol level. 2 If the
results are not within that margin of error, the operator must analyze a third sample. 3

Blood testing is by its very nature somewhat less complicated. A blood test examiner must analyze two separate
portions of the same blood sample using a Department-approved blood alcohol test method and a Department
approved procedure.4 The results must be no more than 0.010 grams of alcohol per 100 milliliters of blood and
reported as blood alcohol level.5

One court has found that the failure to analyze two samples is less than substantial compliance. 6 Other courts
have ruled that the failure to comply with the margin of error requirement falls short of substantial compliance. 7
In one case, however, a three judge circuit court appellate panel ruled that test results that were .024 apart were
nonetheless admissible.8 The court relied on the language that “[n]otwithstanding the foregoing sentence, the
result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.” 9 The court also
relied on the statutory provision that insubstantial differences between approved techniques and actual testing
procedures will not invalidate the test results. 10 The court noted that there was actual compliance with nearly
every requirement for breath testing.11 In a similar situation, a trial judge ruled that the test results would be
admissible only upon a showing of the traditional scientific predicate.12

Similarly, if a defendant declines or fails to submit to one of the required tests, that is deemed a refusal, but any
test results that were secured prior to the refusal may be admissible if the State proves that they are reliable. 13 If
the defendant refuses by providing only low volume samples, those results may also be admissible if the State

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§ 6:7.Number of tests, timing, and margin of errors, 11 Fla. Prac., DUI Handbook § 6:7...

can prove they are reliable. Thus, where the defendant blew three times, but all three readings were more
than .02 apart and the evidence established that he was willfully providing low volume samples, the test results
were still admissible because the State showed that the results were reliable. 14 The court noted that the evidence
showed that the machine was in proper working order, the low volume samples were not invalid readings, and
the defendant caused the low volume readings.15 Several other cases16 have considered the impact of low volume
readings that are not attributable to any improper conduct by the defendant. While they may have reached
different results, each case focused on the sufficiency of the evidence to show that the results were reliable,
whether any deviation had an adverse impact on the defendant’s rights, and whether the deviation was
insubstantial.

Essentially the same approach applies where the defendant provides only one full volume sample. A trial judge 17
held that those results were admissible if the State established: (1) that the machine was registered in accord
with the administrative rules; (2) that the instrument was properly inspected and certified as required by those
rules; (3) that the inspector was properly trained and certified; (4) that the officer who administered the test was
also properly trained and certified; and (5) the meaning of the test results through an expert. The State met this
burden by presenting uncontroverted evidence establishing each of these elements from the deputy who
administered the test and a corporal who was the instrument technician. 18 It is noteworthy that the judge found
that the instrument technician established the meaning of the test results simply by testifying that the test
reflected the defendant’s actual breath alcohol content.19

It is important to note that most of the cases dealing with insufficient volume involved the Intoxilyzer 5000. In
Dep’t of Highway Safety & Motor Vehicles v. Cherry,20 the court recognized an important difference between
that machine and the Intoxilyzer 8000 concerning low volume samples. “Breath volume is a key value for the
Intoxilyzer 8000, but not for the 5000.” 21 The I5000 reported that “‘the test had low sample volume—value
printed was highest obtained’” whereas the I8000 reports “‘volume not met.’” 22 The court reasoned that
pursuant to Rule 11D-8.002(12), for breath samples to be valid they must be reliable and if the I8000 reports
that the samples do not meet the minimum volume requirements they are not reliable, and hence, they are
invalid.23 On that basis, the court concluded that where both samples registered a “‘volume not met,’” under the
rule the defendant had refused by failing to provide a valid sample.24

Some courts have also considered the significance of noncompliance with the 15-minute time requirement. It
was previously five minutes. Several lower courts dealt with the former five minute requirement, and rejected
the argument that small violations of this time standard requires exclusion of test results. Thus, a five minute
and 59-second span was still substantial compliance. 25 This was true because the purpose of the time
requirement was to assure that the instrument was operating properly, and the difference in the results with a
five minute delay, versus a five minute and 59-second delay, could not be recorded on the instrument. 26
Similarly, where the second test was within seven minutes of the first, the court ruled that the defendant had to
show that the extra two minutes affected the reliability of the test.27

In another case,28 the court took a slightly different approach. The operator had to do a third test, but it was six
minutes after the second test. The court found that the test results would be admissible if the State provided
evidence that would permit the fact finder to conclude that the machine was accurate in this time frame. The
State did this by presenting the testimony of an alcohol breath analyst that a one- or two-minute deviation would
not adversely conflict with the purpose of the statute and rules to ensure reliable results and to protect the health
of suspects.29

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 6:7.Number of tests, timing, and margin of errors, 11 Fla. Prac., DUI Handbook § 6:7...

1
Fl. Admin. Code R. 11D–8.002(12). See also Ellis v. Dep’t of Highway Safety & Motor Vehicles, 21
Fla. L. Weekly Supp. 862 (Fla. 9th Cir. Ct. May 22, 2014)Ellis v. Dep’t of Highway Safety & Motor
Vehicles, 21 Fla. L. Weekly Supp. 862 (Fla. 9th Cir. Ct. May 22, 2014) (This rule means that a
minimum of two breath samples must be taken within 15 minutes of each other, but it does not mean
that the defendant is entitled to 15 minutes to decide whether to blow (i.e. that the officer has to give a
noncooperative defendant a whole 15 minutes to change his mind)).
2
Fl. Admin. Code R. 11D–8.002(12).
3
Fl. Admin. Code R. 11D–8.002(12).
4
Fl. Admin. Code R. 11D–8.002(11).
5
Fl. Admin. Code R. 11D–8.002(11).
6
State v. Cobas, 21 Fla. Supp. 2d 114 (Fla. Dade Cty. Ct. 1985).
7
Holmes v. Mellon, 48 Fla. Supp. 2d 86 (Fla. 11th Cir. 1991); State v. Giangrande, 36 Fla. Supp. 2d 67
(Fla. 17th Cir. Ct. 1989); State v. Sabatelli, 37 Fla. Supp. 2d 197 (Fla. Palm Beach Cty. Ct. 1989); State
v. DeKay, 27 Fla. Supp. 2d 8 (Fla. Palm Beach Cty. Ct. 1987).
8
Garcia v. State, 6 Fla. L. Weekly Supp. 15 (Fla. 11th Cir. Ct. Aug. 28, 1998)Garcia v. State, 6 Fla. L.
Weekly Supp. 15 (Fla. 11th Cir. Ct. Aug. 28, 1998). See also State v. Zachary, 11 Fla. L. Weekly Supp.
709 (Fla. 17th Cir. Ct. April 27, 2004)State v. Zachary, 11 Fla. L. Weekly Supp. 709 (Fla. 17th Cir. Ct.
April 27, 2004) (where the readings exceeded the margin of error provided for in the rule, the court
directed that the trial judge make a finding as to whether the results were reliable).
9
Fl. Admin. Code R. 11D–8.002(12).
10
§ 316.1932, Fla. Stat.
11
Garcia v. State, 6 Fla. L. Weekly Supp. 15 (Fla. 11th Cir. Ct. Aug. 28, 1998)Garcia v. State, 6 Fla. L.
Weekly Supp. 15 (Fla. 11th Cir. Ct. Aug. 28, 1998).
12
State v. Marshall, 7 Fla. L. Weekly Supp. 350, 351 (Fla. Manatee Cty. Ct. Oct. 11, 1999)State v.
Marshall, 7 Fla. L. Weekly Supp. 350, 351 (Fla. Manatee Cty. Ct. Oct. 11, 1999).
13
Fl. Admin. Code R. 11D–8.002(12).
14
Davis v. State, 4 Fla. L. Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997)Davis v. State, 4 Fla. L.
Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997).
15
Davis v. State, 4 Fla. L. Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997)Davis v. State, 4 Fla. L.
Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997).
16
State v. Moody, 4 Fla. L. Weekly Supp. 787 (Fla. Leon Cty. Ct. June 10, 1997)State v. Moody, 4 Fla. L.
Weekly Supp. 787 (Fla. Leon Cty. Ct. June 10, 1997); State v. Sloan, 2 Fla. L. Weekly Supp. 594 (Fla.
Palm Beach Cty. Ct. Jan. 6, 1995)State v. Sloan, 2 Fla. L. Weekly Supp. 594 (Fla. Palm Beach Cty. Ct.
Jan. 6, 1995); State v. Conyers, 2 Fla. L. Weekly Supp. 439 (Fla. Dade Cty. Ct. Sept. 2, 1994) State v.
Conyers, 2 Fla. L. Weekly Supp. 439 (Fla. Dade Cty. Ct. Sept. 2, 1994); State v. Willis, 1 Fla. L.
Weekly Supp. 118 (Fla. Palm Beach Cty. Ct. April 6, 1992)State v. Willis, 1 Fla. L. Weekly Supp. 118
(Fla. Palm Beach Cty. Ct. April 6, 1992).
17
State v. Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009) State v.
Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009).
18
State v. Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009) State v.
Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009).
19
State v. Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009) State v.

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§ 6:7.Number of tests, timing, and margin of errors, 11 Fla. Prac., DUI Handbook § 6:7...

Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009).
20
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011).
21
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849, 857 (Fla. 5th DCA 2011).
22
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849, 856-57 (Fla. 5th DCA
2011).
23
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849, 856-57 (Fla. 5th DCA
2011). See also State v. Berfield, 23 Fla. L. Weekly Supp. 258 (Fla. Volusia Cty. Ct. March 4,
2015)State v. Berfield, 23 Fla. L. Weekly Supp. 258 (Fla. Volusia Cty. Ct. March 4, 2015) (results were
inadmissible where they were outside .02 tolerance and the samples were low volume).
24
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011). See
also Galloway v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 1000 (Fla. 6th
Cir. Ct. Aug. 29, 2912) (where first test resulted in a message, “‘Volume Not Met (0.272—Breath
Sample Not Reliable to Determine Breath Alcohol Level)’” and the second and third readings were
more than.020 apart, the defendant’s refusal to give an additional sample was a refusal under Rule 11D-
8.002(12)).
25
State v. Paskalic, 26 Fla. Supp. 2d 79 (Fla. Palm Beach Cty. Ct. 1987).
26
State v. Paskalic, 26 Fla. Supp. 2d 79 (Fla. Palm Beach Cty. Ct. 1987).
27
State v. Jessup, 40 Fla. Supp. 2d 28 (Fla. 15th Cir. Ct. 1989).
28
Nelson v. State, 2 Fla. L. Weekly Supp. 48 (Fla. 13th Cir. Ct. Oct. 6, 1993)Nelson v. State, 2 Fla. L.
Weekly Supp. 48 (Fla. 13th Cir. Ct. Oct. 6, 1993).
29
Nelson v. State, 2 Fla. L. Weekly Supp. 48 (Fla. 13th Cir. Ct. Oct. 6, 1993)Nelson v. State, 2 Fla. L.
Weekly Supp. 48 (Fla. 13th Cir. Ct. Oct. 6, 1993).

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§ 6:8.Admissibility of test results upon noncompliance with..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 6:8 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 6. Administrative Regulations

§ 6:8. Admissibility of test results upon noncompliance with regulations

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• West’s Key Number Digest, Automobiles 411, 422.1, 426

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• C.J.S., Motor Vehicles §§ 1395 to 1421

The statutory and administrative scheme (i.e. the implied consent law), is designed to relieve the State from the
burden of establishing the traditional scientific predicate. 1 However, it is not the exclusive method for
presenting test results.

If the sample is secured pursuant to authority vested by the implied consent law or through voluntary consent,
blood test results may still be admissible in evidence despite noncompliance with the testing procedures under
the implied consent law.2 The State must show that the sample was drawn by one authorized by the implied
consent law to withdraw blood, and that the results meet the three prongs of the traditional scientific predicate. 3
Those three prongs are: (1) reliability of the test, (2) performance of the test by a qualified operator with proper
equipment, and (3) expert explanation of the meaning of the test. 4 But if the results were for a medical purpose,
the State need not comply with the more complicated three part foundation set forth in Robertson5 and other
cases. In Baber v. State,6 the Court ruled that such evidence is admissible upon compliance with the business
records exception to the hearsay rule.

Based on these standards, it is permissible for the state to rely on tests not even authorized by the statutes or
regulations. Accordingly, the State properly relied on serum blood test results secured by a medical lab
technician licensed to conduct and interpret such tests. 7 A toxicologist testified that serum tests accurately
measure the concentration of alcohol in blood serum. 8 The serum alcohol concentration is higher than a whole
blood alcohol concentration, but it can be converted to an accurate blood alcohol level range. 9 However, when
the quality control records at a hospital, testimony of hospital personnel and a defense expert, and the
inconsistency between the reading and the appearance and behavior of the defendant suggested problems with
the trustworthiness of a medical blood draw, the trial judge excluded the blood test results. 10

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§ 6:8.Admissibility of test results upon noncompliance with..., 11 Fla. Prac., DUI...

Similar rules probably apply to breath tests. There is no logical reason for a different approach. A circuit court,
while affirming an en banc county court ruling suppressing breath test results on the grounds that the modified
testing device did not comply with the regulations, also concluded that the State might get the results into
evidence by sufficient proof of the traditional scientific predicate. That portion of the circuit court decision was
reversed by the district court because the issue had not been considered by the county court. 11 Nevertheless, it is
worth noting the circuit court’s position. Another circuit judge sitting in her appellate capacity reached the same
conclusion.12 A trial court13 followed precisely the same course, and found that breath tests results are admissible
in the absence of compliance with the regulations where the traditional predicate required by Bender14 and
Robertson15 is established. However, another trial court 16 ruled that where a breath test was conducted pursuant
to the implied consent law, and the results were inadmissible under that law because the officer did not comply
with the 20-minute observation period, the results could not be admitted even if the state established the
traditional scientific predicate.

It is clear that where the officer fails to comply with the administrative regulations, the State may still get the
results into evidence. This, of course, is not true if the officer secured the test sample by reading the coercive
portions of the implied consent law under circumstances where the individual was not required to submit to the
test.17

It must also be remembered that the State will pay a price for noncompliance with the implied consent law and
reliance on the traditional predicate. It is firmly established that under such circumstances, the State is not
entitled to an instruction on the statutory presumptions. 18 The significance of this presumption is unclear in light
of the recent change to the jury instructions. 19 However, the State is entitled to an instruction that proof of a
blood alcohol level over the legal limit is one of the ways of proving the offense. 20 This is so because it is not
a matter of presumption, but rather it is an element of the offense.21

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
See e.g. State v. Bender, 382 So. 2d 697 (Fla. 1980).
2
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also Goodman v. Florida Department of Law
Enforcement, 238 So.3d 102, 109 (Fla. 2018); Mehl v. State, 632 So. 2d 593 (Fla. 1993); State v. St.
Pierre, 693 So. 2d 102 (Fla. 5th DCA 1997); State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995).
3
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
4
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also State v. Kleiber, 175 So. 3d 319 (Fla. 5th
DCA 2015); State v. Cameron, 837 So. 2d 1111 (Fla. 4th DCA 2003); State v. Schreiber, 835 So. 2d 344
(Fla. 4th DCA 2003); State v. Walther, 519 So. 2d 731 (Fla. 1st DCA 1988); State v. Lendway, 519 So.
2d 725 (Fla. 2d DCA 1988); Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983).
5
Robertson v. State, 604 So.2d 783 (Fla. 1992).
6
Baber v. State, 775 So.2d 258 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149
L.Ed. 2d 748 (2001).
7
Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA 1994). See also State v. Knopp, 11 Fla. L. Weekly
Supp. 367 (Fla. Brevard Cty. Ct. Jan. 9 2004)State v. Knopp, 11 Fla. L. Weekly Supp. 367 (Fla. Brevard

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§ 6:8.Admissibility of test results upon noncompliance with..., 11 Fla. Prac., DUI...

Cty. Ct. Jan. 9 2004) (court ruled that enzyme assay method of determining blood alcohol level based on
a serum blood alcohol level was proper). But see Simpson v. State, 19 Fla. L. Weekly Supp. 157 (Fla.
1st Cir. Ct. Sept. 7, 2011)Simpson v. State, 19 Fla. L. Weekly Supp. 157 (Fla. 1st Cir. Ct. Sept. 7, 2011)
(reversed denial of motion for JOA because the only evidence of BAL was the alcohol level in serum
blood; “the courts should accept serum blood results to prove whole blood alcohol percentages, but only
if the trier of fact is presented with adequate expert testimony to allow a conversion rate to be
established.”).
8
Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA 1994).
9
Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA 1994).
10
State v. Mears, 14 Fla. L. Weekly Supp. 983 (Fla. Broward Cty. Ct. August 17, 2007) State v. Mears, 14
Fla. L. Weekly Supp. 983 (Fla. Broward Cty. Ct. August 17, 2007).
11
Bennett v. State, 641 So. 2d 938 (Fla. 5th DCA 1994).
12
State v. Jacobson, 14 Fla. L. Weekly Supp. 714 (Fla. 14th Cir. Ct. August 10, 2006)State v. Jacobson, 14
Fla. L. Weekly Supp. 714 (Fla. 14th Cir. Ct. August 10, 2006) (court ruled that even if the form
regulating the duration of the blow was insufficient to ensure reliable results, the State still could
introduce the test results without the presumptions, upon establishing the traditional scientific predicate).
13
State v. Schmidt, 2 Fla. L. Weekly Supp. 59 (Fla. St. John’s Cty. Ct. Dec. 3, 1993)State v. Schmidt, 2
Fla. L. Weekly Supp. 59 (Fla. St. John’s Cty. Ct. Dec. 3, 1993). See also State v. Harrison, 19 Fla. L.
Weekly Supp. 377 (Fla. Duval Cty. Ct. Dec. 7, 2011)State v. Harrison, 19 Fla. L. Weekly Supp. 377
(Fla. Duval Cty. Ct. Dec. 7, 2011); State v. Almarez, 13 Fla. L. Weekly Supp. 724 (Fla. Sarasota Cty.
Ct. May 5, 2006)State v. Almarez, 13 Fla. L. Weekly Supp. 724 (Fla. Sarasota Cty. Ct. May 5, 2006);
State v. Irish, 13 Fla. L. Weekly Supp. 719 (Fla. Sarasota Cty. Ct. May 4, 2006)State v. Irish, 13 Fla. L.
Weekly Supp. 719 (Fla. Sarasota Cty. Ct. May 4, 2006); State v. Benjamin, 13 Fla. L. Weekly Supp. 354
(Fla. Orange Cty. Ct. Jan. 31, 2006)State v. Benjamin, 13 Fla. L. Weekly Supp. 354 (Fla. Orange Cty.
Ct. Jan. 31, 2006); State v. Davenport, 7 Fla. L. Weekly Supp. 742 (Fla. Duval Cty. Ct. Aug. 25,
2000)State v. Davenport, 7 Fla. L. Weekly Supp. 742 (Fla. Duval Cty. Ct. Aug. 25, 2000) ; State v.
Dauth, 7 Fla. L. Weekly Supp. 739 (Fla. Duval Cty. Ct. Aug. 18, 2000)State v. Dauth, 7 Fla. L. Weekly
Supp. 739 (Fla. Duval Cty. Ct. Aug. 18, 2000); State v. Marshall, 7 Fla. L. Weekly Supp. 350 (Fla.
Manatee Cty. Ct. Oct. 11, 1999)State v. Marshall, 7 Fla. L. Weekly Supp. 350 (Fla. Manatee Cty. Ct.
Oct. 11, 1999).
14
State v. Bender, 382 So. 2d 697 (Fla. 1980).
15
Robertson v. State, 604 So. 2d 783 (Fla. 1992).
16
State v. Jones, 7 Fla. L. Weekly Supp. 747 (Fla. Dade Cty. Ct. Aug. 8, 2000) State v. Jones, 7 Fla. L.
Weekly Supp. 747 (Fla. Dade Cty. Ct. Aug. 8, 2000).
17
State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992); State v. Burnett, 536 So. 2d 375 (Fla. 2d DCA
1988); State v. Castillo, 10 Fla. L. Weekly Supp. 439 (Fla. Dade Cty. Ct. April 14, 2003)State v.
Castillo, 10 Fla. L. Weekly Supp. 439 (Fla. Dade Cty. Ct. April 14, 2003); State v. Del Toro, 10 Fla. L.
Weekly Supp. 434 (Fla. Dade Cty. Ct. March 24, 2003)State v. Del Toro, 10 Fla. L. Weekly Supp. 434
(Fla. Dade Cty. Ct. March 24, 2003); State v. Velarde, 10 Fla. L. Weekly Supp. 355 (Fla. Dade Cty. Ct.
March 7, 2003)State v. Velarde, 10 Fla. L. Weekly Supp. 355 (Fla. Dade Cty. Ct. March 7, 2003); State
v. Hudson, 35 Fla. Supp. 2d 190 (Fla. Palm Beach Cty. Ct. 1989).
18
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also Cardenas v. State, 867 So. 2d 384 (Fla.
2004); State v. Miles, 775 So. 2d 950 (Fla. 2000); Townsend v. State, 774 So. 2d 693 (Fla. 2000);
State v. Sandt, 774 So. 2d 692 (Fla. 2000); State v. Murray, 51 So. 3d 593 (Fla. 5th DCA 2011), review
denied, 63 So. 3d 750 (Fla. 2011); State v. Cameron, 837 So. 2d 1111 (Fla. 4th DCA 2003); State v.
Schreiber, 835 So. 2d 344 (Fla. 4th DCA 2003); Michie v. State, 632 So. 2d 1106 (Fla. 2d DCA

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§ 6:8.Admissibility of test results upon noncompliance with..., 11 Fla. Prac., DUI...

1994); State v. Walther, 519 So. 2d 731 (Fla. 1st DCA 1988); State v. Lendway, 519 So. 2d 725 (Fla. 2d
DCA 1988); Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983).
19
The Court struck the standard instruction on the presumption favorable to the State and noted: “It is not
necessary to instruct on the ‘prima facie evidence of impairment’ in § 316.1934(2)(c), Fla. Stat. if the
State charged the defendant with driving with a blood or breath-alcohol level of .08 or over.” In re
Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190, 1198 (Fla. 2016).
20
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also Cardenas v. State, 867 So. 2d 384 (Fla.
2004); State v. Cameron, 837 So. 2d 1111 (Fla. 4th DCA 2003); State v. Schreiber, 835 So. 2d 344 (Fla.
4th DCA 2003); Dodge v. State, 805 So. 2d 990, 994 (Fla. 4th DCA 2001); Tyner v. State, 805 So. 2d
862, 864 (Fla. 2d DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002).
21
Robertson v. State, 604 So. 2d 783 (Fla. 1992). See also Cardenas v. State, 867 So. 2d 384 (Fla.
2004); State v. Cameron, 837 So. 2d 1111 (Fla. 4th DCA 2003); State v. Schreiber, 835 So. 2d 344 (Fla.
4th DCA 2003); Dodge v. State, 805 So. 2d 990, 994 (Fla. 4th DCA 2001); Tyner v. State, 805 So. 2d
862, 864 (Fla. 2d DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 7 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 7 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 7. Field Sobriety Tests

Introduction

INTRODUCTION
It is common practice in DUI cases for the officer to require the defendant to submit to a battery of exercises. 1
These may include the finger-to-nose test, the walk-and-turn test, the one-legged stand test, the balance test, the
alphabet test, and the horizontal gaze nystagmus test.2 A trial judge3 ruled that these test results are not subject to
exclusion under the rationale of State v. Bodden,4 where the court ruled that urine test results were inadmissible
because the Florida Department of Law Enforcement had not promulgated any rules for the administration of
the tests. There are a number of possible other objections to these procedures that should be considered. 5

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
For a detailed discussion of the mechanics of these exercises, see Erwin, Defense of Drunk Driving
Cases, ch. 10. A tremendous amount of information will be discovered on-line by googling
“Development of a Standardized Test.”
2
These exercises have been the subject of studies by the National Highway and Transportation Safety
Administration (NHTSA). State v. Meador, 674 So. 2d 826, 828 (Fla. 4th DCA 1996), review
denied, 686 So. 2d 580 (Fla. 1996).
3
State v. Tripp, 10 Fla. L. Weekly Supp. 453 (Fla. Broward Cty. Ct. April 16, 2003)State v. Tripp, 10 Fla.
L. Weekly Supp. 453 (Fla. Broward Cty. Ct. April 16, 2003).
4
State v. Bodden, 872 So. 2d 916 (Fla. 2d DCA 2002), decision quashed, 877 So. 2d 680 (Fla. 2004).
5
For a thorough discussion of the case law on field sobriety exercises, including HGN, throughout the
United States see U.S. v. Horn, 185 F. Supp. 2d 530, 58 Fed. R. Evid. Serv. 357 (D. Md. 2002).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 7 Introduction (2018-2019 ed.)

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 7:1.Probative value and prejudicial impact, 11 Fla. Prac., DUI Handbook § 7:1...

11 Fla. Prac., DUI Handbook § 7:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 7. Field Sobriety Tests

§ 7:1. Probative value and prejudicial impact

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 411, 423, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1421

Trial courts have considered whether field sobriety tests 1 are relevant.2 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. 3 The judge decided that, 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.4 Thus, the court concluded that the tests are inadmissible for any purpose, with the possible
exception of something like walking a line.5 Another trial court ruled that all the standard field sobriety tests,
including the horizontal gaze nystagmus test (HGN), are admissible as part of drug recognition (DRE)
evidence.6 There need not be compliance with the Frye7 standards, but if such compliance were required, field
sobriety tests would be admissible because they are generally accepted. 8

All of these issues were addressed by the Fourth District Court of Appeal in State v. Meador9 and the Third
District Court of Appeal in Williams v. State.10 In Meador, the court set forth these rules: (1) lay observations of
psychomotor field sobriety tests (i.e. finger-to-nose, walk-and-turn, one-leg stand, and other physical tests) are
relevant under § 90.401, Fla. Stat., to prove impairment; (2) the probative value of such testimony is not
outweighed by the danger of unfair prejudice, confusion, or tendency to mislead, if the test results are not
characterized in a manner which unduly emphasizes the significance of the test results; 11 (3) witnesses should
avoid the use of any terms like “ ‘test,’ ‘pass,’ ‘fail,’ or ‘points’ which would elevate the significance of these
tests above the lay observations of intoxication;” 12 (4) lay observations of horizontal gaze nystagmus (HGN)
tests are relevant;13 (5) the probative value of lay observations of HGN test results, “is outweighed by the danger
of unfair prejudice, confusion of issues, and misleading the jury unless the traditional predicates of scientific
evidence are satisfied,”14 which means proof of reliability, the qualifications of the operators, and the meaning
of the results;15 and (6) because HGN testing is not new, and is generally accepted in the relevant scientific

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community, Frye16 is inapplicable.17

In Williams,18 the court agreed with the conclusions in Meador19 in three ways. First, the court agreed that lay
observations of psychomotor field sobriety tests are admissible. 20 In addition, the court concluded that a lay
person could testify as to blood pressure, pulse rate, temperature, pupil changes, and the conditions of a
person’s nose or mouth.21

The second point of agreement between Williams and Meador is as to the application of Frye to HGN tests.
Both courts concluded that HGN “does not encompass new, novel or emerging scientific techniques.” 22
Accordingly, both courts hold that the use of HGN to establish the presence of alcohol is generally accepted in
the relevant scientific community23 and satisfies Frye.

The third area of agreement is unclear; however, it may be as to the required foundation for the introduction of
HGN test results. Meador is very specific in concluding that the traditional scientific predicate must be
established.24 Williams is less clear. The court said, “HGN test results … are admissible into evidence once a
proper foundation has been laid that the test was correctly administered by a qualified DRE.” 25 Given the court’s
lengthy discussion of scientific evidence and its recognition that HGN tests are at least “ ‘quasi-scientific’
evidence,”26 it may be argued that the court intended that the traditional scientific predicate be established as a
foundation. Williams clearly permits, however, “a qualified DRE”27 to give the necessary testimony for HGN
test results to be admitted into evidence. Subsequently, in Bowen v. State,28 the court expanded the principle, and
ruled that HGN test results are admissible in evidence when the evidence establishes that a properly trained and
qualified officer correctly administered the test. That officer need not be a drug recognition expert (DRE).

In Bowen,29 the court gave an example of the training and experience that might be sufficient. The court found
that a trooper, who received training on HGN testing during his 40-hour basic DUI training and had
administered the HGN test about 1000 times, was qualified. 30 In Peters v. State,31 the court gave an example of
the training and experience that might be insufficient. In Peters, a three-judge circuit court appellate panel ruled
based on Melvin v. State32 that an officer, who had completed the NHTSA course on HGN and administered 100
or more such tests, might have sufficient training and experience to administer the test, but that officer did not
have the necessary scientific expertise to establish the foundation for the introduction of such evidence. On the
other hand, in Reyes v. State,33 a three-judge circuit court appellate panel ruled based on Bowen34 that the trial
court did not abuse its discretion in allowing an officer to testify as to the HGN procedure, where the officer had
made 100 DUI stops and had hands-on training with impaired people in a DUI training course, but gave no
testimony as to the number of times he had performed the HGN procedure.

While the focus in Bowen on the qualifications of the witness is clear, one statement in that opinion is somewhat
confusing. The court wrote: “While the defendant expresses concerns about the reliability of the HGN test at
roadside, the case law in this district addresses that problem by holding that there must be a confirmatory blood,
breath, or urine test before the HGN evidence is admissible.” 35 Based on that language, one circuit court
appellate panel ruled: “There must be a confirmatory blood, breath or urine test before HGN is admissible.” 36
On the other hand, a circuit court appellate panel and several trial judges rejected the conclusion that Bowen
requires a blanket exclusion of HGN evidence without a confirmatory test. 37 Instead, based on Williams,38 those
judges found that HGN standing alone may not be used to establish a breath alcohol level. Further consideration
of this problem is found in § 7:3.

Clearly, HGN test results as to impairment cannot come into evidence through a lay person. The witness must
either be a drug recognition expert or have similar special training and qualifications, but in one case, 39 the court
considered whether an additional part of the foundation is that the officer performing the procedure
administered not just a DUI evaluation, but also a Drug Influence Evaluation (DIE). 40 The court rejected the
defendant’s argument because there is no authority imposing such a requirement 41 and the DIE is only
administered where the defendant has a low alcohol reading and the officer suspects that the impairment is
caused by drugs.42

Meador and Williams are the pivotal decisions in Florida on field sobriety tests. They are very detailed

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opinions, and should be carefully read in order to effectively consider matters of relevance and prejudice
involving field sobriety tests. Additional material on HGN is included in § 7:3.

However, none of the foregoing decisions address the fundamental question whether the tests are admissible
when the evidence establishes that the defendant did not understand the instructions. A trial judge dealt with this
issue.43 The court ruled that where the evidence supported the conclusion that due to a language barrier, which
was exacerbated by officers’ efforts to deal with it, the results of the field sobriety exercises were inadmissible
pursuant to § 90.403, Fla. Stat.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Throughout the text the word “tests” is used, but lay persons should not be permitted to use that word to
describe field sobriety exercises. See, Meador, 674 So. 2d 826, 832–833, 836 (Fla. 4th DCA 1996),
review denied, 686 So. 2d 580 (Fla. 1996). See also U.S. v. Horn, 185 F. Supp. 2d 530, 559, 58 Fed.
R. Evid. Serv. 357 (D. Md. 2002). Additionally, one court ruled that a police officer who testifies on
field sobriety tests, testifies as a lay witness, and cannot be cross-examined as an expert, using the
“Florida Standardized Field Sobriety Testing Screening Procedures Manual,” as an authoritative source.
Gladding v. State, 10 Fla. L. Weekly Supp. 985 (Fla. 15th Cir. Ct. Oct. 10, 2003)Gladding v. State, 10
Fla. L. Weekly Supp. 985 (Fla. 15th Cir. Ct. Oct. 10, 2003). See also State v. Arment, 25 Fla. L. Weekly
Supp. 666 (Fla. Brevard Cty. Ct. Sept. 19, 2017)25 Fla. L. Weekly Supp. 666 (Fla. Brevard Cty. Ct.
Sept. 19, 2017) (where officers will testify as to their training and experience and as lay witnesses as to
observations of FSES, avoiding use of terms prohibited by Meador, defense cannot cross-examine using
the Field Sobriety Testing Manual and is not entitled to the manual in discovery; additionally, the
manual is hearsay).
2
See e.g. State v. Dobrin, 2 Fla. L. Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993) State v. Dobrin, 2
Fla. L. Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993).
3
State v. Dobrin, 2 Fla. L. Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993)State v. Dobrin, 2 Fla. L.
Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993).
4
State v. Dobrin, 2 Fla. L. Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993)State v. Dobrin, 2 Fla. L.
Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993).
5
State v. Dobrin, 2 Fla. L. Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993)State v. Dobrin, 2 Fla. L.
Weekly Supp. 38 (Fla. Clay Cty. Ct. Nov. 1, 1993).
6
State v. Beam, 2 Fla. L. Weekly Supp. 444 (Fla. Dade Cty. Ct. Aug. 22, 1994)State v. Beam, 2 Fla. L.
Weekly Supp. 444 (Fla. Dade Cty. Ct. Aug. 22, 1994).
7
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923). The status of Frye is discussed in detail
in § 8.1§ 8.1.
8
See State v. Beam, 2 Fla. L. Weekly Supp. 444 (Fla. Dade Cty. Ct. Aug. 22, 1994) State v. Beam, 2 Fla.
L. Weekly Supp. 444 (Fla. Dade Cty. Ct. Aug. 22, 1994).
9
State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla. 1996).
See also State v. Overton, 8 Fla. L. Weekly Supp. 312 (Fla. Polk Cty. Ct. Jan. 24, 2001)State v. Overton,
8 Fla. L. Weekly Supp. 312 (Fla. Polk Cty. Ct. Jan. 24, 2001) (the court reiterates the Meador and
Williams standards, but the opinion is interesting because it deals extensively with a motion in limine to
exclude standardized field sobriety tests based on the claim that they are irrelevant, and the significance
of the evidence presented by both sides on this claim. The court found that the tests were relevant).
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10
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
11
State v. Meador, 674 So. 2d 826, 828, 832–833, 836 (Fla. 4th DCA 1996), review denied, 686 So. 2d
580 (Fla.1996). See also State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28,
2013)State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013); State v.
Magill, 16 Fla. L. Weekly Supp. 194 (Fla. Palm Beach Cty. Ct. Nov. 20, 2008)State v. Magill, 16 Fla. L.
Weekly Supp. 194 (Fla. Palm Beach Cty. Ct. Nov. 20, 2008) (since in Meador, the court precluded
testimony that sobriety exercises are scientific and allowed lay testimony as to observations, expert
testimony is inadmissible under § 90.702, Fla. Stat. because it will not assist the jury).
12
State v. Meador, 674 So. 2d 826, 836 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla.
1996). It should be noted that after Meador, the court made it clear that the prohibition against a witness
referring to the field sobriety exercises as “tests,” only applies to lay persons. An officer with sufficient
training can refer to the exercises as “tests.” The officer in this case had such training. Chambers v.
State, 708 So. 2d 664 (Fla. 4th DCA 1998). See also State v. Moreno, 25 Fla. L. Weekly Supp. 582 (Fla.
11th Cir. Ct. August 25, 2017)State v. Moreno, 25 Fla. L. Weekly Supp. 582 (Fla. 11th Cir. Ct. August
25, 2017) (the prosecution and officer improperly referred to FSES with the terms “ ‘test, indicators and
not to standard,’” but there was no error in not declaring a mistrial because the defense attorney did the
same thing and such errors are probably of little significance because of unchangeable public perception
that the exercises have scientific significance); Villalon v. State, 16 Fla. L. Weekly Supp. 498 (Fla. 11th
Cir. Ct. April 17, 2009)Villalon v. State, 16 Fla. L. Weekly Supp. 498 (Fla. 11th Cir. Ct. April 17, 2009)
(Three-judge panel reversed because of violation of pretrial order; officer referred to FSES as “tests”
three times and prosecutor did it once; judge instructed jury no tests were given and/or to disregard the
statements, but instructions “did not decrease the aura of scientific validity that the jury may have
associated with these ‘tests.’” Further, on redirect, prosecutor used the term, “cue” and objection was
sustained, but no instruction was given. This was not harmless error because there was no breath test or
admissible refusal evidence; only officer’s testimony on impairment and officer did not see van moving
and it was not running; air conditioner in van was off, which could have explained defendant’s flush
condition; performance on FSES could have been affected by nervousness or stress; odor of alcohol
does not necessarily show impairment; officer had defendant do only two of four possible FSES and
arrested defendant only seven minutes after making contact); Mercado v. State, 15 Fla. L. Weekly Supp.
125 (Fla. 11th Cir. Ct. Dec. 12 2007)Mercado v. State, 15 Fla. L. Weekly Supp. 125 (Fla. 11th Cir. Ct.
Dec. 12 2007) (officer testified that in the past he had chosen not to arrest people if “‘they performed the
exercise up to standard;’” defense objected; court had granted two motions in limine excluding such
testimony and sustained objections in opening; trial judge overruled objection; three judge panel found
abuse of discretion and reversed based solely on the facts in the case, including the trial judge’s prior
rulings and the officer’s testimony suggesting that the exercises were scientific; court rejected
suggestion that error was harmless); Cardenas v. State, 14 Fla. L. Weekly Supp. 817 (Fla. 11th Cir. Ct.
July 2, 2007)Cardenas v. State, 14 Fla. L. Weekly Supp. 817 (Fla. 11th Cir. Ct. July 2, 2007)
(“Testimonial references to indicators, cues, and the number of total indicators infers a numerical score,
such as one rendered by a statistical or scientific test, which the Meador case held unfairly prejudicial.”
State correctly conceded error where witness gave “testimony quantifying the results of the psychomotor
portion of the field sobriety tests,” but three judge panel concluded based on a through analysis that
there was harmless error; this opinion is very useful for harmful error analysis); Reyes v. State, 10 Fla.
L. Weekly Supp. 291 (Fla. 11th Cir. Ct. March 25, 2003)Reyes v. State, 10 Fla. L. Weekly Supp. 291
(Fla. 11th Cir. Ct. March 25, 2003) (three-judge appellate panel rejected the argument that reference to
field sobriety exercises as “tests,” was fundamental error); State v. Feinstein, 21 Fla. L. Weekly Supp.
587 (Fla. Broward Cty. Ct. Dec. 9, 2013)State v. Feinstein, 21 Fla. L. Weekly Supp. 587 (Fla. Broward
Cty. Ct. Dec. 9, 2013) (judge would not allow expert testimony on the field sobriety exercises, but
would allow testimony as to officer’s training and experience as to FSEs because it went to officer’s
credibility and to weight as to what the officer saw, heard, and experienced rather than admissibility);
State v. Dickenson, 21 Fla. L. Weekly Supp. 365 (Fla. Broward Cty. Ct. Nov. 7, 2013)State v.
Dickenson, 21 Fla. L. Weekly Supp. 365 (Fla. Broward Cty. Ct. Nov. 7, 2013) (expert testimony as to
the proper administration of FSEs is not admissible because FSEs are not scientific and such testimony
will not assist the trier of fact; such matters are within the common knowledge and life experiences of
jurors); State v. Clark, 21 Fla. L. Weekly Supp. 364 (Fla. Broward Cty. Ct. Dec. 27, 2013)State v. Clark,
21 Fla. L. Weekly Supp. 364 (Fla. Broward Cty. Ct. Dec. 27, 2013) (“officers may testify as to the
training and experience they have in executing the SFSTs and how they are to be executed;” pursuant to
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Meador they can give lay opinion testimony as to FSEs); State v. Singh, 21 Fla. L. Weekly Supp. 363
(Fla. Broward Cty. Ct. Nov. 12, 2013)State v. Singh, 21 Fla. L. Weekly Supp. 363 (Fla. Broward Cty.
Ct. Nov. 12, 2013) (adoption of Daubert standards does not change Meador ruling as to FSEs because
the court held they are not scientific and standards as to expert testimony do not apply); State v.
Fernandes, 21 Fla. L. Weekly Supp. 192 (Fla. Broward Cty. Ct. Oct. 7, 2013)State v. Fernandes, 21 Fla.
L. Weekly Supp. 192 (Fla. Broward Cty. Ct. Oct. 7, 2013) (Legislature’s adoption of Daubert standards
does not change the ruling in Meador as to the admissibility and treatment of FSEs because, with the
exception of HGN, the Meador court did not do a Frye analysis of FSEs; Meador ruled that FSEs were
not scientific); State v. Fernandes, 21 Fla. L. Weekly Supp. 191 (Fla. Broward Cty. Ct. Oct. 7,
2013)State v. Fernandes, 21 Fla. L. Weekly Supp. 191 (Fla. Broward Cty. Ct. Oct. 7, 2013) (trial judge
excluded expert testimony as to FSEs on video because FSEs are not scientific and jurors can watch
video without help from an expert); State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct.
August 28, 2013)State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013)
(Speaking of FSEs other than HGN the court said, “So long as the officer does not attempt to correlate
the performance on the FSE’s with a quantifiable alcohol level, and terms such as ‘pass’ or ‘fail’ are not
used, it is admissible as lay observation.”); State v. Moore, 11 Fla. L. Weekly Supp. 58 (Fla. Broward
Cty. Ct. Sept. 17, 2003)State v. Moore, 11 Fla. L. Weekly Supp. 58 (Fla. Broward Cty. Ct. Sept. 17,
2003) (court held that trooper could only testify as to what he saw the defendant do in performing the
exercises, but he could not testify as to the defendant’s overall performance); State v. Anidjar, 10 Fla. L.
Weekly Supp. 436 (Fla. Dade Cty. Ct. March 6, 2003)State v. Anidjar, 10 Fla. L. Weekly Supp. 436
(Fla. Dade Cty. Ct. March 6, 2003) (in addition to precluding the prosecution from using the terms
mentioned in Meador, the court also ordered the prosecution not to refer to the officer “as being
certified.” (emphasis by court)).
13
State v. Meador, 674 So. 2d 826, 834, 836 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla.
1996). See also Castillo v. State, 955 So. 2d 1252 (Fla. 1st DCA 2007) (in reversing denial of motion
for postconviction relief pursuant to Fla. R. Crim. P. 3.850 without an evidentiary hearing, the court
relied on the holding in Meador); State v. Jurney, 9 Fla. L. Weekly Supp. 54 (Fla. Sarasota Cty. Ct. Nov.
26, 2001)State v. Jurney, 9 Fla. L. Weekly Supp. 54 (Fla. Sarasota Cty. Ct. Nov. 26, 2001) (Officer not
certified in FSTs or having updated his training, could testify as to observations of defendant performing
FSTs even though they were not performed according to National Highway and Transportation Safety
Administration guidelines. In fact, the court said: “one would be safe to draw the conclusion that in this
state there are no field sobriety tests or exercises that are deemed to be ‘standardized’ in an authoritative
sense.”); Godwin v. State, 9 Fla. L. Weekly Supp. 725 (Fla. 4th Cir. Ct. March 6, 2002)Godwin v. State,
9 Fla. L. Weekly Supp. 725 (Fla. 4th Cir. Ct. March 6, 2002) (Officer’s testimony as to defendant’s
performance on field sobriety exercises was relevant and not inadmissible based on § 90.403, even
though there may have been a medical reason for the defendant’s problems. Claim went to the weight of
the evidence).
14
State v. Meador, 674 So. 2d 826, 828, 836 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla.
1996). See also Robinson v. State, 982 So. 2d 1260, 1261 (Fla. 1st DCA 2008) (court specifically
acknowledged that it has adopted the view expressed in Meador on the requirement for proof of the
traditional scientific predicate to introduce HGH test results; court said where State made results a
feature of its case the error was not harmless); Castillo v. State, 955 So. 2d 1252 (Fla. 1st DCA 2007)
(in reversing denial of motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850 without an
evidentiary hearing, the court concluded that the motion was sufficient to require an evidentiary hearing
where it alleged that counsel was ineffective because of failure to object to a nurse testifying that the
defendant exhibited HGN, and there was nothing in the record indicating that the nurse was an expert);
Melvin v. State, 677 So. 2d 1317, 1319 (Fla. 4th DCA 1996).
15
State v. Meador, 674 So. 2d 826, 835 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla.
1996).
16
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923). The status of Frye is discussed in detail
in § 8.1§ 8.1.
17
State v. Meador, 674 So. 2d 826, 835 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580
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(Fla.1996). See also Cloyd v. State, 943 So. 2d 149, 165 (Fla. 3d DCA 2006), review denied, 959 So. 2d
715 (Fla. 2007); Hughes v. State, 943 So. 2d 176, 192 (Fla. 3d DCA 2006), review denied, 959 So. 2d
716 (Fla. 2007).
18
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
19
State v. Meador, 674 So. 2d 826, 835 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580
(Fla.1996).
20
Williams v. State, 710 So. 2d 24, 28-29 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
21
Williams v. State, 710 So. 2d 24, 28 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
22
Williams v. State, 710 So. 2d 24, 30 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998). See also State v. Mellon, 11 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22, 2004)State v.
Mellon, 11 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22, 2004).
23
In one case, the court found that an emergency room doctor, who had used HGN testing many times and
testified that it was reliable and accepted in the medical community, was properly allowed to testify that
the defendant had “ ‘toxic nystagmus’ ”or “jerky movements caused by intoxication” by alcohol.
Jordan v. State, 707 So. 2d 816, 818 (Fla. 5th DCA 1998), decision approved, 720 So. 2d 1077 (Fla.
1998). See also State v. Mellon, 11 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22, 2004)State v.
Mellon, 11 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22, 2004). On the other hand, counsel
may be found ineffective for failure to object to a nurse testifying on HGN when the nurse was not an
expert. Castillo v. State, 955 So. 2d 1252 (Fla. 1st DCA 2007).
24
See also Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009)Engelman v.
State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009) (holding that HGN is admissible as
one piece of evidence going to impairment upon a showing of the traditional scientific predicate).
25
Williams v. State, 710 So. 2d 24, 32 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
26
Williams v. State, 710 So. 2d 24, 32 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
27
Williams v. State, 710 So. 2d 24, 32 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998). See also Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953
(Fla. 9th Cir. Ct. April 19, 2006)Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 953 (Fla. 9th Cir. Ct. April 19, 2006) (Deputy qualified where he was a certified DRE,
attended and completed an 80 hour DRE course and follow-up courses on DUI field sobriety, including
instructions on HGN testing plus gave detailed description of rules and procedure he followed in
administering HGN); State v. Mellon, 11 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22,
2004)State v. Mellon, 11 Fla. L. Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22, 2004) (court held
certified DRE officer was qualified where (1) “he had attended Standardized Field Sobriety Test
Training, DRE Preliminary Training and DRE School;” (2) his classes were “taught by doctors, nurses
and toxicologists;” (3) “he studied vital signs, blood pressure, pulse, body temperature, human
physiology and toxicology;” (4) he “received several hours of training on HGN and participated in
alcohol workshops, compared the eye movements of sober people to impaired people during HGN tests,
passed practical skills examinations, and finally received an HGN certificate;” and (5) he “performed the
HGN test thousands of times before performing the test on the defendant.”).
28
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999). See also Pachamoro v. State, 8 Fla. L. Weekly
Supp. 424 (Fla. 14th Cir. Ct. April 17, 2001)Pachamoro v. State, 8 Fla. L. Weekly Supp. 424 (Fla. 14th

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Cir. Ct. April 17, 2001); State v. Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct. Feb. 25,
2007)State v. Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct. Feb. 25, 2007).
29
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
30
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999). See also Engelman v. State, 16 Fla. L. Weekly
Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009)Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir.
Ct. June 3, 2009) (officer was qualified to testify on HGN where she had been an officer for over six
years, was a hit-and-run investigator, attended the three day standardized FST program and the one day
HGN for prosecutors and law enforcement school; she had been a DUI officer for three years, was a
certified breath test operator, had participated in over 500 DUI investigations and been the main officer
on about 350 and she had performed HGN tests over 400 times but was not a DRE); State v. Brooks, 14
Fla. L. Weekly Supp. 1078 (Fla. 6th Cir. Ct. July 17, 2007) (deputy was qualified to administer HGN
and interpret results where deputy had been in law enforcement for almost eight years, was assigned to
STEP unit, conducted over 500 DUI investigations and HGN tests, had eight to 16 hours on DUI
detection and 24 hours on standardized field sobriety testing, had been an intoxilyzer operator for almost
six years and certified DRE for about two years, was a field sobriety instructor, participated in
symposiums and had 80 hours of schooling on drug recognition and HGN testing, 24 of which were
taught by an optometrist; deputy took an updated field sobriety training course, 8 hours of which were
taught by medical doctors; deputy had passed a seven to eight hour test); State v. Mellon, 11 Fla. L.
Weekly Supp. 438 (Fla. 17th Cir. Ct. March 22, 2004)State v. Mellon, 11 Fla. L. Weekly Supp. 438
(Fla. 17th Cir. Ct. March 22, 2004) (officer had necessary training, experience, and scientific expertise
to satisfy Melvin standard where (1) the officer attended Standardized Field Sobriety Test Training,
DRE Preliminary Training and DRE School, and classes taught by doctors, nurses, and toxicologists; (2)
the officer studied vital signs, blood pressure, pulse, body temperature, human physiology, and
toxicology; (3) as to HGN training, the officer received several hours of training, participated in alcohol
workshops, compared the eye movements of sober people to impaired people during the HGN test; (4)
the officer passed practical skills examinations and received an HGN certificate; and (5) the officer
performed the HGN test thousand of times before performing the test on the defendant).
31
Peters v. State, 7 Fla. L. Weekly Supp. 507 (Fla. 15th Cir. Ct. March 29, 2000) Peters v. State, 7 Fla. L.
Weekly Supp. 507 (Fla. 15th Cir. Ct. March 29, 2000). See also Rogers v. Dep’t of Highway Safety &
Motor Vehicles, 7 Fla. L. Weekly Supp. 9 (Fla. 9th Cir. Ct. Sept. 30, 1999)Rogers v. Dep’t of Highway
Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 9 (Fla. 9th Cir. Ct. Sept. 30, 1999) (evidence
insufficient to establish that the officer had the necessary scientific evidence where the officer was not a
qualified drug recognition expert).
32
Melvin v. State, 677 So. 2d 1317 (Fla. 4th DCA 1996).
33
Reyes v. State, 10 Fla. L. Weekly Supp. 291 (Fla. 11th Cir. Ct. March 25, 2003)Reyes v. State, 10 Fla.
L. Weekly Supp. 291 (Fla. 11th Cir. Ct. March 25, 2003).
34
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
35
Bowen v. State, 745 So. 2d 1108, 1109 (Fla. 3d DCA 1999).
36
Cropper v. State, 7 Fla. L. Weekly Supp. 323 (Fla. 11th Cir. Ct. Feb. 29, 2000)Cropper v. State, 7 Fla. L.
Weekly Supp. 323 (Fla. 11th Cir. Ct. Feb. 29, 2000). Contra State v. Roman, 11 Fla. L. Weekly Supp.
1077 (Fla. Dade Cty. Ct. Sept. 28, 2004) (declined to follow Cropper because the court relied on
language from Bowen that was dicta).
37
Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009)Engelman v. State, 16
Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009); State v. Cousineau, 14 Fla. L. Weekly Supp.
469 (Fla. Brevard Cty. Ct. Feb. 25, 2007)State v. Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla. Brevard
Cty. Ct. Feb. 25, 2007); State v. Roman, 11 Fla. L. Weekly Supp. 1077 (Fla. Dade Cty. Ct. Sept. 28,
2004); State v. Allen, 7 Fla. L. Weekly Supp. 626 (Fla. Monroe Cty. Ct. June 27, 2000)State v. Allen, 7
Fla. L. Weekly Supp. 626 (Fla. Monroe Cty. Ct. June 27, 2000); State v. Clements, 9 Fla. L. Weekly
Supp. 282 (Fla. Manatee Cty. Ct. March 22, 2002)State v. Clements, 9 Fla. L. Weekly Supp. 282 (Fla.

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§ 7:1.Probative value and prejudicial impact, 11 Fla. Prac., DUI Handbook § 7:1...

Manatee Cty. Ct. March 22, 2002); State v. Morales, 9 Fla. L. Weekly Supp. 57 (Fla. Dade Cty. Ct. Oct.
24, 2001)State v. Morales, 9 Fla. L. Weekly Supp. 57 (Fla. Dade Cty. Ct. Oct. 24, 2001) ; State v.
Suarez, 8 Fla. L. Weekly Supp. 790 (Fla. Dade Cty. Ct. Aug. 5, 2001)State v. Suarez, 8 Fla. L. Weekly
Supp. 790 (Fla. Dade Cty. Ct. Aug. 5, 2001).
38
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
39
Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953 (Fla. 9th Cir. Ct.
April 19, 2006)Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953
(Fla. 9th Cir. Ct. April 19, 2006).
40
This procedure is explained in more detail in §§ 9:1 et seq.
41
Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953 (Fla. 9th Cir. Ct.
April 19, 2006)Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953
(Fla. 9th Cir. Ct. April 19, 2006).
42
Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953 (Fla. 9th Cir. Ct.
April 19, 2006)Walker v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953
(Fla. 9th Cir. Ct. April 19, 2006) (citing Williams v. State, 710 So. 2d 24, 37 (Fla. 3d DCA 1998)).
43
State v. Hernandez, 9 Fla. L. Weekly Supp. 632 (Fla. Monroe Cty. Ct. June 9, 2000) State v. Hernandez,
9 Fla. L. Weekly Supp. 632 (Fla. Monroe Cty. Ct. June 9, 2000).

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Works.

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 7:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 7. Field Sobriety Tests

§ 7:2. Constitutional considerations in dealing with field sobriety tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 414, 417, 422.1

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

Unlike blood tests, there are no statutory provisions regulating the administration of field sobriety exercises and
extending greater protection than provided by the state and federal constitutions. 1 Thus, it is necessary to look
solely to constitutional principles to identify any restrictions on the administration of field sobriety exercises.
The Fifth Amendment protection from compelled self-incrimination 2 and the Fourth Amendment restrictions on
unlawful interference with privacy interests3 are the source of the applicable principles.

The Fifth Amendment privilege against self-incrimination does not apply to most field sobriety exercises. In
Schmerber v. California,4 a DUI case, the Court observed that it is widely accepted that the Fifth Amendment
privilege against self-incrimination,
offers no protection against compulsion to submit to fingerprinting, photographing, or
measurements, to write or speak for identification, to appear in court, to stand, to assume a stance,
to walk, or to make a particular gesture. The distinction which has emerged, often expressed in
different ways, is that the privilege is a bar against compelling “communications” or “testimony,”
but that compulsion which makes a suspect or accused the source of “real or physical evidence”
does not violate it.5

Most field sobriety exercises fall into the category of physical evidence recognized in Schmerber.6 Usually,
officers are gathering physical evidence. These exercises provide officers the opportunity to observe how a
suspect speaks and moves without concern for what the suspect says. 7 Thus, there is no Fifth Amendment bar to
requiring the suspect to submit to such tests.8

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

Fourth Amendment protections are a different matter. They clearly apply to nonconsensual generation of
physical evidence.9 Such evidence can generally be secured through a court order or warrant, 10 by consent, or by
the application of some other exception to the warrant requirement.

Schmerber v. California11 recognized a fairly case specific exception to the warrant requirement. The Court
concluded that officers properly required a non-consensual blood sample from the defendant because they had
probable cause for a DUI arrest and reasonably believed that the evidence would be lost if the sample was not
quickly withdrawn.12

However, as explained in detail in Section 5:1 of this book, the recent decision in Missouri v. McNeely13 makes
it clear that Schmerber14 did not establish a per se rule and every delay in securing blood alcohol evidence is not
the same. Instead, to avoid a warrant, the court must consider the totality of the circumstances not just the loss
of evidence as to the defendant’s condition.15

Since McNeely16 the courts have made other extremely important decisions concerning both blood and breath.
They have been discussed extensively in preceding sections, but a summary here might be helpful. In State v.
Liles,17 the court applied McNeely18 to Florida Statutes, section 316.1933(1)(a), the part of Florida’s implied
consent law allowing warrantless nonconsensual extraction of blood where there is DUI involving an accident
resulting in death or serious bodily injury. The court ruled that McNeely19 requires exigent circumstances in such
cases.20

Breath samples have come up in two important cases. In Birchfield v. North Dakota,21 the United States
Supreme Court ruled that a breath sample is protected by the Fourth Amendment, but given the minimal
intrusion and the great societal stakes, a warrantless breath test can be required incidental to a lawful arrest. But
the Court also found that blood extraction is a greater intrusion and requires a warrant in the absence of consent
or exigent circumstances.22

None of these authorities nor any other Florida appellate or federal cases have been applied to field sobriety
exercises,23 but there has been extensive development of the law on this subject at every level of Florida’s courts
system. It may change or it may be clarified.

Initially there was support for the proposition that Schmerber24 permitted field sobriety exercises based on
probable cause. About 45 years ago, in State v. Liefert,25 the court ruled that if an officer had sufficient cause to
believe the defendant committed a crime in the operation of a motor vehicle, the officer could require the
defendant to submit to field sobriety tests. Other courts ruled that if the officer had probable cause to believe the
driver was guilty of DUI, the officer could require the driver to perform field sobriety tests. 26 These decisions
were based on the fact that field sobriety tests generate physical evidence, and just as observed in Schmerber,27
delay to secure a warrant would result in loss of the evidence. 28 If the courts conclude that delay alone is not
sufficient, they might require a warrant for field sobriety exercises or they might conclude that the exercises fall
into the category of breath tests and, on balance, it would be reasonable to administer them incidental to a
lawful arrest.29 The probable cause standard would be critical because that is what is required for an arrest.

Some courts have ruled on the sufficiency of the facts to establish probable cause. In Liefert,30 the court found
that weaving and an odor of alcohol were sufficient. In State v. Kliphouse,31 the court ruled that driving with an
odor of alcohol alone is insufficient. A circuit court concluded that failing to dim headlights and driving across
the center line did, standing alone, establish probable cause for requiring field sobriety tests. 32

There has been substantial authority applying the principles in Schmerber33 to field sobriety tests. In fact,
Florida Supreme Court Justice Kogan specifically concluded that roadside sobriety tests should only be
conducted based upon probable cause.34 However, the rest of the Court disagreed in State v. Taylor.35 There the
Court held that as part of an investigative stop based on reasonable suspicion, it is reasonable for an officer to
request that the suspect perform field sobriety tests. 36 Based on Taylor,37 district courts have ruled that the
standard for requesting field sobriety testing is “reasonable suspicion.” 38 Many circuit and county courts have
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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

reached the same conclusion.39

Clearly, Taylor40 was an extremely important decision, but it may be of even greater importance in light of the
development of Fourth Amendment law. If field sobriety exercises are within the scope of an investigative stop
based on reasonable suspicion, a warrant is not required.41 And that is currently the law in the State of Florida.

In Taylor,42 the Court ruled that the officer had more than enough facts to establish a 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. 43 A
trial court ruled, however, that just the odor of alcohol was insufficient to establish a reasonable suspicion. 44

The foregoing authorities suggest that if the officer has reasonable suspicion the officer may require the
defendant to submit to the field sobriety exercises. 45 There have been many circuit and county court opinions on
this subject and they essentially take three positions. First, if the officer has reasonable suspicion for a DUI, the
defendant can be required to submit to the field sobriety exercises. 46 Second, even if the officer has reasonable
suspicion, the defendant cannot be required to submit to the exercises, and the results are admissible only if
there was voluntary consent.47 Third, one court presents a well thought out analysis holding that there are three
levels of authority depending on the circumstances. 48 Those three levels of authority are: (a) no reasonable
suspicion - officer can’t even request performance of the exercises; (b) reasonable suspicion of DUI—officer
can request performance, but the State must prove voluntary consent; and (c) probable cause for DUI—officer
may require performance of the exercises.49

The law on compelled field sobriety tests became a little more difficult to reconcile by virtue of the decision in
Morris v. State.50 In Morris,51 there was clear evidence of impairment. The defendant refused to submit to field
sobriety exercises or a breath test, but the issue on appeal was whether the prosecutor improperly argued in
closing that an innocent person would have demanded the breath test. The court held that this argument violated
the defendant’s Fifth Amendment rights and improperly shifted the burden. 52 In reaching that decision, the court
said:

[W]hen a law enforcement officer has probable cause to believe that an accused has committed a
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.53 (emphasis added)

This language in Morris54 appears to agree with Justice Kogan’s dissent in State v. Taylor.55 However, the intent
of the court is unclear. Is it to require probable cause before an officer can ask that the defendant submit to field
sobriety exercises? Or, is the court simply saying that if there is probable cause, an officer may require that the
suspect take the field sobriety exercises, and leaving for another day the issue of whether the lower standard of
reasonable suspicion permits an officer to require that the individual do the exercises? This question is
problematic for two reasons. First there was probable cause in the Morris56 case, so that the court did not have to
deal with reasonable suspicion. Second, the case involved a demand that the defendant submit to a breath test as
well as field sobriety exercises, and the breath test clearly requires probable cause not just reasonable suspicion
under both the constitution and relevant statutes.

In such cases, officers usually require the defendant to submit to field sobriety tests at the scene of the stop.
Occasionally, however, the officer moves the defendant to a different location before administering the tests.
That raises the question of whether this additional restraint constitutes an arrest requiring probable cause instead
of reasonable suspicion. In State v. Tharp,57 the trial judge ruled that moving the defendant to a different
location for safety reasons did not constitute an arrest.

As previously indicated, this discussion relates to the right of privacy to the extent that it is protected by the
Fourth Amendment to the United States Constitution and Art. I, § 12, Fla. Const. There is, however, a related

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

argument that is somewhat unique. It is that the right of privacy guaranteed by Art. I, § 23, Fla. Const.58 applies
to field sobriety testing. One trial court accepted this argument.59

Normally, in criminal cases, privacy issues are discussed in the context of the Fourth Amendment, United States
Constitution, and Art. I, § 12, Fla. Const. It is clear, however, that Art. I, § 23, Fla. Const. also applies in
criminal cases.60 Indeed, it has been applied to pen registers, 61 and to hospital records in DUI cases. 62 Once the
defendant shows that the government intruded into a protected area, the State must show a compelling state
interest for the evidence gathering procedure.63

It is unlikely that the privacy amendment will become an issue in many cases dealing with field sobriety
exercises. Nevertheless, the argument has been made and it is wise to be familiar with it.

There can be no doubt that these privacy concerns evaporate if the defendant freely and voluntarily consents to
follow the officer’s instructions. If, however, the officer incorrectly advises the suspect of the consequences of
failing to take the tests, the defendant’s cooperation may not be free and voluntary. 64 Thus, field sobriety test
results secured at the police station were admissible because the defendant consented where: (1) the officer
made it clear to the defendant that refusal to submit to the tests was not “safe harbor”; (2) the defendant was
made reasonably aware of the nature of the tests by performing them earlier at the roadside; and (3) the officer
implicitly indicated that the tests were compulsory by warning that refusal could be used against the defendant. 65

An officer has no duty to tell a suspect that field sobriety tests are voluntary, 66 that the individual has a right to
refuse,67 the consequences of a refusal,68 or the consequences of failure.69 However, the officer cannot misstate
the law or misinform the individual about his or her rights. 70 Thus, the results of field sobriety exercises were
inadmissible where the officer told the defendant that his only option was to arrest him if he did not submit, and
he could be “unarrested” if his performance on the tests was satisfactory. 71 Similarly, the results of the sobriety
tests were inadmissible where the officer told the defendant that his license would be suspended if he refused to
do the exercises.72 So too, the officer’s representations that if the defendant passed the field sobriety tests and
the breath tests, the DUI would “no longer exist,” and he could be immediately released upon posting bail for a
license charge, were misleading and required exclusion of the test results. 73 Under such circumstances, the
sobriety exercises cannot even be considered for purposes of probable cause. 74 However, where the officer told
the defendant he wasn’t going to force the defendant to perform any tests, incorrectly advising defendant that by
accepting her driver’s license she consented to any sobriety test “requested by law,” rather than “required by
law,” was insignificant and didn’t justify exclusion of the field sobriety tests. 75 Where the officer asked the
driver to submit to field sobriety exercises, compliance was not coerced merely because the officer informally
discussed the implied consent law without being threatening in behavior or language. 76

The right to counsel and, as suggested earlier in this chapter, the Fifth Amendment privilege against self-
incrimination raise other potential constitutional issues. However, these rights do not apply to field sobriety
exercises. There is no right to consult with counsel “at the sobriety testing stages of a DUI investigation.” 77
Similarly, the privilege against self-incrimination has no impact on the admissibility of field sobriety test
results.

Such tests are not testimonial. As previously noted, they produce evidence of physical characteristics, which
constitutes physical evidence.78 Accordingly, neither the privilege against self-incrimination 79 nor the
Confrontation Clause bar80 the introduction of field sobriety tests results. In fact, this privilege does not even bar
the court from compelling the defendant to perform the tests in the courtroom. 81 It should be noted, however,
that some court decisions have found that certain types of field sobriety tests do elicit testimonial evidence and,
therefore, implicate the privilege against self-incrimination and Miranda issues.82

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Footnotes

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995) (recognizing that State statute provides greater
protection from blood extraction to citizens than the U.S. Constitution).
2
U.S. Const. Amend. V; Art. 1, § 9, Fla. Const.
3
U.S. Const. Amend. IV; Art. 1, § 12, Fla. Const.
4
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
5
Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966). See also
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
6
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). See also Morris v.
State, 988 So. 2d 120 (Fla. 5th DCA 2008).
7
Under some circumstances, certain field sobriety tests are considered testimonial. Section 12:4 of this
book covers the law on that subject.
8
Macias v. State, 515 So. 2d 206 (Fla. 1987). See also State v. McKinnon, 15 Fla. L. Weekly Supp. 520
(Fla. Brevard Cty. Ct. Feb. 17, 2008)State v. McKinnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard Cty.
Ct. Feb. 17, 2008).
9
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
10
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
11
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
12
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
13
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
14
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
15
Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
16
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
17
State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla. Opinion
Filed August 11, 2016).
18
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
19
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
20
State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), review denied, 2016 WL 4245500 (Fla. Opinion
Filed August 11, 2016). See also Aguilar v. State, 239 So.3d 108 (Fla. 3d DCA 2018), review denied,
2018 WL 4050495 (Fla. Opinion Filed August. 23, 2018); Goodman v. State, 229 So.3d 366 (Fla. 4th
DCA 2017), review denied, 2018 WL 1256499 (Fla. Opinion Filed March 9, 2018).
21
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016); Williams v. State, 210

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

So.3d 774 (Fla. 5th DCA 2017).

22
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016); Williams v. State, 210
So.3d 774 (Fla. 5th DCA 2017).
23
In State v. Ryan, 24 Fla. L. Weekly Supp. 452 (Fla. Manatee Cty. Ct. July 1, 2016)State v. Ryan, 24 Fla.
L. Weekly Supp. 452 (Fla. Manatee Cty. Ct. July 1, 2016), a trial judge concluded that the Fourth
Amendment does not apply at all to compulsory FSES; therefore, McNeely does not apply. And there is
little authority on this elsewhere in the country except for Minnesota where there have been a number of
unpublished opinions holding that McNeely did not overrule that state’s law that only an articulable
suspicion is required for field sobriety tests. See e.g. Frank v. Commissioner of Public Safety, 2016 WL
3961973 (Minn. App. Opinion Filed July 25, 2016).
24
Schmerber v. Califormia, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
25
State v. Liefert, 247 So. 2d 18 (Fla. 2d DCA 1971).
26
Jones v. State, 459 So. 2d 1068, 1080 (Fla. 2d DCA 1984), order approved, 483 So. 2d 433 (Fla.
1986); State v. Guccione, 2 Fla. L. Weekly Supp. 104 (Fla. 18th Cir. Ct. Dec. 17, 1993) State v.
Guccione, 2 Fla. L. Weekly Supp. 104 (Fla. 18th Cir. Ct. Dec. 17, 1993) ; State v. Rogers, 36 Fla. Supp.
2d 85 (Fla. 13th Cir. Ct. 1989).
27
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
28
State v. Rogers, 36 Fla. Supp. 2d 85 (Fla. 13th Cir. Ct. 1989). Cf. Allred v. State, 622 So. 2d 984
(Fla. 1993).
29
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016).
30
State v. Liefert, 247 So. 2d 18 (Fla. 2d DCA 1971).
31
State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000). See also Santiago v. State, 133 So. 3d 1159,
1166 (Fla. 4th DCA 2014); State v. Podwill, 22 Fla. L. Weekly Supp. 197 (Fla. 17th Cir. Ct. August 27,
2014)State v. Podwill, 22 Fla. L. Weekly Supp. 197 (Fla. 17th Cir. Ct. August 27, 2014); State v.
Marshall, 36 Fla. Supp. 2d 34 (Fla. 4th Cir. Ct. 1989); State v. McCommons, 22 Fla. L. Weekly Supp.
1076 (Fla. Volusia Cty. Ct. Feb. 16, 2015); State v. Farinas, 15 Fla. L. Weekly Supp. 1032 (Fla. Dade
Cty. Ct. Aug. 29, 2008); State v. Longacre, 2 Fla. L. Weekly Supp. 571 (Fla. Dade Cty. Ct. Aug. 15,
1994)State v. Longacre, 2 Fla. L. Weekly Supp. 571 (Fla. Dade Cty. Ct. Aug. 15, 1994).
32
Davis v. State, 40 Fla. Supp. 2d 35 (Fla. 15th Cir. Ct. 1989) (discussing the issue of whether the facts
establish probable cause, and ruling that an officer must have reasonable suspicion of DUI to require a
field sobriety test).
33
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
34
State v. Taylor, 648 So. 2d 701 (Fla. 1995) (Kogan, J., dissenting).
35
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
36
State v. Taylor, 648 So. 2d 701, 703-04 (Fla. 1995).
37
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
38
State v. Castaneda, 79 So. 3d 41 (Fla. 4th DCA 2011), review denied, 76 So. 3d 937 (Fla. 2011); State v.
Ameqrane, 39 So. 3d 339 (Fla. 2d DCA 2010), review denied, 67 So. 3d 198 (Fla. 2011); State, Dept. of

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

Highway Safety and Motor Vehicles v. Haskins, 752 So. 2d 625 (Fla. 2d DCA 1999), review denied,
763 So. 2d 1043 (Fla. 2000); State, Dept. of Highway Safety and Motor Vehicles v. Guthrie, 662 So. 2d
404 (Fla. 1st DCA 1995).
39
State v. Ocasio, 23 Fla. L. Weekly Supp. 677 (Fla. 9th Cir. Ct. Oct. 29, 2015)State v. Ocasio, 23 Fla. L.
Weekly Supp. 677 (Fla. 9th Cir. Ct. Oct. 29, 2015); Ballou v. State, 23 Fla. L. Weekly Supp. 217 (Fla.
17th Cir. Ct. no date)Ballou v. State, 23 Fla. L. Weekly Supp. 217 (Fla. 17th Cir. Ct. no date); State v.
Canuet, 22 Fla. L. Weekly Supp. 900 (Fla. 17th Cir. Ct. March 2, 2015)State v. Canuet, 22 Fla. L.
Weekly Supp. 900 (Fla. 17th Cir. Ct. March 2, 2015); State v. Phillips, 22 Fla. L. Weekly Supp. 193
(Fla. 17th Cir. Ct. August 4, 2014)State v. Phillips, 22 Fla. L. Weekly Supp. 193 (Fla. 17th Cir. Ct.
August 4, 2014); Reynolds v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 182
(Fla. 9th Cir. Ct. Sept. 29, 2014)Reynolds v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L.
Weekly Supp. 182 (Fla. 9th Cir. Ct. Sept. 29, 2014); State v. Moresco, 22 Fla. L. Weekly Supp. 180
(Fla. 5th Cir. Ct. Sept. 11, 2014)State v. Moresco, 22 Fla. L. Weekly Supp. 180 (Fla. 5th Cir. Ct. Sept.
11, 2014); Umble-Vita v. State, 20 Fla. L. Weekly Supp. 484 (Fla. 18th Cir. Ct. June 28, 2013)Umble-
Vita v. State, 20 Fla. L. Weekly Supp. 484 (Fla. 18th Cir. Ct. June 28, 2013); Leavitt v. Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 200 (Fla. 4th Cir. Ct. Oct. 4, 2012) Leavitt
v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 200 (Fla. 4th Cir. Ct. Oct. 4,
2012); State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008) State v.
Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008); Carder v. Dep’t of Highway
Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 547 (Fla. 9th Cir. Ct. Sept. 4, 2007)Carder v. Dep’t
of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 547 (Fla. 9th Cir. Ct. Sept. 4, 2007) ;
Fabian v. State, 15 Fla. L. Weekly Supp. 403 (Fla. 4th Cir. Ct. March 13, 2008) Fabian v. State, 15 Fla.
L. Weekly Supp. 403 (Fla. 4th Cir. Ct. March 13, 2008); Roddy v. Dep’t of Highway Safety & Motor
Vehicles, 15 Fla. L. Weekly Supp. 13 (Fla. 9th Cir. Ct. Aug. 3, 2007)Roddy v. Dep’t of Highway Safety
& Motor Vehicles, 15 Fla. L. Weekly Supp. 13 (Fla. 9th Cir. Ct. Aug. 3, 2007) ; Curtin v. Dep’t of
Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1112 (Fla. 20th Cir. Ct. Sept. 27, 2007);
Obidiegwu v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1111 (Fla. 20th Cir.
Ct. Sept. 19, 2007); Carter v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 708
(Fla. 4th Cir. Ct. May 15, 2007)Carter v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly
Supp. 708 (Fla. 4th Cir. Ct. May 15, 2007); Avery v. Dep’t of Highway Safety & Motor Vehicles, 14
Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct. Dec. 7, 2006)Avery v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct. Dec. 7, 2006); State v. Gonzalez, 13 Fla. L.
Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006)State v. Gonzalez, 13 Fla. L. Weekly Supp. 685 (Fla.
11th Cir. Ct. May 1, 2006); State v. Saint Lubin, 11 Fla. L. Weekly Supp. 1050 (Fla. 17th Cir. Ct. Aug.
10, 2004); State v. Rilogio, 24 Fla. L. Weekly Supp. 974 (Fla. Volusia Cty. Ct. Dec. 22, 2016) State v.
Rilogio, 24 Fla. L. Weekly Supp. 974 (Fla. Volusia Cty. Ct. Dec. 22, 2016); State v. Polanski, 24 Fla. L.
Weekly Supp. 769 (Fla. Collier Cty. Ct. May 14, 2009)State v. Polanski, 24 Fla. L. Weekly Supp. 769
(Fla. Collier Cty. Ct. May 14, 2009); State v. Foki, 24 Fla. L. Weekly Supp. 55 (Fla. Volusia Cty. Ct.
April 11, 2016)State v. Foki, 24 Fla. L. Weekly Supp. 55 (Fla. Volusia Cty. Ct. April 11, 2016); State v.
Vilcea, 24 Fla. L. Weekly Supp. 50 (Fla. Leon Cty. Ct. Feb. 26, 2016)State v. Vilcea, 24 Fla. L. Weekly
Supp. 50 (Fla. Leon Cty. Ct. Feb. 26, 2016); State v. Venerable, 23 Fla. L. Weekly Supp. 195 (Fla.
Brevard Cty. Ct. July 10, 2015)State v. Venerable, 23 Fla. L. Weekly Supp. 195 (Fla. Brevard Cty. Ct.
July 10, 2015); State v. Garcia, 19 Fla. L. Weekly Supp. 414 (Fla. Brevard Cty. Ct. Jan. 13, 2012) State
v. Garcia, 19 Fla. L. Weekly Supp. 414 (Fla. Brevard Cty. Ct. Jan. 13, 2012); State v. Medina, 18 Fla. L.
Weekly Supp. 911 (Fla. Duval Cty. Ct. June 27, 2011)State v. Medina, 18 Fla. L. Weekly Supp. 911
(Fla. Duval Cty. Ct. June 27, 2011); State v. Skinner, 18 Fla. L. Weekly Supp. 423 (Fla. Brevard Cty.
Ct. Feb. 16, 2011)State v. Skinner, 18 Fla. L. Weekly Supp. 423 (Fla. Brevard Cty. Ct. Feb. 16, 2011) ;
State v. Devito, 18 Fla. L. Weekly Supp. 309 (Fla. Palm Beach Cty. Ct. Jan. 7, 2011)State v. Devito, 18
Fla. L. Weekly Supp. 309 (Fla. Palm Beach Cty. Ct. Jan. 7, 2011); State v. McCoy, 16 Fla. L. Weekly
Supp. 450 (Fla. Hillsborough Cty Ct. March 13, 2009)State v. McCoy, 16 Fla. L. Weekly Supp. 450
(Fla. Hillsborough Cty Ct. March 13, 2009); State v. Turpin, 16 Fla. L. Weekly Supp. 363 (Fla. Brevard
Cty Ct. Jan. 28, 2009)State v. Turpin, 16 Fla. L. Weekly Supp. 363 (Fla. Brevard Cty Ct. Jan. 28, 2009);
State v. Farinas, 15 Fla. L. Weekly Supp. 1032 (Fla. Dade Cty. Ct. Aug. 29, 2008); State v. Capo, 15
Fla. L. Weekly Supp. 636 (Fla. Brevard Cty. Ct. March 25, 2008)State v. Capo, 15 Fla. L. Weekly Supp.
636 (Fla. Brevard Cty. Ct. March 25, 2008); State v Giancaspro, 15 Fla. L. Weekly Supp. 500 (Fla.
Brevard Cty. Ct. March 7, 2008)State v Giancaspro, 15 Fla. L. Weekly Supp. 500 (Fla. Brevard Cty. Ct.
March 7, 2008); State v. Ameir, 15 Fla. L. Weekly Supp. 190 (Fla. Brevard Cty. Ct. Dec. 10, 2007)State
v. Ameir, 15 Fla. L. Weekly Supp. 190 (Fla. Brevard Cty. Ct. Dec. 10, 2007); State v. Love, 14 Fla. L.
Weekly Supp. 1168 (Fla. Brevard Cty Ct. Oct. 3, 2007).

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40
State v. Taylor, 648 So.2d 701 (Fla. 1995).
41
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
42
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
43
State v. Taylor, 648 So. 2d at 703. See also
District Courts
State v. Castaneda, 79 So. 3d 41 (Fla. 4th DCA 2011), review denied, 76 So. 3d 937 (Fla. 2011) (officer
had reasonable suspicion for DUI investigation where he clocked vehicle doing 60 in a 40 m.p.h. zone,
and after stopping vehicle, officer smelled odor of alcoholic beverage on defendant’s breath and noticed
defendant had bloodshot, watery eyes; trial court erred in finding that there was no reasonable suspicion
because there were no other signs of impairment such as staggering); State v. Ameqrane, 39 So. 3d 339
(Fla. 2d DCA 2010), review denied, 67 So. 3d 198 (Fla. 2011) (contrary to trial court, court found that
requesting HGN was proper where officer saw defendant speeding at 4:00 a.m., smelled alcohol, and
saw that defendant had glassy, bloodshot eyes; and there was reasonable suspicion to ask for further
field sobriety testing based on those facts and the fact that defendant’s eyes were jerky and bouncy);
Origi v. State, 912 So. 2d 69, 72 (Fla. 4th DCA 2005) (observations of defendant traveling at a high rate
of speed, odor of alcohol, and bloodshot eyes provided reasonable suspicion for a DUI investigation).
Circuit Courts
Bachiochi v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 215 (Fla. 6th Cir. Ct.
March 14, 2017)Bachiochi v. Dep’t of Highway Safety & Motor Vehicles, 25 Fla. L. Weekly Supp. 215
(Fla. 6th Cir. Ct. March 14, 2017) (Deputy had reasonable suspicion relating to safety of Petitioner and
public for a detention where he saw Petitioner asleep on the shoulder of the road with the keys in the
ignition; Deputy made contact, asked for identification and observed signs of impairment; Petitioner
admitted drinking alcohol and further facts led to a DUI arrest); State v. Moore, 25 Fla. L. Weekly Supp.
227 (Fla. 17th Cir. Ct. April 28, 2017)State v. Moore, 25 Fla. L. Weekly Supp. 227 (Fla. 17th Cir. Ct.
April 28, 2017) (court reversed order finding stop unlawful; deputy had reasonable suspicion for DUI
when she seized keys after hearing screeching tires; defendant failed to see illuminated lights of two
patrol cars and a tow truck in the roadway; defendant yelled at deputy; had slurred speech, an odor of
alcohol and bloodshot eyes: defendant’s vehicle came within inches of parked patrol car); Smith v.
Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 691 (Fla. 13th Cir. Ct. Oct. 26,
2015)Smith v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 691 (Fla. 13th Cir.
Ct. Oct. 26, 2015) (odor of alcohol coupled with serious single car crash against an electrical pole,
provided more than sufficient reasonable suspicion for a DUI investigation); Ballou v. State, 23 Fla. L.
Weekly Supp. 217 (Fla. 17th Cir. Ct. no date)Ballou v. State, 23 Fla. L. Weekly Supp. 217 (Fla. 17th
Cir. Ct. no date) (officer had reasonable suspicion for DUI investigation where defendant was driving
without headlights, ran a stop sign, failed to stop right away; had dilated pupils, slurred speech,
bloodshot and glassy eyes, and admitted consuming two or three alcoholic beverages); Bober v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12, 2015)Bober
v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 978 (Fla. 6th Cir. Ct. May 12,
2015) (even though deputy did not know where keys were, he had reasonable suspicion to detain
petitioner who was behind the wheel of a parked car; deputy had been told by a citizen informant the
vehicle had been going all over the place, nearly hit some pedestrians, and driver and passenger
switched and that was confirmed by the passenger and the deputy noticed petitioner, who was behind the
wheel, had an odor of alcohol on her breath, bloodshot and watery eyes, and slurred speech); Reynolds
v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 182 (Fla. 9th Cir. Ct. Sept. 29,
2014)Reynolds v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 182 (Fla. 9th
Cir. Ct. Sept. 29, 2014) (after a valid traffic stop, officer had reasonable suspicion to request FSEs based
on admission of drinking, odor of alcohol and watery blood shot eyes); State v. Moresco, 22 Fla. L.
Weekly Supp. 180 (Fla. 5th Cir. Ct. Sept. 11, 2014)State v. Moresco, 22 Fla. L. Weekly Supp. 180 (Fla.
5th Cir. Ct. Sept. 11, 2014) (officer could require defendant to submit to FSEs, based on reasonable
suspicion where defendant was speeding, defendant was out of vehicle and handed the officer his license
at arms length, admitted he had a few drinks, had an odor of alcohol, watery, glassy and bloodshot eyes);
Smith v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 6 (Fla. 4th Cir. Ct. June
19, 2014)Smith v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 6 (Fla. 4th Cir.
Ct. June 19, 2014) (anonymous tip vehicle was being driven erratically combined with deputy’s
observations of vehicle speeding up and slowing down, crossing white outside line once and crossing

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white dotted lane separation line twice provided reasonable suspicion for DUI); Dausa v. Dep’t of
Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 724 (Fla. 4th Cir. Ct. Oct 30, 2013) Dausa
v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 724 (Fla. 4th Cir. Ct. Oct 30,
2013) (officer had reasonable suspicion for DUI detention and FSEs where officer saw petitioner run red
light, petitioner had an odor of alcohol on his breath and said he had been drinking during the night);
State v. Robertson, 21 Fla. L. Weekly Supp. 616 (Fla. 9th Cir. Ct. Feb. 19, 2014) State v. Robertson, 21
Fla. L. Weekly Supp. 616 (Fla. 9th Cir. Ct. Feb. 19, 2014) (officer had reasonable suspicion requiring
FSEs where defendant ran a stop sign, had an odor of alcohol on his breath, slightly slurred speech, a
slight sway, and admitted that he was coming from a bar and had a few drinks); Warren v. Dep’t of
Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 555 (Fla. 12th Cir. Ct. Sept. 25,
2013)Warren v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 555 (Fla. 12th
Cir. Ct. Sept. 25, 2013) (deputy had reasonable suspicion for a DUI investigation even though petitioner
did not have many of the indicators of impairment, where petitioner was speeding, had an odor of
alcohol, shaky hands when producing documents, was vague explaining where he had been and said he
had pulled over to check on a friend in a furniture store parking lot as if he didn’t notice the blue light
and siren); Mottas v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 12 (Fla. 7th
Cir. Ct. August 30, 2013)Mottas v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly
Supp. 12 (Fla. 7th Cir. Ct. August 30, 2013) (trooper had reasonable suspicion for a DUI investigation
where subject was sleeping behind the steering wheel in a car stopped in a lane on an interstate and had
an odor of alcohol on his breath and unsteady balance); Leavitt v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 200 (Fla. 4th Cir. Ct. Oct. 4, 2012)Leavitt v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 200 (Fla. 4th Cir. Ct. Oct. 4, 2012) (officer had
reasonable suspicion for FSES despite no evidence that there was an odor of alcohol, where Petitioner
was driving unusually, swerved out of his lane and over the center line twice, had watery and dilated
eyes, was disoriented, had difficulty locating his license, and handed the officer credit cards several
times).
Delgado v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 103 (Fla. 9th Cir. Ct.
Oct. 11, 2012)Delgado v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 103
(Fla. 9th Cir. Ct. Oct. 11, 2012) (where officer made a stop for a window tint, officer had sufficient
grounds to require submission to FSES based on odor of alcohol coming from petitioner’s person, glassy
and slightly red eyes, purple bar band and an admission to consuming vodka prior to driving); Ahmed v.
Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 37 (Fla. 17th Cir. Ct. Oct. 11,
2012)Ahmed v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 37 (Fla. 17th Cir.
Ct. Oct. 11, 2012) (officer had more than enough for FSES where petitioner passed officer at a high rate
of speed, made an improper lane change, began weaving significantly from side-to-side within the lane,
admitted drinking, had problems finding her documents, had slurred speech, red and glassy eyes and
odor of an alcoholic beverage); State v. Walsh, 19 Fla. L. Weekly Supp. 986 (Fla. 17th Cir. Ct. Aug. 7,
2012)State v. Walsh, 19 Fla. L. Weekly Supp. 986 (Fla. 17th Cir. Ct. Aug. 7, 2012) (deputy had
reasonable suspicion for DUI investigation where defendant was found at a crash in the driver’s seat and
the other driver identified him as being the driver and the defendant had bloodshot eyes, odor of alcohol
on breath, problems with balance, and admitted drinking two beers); Norton v. Dep’t of Highway Safety
& Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011)Norton v. Dep’t of
Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 571 (Fla. 4th Cir. Ct. March 3, 2011)
(officer had reasonable suspicion for DUI investigation where officer observed defendant speeding,
defendant had bloodshot watery eyes, flush face, and an odor of alcohol on her breath); McClellan v.
Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 163 (Fla. 14th Cir. Ct. Sept. 8,
2010)McClellan v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 163 (Fla. 14th
Cir. Ct. Sept. 8, 2010) (officer had grounds for administering FSES where identified caller reported
seeing vehicle driving recklessly and pointed the vehicle out to an officer in a parking lot as one running
off the road and going all over the road; informant expressed concern that female driver was intoxicated
or having a medical problem; officer saw fresh vomit outside of driver’s door and saw female put
groceries in car and walk away and then drive away; when officer put blue lights on, driver continued to
drive slowly through the parking lot, stopped at two stop signs and went through a green light before
stopping; driver had an odor of alcohol on breath and her eyes were bloodshot and watery); Kim v.
Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 956 (Fla. 7th Cir. Ct. June 23,
2010)Kim v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 956 (Fla. 7th Cir. Ct.
June 23, 2010) (trooper had reasonable suspicion for further investigation where defendant was in a one
car accident resulting in her car being turned over and she had a strong odor of alcohol coming from her
breath); Stewart-Kruger v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 506
(Fla. 4th Cir. Ct. Jan. 25, 2010)Stewart-Kruger v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.

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Weekly Supp. 506 (Fla. 4th Cir. Ct. Jan. 25, 2010) (officer had reasonable suspicion to administer FSES
where officer received report from McDonald’s manager of a reckless driver who told officer that
petitioner was cutting cars off in parking lot and appeared intoxicated, officer observed petitioner’s
vehicle on curb near drive-through window; petitioner’s face was pale, speech was incoherent, moved
slowly in vehicle, nearly fell when exiting vehicle, walked with long and uneven steps and staggered
from side to side; officer also noticed an odor of alcohol coming from vehicle); Skinner v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 400 (Fla. 4th Cir. Ct. Feb. 25,
2010)Skinner v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 400 (Fla. 4th Cir.
Ct. Feb. 25, 2010) (officer had reasonable suspicion to request FSES where driver went the wrong
direction on a one-way street for one block, an odor of alcohol was coming from her, and she had very
blood shot eyes); Shoaf v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 308
(Fla. 4th Cir. Ct. Oct. 7, 2009)Shoaf v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly
Supp. 308 (Fla. 4th Cir. Ct. Oct. 7, 2009) (officer had reasonable suspicion to request FSES where driver
was going 59 m.p.h. in a 35 m.p.h. zone, had an odor of alcohol coming from his person, had watery
eyes, and admitted having two drinks); McDaniel v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla.
L. Weekly Supp. 305 (Fla. 4th Cir. Ct. Oct. 7, 2009)McDaniel v. Dep’t of Highway Safety & Motor
Vehicles, 17 Fla. L. Weekly Supp. 305 (Fla. 4th Cir. Ct. Oct. 7, 2009) (officer had reasonable suspicion
to request FSES where driver ran a red light, had an odor of alcohol coming from his mouth, bloodshot
and watery eyes, slurred speech, and flush face); State v. Puente, 17 Fla. L. Weekly Supp. 86 (Fla. 11th
Cir. Ct. Nov. 18, 2009)State v. Puente, 17 Fla. L. Weekly Supp. 86 (Fla. 11th Cir. Ct. Nov. 18, 2009)
(odor of alcohol combined with driving at night with lights off, blood shot, watery eyes, and admission
of consuming alcohol earlier in the evening provided sufficient grounds to request FSES and breath
test); Flautt v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 766 (Fla. 4th Cir.
Ct. June 12, 2008)Flautt v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 766
(Fla. 4th Cir. Ct. June 12, 2008) (moderate odor of alcohol and bloodshot, glassy eyes were sufficient to
establish reasonable suspicion for field exercises); Carder v. Dep’t of Highway Safety & Motor
Vehicles, 15 Fla. L. Weekly Supp. 547 (Fla. 9th Cir. Ct. Sept. 4, 2007)Carder v. Dep’t of Highway
Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 547 (Fla. 9th Cir. Ct. Sept. 4, 2007) (trooper had
reasonable suspicion for FSTS where he saw car going between 90 and 95 m.p.h., vehicle was in center
and drifted over both lane markers, almost rear ended a slower moving vehicle before changing lane;
trooper was going 110 m.p.h. when he activated his lights and siren and vehicle abruptly hit brakes and
pulled over; driver had odor of alcohol, bloodshot, glassy eyes, and slurred speech); Fabian v. State, 15
Fla. L. Weekly Supp. 403 (Fla. 4th Cir. Ct. March 13, 2008)Fabian v. State, 15 Fla. L. Weekly Supp.
403 (Fla. 4th Cir. Ct. March 13, 2008) (court found reasonable suspicion where vehicle was partially
blocking gas station entrance, vehicle was running, driver’s door was open, defendant unconscious
behind wheel, vomit on defendant and around, odor of alcohol, and defendant was confused and
disoriented); Bumberg v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 19 (Fla.
13th Cir. Ct. Nov. 6, 2007)Bumberg v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly
Supp. 19 (Fla. 13th Cir. Ct. Nov. 6, 2007) (officer had reasonable suspicion for field sobriety exercises
where officer saw defendant driving vehicle with expired tag, smelled alcohol on defendant’s breath,
and observed glassy and watery eyes and a noticeable sway).
Roddy v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 13 (Fla. 9th Cir. Ct.
Aug. 3, 2007)Roddy v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 13 (Fla.
9th Cir. Ct. Aug. 3, 2007) (trooper had reasonable suspicion and could request FSTS where trooper saw
defendant speeding and passing other vehicles on interstate; defendant smelled of alcohol and admitted
drinking alcohol 2.5 hours before stop; defendant had glassy, bloodshot eyes, and a slight sway); Pierre
v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1083 (Fla. 9th Cir. Ct. Sept. 12,
2007) (FSTS were proper where officer observed vehicle weaving; defendant’s breath smelled of
alcohol, he had bloodshot eyes and slow, slurred speech); Lynn v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 710 (Fla. 9th Cir. Ct. May 30, 2007)Lynn v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 710 (Fla. 9th Cir. Ct. May 30, 2007), opinion on
rehearing, 14 Fla. L. Weekly Supp. 1015 (Fla. 9th Cir. Ct. Aug. 8, 2007) (officer had reasonable
suspicion for FSTS where officer saw defendant driving in the wrong direction, after stop officer
smelled strong odor of alcohol, and defendant admitting having four to five drinks); Fewell v. State, 14
Fla. L. Weekly Supp. 704 (Fla. 9th Cir. Ct. May 14, 2007)Fewell v. State, 14 Fla. L. Weekly Supp. 704
(Fla. 9th Cir. Ct. May 14, 2007) (officer had reasonable suspicion to request FSES based on vehicle
running a stop sign; defendant having an odor of alcoholic beverage, blood shot eyes, and a sunburn);
Avery v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla. 4th Cir. Ct.
Dec. 7, 2006)Avery v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 697 (Fla.
4th Cir. Ct. Dec. 7, 2006) (officer had reasonable suspicion for FSTS where truck was parked at

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entrance to school at 3:30 a.m. with headlights on, engine running, gear shift in park, and driver’s door
open; defendant was slumped over wheel, misidentified officer when he awoke, was confused and didn’t
know where he was, had bloodshot and watery eyes, and an odor of an alcoholic beverage); Brush v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 2 (Fla. 4th Cir. Ct. Sept. 7,
2006)Brush v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 2 (Fla. 4th Cir. Ct.
Sept. 7, 2006) (officer had reasonable suspicion of DUI based on odor of alcohol about defendant’s
person, flushed face, and watery, blood shot eyes along with knowledge from another officer that the
defendant had run a stop sign); Langford v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006)Langford v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006) (officer had reasonable
suspicion for DUI detention and FSTS where officer pace-clocked truck for about ¼ of a mile at 44
m.p.h. in a 35 m.p.h. zone, the truck made a sudden unsignaled sharp left turn without slowing very
much, truck proceeded to accelerate; and officer pace-clocked truck for about three tenths of a mile at 38
m.p.h. in a 25 m.p.h. zone; the driver had an odor of alcohol and, when asked, told the officer he had
consumed a keg of beer in three hours); State v. Exler, 13 Fla. L. Weekly Supp. 763 (Fla. 6th Cir. Ct.
May 10, 2006)State v. Exler, 13 Fla. L. Weekly Supp. 763 (Fla. 6th Cir. Ct. May 10, 2006) (officer had
reasonable suspicion of DUI sufficient to justify continued detention where the defendant was speeding,
had a strong odor of alcohol, bloodshot and watery eyes, and was swaying; the court noted that the
officer could require defendant to exit based solely on a traffic infraction); State v. Tharp, 13 Fla. L.
Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005)State v. Tharp, 13 Fla. L. Weekly Supp. 56 (Fla. 13th
Cir. Ct. June 14, 2005) (same ruling as in Origi); Smith v. Dep’t of Highway Safety & Motor Vehicles,
11 Fla. L. Weekly Supp. 390 (Fla. 9th Cir. Ct. Feb. 3, 2004)Smith v. Dep’t of Highway Safety & Motor
Vehicles, 11 Fla. L. Weekly Supp. 390 (Fla. 9th Cir. Ct. Feb. 3, 2004) (officer had reasonable suspicion
to compel field sobriety tests where the officer detected an odor of alcohol, bloodshot eyes, and slurred
speech); Brown v. State, 7 Fla. L. Weekly Supp. 179 (Fla. 15th Cir. Ct. Dec. 17, 1999)Brown v. State, 7
Fla. L. Weekly Supp. 179 (Fla. 15th Cir. Ct. Dec. 17, 1999) (defendant’s presence behind wheel,
bloodshot and watery eyes, slurred speech, and odor of alcohol established reasonable suspicion).
State v. Petroski, 6 Fla. L. Weekly Supp. 621 (Fla. 15th Cir. Ct. July 27, 1999)State v. Petroski, 6 Fla. L.
Weekly Supp. 621 (Fla. 15th Cir. Ct. July 27, 1999) (officer had reasonable suspicion based on odor of
alcohol, flushed face, glassy eyes, and admission of drinking); State v. Martinello, 6 Fla. L. Weekly
Supp. 158 (Fla. 11th Cir. Ct. Dec. 4, 1998)State v. Martinello, 6 Fla. L. Weekly Supp. 158 (Fla. 11th
Cir. Ct. Dec. 4, 1998) (obstructing roadway, bloodshot eyes, flushed face, and nervous behavior
established reasonable suspicion).
County Courts
State v. Seguna, 26 Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017)State v. Seguna, 26
Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017) (officer had reasonable suspicion for
DUI investigation based on her DUI training and experience where defendant drove off road into a tree,
had bloodshot eyes and an odor of alcohol that became stronger when he spoke); State v. Venerable, 23
Fla. L. Weekly Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015)State v. Venerable, 23 Fla. L. Weekly
Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015) (officer had reasonable suspicion to request FSTs where
odor of alcohol came from vehicle window and defendant’s breath after he exited, defendant admitted
consuming alcohol, was speeding, had glassy, bloodshot eyes); State v. Walden, 22 Fla. L. Weekly
Supp. 400 (Fla. Brevard Cty. Ct. August 7, 2014)State v. Walden, 22 Fla. L. Weekly Supp. 400 (Fla.
Brevard Cty. Ct. August 7, 2014) (officer had grounds for stop to see if driver was ill, injured or
impaired where defendant was driving slowly, weaving and stopped in the middle lane of a six lane
highway at midnight and developed reasonable suspicion for FSEs where defendant had an odor of
alcohol, blood shot eyes and needed to exit the vehicle to get his license); State v. Folstein, 20 Fla. L.
Weekly Supp. 1098 (Fla. Brevard Cty. Ct. April 16, 2013) (trial judge found reasonable suspicion to
request FSTs where officer estimated and paced defendant going 55 in a 45 mph zone; vehicle sped and
swerved within its lane past a police car and crossed the line in the lane of traffic, and another citizen
pointed vehicle out to the officer; after stop, officer noted defendant smelled of alcohol, had glassy red
eyes, couldn’t find clothing to cover the bikini she was wearing, and admitted to consuming alcohol);
State v. Mattingly, 20 Fla. L. Weekly Supp. 591 (Fla. Brevard Cty. Ct. Feb. 26, 2013)State v. Mattingly,
20 Fla. L. Weekly Supp. 591 (Fla. Brevard Cty. Ct. Feb. 26, 2013) (deputy had reasonable suspicion for
DUI investigation where vehicle’s speed varied between 45 and 60 mph in a 55 mph zone; tires were on
or over the fogline; one time half the truck was over the fogline; defendant told deputy she had one drink
maybe two; she had an unknown odor of an alcoholic beverage coming from her person and breath;
watery and glassy eyes and a flush face; dexterity was fumbled, and speech was mumbled with an
accent); State v. Houvouras, 20 Fla. L. Weekly Supp. 510 (Fla. Brevard Cty. Ct. Feb. 18, 2013)State v.
Houvouras, 20 Fla. L. Weekly Supp. 510 (Fla. Brevard Cty. Ct. Feb. 18, 2013) (deputy had reasonable

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suspicion for a DUI investigation where officer had probable cause that defendant ran a red light, was
speeding and went beyond the stop bar; passed by first place to pull in, but stopped normally at the next
place, which was nearby; had an odor of alcohol on her person, bloodshot, watery and glassy eyes, and
difficulty producing documents; speech was okay, but she admitted having several drinks earlier in the
evening; however, based on the video, performance on FSES, and the deputy’s testimony there was not
probable cause for arrest); State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19,
2012)State v. Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19, 2012) (officer had
reasonable suspicion for FSES where vehicle drifted a couple of times, but no other traffic was affected;
after giving left turn signal, overshot the lane, but then moved back; defendant admitted consuming
alcohol, and “‘knowing how much his body can handle,’” had an odor of alcohol on his breath, watery,
glassy eyes, and fumbled for his registration); State v. Neniskis, 20 Fla. L. Weekly Supp. 81 (Fla.
Monroe Cty. Ct. Oct. 24, 2012)State v. Neniskis, 20 Fla. L. Weekly Supp. 81 (Fla. Monroe Cty. Ct. Oct.
24, 2012) (deputy had reasonable suspicion for FSES where defendant was doing 87 mph in a 35 mph
when he passed a semi, drove nearly three times the speed limit through a village, pulled his car over
normally, admitted having a few beers a few hours earlier, had an odor of alcohol coming from his
breath and droopy, watery, bloodshot eyes, difficulty producing his license and “‘thick tongued’”
speech; but because of defendant’s good performance on the video and FSES deputy did not have
probable cause for an arrest); State v. Medina, 18 Fla. L. Weekly Supp. 911 (Fla. Duval Cty. Ct. June
27, 2011)State v. Medina, 18 Fla. L. Weekly Supp. 911 (Fla. Duval Cty. Ct. June 27, 2011) (officer had
reasonable suspicion for DUI stop and to request FSES where he saw vehicle weaving into adjoining
lanes and breach a fog line and Defendant had a “‘relaxed’” face, odor of alcohol, and watery eyes;
Defendant acknowledged having a few drinks at a friend’s house); State v. Berry, 18 Fla. L. Weekly
Supp. 487 (Fla. Brevard Cty. Ct. Feb. 28, 2011)State v. Berry, 18 Fla. L. Weekly Supp. 487 (Fla.
Brevard Cty. Ct. Feb. 28, 2011) (officer had reasonable suspicion for DUI where at 2 a.m. he observed
vehicle traveling at 45 m.p.h., the posted speed limit, one car length behind another car in violation of
§ 316.0895, Fla. Stat., officer noted an odor of alcoholic beverage coming from the vehicle, and
defendant had glassy bloodshot eyes and admitted drinking two 16 oz. beers); State v. Perez, 18 Fla. L.
Weekly Supp. 487 (Fla. Brevard Cty. Ct. Feb. 24, 2011)State v. Perez, 18 Fla. L. Weekly Supp. 487
(Fla. Brevard Cty. Ct. Feb. 24, 2011) (deputy had reasonable suspicion for DUI where defendant was
driving substantially over the speed limit, stopped vehicle in unsafe location, wore a paper bracelet
connected with a bar or club, smelled of alcohol, had bloodshot eyes, and was unsteady on her feet);
State v. Skinner, 18 Fla. L. Weekly Supp. 423 (Fla. Brevard Cty. Ct. Feb. 16, 2011)State v. Skinner, 18
Fla. L. Weekly Supp. 423 (Fla. Brevard Cty. Ct. Feb. 16, 2011) (deputy may stop a vehicle based on
reasonable suspicion that the car or the vehicle violated a traffic ordinance or statute; the officer may
then request and administer FSES when there is reasonable suspicion that the driver is DUI; here the
deputy had reasonable suspicion that Defendant was in violation of a traffic ordinance or statute when
she saw the vehicle run a stop sign and almost strike her car; the deputy had reasonable suspicion for
DUI investigation where Defendant had watery eyes, slurred speech, confused behavior, and an odor of
alcohol); State v. Kraft, 18 Fla. L. Weekly Supp. 421 (Fla. Brevard Cty. Ct. Feb. 11, 2011)State v. Kraft,
18 Fla. L. Weekly Supp. 421 (Fla. Brevard Cty. Ct. Feb. 11, 2011) (officer had reasonable suspicion to
administer FSES where he observed defendant’s vehicle obstructing a public street, defendant smelled
of alcohol, had glassy and bloodshot eyes, and mumbled); State v. Buck, 17 Fla. L. Weekly Supp. 1131
(Fla. Brevard Cty. Ct. June 4, 2010) (officer had reasonable suspicion for DUI investigation where at
4:00 a.m. vehicle had been parked in the same spot 45 minutes to an hour just before the railroad tracks
with the engine running and a headlight out; defendant was slumped over towards passenger seat, not
awake or alert; officer shouted loudly without response and was concerned about whether defendant was
dead, or otherwise in medical distress or intoxicated; officer got no response until he opened the door,
made physical contact with defendant, and determined defendant was just sleeping, detected a strong
smell of alcohol inside the vehicle and then from the defendant; the defendant had glassy eyes, and did
not respond to normal questions like what was his name).
State v. Williams, 17 Fla. L. Weekly Supp. 852 (Fla. Brevard Cty. Ct. March 24, 2010)State v.
Williams, 17 Fla. L. Weekly Supp. 852 (Fla. Brevard Cty. Ct. March 24, 2010) (officer had reasonable
suspicion for a traffic stop where she saw vehicle cross fog line leaving the roadway twice and that
developed into reasonable suspicion for DUI when the officer noted that the defendant had an odor of
alcoholic beverage, bloodshot, watery eyes and denied drinking); State v. Montroud, 17 Fla. L. Weekly
Supp. 852 (Fla. Brevard Cty Ct. March 9, 2010)State v. Montroud, 17 Fla. L. Weekly Supp. 852 (Fla.
Brevard Cty Ct. March 9, 2010) (where vehicle was lawfully detained, the officer had reasonable
suspicion for a DUI investigation based on an odor of alcohol, defendant’s swaying, and urine on
defendant); State v. Campbell, 17 Fla. L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010) State
v. Campbell, 17 Fla. L. Weekly Supp. 822 (Fla. Volusia Cty. Ct. April 29, 2010) (officer had reasonable

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suspicion sufficient to require FSES where in the early morning hours officer saw vehicle stopped at a
green light, make a wide right turn and cross into the left turn lane for oncoming traffic; vehicle weaved
in and out of its lane multiple times; then made a second wide right turn, nearly striking the center media
and again weaved outside of its lane, almost striking the median again; and after stop, officers detected
odor of alcohol, slurred speech, bloodshot eyes, poor balance, difficulty answering questions, and
unusual repetitiveness); State v. Bussey, 17 Fla. L. Weekly Supp. 230 (Fla. Brevard Cty. Ct. Nov. 11,
2009)State v. Bussey, 17 Fla. L. Weekly Supp. 230 (Fla. Brevard Cty. Ct. Nov. 11, 2009) (officer had
reasonable suspicion to compel FSES where she stopped defendant for having headlight out at around
5:00 a.m., odor of alcohol was coming from defendant’s breath and defendant denied consuming
alcohol); State v. Nagy, 17 Fla. L. Weekly Supp. 145 (Fla. Brevard Cty. Ct. Oct. 21, 2009)State v. Nagy,
17 Fla. L. Weekly Supp. 145 (Fla. Brevard Cty. Ct. Oct. 21, 2009) (officer had reasonable suspicion and
could require the defendant to submit to FSES where the officer saw vehicle cross the fog line, go on to
the concrete, the grassy area, and the dirt area; when vehicle returned to lane, vehicle was weaving back
and forth in the center lane; this happened in a short period, but no one was endangered; consent was
immaterial); State v. Miller, 16 Fla. L. Weekly Supp. 695 (Fla. Brevard Cty. Ct. Aug. 7, 2008)State v.
Miller, 16 Fla. L. Weekly Supp. 695 (Fla. Brevard Cty. Ct. Aug. 7, 2008) (officer had reasonable
suspicion to request FSES based on speeding and after stop defendant could not find her documents and
was confused about location, used door to exit and to stand upright, had glassy eyes and seemed
unsteady; officer had probable cause for DUI arrest after FSES where defendant did not perform the
walk and turn as requested, took more steps than requested in each direction, rambled on regarding an
incident which occurred at a hotel, could not stand on one leg without losing her balance, and had an
odor of alcohol); State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard Cty. Ct. April 14,
2009)State v. Boase, 16 Fla. L. Weekly Supp. 691 (Fla. Brevard Cty. Ct. April 14, 2009) (officer had
reasonable suspicion to request FSTS when he saw vehicle pass over the double line three times with the
driver side front and rear tires going over the line, vehicle going to the left and then to the right three
times; after stop defendant fumbled when looking for documents, there was an odor of alcohol coming
from the defendant and the vehicle, and defendant had bloodshot eyes, a flushed face, and admitted
drinking); State v. McClure, 15 Fla. L. Weekly Supp. 1008 (Fla. Manatee Cty Ct. Aug 4, 2008) (officer
had reasonable suspicion for DUI and could ask defendant to perform field sobriety exercises where
defendant drove through a valid DUI checkpoint and before he exited the vehicle the officer observed
bloodshot, glassy, and watery eyes; defendant had a strong odor of alcohol on his breath and admitted
drinking); State v. Capo, 15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty. Ct. March 25, 2008)State v.
Capo, 15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty. Ct. March 25, 2008) (deputy had reasonable
suspicion to do FSES where defendant failed to stay in a single lane and caused another vehicle to take
evasive action; defendant had bloodshot watery eyes with constricted pupils, no odor of alcohol or
drugs, but she had difficulty locating her documents, appeared to be trembling and jittery and was not
focused on the deputy); State v Giancaspro, 15 Fla. L. Weekly Supp. 500 (Fla. Brevard Cty. Ct. March
7, 2008)State v Giancaspro, 15 Fla. L. Weekly Supp. 500 (Fla. Brevard Cty. Ct. March 7, 2008) (there
was reasonable suspicion where defendant was driving a van, slowly and deliberately exited, he was
unsteady on his feet, had fixed gaze with red and watery eyes and lethargic expression, very strong odor
of alcohol, and a slow and raspy voice, and eyelids blinking slowly); State v. Henderson, 15 Fla. L.
Weekly Supp. 370 (Fla. Volusia Cty. Ct. Feb. 22, 2008)State v. Henderson, 15 Fla. L. Weekly Supp. 370
(Fla. Volusia Cty. Ct. Feb. 22, 2008) (officer had reasonable suspicion and properly requested FSES
where car had an inoperable tag light, vehicle moved within its lane, turned off road at speed officer
considered excessive, but no violation; defendant had odor of alcohol and an entry stamp from a local
bar on her hand; when officer made contact, defendant passed over her license in her wallet, seemed to
have slow and slightly slurred speech, exited vehicle slowly, and appeared unsteady on her feet); State v.
Muse, 14 Fla. L. Weekly Supp. 890 (Fla. Volusia Cty. Ct. June 26, 2007)State v. Muse, 14 Fla. L.
Weekly Supp. 890 (Fla. Volusia Cty. Ct. June 26, 2007) (there was reasonable suspicion for DUI stop
and FSTS where driver swerved from one side of lane to other, crossed dividing lines by several inches
with each swerve, overcame another car, suddenly changed lane without signaling, causing other driver
to brake; and as she changed lane to passing lane, she crossed the white line nearest median, and then
returned to right lane; she had odor of alcohol about her person, glassy eyes, and slurred speech); State
v. Tamer, 10 Fla. L. Weekly Supp. 931 (Fla. Palm Beach Cty. Ct. Aug. 14, 2003)State v. Tamer, 10 Fla.
L. Weekly Supp. 931 (Fla. Palm Beach Cty. Ct. Aug. 14, 2003) (court found that odor of alcohol was
not enough, but there was reasonable suspicion for field sobriety tests because the defendant was
speeding, after stop defendant handed officer an envelope full of papers when asked for a license,
defendant admitted consuming two or three beers, had blood shot eyes, flushed face, and an odor of
alcoholic beverages).

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44
State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994) State v. Buttner, 2
Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994). See also Dean v. Dep’t of Highway
Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 975 (Fla. 4th Cir. Ct. April 23, 2015)Dean v. Dep’t
of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 975 (Fla. 4th Cir. Ct. April 23, 2015)
(officers did not have reasonable suspicion based solely on the assertion petitioner was passed out
behind the wheel of a vehicle with the engine running in the parking lot outside his apartment building,
the vehicle matched an anonymous tip officers had received earlier and they were in the area looking for
a drunk driver); Umble-Vita v. State, 20 Fla. L. Weekly Supp. 484 (Fla. 18th Cir. Ct. June 28,
2013)Umble-Vita v. State, 20 Fla. L. Weekly Supp. 484 (Fla. 18th Cir. Ct. June 28, 2013) (no
reasonable suspicion for FSES where defendant pulled up at her residence and an officer investigating a
911 call approached her; the 911 call involved a verbal altercation between the defendant and her
mother; there was an odor of alcohol coming from the vehicle; the officer had a tip that defendant was
driving on a suspended license, defendant admitted drinking “‘earlier’” without indicating the amount or
when; “If the officer had testified to even one other sign directly relating to possible impairment beyond
the odor of alcohol—such a (sic) flushed face, glassy eyes, slurred speech, or erratic driving—this might
well have been sufficient support to request the field sobriety exercises.”); State v. Cum, 15 Fla. L.
Weekly Supp. 137 (Fla. 17th Cir. Ct. Dec. 13, 2007)State v. Cum, 15 Fla. L. Weekly Supp. 137 (Fla.
17th Cir. Ct. Dec. 13, 2007) (no reasonable suspicion justifying FSTS where deputy stopped defendant
for going 58 m.p.h. in a 45 m.p.h. zone; defendant’s breath smelled of alcohol, she had glassy eyes and a
flushed face, but the officer observed no erratic driving or slurred speech; defendant was able to provide
license and exit vehicle without difficulty); Egierski v. Florida Dep’t of Highway, 13 Fla. L. Weekly
Supp. 1148 (Fla. 7th Cir. Ct. Sept 12, 2006) (officer did not have reasonable suspicion for DUI based
solely on the fact that tag light was out, defendant had an odor of alcoholic beverage and was
disoriented, but the officer did not indicate in what way she was disoriented); State v. Lynch, 13 Fla. L.
Weekly Supp. 1053 (Fla. 9th Cir. Ct. July 17, 2007) (noting that defendant looked “‘real sluggish’”
when giving officer his license after traffic stop did not give officer reasonable suspicion to detain the
defendant); State v. Bertoni, 13 Fla. L. Weekly Supp. 568 (Fla. 17th Cir. Ct. March 14, 2006) State v.
Bertoni, 13 Fla. L. Weekly Supp. 568 (Fla. 17th Cir. Ct. March 14, 2006) (officer who stopped
defendant for expired tag, but not for any unusual driving, did not have reasonable suspicion for DUI
investigation and to order FSTS based on odor of alcoholic beverage, red and watery eyes, and flushed
face); State v. Saint Lubin, 11 Fla. L. Weekly Supp. 1050 (Fla. 17th Cir. Ct. Aug. 10, 2004) (officer
lacked reasonable suspicion for stop where the defendant did not commit a traffic infraction, but the
officer detected an odor of alcohol, bloodshot eyes, and swaying); State v. Ammerman, 10 Fla. L.
Weekly Supp. 236 (Fla. 17th. Cir. Ct. May 29, 2001)State v. Ammerman, 10 Fla. L. Weekly Supp. 236
(Fla. 17th. Cir. Ct. May 29, 2001) (A circuit judge in her appellate capacity, affirmed suppression of the
results of field sobriety exercises because the officer did not have reasonable suspicion where (1) the
officer observed red, watery eyes, and the odor of alcohol; (2) the defendant’s driving did not indicate
impairment; (3) the defendant had no problem talking with the officer; and (4) there were conflicts in the
record); State v. Rilogio, 24 Fla. L. Weekly Supp. 974 (Fla. Volusia Cty. Ct. Dec. 22, 2016)State v.
Rilogio, 24 Fla. L. Weekly Supp. 974 (Fla. Volusia Cty. Ct. Dec. 22, 2016) (the trial judge granted a
motion to suppress based on the fact that the officer’s testimony was inconsistent with the video; “The
video footage of Defendant’s interaction with Officer Jones, and specifically how the Defendant looked
and sounded on the videos, is the best evidence as to whether or not Officer Jones had reasonable
suspicion of impairment.”); State v. Ramirez, 23 Fla. L. Weekly Supp. 259 (Fla. Volusia Cty. Ct. July
31, 2015)State v. Ramirez, 23 Fla. L. Weekly Supp. 259 (Fla. Volusia Cty. Ct. July 31, 2015) (speeding,
odor of alcohol and difficulty sliding license out of wallet did not establish reasonable suspicion for a
DUI investigation including FSES); State v. Durant, 22 Fla. L. Weekly Supp. 1095 (Fla. Hillsborough
Cty. Ct. March 4, 2015) (officer did not have reasonable suspicion for DUI investigation where officer
stopped vehicle for defective tag light, defendant pulled over safely in response to officer’s emergency
lights, retrieved his documents without difficulty, had an odor of an alcoholic beverage, glassy eyes and
told the officer he had a couple of shots; based on the video, judge rejected testimony defendant had
slightly slurred speech); State v. Diprima, 22 Fla. L. Weekly Supp. 605 (Fla. Volusia Cty. Ct. Oct. 31,
2014)State v. Diprima, 22 Fla. L. Weekly Supp. 605 (Fla. Volusia Cty. Ct. Oct. 31, 2014) (officer did
not have reasonable suspicion to administer FSEs where defendant drove on the median for a few
seconds, there was a faint odor of alcohol coming from the vehicle and defendant admitted to having one
drink); State v. Stackhouse, 20 Fla. L. Weekly Supp. 431 (Fla. Volusia Cty. Ct. Nov. 30, 2012)State v.
Stackhouse, 20 Fla. L. Weekly Supp. 431 (Fla. Volusia Cty. Ct. Nov. 30, 2012) (officer did not have
reasonable suspicion for a DUI investigation where the defendant exceeded the speed limit by 11 mph,
there was a slight odor of alcohol coming from the vehicle, defendant had a dazed expression,
apparently normal for him, and red eyes, which he also had at the hearing; no evidence of slurred

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speech, problems with balance or getting his license); State v. Brantley, 19 Fla. L. Weekly Supp. 373
(Fla. Volusia Cty. Ct. Aug. 31, 2011)State v. Brantley, 19 Fla. L. Weekly Supp. 373 (Fla. Volusia Cty.
Ct. Aug. 31, 2011) (officer did not have reasonable suspicion where an odor of alcohol came from
Defendant and vehicle; Defendant had slightly bloodshot eyes after he was removed from the vehicle; he
was estimated to be driving 46 in a 35 mph and the estimate could have varied as much as five mph);
State v. Fitzgibbons, 18 Fla. L. Weekly Supp. 541 (Fla. Pinellas Cty. Ct. Oct. 15, 2010)State v.
Fitzgibbons, 18 Fla. L. Weekly Supp. 541 (Fla. Pinellas Cty. Ct. Oct. 15, 2010) (results of HGN could
not be considered in determining whether there was sufficient evidence to request FSES because it was
not properly administered; the evidence consisted of a lawful traffic stop without any indication of
impairment, a slight odor of alcohol coming from the vehicle, bloodshot eyes, a dazed expression on
defendant’s face, and defendant acting appropriately in all other ways); State v. Knuth, 18 Fla. L.
Weekly Supp. 470 (Fla. Volusia Cty. Ct. Jan. 24, 2011)State v. Knuth, 18 Fla. L. Weekly Supp. 470
(Fla. Volusia Cty. Ct. Jan. 24, 2011) (officer did not have reasonable suspicion for DUI investigation to
administer FSES where the officer saw defendant driving through a well lighted public parking lot
without headlights, smelled alcoholic beverage coming from defendant, and defendant admitted
drinking, but not much and there were no other indicia of impairment; there was suspicion that
defendant had consumed alcohol, but not that he was impaired); State v. Haskins, 18 Fla. L. Weekly
Supp. 75 (Fla. Leon Cty. Ct. Oct 1, 2010)State v. Haskins, 18 Fla. L. Weekly Supp. 75 (Fla. Leon Cty.
Ct. Oct 1, 2010) (stop was lawful where officer observed defendant fail to yield the right of way, pull
out in front of and swerve into oncoming traffic, and overcorrect his vehicle; but a DUI investigation
was not proper where the defendant promptly stopped in a proper place in response to officer’s blue
lights, there was an odor of alcohol in the vehicle, but not on defendant’s breath, and the defendant had
red, watery eyes, but there was no testimony of any other indicia of impairment); State v. Torpy, 17 Fla.
L. Weekly Supp. 847 (Fla. Brevard Cty. Ct. May 7, 2010)State v. Torpy, 17 Fla. L. Weekly Supp. 847
(Fla. Brevard Cty. Ct. May 7, 2010) (officer had reasonable suspicion for DUI stop where motorist
reported that the vehicle was swerving all over the road, officer observed vehicle all over the road,
crossing both center line and fog line during half mile even though no other traffic was affected; but the
reasonable suspicion was gone when after investigation the officer told dispatch that the defendant did
not look like he was drunk and during investigation defendant admitted drinking but not the amount or
the time, was speaking normally, did not have bloodshot watery eyes, or apparent mental impairment);
State v. Main, 11 Fla. L. Weekly Supp. 828 (Fla. Pinellas Cty. Ct. June 14, 2004)State v. Main, 11 Fla.
L. Weekly Supp. 828 (Fla. Pinellas Cty. Ct. June 14, 2004) (officer did not have reasonable suspicion to
request field sobriety exercises where the sole basis was that officer smelled an odor of alcohol coming
from the vehicle as he gave the defendant a speeding citation); State v. Medina-Moya, 8 Fla. L. Weekly
Supp. 396 (Fla. Broward Cty. Ct. March 19, 2001)State v. Medina-Moya, 8 Fla. L. Weekly Supp. 396
(Fla. Broward Cty. Ct. March 19, 2001) (officer lacked reasonable suspicion where the defendant did
not commit any traffic infraction, the officer noticed an odor of alcohol, the defendant had watery
bloodshot eyes, and the defendant stated that he had consumed alcoholic beverages).
45
Based on Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) , one might
argue that officers would have to have probable cause for a DUI arrest to order the defendant to submit
to the tests.
46
State v. Gonzalez, 13 Fla. L. Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006) State v. Gonzalez, 13
Fla. L. Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006); State v. Higgins, 13 Fla. L. Weekly Supp.
548 (Fla. 11th Cir. Ct. April 11, 2006)State v. Higgins, 13 Fla. L. Weekly Supp. 548 (Fla. 11th Cir. Ct.
April 11, 2006). See also State v. Canuet, 22 Fla. L. Weekly Supp. 900 (Fla. 17th Cir. Ct. March 2,
2015)State v. Canuet, 22 Fla. L. Weekly Supp. 900 (Fla. 17th Cir. Ct. March 2, 2015) (officer had
reasonable suspicion and could demand FSEs without consent where defendant was driving in the wrong
direction, was unsteady on her feet, had bloodshot eyes and slurred speech); State v. Phillips, 22 Fla. L.
Weekly Supp. 193 (Fla. 17th Cir. Ct. August 4, 2014)State v. Phillips, 22 Fla. L. Weekly Supp. 193 (Fla.
17th Cir. Ct. August 4, 2014) (officer had reasonable suspicion based on defendant’s red, watery eyes,
odor of alcohol on her breath, and extreme lack of balance and could ask defendant to perform FSEs
“without warning her that she could refuse and without advising her of Miranda warnings”); State v.
Blanchette, 20 Fla. L. Weekly Supp. 1042 (Fla. 12th Cir. Ct. Oct. 13, 2008); State v. Ruoff, 17 Fla. L.
Weekly Supp. 619 (Fla. 17th Cir. Ct. Feb. 13, 2010)State v. Ruoff, 17 Fla. L. Weekly Supp. 619 (Fla.
17th Cir. Ct. Feb. 13, 2010) (court recognized split of authority in 17th circuit, but felt that State v.
Whelan, 728 So. 2d 807 (Fla. 3d DCA 1999), was controlling); State v. Londono, 17 Fla. L. Weekly
Supp. 428 (Fla. 17th Cir. Ct. Feb. 3, 2010)State v. Londono, 17 Fla. L. Weekly Supp. 428 (Fla. 17th Cir.
Ct. Feb. 3, 2010) (court recognized split in 17th circuit); State v. Burke, 16 Fla. L. Weekly Supp. 378
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(Fla. 9th Cir. Ct. Oct. 14, 2008)State v. Burke, 16 Fla. L. Weekly Supp. 378 (Fla. 9th Cir. Ct. Oct. 14,
2008) (officer could require FSES based on reasonable suspicion where defendant was sleeping in
vehicle with the lights on and engine racing at 2:39 a.m. Sunday, had a hard time finding identification,
was unsteady on his feet, had an odor of alcohol on his breath, and admitted drinking); State v.
Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008)State v. Holowicki, 15 Fla. L.
Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008) (if officer has reasonable suspicion, FSES are
compulsory to the extent that refusal can be used in court; but the court also observed that the defendant
voluntary consented in this case); State v. Gilbert, 14 Fla. L. Weekly Supp. 14 (Fla. 11th Cir. Ct. Nov.
17, 2006)State v. Gilbert, 14 Fla. L. Weekly Supp. 14 (Fla. 11th Cir. Ct. Nov. 17, 2006) (there was
consent where officer separated himself and defendant from other officers to demonstrate and administer
tests, behaved in professional and non-threatening matter, and test was administered in a will-lit parking
lot; but court also held that consent is not important where the officer has reasonable suspicion); State v.
Peruya, 13 Fla. L. Weekly Supp. 1151 (Fla. 11th Cir. Ct. Sept. 21, 2006); Walker v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953 (Fla. 9th Cir. Ct. April 19, 2006)Walker v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 953 (Fla. 9th Cir. Ct. April 19, 2006) ;
State v. Bereznicki, 13 Fla. L. Weekly Supp. 793 (Fla. 17th Cir. Ct. May 15, 2006) State v. Bereznicki,
13 Fla. L. Weekly Supp. 793 (Fla. 17th Cir. Ct. May 15, 2006) (court finds that Liefert mandates holding
that the defendant is required to submit to FSTS if the officer has reasonable suspicion); State v. Seguna,
26 Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017)State v. Seguna, 26 Fla. L. Weekly
Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017) (judge ruled, based on Liefert, Defendant need not be
advised of the right to refuse and that consent was immaterial; Defendant could be compelled to submit
to the exercises); State v. Duran-Elizarraga, 25 Fla. L. Weekly Supp. 105 (Fla. Manatee Cty Ct. March
20, 2017)State v. Duran-Elizarraga, 25 Fla. L. Weekly Supp. 105 (Fla. Manatee Cty Ct. March 20, 2017)
(finds that Blanchette, a decision of the 12th circuit court appellate panel is controlling); State v. Garcia,
19 Fla. L. Weekly Supp. 414 (Fla. Brevard Cty. Ct. Jan. 13, 2012)State v. Garcia, 19 Fla. L. Weekly
Supp. 414 (Fla. Brevard Cty. Ct. Jan. 13, 2012) (if there is reasonable suspicion, consent is irrelevant;
there was reasonable suspicion where deputy stopped vehicle for obstructed tag; Defendant had a strong
odor of alcohol, bloodshot, watery and glassy eyes, and admitted having three beers); State v.
D’Augustino, 19 Fla. L. Weekly Supp. 197 (Fla. Leon Cty. Ct. Oct. 20, 2011)State v. D’Augustino, 19
Fla. L. Weekly Supp. 197 (Fla. Leon Cty. Ct. Oct. 20, 2011) (where officer has reasonable suspicion for
DUI, consent is not an important element, but this order also includes language suggesting that if the
officer engages in inappropriate or excess show of authority, the result might be different); State v.
Devito, 18 Fla. L. Weekly Supp. 309 (Fla. Palm Beach Cty. Ct. Jan. 7, 2011)State v. Devito, 18 Fla. L.
Weekly Supp. 309 (Fla. Palm Beach Cty. Ct. Jan. 7, 2011) (officer could require submission to FSES
where officer saw defendant weaving and defendant smelled of alcohol); State v. Bussey, 17 Fla. L.
Weekly Supp. 230 (Fla. Brevard Cty. Ct. Nov. 11, 2009)State v. Bussey, 17 Fla. L. Weekly Supp. 230
(Fla. Brevard Cty. Ct. Nov. 11, 2009)(officer had reasonable submission to compel FSES where she
stopped defendant for having headlight out at around 5:00 a.m., odor of alcohol was coming from
defendant’s breath and defendant denied consuming alcohol; consent was irrelevant); State v. Nagy, 17
Fla. L. Weekly Supp. 145 (Fla. Brevard Cty. Ct. Oct. 21, 2009)State v. Nagy, 17 Fla. L. Weekly Supp.
145 (Fla. Brevard Cty. Ct. Oct. 21, 2009) (officer had reasonable suspicion and could require the
defendant to submit to FSES where the officer saw vehicle cross the fog line, go on to the concrete, the
grassy area, and the dirt area; when vehicle returned to lane, vehicle was weaving back and forth in the
center lane; this happened in a short period, but no one was endangered; consent was immaterial); State
v. McCoy, 16 Fla. L. Weekly Supp. 450 (Fla. Hillsborough Cty Ct. March 13, 2009)State v. McCoy, 16
Fla. L. Weekly Supp. 450 (Fla. Hillsborough Cty Ct. March 13, 2009) (officer could require FSES based
on reasonable suspicion where he was advised by another officer defendant was going the wrong way on
a major roadway toward the other officer who had to take evasive action; defendant had an odor of
alcoholic beverage coming from his mouth, bloodshot and glassy eyes, and swayed when unsupported);
State v. Turpin, 16 Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009)State v. Turpin, 16
Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009) (trooper had reasonable suspicion to
require FSES where defendant drove past security gate at Kennedy Space Center without slowing and
without permission and guards believed he was impaired); State v. Farinas, 15 Fla. L. Weekly Supp.
1032 (Fla. Dade Cty. Ct. Aug. 29, 2008) (officer could require FSES based on reasonable suspicion
where defendant had odor of alcohol and officer observed erratic driving consisting of high rate of
speed, running a stop sign, and blocking intersection causing officer to brake to avoid collision); State v.
Larkin, 15 Fla. L. Weekly Supp. 941 (Fla. Broward Cty. Ct. July 8, 2008)State v. Larkin, 15 Fla. L.
Weekly Supp. 941 (Fla. Broward Cty. Ct. July 8, 2008) (“if an officer has sufficient cause to conduct a
D.U.I. investigation, the officer has legal authority to require or compel roadside exercises. Thus, an
officer cannot be required to ask for consent, nor instruct a suspect that roadside sobriety exercises are

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voluntary.”); State v. Edwards, 15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008)State
v. Edwards, 15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008) ; State v. Robbins, 15
Fla. L. Weekly Supp. 635 (Fla. Brevard Cty Ct. April 14, 2008)State v. Robbins, 15 Fla. L. Weekly
Supp. 635 (Fla. Brevard Cty Ct. April 14, 2008); State v. Love, 14 Fla. L. Weekly Supp. 1168 (Fla.
Brevard Cty. Ct. Oct. 3, 2007); State v. Muse, 14 Fla. L. Weekly Supp. 890 (Fla. Volusia Cty. Ct. June
26, 2007)State v. Muse, 14 Fla. L. Weekly Supp. 890 (Fla. Volusia Cty. Ct. June 26, 2007) ; State v.
Crawford, 14 Fla. L. Weekly Supp. 692 (Fla. Sarasota Cty. Ct. April 23, 2007)State v. Crawford, 14 Fla.
L. Weekly Supp. 692 (Fla. Sarasota Cty. Ct. April 23, 2007); State v. Winslow, 13 Fla. L. Weekly Supp.
1084 (Fla. Volusia Cty. Ct. Aug. 24, 2006).
47
State v. Davenport, 22 Fla. L. Weekly Supp. 954 (Fla. Hillsborough Cty. Ct, Feb. 18, 2015) State v.
Davenport, 22 Fla. L. Weekly Supp. 954 (Fla. Hillsborough Cty. Ct, Feb. 18, 2015) (FSEs were
inadmissible because defendant did not freely consent when he asked whether they were necessary and
officer incorrectly told defendant implied consent law required him to submit and if he refused he would
be arrested); State v. Silva, 22 Fla. L. Weekly Supp. 74 (Fla. 17th Cir. Ct. June 6, 2014)State v. Silva, 22
Fla. L. Weekly Supp. 74 (Fla. 17th Cir. Ct. June 6, 2014) (refusal to submit to FSEs was inadmissible
because deputy told defendant he “needed her to perform” them; thus she was given no choice and
consent would not have been voluntary); State v. Blanchette, 20 Fla. L. Weekly Supp. 1042 (Fla. 12th
Cir. Ct. Oct. 13, 2008) (while ruling that deputy could request FSEs based on reasonable suspicion, the
court found consent where “Deputy … acted in a civil, professional, non-threatening way, and …
interaction occurred on the side of a public street. There was no duress, coercion, or improper statements
by Deputy.”); Langford v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 874
(Fla. 5th Cir. Ct. June 26, 2006)Langford v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 874 (Fla. 5th Cir. Ct. June 26, 2006) (court concluded that officer had reasonable
suspicion and consent was voluntary where officer told the defendant it was in his best interest to do
field sobriety exercises, defendant initially refused each test, and then attempted to comply); State v.
Harper, 15 Fla. L. Weekly Supp. 232 (Fla. 17th Cir. Ct. Jan. 7, 2008) State v. Harper, 15 Fla. L. Weekly
Supp. 232 (Fla. 17th Cir. Ct. Jan. 7, 2008) (Leifert does not require that a subject take the roadside
exercises; officer “must at least ask” if the defendant “is willing to perform the roadside exercises”
rather than instruct the defendant); State v. Lynn, 11 Fla. L. Weekly Supp. 798 (Fla. 17th Cir. Ct.
2004)State v. Lynn, 11 Fla. L. Weekly Supp. 798 (Fla. 17th Cir. Ct. 2004); State v. Thompkins, 22 Fla.
Law Weekly Supp. 364 (Fla. Pasco Cty. Ct. Sept. 8, 2014) (there must be voluntary consent to FSEs and
there was no such consent where officer prevented defendant from closing the car door, opened it to the
fullest extent, defendant initially refused FSEs and officer quickly made a second request that sounded
to defendant like an order or directive); State v. Flores, 19 Fla. L. Weekly Supp. 485 (Fla. Monroe Cty.
Ct. June 6, 2011)State v. Flores, 19 Fla. L. Weekly Supp. 485 (Fla. Monroe Cty. Ct. June 6, 2011) (State
was required to prove consent to FSES in a BUI case and it failed where the officer could not recall the
exact language he used to get Defendant to submit, but Defendant was not free to go and officer did not
tell him he had the option to refuse); State v. Goodson, 18 Fla. L. Weekly Supp. 1165 (Fla. Lake Cty. Ct.
April 28, 2011) (judge suppressed FSES where Defendant’s speech was slurred, he stumbled, his eyes
were bloodshot and glassy, and he looked like he had been in the sun all day; there were open cans of
beer in boat, but the officer said he did not have probable cause prior to FSES and it was unclear
whether he requested or directed Defendant to submit; officer had reasonable suspicion but the State
failed to prove voluntary consent); State v. Orme, 18 Fla. L. Weekly Supp. 896 (Fla. Pasco Cty. Ct. July
1, 2011)State v. Orme, 18 Fla. L. Weekly Supp. 896 (Fla. Pasco Cty. Ct. July 1, 2011) (evidence
indicated that Defendant acquiesced to authority, where deputies saw her alone behind wheel with keys
in the ignition and vehicle facing the wrong way, she had slow and slurred speech, droopy eyes, strong
odor of alcohol, and made incomplete statements; she adamantly refused FSES, but finally, when the
deputy said twice he wanted to look at her eyes, she complied); State v. Milian, 18 Fla. L. Weekly Supp.
414 (Fla. Broward Cty Ct. Dec. 9, 2010)State v. Milian, 18 Fla. L. Weekly Supp. 414 (Fla. Broward Cty
Ct. Dec. 9, 2010) (FSES were not voluntary and were suppressed where Defendant refused, followed by
protracted and animated conversations between Deputy and Defendant, including repeated requests by
Deputy to perform FSES and the threat of arrest resulting in a gradual shift by Defendant until he
consented); State v. Hauserman, 18 Fla. L. Weekly Supp. 309 (Fla. Monroe Cty. Ct. Dec. 30, 2010)State
v. Hauserman, 18 Fla. L. Weekly Supp. 309 (Fla. Monroe Cty. Ct. Dec. 30, 2010) (State was required to
show voluntary consent and failed where deputy repeatedly said, “‘what I want you to do is …’”
followed this comment with instructions, and threatened to handcuff him because the deputy wanted
defendant’s hands out of pockets.); State v. Jackson, 16 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct.
Sept. 24, 2008)State v. Jackson, 16 Fla. L. Weekly Supp. 431 (Fla. Leon Cty. Ct. Sept. 24, 2008)
(voluntary consent required; burden not met where defendant repeatedly said he needed to use restroom;

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officer pointed taser at him, ordered him face down, and handcuffed him; defendant remained on ground
for 30 minutes until back-up arrived; defendant loss control of bowel and bladder when he stood up and
did FSES one or two minutes later); State v. Cornejo, 15 Fla. L. Weekly Supp. 1217 (Fla. Palm Beach
Cty Ct. Sept. 29, 2008) (officer’s advice to defendant that FSTS are voluntary, but refusal could be used
against him was correct and is preferred); State v. Barnett, 15 Fla. L. Weekly Supp. 995 (Fla. Duval Cty.
Ct. July 8, 2008)State v. Barnett, 15 Fla. L. Weekly Supp. 995 (Fla. Duval Cty. Ct. July 8, 2008) (law
does not require individual to submit to sobriety exercises during a DUI investigation, rather consent is
required; there was mere acquiescence where defendant submitted to HGN after officer said, “I need to
check your eyes.”); State v. Singer, 15 Fla. L. Weekly Supp. 62 (Fla. Duval Cty. Ct. Oct. 1, 2007) State
v. Singer, 15 Fla. L. Weekly Supp. 62 (Fla. Duval Cty. Ct. Oct. 1, 2007) (officer did not have reasonable
suspicion to detain defendant; due to officer’s statement that he was going to conduct an eye
examination, the consent to FSES was involuntary and the results were inadmissible); State v. Hart, 14
Fla. L. Weekly Supp. 797 (Fla. Monroe Cty. Ct. Nov. 7, 2006)State v. Hart, 14 Fla. L. Weekly Supp.
797 (Fla. Monroe Cty. Ct. Nov. 7, 2006) (FSES were inadmissible because State failed to prove
voluntary consent; defendant was 72, asked about an attorney, was reluctant to agree to exercises, said
he wanted to go home, was denied request to go to bathroom; officer gave untrue information about
consequences of refusing; four officers were at the scene; officers humiliated defendant); State v.
Mattox, 14 Fla. L. Weekly Supp. 567 (Fla. Leon Cty. Ct. Feb. 26, 2007)State v. Mattox, 14 Fla. L.
Weekly Supp. 567 (Fla. Leon Cty. Ct. Feb. 26, 2007) (State must show voluntary consent to FSES and
there was no voluntary consent where officer told the defendant that he needed to do the exercises and
that they could only help him; the statement was coercive and a misstatement of law); State v.
McKenzie, 14 Fla. L. Weekly Supp. 472 (Fla. Nassau Cty. Ct. March 5, 2007)State v. McKenzie, 14 Fla.
L. Weekly Supp. 472 (Fla. Nassau Cty. Ct. March 5, 2007) (State failed to show consent where officer
told defendant, “What I want you to do sir is step outside the vehicle. I’m gonna have you submit to
several field sobriety exercises. Come back this way.”); State v. Kerrigan, 14 Fla. L. Weekly Supp. 103
(Fla. Broward Cty. Ct. Oct. 10, 2006)State v. Kerrigan, 14 Fla. L. Weekly Supp. 103 (Fla. Broward Cty.
Ct. Oct. 10, 2006) (consent was mere acquiescence to authority when officer investigating crash said to
defendant that he was there conducting a DUI investigation and he was “going to ask” the defendant to
do some roadside exercises); State v. Earnshaw, 14 Fla. L. Weekly Supp. 77 (Fla. Leon Cty. Ct. Oct. 12,
2006)State v. Earnshaw, 14 Fla. L. Weekly Supp. 77 (Fla. Leon Cty. Ct. Oct. 12, 2006) (State failed to
show consent where the deputy said he wanted defendant, “to do a couple of exercises real quick to test
your ability to drive;” a reasonable person would have thought she had no choice); State v. Rushing, 14
Fla. L. Weekly Supp. 73 (Fla. Leon Cty. Ct. Nov. 17, 2006)State v. Rushing, 14 Fla. L. Weekly Supp.
73 (Fla. Leon Cty. Ct. Nov. 17, 2006) (State failed to show consent where defendant indicated she
needed to go to the bathroom and the deputy ordered her to complete the exercises so she could relieve
herself; a reasonable person would have thought she had no choice); State v. Jackson, 13 Fla. L. Weekly
Supp. 893 (Fla. Broward Cty. Ct. June 19, 2006)State v. Jackson, 13 Fla. L. Weekly Supp. 893 (Fla.
Broward Cty. Ct. June 19, 2006) (court found there was probable cause for DUI arrest, but results of
physical exercises were excluded because performance of the tests was coerced when officer told
defendant performance on test would determine if the defendant could drive away); State v. Benvenuto,
13 Fla. L. Weekly Supp. 885 (Fla. Leon Cty. Ct. June 12, 2006)State v. Benvenuto, 13 Fla. L. Weekly
Supp. 885 (Fla. Leon Cty. Ct. June 12, 2006); State v. Barker, 13 Fla. L. Weekly Supp. 166 (Fla. Dade
Cty. Ct. Nov. 17, 2005)State v. Barker, 13 Fla. L. Weekly Supp. 166 (Fla. Dade Cty. Ct. Nov. 17, 2005);
State v. Gilbert, 12 Fla. L. Weekly Supp. 1081 (Fla. Dade Cty. Ct. August 15, 2005); State v. Peruyera,
12 Fla. L. Weekly Supp. 968 (Fla. Dade Cty. Ct. July 11, 2005)State v. Peruyera, 12 Fla. L. Weekly
Supp. 968 (Fla. Dade Cty. Ct. July 11, 2005); State v. Zalis, 12 Fla. L. Weekly Supp. 884 (Fla. Palm
Beach Cty. Ct. June 17, 2005)State v. Zalis, 12 Fla. L. Weekly Supp. 884 (Fla. Palm Beach Cty. Ct. June
17, 2005); State v. Fromen, 12 Fla. L. Weekly Supp. 675 (Fla. Palm Beach Cty. Ct. April 13, 2005)State
v. Fromen, 12 Fla. L. Weekly Supp. 675 (Fla. Palm Beach Cty. Ct. April 13, 2005) (court did a consent
analysis, which included consideration of “whether this was an arbitrary intrusion by [the officer] that
violated the defendant’s privacy and security rights.” And the court found the consent was voluntary
where the officer lawfully stopped the defendant in a well lit location, the defendant exited on his own,
the officer did not threaten or intimidate the defendant, the procedure took only ten minutes, and the
defendant never objected); State v. Gonzalez, 12 Fla. L. Weekly Supp. 482 (Fla. Dade Cty. Ct. Feb. 16,
2005)State v. Gonzalez, 12 Fla. L. Weekly Supp. 482 (Fla. Dade Cty. Ct. Feb. 16, 2005) (performance
was involuntary where defendant was confronted by several armed officers and was ordered to remain
on the scene and perform the exercises, but on appeal, the court rejected the conclusion that consent was
necessary. See 13 Fla. L. Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006)13 Fla. L. Weekly Supp.
685 (Fla. 11th Cir. Ct. May 1, 2006)).

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48
State v. Carney, 14 Fla. L. Weekly Supp. 287 (Fla. Hillsborough Cty. Ct. Dec. 7, 2006)State v. Carney,
14 Fla. L. Weekly Supp. 287 (Fla. Hillsborough Cty. Ct. Dec. 7, 2006). See also State v. Polanski, 24
Fla. L. Weekly Supp. 769 (Fla. Collier Cty. Ct. May 14, 2009)State v. Polanski, 24 Fla. L. Weekly Supp.
769 (Fla. Collier Cty. Ct. May 14, 2009) (trial judge suppressed FSE results because the deputy had
reasonable suspicion to request FSES, but the facts indicated he compelled performance of the exercises;
if he’d had probable cause that would have been permissible, relying on Leifert); State v. Goodson, 18
Fla. L. Weekly Supp. 1165 (Fla. Lake Cty. Ct. April 28, 2011) (if officer had reasonable suspicion of
BUI he could have requested Defendant to perform FSES, but Defendant still had to voluntarily consent;
if officer had probable cause of BUI, he could have ordered the defendant to do FSES).
49
State v. Carney, 14 Fla. L. Weekly Supp. 287 (Fla. Hillsborough Cty. Ct. Dec. 7, 2006)State v. Carney,
14 Fla. L. Weekly Supp. 287 (Fla. Hillsborough Cty. Ct. Dec. 7, 2006) (deputy had probable cause for
DUI where defendant was weaving in his lane for over six minutes and over a mile and kept going for an
unusually long period after deputy activated his overhead lights; odor of alcohol came from inside
vehicle; defendant’s eyes were glassy, face flushed, and speech slurred; defendant swayed slightly, and
he admitted drinking and that alcohol could have affected his driving). See also State v. Harper, 14 Fla.
L. Weekly Supp. 1033 (Fla. 17th Cir. Ct. Aug. 9, 2007) (court held based on Leifert that if the officer
had probable cause for DUI, the officer could require the defendant to submit to roadside sobriety
exercises); State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017)State v. Hart,
25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017) (officer can compel performance of
FSES where the officer has probable cause and also demanded a breath test); State v. Polanski, 24 Fla.
L. Weekly Supp. 769 (Fla. Collier Cty. Ct. May 14, 2009)State v. Polanski, 24 Fla. L. Weekly Supp. 769
(Fla. Collier Cty. Ct. May 14, 2009) (trial judge suppressed FSE results because the deputy had
reasonable suspicion to request FSES, but the facts indicated he compelled performance of the exercises;
if he’d had probable cause that would have been permissible, relying on Leifert); State v. Echternach, 18
Fla. L. Weekly Supp. 555 (Fla. Hillsborough Cty. Ct. April 5, 2011)State v. Echternach, 18 Fla. L.
Weekly Supp. 555 (Fla. Hillsborough Cty. Ct. April 5, 2011) (court found that since the officer had
reasonable suspicion, but not probable cause, the State had to prove voluntary consent to FSES, and
where the officer did not request the defendant to submit, but either ordered him to follow instructions or
simply administered the test, the defendant merely acquiesced rather than voluntarily submitted).
50
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
51
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
52
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
53
Morris v. State, 988 So. 2d 120, 122–123 (Fla. 5th DCA 2008).
54
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
55
State v. Taylor, 648 So. 2d 701 (Fla. 1995) (Kogan, J., dissenting).
56
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
57
State v. Tharp, 13 Fla. L. Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005)State v. Tharp, 13 Fla. L.
Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005). See also Weeks v. Dep’t of Highway Safety &
Motor Vehicles, 22 Fla. L. Weekly Supp. 171 (Fla. 4th Cir. Ct. Aug. 29, 2014)Weeks v. Dep’t of
Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 171 (Fla. 4th Cir. Ct. Aug. 29, 2014)
(investigatory stop did not become a de facto arrest and officer acted reasonably where officer
transported unhandcuffed petitioner to well-lit flat parking lot just across road from crash scene, which
was being cleared, and officer transported petitioner to parking lot so petitioner could safely perform
FSEs; officer told petitioner he was not under arrest and was being transported to safer location for
FSEs; further, the fact that unhandcuffed petitioner, who was told he was not under arrest, was held in
the back seat of police car for about eight minutes waiting for DUI officer did not make investigatory
detention a de facto arrest); Higginbotham v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L.
Weekly Supp. 4 (Fla. 4th Cir. Ct. July 3, 2014)Higginbotham v. Dep’t of Highway Safety & Motor
Vehicles, 22 Fla. L. Weekly Supp. 4 (Fla. 4th Cir. Ct. July 3, 2014) (investigative detention did not
become de facto arrest where petitioner was placed in back of police car because of reasonable fear she
would try to leave, contact her boyfriend, or interfere with the carjacking investigation; no proof of

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handcuffing; detention was just for time required for the DUI unit to arrive and do investigation; and she
was transported to area within the same parking lot to safely conduct investigation); State v. Holowicki,
15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008)State v. Holowicki, 15 Fla. L. Weekly
Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008) (administering FSES at police station rather than scene does
not preclude admission into evidence); State v. Ryan, 24 Fla. L. Weekly Supp. 452 (Fla. Manatee Cty.
Ct. July 1, 2016)State v. Ryan, 24 Fla. L. Weekly Supp. 452 (Fla. Manatee Cty. Ct. July 1, 2016) (it was
reasonable to move the defendant off the shoulder of I-75 to a gas station to do FSES for safety reasons;
where during transport, defendant was not handcuffed, restrained or advised that he was under arrest, but
rather he was told it was part of the investigation, he was not in custody as contemplated by the U.S.
Constitution); State v. McCoy, 16 Fla. L. Weekly Supp. 450 (Fla. Hillsborough Cty. Ct. March 13,
2009)State v. McCoy, 16 Fla. L. Weekly Supp. 450 (Fla. Hillsborough Cty. Ct. March 13, 2009)
(moving defendant in back of police car less than ¼ mile for FSEs did not constitute a de facto arrest;
the standard was whether this was reasonable; doing test at original location was impractical due to
circumstances, including lighting and safety concerns, unnecessary delay, and embarrassment for
defendant since the stop was in front of his house; defendant consented to move, was not handcuffed,
and his father was allowed to go to the location). But see cases dealing with custody as it relates to
statements in Chapter 12.
58
Art. I, § 23 provides: “Every natural person has the right to be left alone and free from governmental
intrusion into his private life except as otherwise provided herein.”
59
State v. Johnson, 8 Fla. Supp. 2d 116 (Fla. Broward Cty. Ct. 1984).
60
Shaktman v. State, 553 So. 2d 148 (Fla. 1989).
61
Shaktman v. State, 553 So. 2d 148 (Fla. 1989).
62
State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002).
63
State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002).
64
State v. Odio, 2 Fla. L. Weekly Supp. 325 (Fla. Dade Cty. Ct. June 24, 1994)State v. Odio, 2 Fla. L.
Weekly Supp. 325 (Fla. Dade Cty. Ct. June 24, 1994) (judge ruled results were inadmissible where
officer incorrectly advised Defendant FSES were compulsory; Defendant said he would not have
submitted otherwise).
65
State v. Holcomb, 39 Fla. Supp. 2d 220 (Fla. Hillsborough Cty.Ct. 1990).
66
Persis v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 1015 (Fla. 9th Cir. Ct.
Sept. 29, 2009); State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008)State
v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008); State v. Harper, 14 Fla. L.
Weekly Supp. 1033 (Fla. 17th Cir. Ct. Aug. 9, 2007); State v. Venerable, 23 Fla. L. Weekly Supp. 195
(Fla. Brevard Cty. Ct. July 10, 2015)State v. Venerable, 23 Fla. L. Weekly Supp. 195 (Fla. Brevard Cty.
Ct. July 10, 2015); State v. Peruyera, 12 Fla. L. Weekly Supp. 968 (Fla. Dade Cty. Ct. July 11,
2005)State v. Peruyera, 12 Fla. L. Weekly Supp. 968 (Fla. Dade Cty. Ct. July 11, 2005); State v. Tuinen,
7 Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999)State v. Tuinen, 7 Fla. L. Weekly
Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999).
67
State v. Whelan, 728 So. 2d 807, 811 (Fla. 3d DCA 1999). See also State v. Ocasio, 23 Fla. L.
Weekly Supp. 677 (Fla. 9th Cir. Ct. Oct. 29, 2015)State v. Ocasio, 23 Fla. L. Weekly Supp. 677 (Fla.
9th Cir. Ct. Oct. 29, 2015); Persis v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly
Supp. 1015 (Fla. 9th Cir. Ct. Sept. 29, 2009); State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th
Cir. Ct. May 19, 2008)State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19,
2008); State v. Horrell, 11 Fla. L. Weekly Supp. 87 (Fla. 9th Cir. Ct. Sept 5, 2003) State v. Horrell, 11
Fla. L. Weekly Supp. 87 (Fla. 9th Cir. Ct. Sept 5, 2003). State v. Gonzalez, 13 Fla. L. Weekly Supp. 685
(Fla. 11th Cir. Ct. May 1, 2006)13 Fla. L. Weekly Supp. 685 (Fla. 11th Cir. Ct. May 1, 2006); State v.
Venerable, 23 Fla. L. Weekly Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015)State v. Venerable, 23 Fla.
L. Weekly Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015); State v. Nguyen, 20 Fla. L. Weekly Supp.
685 (Fla. Brevard Cty. Ct. April 10, 2013)State v. Nguyen, 20 Fla. L. Weekly Supp. 685 (Fla. Brevard

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Cty. Ct. April 10, 2013); State v. Hauserman, 18 Fla. L. Weekly Supp. 309 (Fla. Monroe Cty. Ct. Dec.
30, 2010)State v. Hauserman, 18 Fla. L. Weekly Supp. 309 (Fla. Monroe Cty. Ct. Dec. 30, 2010); State
v. Turpin, 16 Fla. L. Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009)State v. Turpin, 16 Fla. L.
Weekly Supp. 363 (Fla. Brevard Cty. Ct. Jan. 28, 2009); State v. Christie, 15 Fla. L. Weekly Supp. 1220
(Fla. Monroe Cty. Ct. Oct. 8, 2008); State v. Larkin, 15 Fla. L. Weekly Supp. 941 (Fla. Broward Cty. Ct.
July 8, 2008)State v. Larkin, 15 Fla. L. Weekly Supp. 941 (Fla. Broward Cty. Ct. July 8, 2008) ; State v.
Edwards, 15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008)State v. Edwards, 15 Fla.
L. Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008); State v. Peruyera, 12 Fla. L. Weekly Supp.
968 (Fla. Dade Cty. Ct. July 11, 2005)State v. Peruyera, 12 Fla. L. Weekly Supp. 968 (Fla. Dade Cty.
Ct. July 11, 2005); State v. Zalis, 12 Fla. L. Weekly Supp. 884 (Fla. Palm Beach Cty. Ct. June 17,
2005)State v. Zalis, 12 Fla. L. Weekly Supp. 884 (Fla. Palm Beach Cty. Ct. June 17, 2005); State v.
Fromen, 12 Fla. L. Weekly Supp. 675 (Fla. Palm Beach Cty. Ct. April 13, 2005)State v. Fromen, 12 Fla.
L. Weekly Supp. 675 (Fla. Palm Beach Cty. Ct. April 13, 2005).
68
Persis v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 1015 (Fla. 9th Cir. Ct.
Sept. 29, 2009); State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008)State
v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008); State v. Harper, 14 Fla. L.
Weekly Supp. 1033 (Fla. 17th Cir. Ct. Aug. 9, 2007); State v. Richards, 9 Fla. L. Weekly Supp. 527
(Fla. 17th Cir. Ct. Dec. 21, 2001)State v. Richards, 9 Fla. L. Weekly Supp. 527 (Fla. 17th Cir. Ct. Dec.
21, 2001); State v. Venerable, 23 Fla. L. Weekly Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015)State v.
Venerable, 23 Fla. L. Weekly Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015); State v. Nguyen, 20 Fla.
L. Weekly Supp. 685 (Fla. Brevard Cty. Ct. April 10, 2013)State v. Nguyen, 20 Fla. L. Weekly Supp.
685 (Fla. Brevard Cty. Ct. April 10, 2013).
69
State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008)State v. Holowicki,
15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008); State v. Venerable, 23 Fla. L. Weekly
Supp. 195 (Fla. Brevard Cty. Ct. July 10, 2015)State v. Venerable, 23 Fla. L. Weekly Supp. 195 (Fla.
Brevard Cty. Ct. July 10, 2015); State v. Nguyen, 20 Fla. L. Weekly Supp. 685 (Fla. Brevard Cty. Ct.
April 10, 2013)State v. Nguyen, 20 Fla. L. Weekly Supp. 685 (Fla. Brevard Cty. Ct. April 10, 2013);
State v. Lewinson, 6 Fla. L. Weekly Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999)State v. Lewinson,
6 Fla. L. Weekly Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999).
70
State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008)State v. Holowicki,
15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct. May 19, 2008) (officer’s response to inquiry did not
misinform the defendant: “‘the exercises, it’s up to you, but it’s mandatory that you do them, and failure
to do so can and may be used against you in a court of law;’ then officer said, ‘I’m unclear whether
they’re mandatory or voluntary … right now all I say is failure to do so can and may be used against you
in a court of law.’ I don’t say mandatory or voluntary.’” This statement by [the officer] that the tests
could be used against defendant in court correctly informed defendant of the law “and the exactness of
her words do not justify the exclusion of the field sobriety tests.”); State v. Partlow, 23 Fla. L. Weekly
Supp. 252 (Fla. Hernando Cty. Ct. Aug 7, 2015)State v. Partlow, 23 Fla. L. Weekly Supp. 252 (Fla.
Hernando Cty. Ct. Aug 7, 2015) (evidence of performance or refusal was inadmissible where defendant
was reluctant; deputy incorrectly stated the law by advising defendant she was required to perform
additional FSEs and that requirement was printed on her license); State v. Zalis, 12 Fla. L. Weekly Supp.
884 (Fla. Palm Beach Cty. Ct. June 17, 2005)State v. Zalis, 12 Fla. L. Weekly Supp. 884 (Fla. Palm
Beach Cty. Ct. June 17, 2005) (officer improperly told the defendant she would lose her license if she
refused the field sobriety exercises); State v. Tuinen, 7 Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct.
Nov. 30, 1999)State v. Tuinen, 7 Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999); State
v. Lewinson, 6 Fla. L. Weekly Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999)State v. Lewinson, 6 Fla.
L. Weekly Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999).
71
See State v. Tuinen, 7 Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999)State v. Tuinen, 7
Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999); State v. Shapiro, 7 Fla. L. Weekly
Supp. 149 (Fla. Broward Cty. Ct. Nov. 22, 1999)State v. Shapiro, 7 Fla. L. Weekly Supp. 149 (Fla.
Broward Cty. Ct. Nov. 22, 1999). See also State v. Stossel, 21 Fla. L. Weekly Supp. 447 (Fla. Seminole
Cty. Ct. Feb. 11, 2014)State v. Stossel, 21 Fla. L. Weekly Supp. 447 (Fla. Seminole Cty. Ct. Feb. 11,
2014) (defendant did not freely and voluntary consent where the officer told her if she did not participate
in FSEs she would be subject to arrest; a reasonable person would believe if they refused they would be
arrested). But see State v. Terpos, 19 Fla. L. Weekly Supp. 379 (Fla. Monroe Cty. Ct. Jan. 25,
2012)State v. Terpos, 19 Fla. L. Weekly Supp. 379 (Fla. Monroe Cty. Ct. Jan. 25, 2012) (consent to

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§ 7:2.Constitutional considerations in dealing with field..., 11 Fla. Prac., DUI...

FSEs was voluntary where deputy told defendant that based on what another officer and citizen
observed and his appearance, he would be arrested; deputy told him he did not have to do the exercises,
but he had two choices—either voluntarily do the FSEs or be arrested); State v. Edwards, 15 Fla. L.
Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008)State v. Edwards, 15 Fla. L. Weekly Supp. 636
(Fla. Brevard Cty Ct. March 17, 2008) (defendant inquired as to consequence of refusal; trial judge
found officer’s response that defendant would be arrested not misleading because the vehicle was parked
with front end off payment in shrubbery with river on other side of shrubbery, defendant was disoriented
and incoherent, had odor of alcohol, flushed face, bloodshot eyes, and slurred speech; unless there was
other evidence of non-impairment such as success on sobriety exercises, arrest was reasonable).
72
State v. Lewinson, 6 Fla. L. Weekly Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999)State v. Lewinson,
6 Fla. L. Weekly Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999). See also State v. Michelli, 15 Fla. L.
Weekly Supp. 616 (Fla. Volusia Cty. Ct. March 20, 2008)State v. Michelli, 15 Fla. L. Weekly Supp. 616
(Fla. Volusia Cty. Ct. March 20, 2008).
73
State v. Johnson, 6 Fla. L. Weekly Supp. 236 (Fla. 18th Cir. Ct. Nov. 18, 1998)State v. Johnson, 6 Fla.
L. Weekly Supp. 236 (Fla. 18th Cir. Ct. Nov. 18, 1998).
74
State v. Tuinen, 7 Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999)State v. Tuinen, 7
Fla. L. Weekly Supp. 221 (Fla. Broward Cty. Ct. Nov. 30, 1999); State v. Lewinson, 6 Fla. L. Weekly
Supp. 656 (Fla. Broward Cty. Ct. July 26, 1999)State v. Lewinson, 6 Fla. L. Weekly Supp. 656 (Fla.
Broward Cty. Ct. July 26, 1999).
75
Thornhill v. State, 13 Fla. L. Weekly Supp. 971 (Fla. 17th Cir. Ct. June 23, 2006) Thornhill v. State, 13
Fla. L. Weekly Supp. 971 (Fla. 17th Cir. Ct. June 23, 2006).
76
Vandaley v. State, 13 Fla. L. Weekly Supp. 1044 (Fla. 17th Cir. Ct. July 12, 2006). Cf State v. Beasy, 26
Fla. L. Weekly Supp. 57 (Fla. Brevard Cty. Ct. March 12, 2018)Cir. Ct. July 12, 2006). Cf State v.
Beasy, 26 Fla. L. Weekly Supp. 57 (Fla. Brevard Cty. Ct. March 12, 2018) (court rejected defense claim
that FSES violated her 4th Amendment rights because officer would not allow Defendant to urinate
despite her repeated requests and statement that she had a bladder condition; order sets forth several
reasons based on the evidence).
77
Thornhill v. State, 13 Fla. L. Weekly Supp. 971 (Fla. 17th Cir. Ct. June 23, 2006) Thornhill v. State, 13
Fla. L. Weekly Supp. 971 (Fla. 17th Cir. Ct. June 23, 2006) (citing Department of Highway Safety and
Motor Vehicles v. Farr, 757 So. 2d 550, 552 (Fla. 5th DCA 2000) and State v. Burns, 661 So. 2d
842, 848 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996)). See also State v. Caruso,
23 Fla. L. Weekly Supp. 696 (Fla. 17th Cir. Ct. Oct. 2, 2015)State v. Caruso, 23 Fla. L. Weekly Supp.
696 (Fla. 17th Cir. Ct. Oct. 2, 2015) (results of FSEs were admissible where defendant was allowed to
talk to an attorney on a cell phone; the attorney advised him not to take FSEs and told deputy he was
advising his client not to do any FSES; deputy responded by saying “‘Well, that’s his choice’ and
‘That’ll be up to him;’” that was correct; defendant had no right to counsel at this point and he
voluntarily submitted to exercises).
78
Macias v. State, 515 So. 2d 206 (Fla. 1987). See also State v. Holowicki, 15 Fla. L. Weekly Supp. 792
(Fla. 17th Cir. Ct. May 19, 2008)State v. Holowicki, 15 Fla. L. Weekly Supp. 792 (Fla. 17th Cir. Ct.
May 19, 2008); State v. Tharp, 13 Fla. L. Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005)State v.
Tharp, 13 Fla. L. Weekly Supp. 56 (Fla. 13th Cir. Ct. June 14, 2005); Fernandez v. State, 9 Fla. L.
Weekly Supp. 661 (Fla. 11th Cir. Ct. Aug. 13, 2002)Fernandez v. State, 9 Fla. L. Weekly Supp. 661
(Fla. 11th Cir. Ct. Aug. 13, 2002) (trial judge erred in refusing to allow defendant “to show his
surgically repaired and enfeebled leg as non-testimonial evidence to the jury” on the grounds that it
would only serve to prejudice the jury, and defendant was also entitled to present an expert to explain
the significance of his condition, instead of testifying); State v. Edwards, 15 Fla. L. Weekly Supp. 636
(Fla. Brevard Cty Ct. March 17, 2008)State v. Edwards, 15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty
Ct. March 17, 2008).
79
Macias v. State, 515 So. 2d 206 (Fla. 1987). See also State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla.
Santa Rosa Cty. Ct. May 3, 2007)State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct.
May 3, 2007) (Fifth Amendment privilege against self-incrimination does not bar introduction of results
of field sobriety exercises and any spontaneous statements made while performing them).

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80
State v. Houston, 17 Fla. L. Weekly Supp. 265 (Fla. 17th Cir. Ct. Dec. 23, 2009)State v. Houston, 17
Fla. L. Weekly Supp. 265 (Fla. 17th Cir. Ct. Dec. 23, 2009).
81
Macias v. State, 515 So. 2d 206 (Fla. 1987).
82
Allred v. State, 622 So. 2d 984 (Fla. 1993). This subject is discussed fully in §§ 12:1 et seq.
regarding statements.

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Works.

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§ 7:3.HGN tests, 11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 7. Field Sobriety Tests

§ 7:3. HGN tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 411, 417, 422.1, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1421

In State v. Meador1 and Williams v. State,2 the courts laid down the rules for the use of field sobriety test results,
including HGN. These principles were covered earlier in this chapter, but there are certain aspects of HGN
testing that have either not been addressed in those cases, or are unclear.

These courts had no reason to address whether HGN test results could be considered, absent the proper
foundation, in determining whether the officer had probable cause. Therefore, the answer to that question is
unclear. It is true, however, that in Meador the court did not allow lay testimony on HGN results, and required
proof of the traditional scientific predicate in a trial because such evidence would otherwise be unfairly
prejudicial.3 It remains to be seen whether those same considerations would apply in a hearing on a motion to
suppress. On the other hand, under Williams, a properly qualified DRE can give the necessary testimony to
permit HGN test results to be considered in determining probable cause. 4 That was modified in Bowen v. State5
to permit any qualified and trained officer to give such testimony.

A Florida trial court6 and a foreign court7 ruled that HGN test results could be considered for such purposes.
One court ruled that officers can testify as to their observations of HGN tests as part of their testimony on
probable cause, unless the tests were the sole basis for probable cause. If the tests were the sole basis for
probable cause, the testimony would be inadmissible. A foreign court ruled that a trooper had probable cause
based on the defendant’s failure on the HGN test along with other indicia of impairment, even though the
defendant passed four other field sobriety tests and the traditional predicate was not established. 8

Another Florida trial court permitted HGN evidence despite noncompliance with some of the protocols set forth
in the training manual.9 The court took this position because HGN “was used as an investigative tool, among the

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§ 7:3.HGN tests, 11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

totality of circumstances, by the officer in determining probable cause for the arrest.” 10 The officer started with
the right eye rather than the left, did not check for “‘equal tracking,’” and deviated from the exact time
recommended for each “‘pass.’”11 Although the manual indicated that such changes affected the validity of the
test, the court still allowed the evidence because there was no evidence that these specific departures had any
impact and it was a matter for the fact finder.12

Meador13 is also unclear as to whether an expert witness can utilize HGN test results to arrive at an actual blood
alcohol level based on the traditional scientific predicate. One trial court ruled that an officer cannot do that
because the statute requires the Department of Law Enforcement (formerly H.R.S.) to approve the methods for
determining blood alcohol levels (BAL), and the HGN method has not been approved. 14 Foreign courts have
taken a similar position.15

In Williams, the court focused specifically on this issue. The court said that HGN test results cannot trigger the
statutory presumptions without the results of a statutorily authorized chemical test also being in evidence. 16
Further, the results cannot be used to establish guilt based on a BAL above the legal limit. 17 This ruling was
based on the fact that the Legislature has not approved HGN as a method for establishing blood alcohol level.

“However, HGN test results are admissible independently of other evidence as proof that a defendant was
impaired under § 316.193(1)(a).”18 One trial judge ruled that testimony as to HGN is admissible whether the
subject is seated or reclining as long as the procedure ensures that the patient’s head is not moving and the eyes
are following the stimulus.19

The Florida Legislature20 adopted the standards in Daubert v. Merrell Dow Pharmaceuticals Inc. 21 and two
county judges concluded that the testimony of qualified officers interpreting HGN test results is admissible
pursuant to Daubert.22 But recently, in DeLisle v. Crane Co.,23 the Florida Supreme Court ruled that the
Florida Statute adopting the Daubert standards is unconstitutional and the admissibility of expert
testimony in Florida is controlled by Frye v. U.S.24

It is unclear from Williams whether HGN tests can ever be used to establish a specific breath alcohol level
during a trial. In Faires v. State,25 the court ruled that the trial judge should not have allowed a trooper to testify
to a specific blood alcohol level derived from the HGN tests. However, this decision was based on Williams.
The court relied specifically on this language from Williams: “‘HGN test results alone, in the absence of a
chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Fla.
Stat., § 316.1934, and may not be used to establish a BAC of 0.08 percent or more.’” 26 Williams and Faires
make it clear that HGN test results alone are inadmissible to establish guilt based solely on a specific unlawful
blood alcohol level. Further, they make it clear that such test results establishing a specific blood alcohol level,
cannot be used to invoke the statutory presumptions. It remains uncertain, however, whether testimony of a
specific blood alcohol level based solely on HGN test results is admissible as some evidence of impairment
upon a showing of the traditional scientific predicate.

As suggested earlier in this chapter, the decision in Bowen v. State27 has cast doubt on the admissibility of HGN
tests results in the absence of a confirmatory blood, breath, or urine test. In grappling with this issue, these
things should be noted: (1) Bowen relies specifically on Faires and Williams;28 (2) the opinion doesn’t state
whether such confirmatory evidence is required only when HGN tests results are used to introduce a specific
BAL based on the traditional scientific predicate, or in all cases where there is any testimony about HGN tests
results;29 (3) it is unclear whether the court’s statement was dictum. As previously noted, several trial courts
have ruled that this language in Bowen is dictum, and the ruling in Williams permits the introduction of HGN
tests results without a confirmatory test.30

A three-judge circuit court appellate panel agreed with those trial judges 31 and concluded that this language from
Bowen32 is dictum for three reasons. First, Williams,33 which is the foundation for Bowen,34 does not require a
confirmatory test.35 Second, Bowen36 draws no distinction between use of HGN to prove a specific alcohol level
and HGN as part of the total evidence to prove impairment. 37 Third, the sole issue in Bowen was whether HGN
test results were admissible through a trained and qualified officer who was not certified as a drug recognition
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§ 7:3.HGN tests, 11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

expert, and the reference to the confirmatory test had nothing to do with that issue. 38 That having been said, in
Robinson v. State,39 the court said: “We have not, however, adopted the rule that obtains in the Third District,
which requires ‘a confirmatory blood, breath, or urine test before HGN evidence is admissible.’” 40 (emphasis
added) This comment may also be dictum because the issue in Robinson41 was whether lay opinion about the
significance of HGN test results was harmless error.42 In any event, further clarification would be helpful.

It should be remembered, however, that the process of HGN testing involves observation of physical
characteristics that might have significance independent of HGN testing. For instance, a trial judge ruled that
“the state may refer to any portion of those exercises which relate to issues within a jury’s understanding, such
as the ability to follow directions.” 43 Thus, the defendant’s inability to move his eyes upon request was
admissible.44

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla. 1996).
2
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
3
State v. Meador, 674 So. 2d 826, 836 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla.
1996).
4
Williams v. State, 710 So. 2d 24, 36 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
5
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999) (trooper who studied HGN in 40 hours DUI
course and gave HGN about 1000 times was qualified).
6
State v. Graham, 23 Fla. Supp. 2d 93 (Fla. Palm Beach Cty. Ct. 1987).
7
State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990). See also Spencer v. State, 302 Ga. 133, 805 S.E.2d
886 (2017); State v. Baue, 258 Neb. 968, 607 N.W.2d 191, 197 (2000); State v. Ruthardt, 680
A.2d 349, 355 (Del. Super. Ct. 1996).
8
State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990).
9
State v. Kosiba, 15 Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007)State v. Kosiba, 15
Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007). See also State v. Wagner, 15 Fla. L.
Weekly Supp. 935 (Fla. Monroe Cty. Ct. June 20, 2008)State v. Wagner, 15 Fla. L. Weekly Supp. 935
(Fla. Monroe Cty. Ct. June 20, 2008) (deviations by a second or two and by an inch or so were minor,
did not require suppression of HGN testimony, and could be argued to the trier of fact).
10
State v. Kosiba, 15 Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007)State v. Kosiba, 15
Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007).
11
State v. Kosiba, 15 Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007)State v. Kosiba, 15
Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007).
12
State v. Kosiba, 15 Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007)State v. Kosiba, 15
Fla. L. Weekly Supp. 627 (Fla. Monroe Cty. Ct. Oct. 12, 2007). See also Dorr v. State, 18 Fla. L.
Weekly Supp. 269 (Fla. 16th Cir. Ct. Jan. 10, 2011)Dorr v. State, 18 Fla. L. Weekly Supp. 269 (Fla.

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§ 7:3.HGN tests, 11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

16th Cir. Ct. Jan. 10, 2011) (deviation from National Highway Traffic Safety Administration protocol in
the administration of HGN test went to the weight of the test results rather than admissibility). Contra
State v. Zelkoff, 19 Fla. L. Weekly Supp. 409 (Fla. Monroe Cty. Ct. Nov. 30, 2011)State v. Zelkoff, 19
Fla. L. Weekly Supp. 409 (Fla. Monroe Cty. Ct. Nov. 30, 2011); State v. Fitzgibbons, 18 Fla. L. Weekly
Supp. 541 (Fla. Pinellas Cty. Ct. Oct. 15, 2010)State v. Fitzgibbons, 18 Fla. L. Weekly Supp. 541 (Fla.
Pinellas Cty. Ct. Oct. 15, 2010); State v. Keene, 18 Fla. L. Weekly Supp. 228 (Fla. Hillsborough Cty. Ct.
Oct. 5, 2010)State v. Keene, 18 Fla. L. Weekly Supp. 228 (Fla. Hillsborough Cty. Ct. Oct. 5, 2010).
13
State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla. 1996).
14
State v. Graham, 23 Fla. Supp. 2d 93 (Fla. Palm Beach Cty. Ct. 1987).
15
Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989); People v. Dakuras, 172 Ill. App. 3d
865, 122 Ill. Dec. 791, 527 N.E.2d 163 (2d Dist. 1988) (these courts hold that their state statutes require
a chemical test and HGN is not a chemical test). See also State v. Lopez, 177 Conn.App. 651, 173 A.3d
485 (2017); Spencer v. State, 302 Ga. 133, 805 S.E.2d 886 (2017). Contra State v. Armstrong, 561
So. 2d 883 (La. Ct. App. 2d Cir. 1990), writ denied, 568 So. 2d 1077 (La. 1990).
16
Williams v. State, 710 So. 2d 24, 36 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998). See also Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3,
2009)Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009); State v.
Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct. Feb. 25, 2007)State v. Cousineau, 14
Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct. Feb. 25, 2007).
17
Williams v. State, 710 So. 2d 24, 36 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998). See also Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3,
2009)Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009); State v.
Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct. Feb. 25, 2007)State v. Cousineau, 14
Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct. Feb. 25, 2007).
18
Williams v. State, 710 So. 2d 24, 36 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998). See also Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3,
2009)Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009) (holding that
HGN is admissible as one piece of evidence going to impairment upon a showing of the traditional
scientific predicate).
19
State v. Coulter, 25 Fla. L. Weekly Supp. 357 (Fla. Duval Cty. Ct. Nov. 2, 2015)State v. Coulter, 25 Fla.
L. Weekly Supp. 357 (Fla. Duval Cty. Ct. Nov. 2, 2015).
20
Fla. Stat. Ann. § 90.702.
21
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
22
State v. Patterson, 25 Fla. L. Weekly Supp. 359 (Fla. Pinellas Cty. Ct. Dec. 9, 2016)State v. Patterson,
25 Fla. L. Weekly Supp. 359 (Fla. Pinellas Cty. Ct. Dec. 9, 2016); State v. Coulter, 25 Fla. L. Weekly
Supp. 355 (Fla. Duval Cty. Ct. Sept. 28, 2015)State v. Coulter, 25 Fla. L. Weekly Supp. 355 (Fla. Duval
Cty. Ct. Sept. 28, 2015) (the court specifically found “that the use of HGN is generally accepted within
the scientific community as a reliable tool for detection of impairment by alcohol or other drugs”; thus a
properly trained DRE officer can testify as to his/her interpretation of Defendant’s performance on the
HGN test).
23
DeLisle v. Crane Co., 2018 WL 5075302 (Fla. 2018).
24
Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).

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§ 7:3.HGN tests, 11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

25
Faires v. State, 711 So. 2d 597 (Fla. 3d DCA 1998).
26
Faires v. State, 711 So. 2d at 598. See also State v. Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla.
Brevard Cty. Ct. Feb. 25, 2007)State v. Cousineau, 14 Fla. L. Weekly Supp. 469 (Fla. Brevard Cty. Ct.
Feb. 25, 2007).
27
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
28
Bowen v. State, 745 So. 2d 1108, 1109 (Fla. 3d DCA 1999).
29
It appears, however, that the witness in Bowen testified that the defendant’s eye movements suggested
intoxication and other evidence showed that the defendant had breath alcohol levels of .108 and .101.
30
State v. Clements, 9 Fla. L. Weekly Supp. 282 (Fla. Manatee Cty. Ct. March 22, 2002)State v. Clements,
9 Fla. L. Weekly Supp. 282 (Fla. Manatee Cty. Ct. March 22, 2002); State v. Morales, 9 Fla. L. Weekly
Supp. 57 (Fla. Dade Cty. Ct. Oct. 24, 2001)State v. Morales, 9 Fla. L. Weekly Supp. 57 (Fla. Dade Cty.
Ct. Oct. 24, 2001); State v. Suarez, 8 Fla. L. Weekly Supp. 790 (Fla. Dade Cty. Ct. Aug. 5, 2001)State v.
Suarez, 8 Fla. L. Weekly Supp. 790 (Fla. Dade Cty. Ct. Aug. 5, 2001); State v. Allen, 7 Fla. L. Weekly
Supp. 626 (Fla. Monroe Cty. Ct. June 27, 2000)State v. Allen, 7 Fla. L. Weekly Supp. 626 (Fla. Monroe
Cty. Ct. June 27, 2000).
31
State v. Brooks, 14 Fla. L. Weekly Supp. 1078 (Fla. 6th Cir. Ct. July 17, 2007). See also Engelman v.
State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009)Cir. Ct. July 17, 2007). See also
Engelman v. State, 16 Fla. L. Weekly Supp. 705 (Fla. 6th Cir. Ct. June 3, 2009).
32
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
33
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
34
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
35
State v. Brooks, 14 Fla. L. Weekly Supp. 1078 (Fla. 6th Cir. Ct. July 17, 2007).
36
Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
37
State v. Brooks, 14 Fla. L. Weekly Supp. 1078 (Fla. 6th Cir. Ct. July 17, 2007).
38
State v. Brooks, 14 Fla. L. Weekly Supp. 1078 (Fla. 6th Cir. Ct. July 17, 2007).
39
Robinson v. State, 982 So. 2d 1260 (Fla. 1st DCA 2008).
40
Robinson v. State, 982 So. 2d 1260, 1261 n.2 (Fla. 1st DCA 2008).
41
Robinson v. State, 982 So. 2d 1260 (Fla. 1st DCA 2008).
42
The State conceded error as to a lay person testifying on HGN results, leaving only the harmless error
issue. In Harmon-Horton v. State, 91 So. 3d 931 (Fla. 1st DCA 2012) (J. Makar concurring) a
concurring opinion characterized the Robinson decision as holding “that lay testimony on HGN testing
is inadmissible because HGN test results are scientific evidence the predicates of which must be
established.”
43
State v. Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty. Ct. April 12, 1999) State v.
Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty. Ct. April 12, 1999).
44
State v. Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty. Ct. April 12, 1999) State v.
Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty. Ct. April 12, 1999).

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§ 7:3.HGN tests, 11 Fla. Prac., DUI Handbook § 7:3 (2018-2019 ed.)

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§ 7:4.Crash report privilege, 11 Fla. Prac., DUI Handbook § 7:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 7:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 7. Field Sobriety Tests

§ 7:4. Crash report privilege

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 411
• West’s Key Number Digest, Witnesses 216(3)

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1397 to 1411
• C.J.S., Witnesses §§ 361 to 364, 368

There are statutory privileges1 that apply in Florida to information provided in the course of an accident
investigation.2 Some counsel are under the impression that these privileges attach to field sobriety tests. In fact,
in Duval Motor Co. v. Woodward,3 the Court ruled that those privileges did apply to field sobriety tests. At one
time, such privileges even applied to chemical test results.4 That changed with the decision in Brackin v. Boles.5

In Brackin, the Court eliminated the distinction between a blood alcohol test done for purposes of an accident
report privilege and one done for purposes of a criminal investigation. The Court ruled that such tests are not
communications; therefore, they are not privileged under the statute. Brackin was a civil case, but the Court
took the same approach in a criminal case in State v. Adams.6

For the reasons set forth in Brackin, in Eichholz v. Pepo Petroleum Co. Inc.,7 a civil case, the court specifically
ruled that Duval8 is no longer good law and the accident report privilege does not apply to field sobriety tests. In
State v. Edwards,9 a criminal case, the court reached precisely the same conclusion.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 7:4.Crash report privilege, 11 Fla. Prac., DUI Handbook § 7:4 (2018-2019 ed.)

1
In 1999, the legislature amended the law so that the word “crash” was substituted for all references to
“accident” in the rule, and the term “crash report” was substituted for “accident report.” Chapter 99–248,
Laws of Florida. Nevertheless, some of the references in this book are still to “accident report privilege”
rather than “crash report privilege,” primarily because many of the opinions use that term, and to use
both terms might be confusing.
2
These statutes are discussed fully in § 12:11 of this book.
3
Duval Motor Co. v. Woodward, 419 So. 2d 303 (Fla. 1982).
4
State v. Adams, 466 So. 2d 1067 (Fla. 1985) (see cases cited therein).
5
Brackin v. Boles, 452 So. 2d 540 (Fla. 1984).
6
State v. Adams, 466 So. 2d 1067 (Fla. 1985).
7
Eichholz v. Pepo Petroleum Co., Inc., 475 So. 2d 1244 (Fla. 1st DCA 1985), review denied, 476 So. 2d
673 (Fla. 1985).
8
Duval Motor Co. v. Woodward, 419 So. 2d 303 (Fla. 1982).
9
State v. Edwards, 463 So. 2d 551 (Fla. 5th DCA 1985), review denied, 471 So. 2d 43 (Fla. 1985). See
also, State v. Whelan, 728 So. 2d 807, 810 (Fla. 3d DCA 1999).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 8 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 8 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 8. Other Potential Evidentiary Problems

Introduction

INTRODUCTION
There are certain broad evidentiary problems that may come up during a DUI trial that do not fit into any
specific category. This chapter will address some of these problems.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 8:1.Opinion testimony and scientific evidence, 11 Fla. Prac., DUI Handbook § 8:1...

11 Fla. Prac., DUI Handbook § 8:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 8. Other Potential Evidentiary Problems

§ 8:1. Opinion testimony and scientific evidence

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 411
• West’s Key Number Digest, Criminal Law 427, 457

Legal Encyclopedias
• C.J.S., Criminal Law §§ 972 to 973, 1051, 1055
• C.J.S., Motor Vehicles §§ 1397 to 1411

This book covers much of the expert testimony and scientific evidence that might arise in a DUI case, in
individual chapters. The admissibility of chemical and physical test results is covered in §§ 6:1 et seq. The
admissibility of field sobriety tests is covered in §§ 7:1 et seq. The use of Drug Recognition Expert (DRE)
evidence in drug cases is the focus of §§ 9:1 et seq. There is, however, little discussion of general principles
governing the admissibility of opinion testimony and scientific evidence in DUI cases. That is the purpose of
this section.

Several sections of the Florida evidence code relate generally to opinion testimony, both expert and nonexpert,
and scientific evidence.1 These provisions should be the beginning point for consideration of issues involving
opinion or scientific evidence.

Section 90.701, Fla. Stat., covers lay opinion testimony and is very broad in application. It allows a lay person
to give an opinion where factual statements alone are inadequate to describe the witness’s observations. Opinion
testimony concerning the condition of the defendant is of particular importance in a DUI case. A lay witness
may testify as to physical appearance and give an opinion as to impairment. 2 The key with all such testimony is
that the lay person’s opinions are confined to what he or she actually observed. 3 But a police officer may give
lay opinion testimony as to the identity of drugs based on personal knowledge resulting from the officer’s
training and experience.4 “[I]t [is] based on sufficient personal knowledge and [the officer’s] senses of sight and
smell, and it was arrived at through a process of everyday reasoning.” 5 Accordingly, the State need not show
compliance with the rules on expert witnesses to elicit such testimony. 6

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§ 8:1.Opinion testimony and scientific evidence, 11 Fla. Prac., DUI Handbook § 8:1...

Expert opinion is much more complicated and requires that the court take into account a number of factors,
which initially include two inquiries. First, the court must decide whether the involved area is a proper one for
expert testimony.7 Second, the court must determine whether the witness is qualified to give the requested
expert testimony.8

The first consideration includes some very complex determinations. An expert may not give opinions on matters
of common understanding because the jury will tend to forego independent analysis of the facts. 9 Similarly, an
expert may not give an opinion which applies legal standards to a given set of facts. 10 In Gulley,11 that is what
happened. An expert witness was allowed to opine that the defendant could have reasonably engaged in conduct
which was inconsistent with Florida traffic laws. That improperly interfered with the trial court’s function in
determining the applicable law and in instructing the jury. Thus, in City of Jacksonville v. Cook,12 the court ruled
that an expert cannot instruct the jury on how to decide the case.

An issue related to the one described in Gulley involves opinions on the ultimate issue. Section 90.703, Fla.
Stat., clearly permits such testimony, but there is some uncertainty about the reach of this provision. In Town of
Palm Beach v. Palm Beach County,13 the Court refused to allow testimony on the ultimate issue. At first glance,
it appears that the Court was concerned that testimony on certain ultimate issues might cause the jury to defer to
the expert. A second look, however, suggests that the Court’s real concern might have been that the testimony
on the ultimate issue would not add anything to the expert testimony, nor would it aid the jury in understanding
the evidence or resolving a factual dispute. In Dinkens v. State,14 the court explains that Town of Palm Beach15
and other cases recognize that the statute allows experts to opine on ultimate issues, but they do not permit
experts to testify as to legal conclusions. In any event, this is a complicated issue and there are many cases
dealing with this point.16

The second initial consideration for the trial judge, the qualifications of the expert, is probably not as
complicated as the first, but it has its own problems. The standards are very broad. A witness may be qualified
to give expert opinion testimony by “knowledge, skill, expertise, training, or education.” 17 Parties and courts
must avoid confusing the question of whether a witness qualifies as an expert with the question of whether a
witness qualifies as a “good” expert. The first question is for the court, but it is not necessary for the court to
announce its determination that the witness is qualified to the jury. 18 In fact, recently in Osorio v. State,19 the
court concluded that such a procedure is impermissible.

The second question is for the jury. The court makes this point in Quinn v. State.20 Quinn was a DUI
Manslaughter case. The trial judge refused to allow a defense witness to testify as an expert on the results of
tests he conducted on blood samples because: (1) the witness had only been licensed a short time and had
performed few tests like the one involved in the case; (2) the expert had never testified as an expert based on his
own tests; (3) the expert took a long time to become licensed; and (4) his experience with the Florida
Department of Law Enforcement (FDLE) was not in toxicology. On appeal, the court found that these matters
went to the witness’s credibility, not his qualifications.

If the expert testimony involves tests and experiments, the reliability of the material is also an issue. If,
however, “the reliability of a test’s results is recognized and accepted among scientists” in the involved
discipline, the court may receive them. 21 An inquiry into reliability is only required when the opposing party
makes a timely request for the inquiry or an objection. 22 The opposing party must provide authorities indicating
that there may not be general acceptance of the involved techniques. 23 While these principles concerning
timeliness and the importance of authorities in the decision have been set forth based on Frye24 standards, recent
case law indicates that they continue to apply under the new standards.25

As previously noted, in 2013 the Legislature made a major change 26 in the rules on expert testimony by adopting
the federal standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.27 It attempted to abandon Frye28
to the extent that it is not part of the federal analysis. 29 Recently, in DeLisle v. Crane Co.,30 the Florida
Supreme Court made clear that the attempted change has failed. The Court ruled that the Daubert
standards are unconstitutional and the admissibility of expert testimony in Florida is controlled by Frye

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§ 8:1.Opinion testimony and scientific evidence, 11 Fla. Prac., DUI Handbook § 8:1...

v. U.S.31 Obviously, this decision has a profound impact on the body of law that has developed since the
Daubert32 amendment and resurrects all of those opinions growing out of Frye.33 Delisle34 also restores the
decision in Marsh v. Valyou,35 which focuses on the admissibility of pure opinion testimony in Florida courts.
Delisle36 does not appear to have altered the addition to § 90.704, Fla. Stat., which provides:
Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of
the opinion or inference unless the court determines that their probative value in assisting the jury
to evaluate the expert’s opinion substantially outweighs their prejudicial effect. 37

Does the restoration of Frye38 jurisprudence mean that none of the decisions dealing with Daubert39 are worthy
of consideration? The Delisle40 decision is so recent that it is not entirely clear. In Anderson v. State,41 the
Florida Supreme Court wrote: “we have previously recognized that the Daubert standard is more lenient in
terms of admitting novel scientific evidence than Frye.” And in fact, some of the considerations in applying
Daubert42 overlap the Frye43 standards. For these reasons, trial court opinions dealing with Daubert44 as it relates
to DUIs remain in this edition.45

Previous editions of this book, retained critical case law dealing with Frye46 because of uncertainty as to what
direction Florida jurisprudence might take. That has now been resolved, so the significant authorities on Frye47
are included here.

If scientific evidence involves something new or novel, the court applies the Frye48 test. It requires proof of
general acceptance in the relevant field.

In Flanagan v. State,49 the Court pointed out that Frye50 does not apply to all expert testimony on new subjects.
It does not apply to pure opinion testimony, such as opinions on competency, because such testimony is based
on the expert’s personal training and experience.

Ramirez v. State51 is a leading case on the admissibility of expert testimony based on new or novel scientific
principles. In Ramirez, the Florida Supreme Court sets forth a three-step process. The trial court is required to:
(1) determine whether the testimony would help the jury in understanding the evidence or resolving an issue;
(2) decide whether the opinion is based on a principle that has gained general acceptance in the relevant field;
and (3) determine whether the witness is qualified to give the testimony. If the testimony survives this process,
the jury can either accept or reject the opinion.52

Step two of the process requires that the proponent of the evidence prove the general acceptance of both the
underlying scientific principles and the testing procedures used in the particular case by a preponderance of the
evidence.53 “General acceptance” means acceptance by a “clear majority” of the members of the relevant
scientific community, but the court must consider quality as well as quantity. 54 This must to be done in an
adversarial proceeding, preferably in a pretrial hearing.55

Ramirez56 was the second of three appeals to the Florida Supreme Court dealing with the same case and issues.
In Ramirez III,57 the Court clarified the concept of general acceptance. The Court concluded that the knife mark
evidence presented in that case did not meet the standard of general acceptance, because it did not possess any
“of the hallmarks of acceptability that apply in the relevant scientific community to this type of evidence.” 58 In
reaching this conclusion, the Court considered these factors: (1) there was no evidence that the method was ever
formally tested or accepted; (2) there was no evidence of meaningful peer review or publication; (3) there were
no photos or notes; (4) there was no evidence of quantification of error rate; (5) there was no evidence of
objective studies; and (6) there was no evidence of supporting authority. 59 The Court also stressed the fact that
the only expert testimony supporting the general acceptance of the evidence was a witness who had something
to gain by acceptance of the involved procedure.60

Experts may choose to give their opinions through demonstrative aids, like a computer animation. Such
testimony must meet all of the foregoing standards. 61 It must also not be subject to exclusion pursuant to §

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§ 8:1.Opinion testimony and scientific evidence, 11 Fla. Prac., DUI Handbook § 8:1...

90.403, Fla. Stat., because its probative value is outweighed by a substantial risk of unfair prejudice. 62
Additionally, the proponent must show that the facts and data relied on by the expert are of the type reasonably
relied on by people in that field. 63 Finally, as with all such evidence, the animation must be “a fair and accurate
depiction of that, which it purports to be.”64

Experts may also be called to present or explain experiments to the jury. In Dempsey v. Shell Oil Company,65 the
court set forth these principles on experiments: (1) a rule of “substantial similarity” applies, which requires that
the important features of the experiment be similar to those in the involved event; (2) if enough of those factors
are the same, and the failure to control other potentially relevant variables is adequately explained, the court
may allow the experiment into evidence; and (3) this usually involves a matter of weight rather than relevance.

These rules on experiments might come into play in a DUI case. They are designed to ensure that only reliable
evidence is received. Thus, testimony by an expert as to alcohol influence tests conducted on his students was
inadmissible in the absence of a showing of controlled circumstances or the reliability of the tests. 66 Similarly,
the trial court properly excluded expert testimony as to the victim’s alcohol level where there was evidence that
the victim consumed mixed drinks at different bars, but no proof as to the amount of alcohol in any of those
drinks.67

Speed may also be a factor in DUI cases. There are some strict rules that apply to testimony on that subject. In
Brown,68 the court ruled that even an expert in accident reconstruction cannot testify to the speed of a motor
vehicle involved in an accident, unless he or she bases that testimony on certain specific factors. Those factors
include the weight of the vehicles and their occupants, the condition of the paved road surface, and the
coefficient of friction.

There is an apparent conflict as to whether the same standards apply to lay persons. In Lawlor v. State,69 the
court ruled that a lay witness’s testimony that he heard the defendant’s vehicle pass by his home at a very high
rate of speed was improperly admitted. The court said that lay opinion on speed was impermissible because
such an opinion must be based on the factors mentioned above. That means that the opinion requires special
knowledge, experience, skill, or training. However, in two other cases, the courts ruled that a lay witness can
estimate speed based on personal perception. 70 That includes estimates based on sound if the witness has had
personal experience with the sound of the involved vehicle. 71 It should be noted that the court that allowed lay
opinion on speed, also allowed expert opinion on that subject where it would be helpful to the jury. 72

A three-judge circuit court appellate panel even ruled that “‘a visual estimate of speed can establish proof
beyond a reasonable doubt when the testified-to observed speed is substantially above the posted speed limit.’” 73
The court found that the experience of the officer was a factor. 74 Also, it noted that the principle had been
applied to sustain convictions where the officer estimated that the driver was doing 100 m.p.h. in a 55 m.p.h.
zone and 50 m.p.h. in a 30 m.p.h. zone.75

Recently, in Kemp v. State76 the court dealt with another brake issue. In a two to one decision the majority found
pursuant to Daubert77 that the officer, a qualified accident reconstructionist, could testify that the car was
braking at the time of impact. That was important because the defense to the vehicular homicide charge was that
the defendant fainted before impact. In a strong dissent, Judge Taylor explained why the testimony should not
have been admitted under Daubert standards.

In a DUI case, one or both of the parties may try to introduce evidence on alcohol absorption or the effects of
alcohol on the human body. In Brown,78 the court ruled that an experienced state trooper, who completed 60
hours of training in a breathalyzer course and studied the effects of alcohol on the human body, could be
recognized as an expert in that field. The expert could opine as to the effects on the body of an amount of
alcohol that resulted in a .10 blood alcohol level. Furthermore, in Lopez v. State,79 the court ruled that expert
testimony concerning alcohol absorption may properly be based upon the alcohol absorption rate of the average
person, rather than on that of the individual defendant.

Speed and alcohol together often lead to serious accidents. So in both criminal and civil cases, the need for

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§ 8:1.Opinion testimony and scientific evidence, 11 Fla. Prac., DUI Handbook § 8:1...

accident reconstruction testimony may arise. It is important to remember that an accident investigator is not the
same as an accident reconstructionist. An investigator may, however, give useful testimony. Thus, it was proper
for an investigator to testify as to the correlation between the damage to a bumper and the victim’s injuries. 80

Obviously, one of the issues that regularly arises is when is a witness qualified to testify as a reconstructionist.
Three cases illustrate the proper considerations in making this decision. In Tarin v. City National Bank of
Miami,81 the court ruled that a police officer was unqualified to testify as a reconstructionist. The evidence
showed that: (1) the officer had been employed with the highway patrol for six years at the time of the accident;
(2) the officer did homicide investigations; (3) the officer attended the highway patrol academy, for which he
received a certificate reflecting 40 hours of training in “traffic homicide,” and 40 hours in an area that the
officer vaguely described; and (4) the officer handled road accidents, but there was no information as to how
many he had investigated over a specific period of time.

In two other cases, the law enforcement officer was allowed to testify as a reconstructionist. In Gulley v.
Pierce,82 the testimony was more detailed than in Tarin. The detective’s experience included investigation of
about 144 traffic homicides, and attendance at training sessions on traffic homicide, accident reconstruction,
and DUI investigation. Similarly, in Jones v. State,83 the court ruled that a trooper was qualified as an accident
reconstructionist. The testimony on the officer’s qualifications was very detailed. The trooper completed 40
hours of courses plus an 80-hour course in homicide investigation, including class time on calculations of speed
and angles of trajectory. The trooper completed additional courses in crash investigation in 1990 and 1991,
including a course which certified him in advance traffic accident investigation. In that course, the officer was
exposed to additional calculations with mathematical formulas. The trooper had also investigated 72 homicides
and 4,510 traffic crashes.

It is apparent from the foregoing cases that the more detailed training and experience an officer has, the more
likely it is that the officer will qualify as a reconstructionist. The question then becomes what is the proper
scope of the officer’s testimony. That question may be very difficult to answer, as illustrated by Behn v. State.84

In Behn, the defendant was convicted of manslaughter by culpable negligence. The involved vehicle had
defective brakes. An accident reconstructionist testified in detail about the collision, but also testified that if the
brakes had been working properly, the truck would have been impacted in a different place on the car and the
collision would not have been fatal. There was no objection, but on appeal the court found that this was
fundamental error. The court observed that there was no showing that the expert had expertise in medicine,
physiology, or biomechanics. “Such a conclusion, to be valid, would require, at least, knowledge of the
dynamics and biomechanics of the human beings involved in the collision.”85

Most of the opinion and scientific issues that arise in DUI cases have been well developed and resolved by
statute, regulation, and case law. Occasionally, something relatively unusual or unanticipated may arise. This
brief discussion on opinion and scientific evidence will help in dealing with those situations.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§§ 90.701 to 90.705, Fla. Stat.
2
Williams v. State, 710 So. 2d 24, 28 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998); State v. Meador, 674 So. 2d 826, 831 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580
(Fla. 1996); Eberhardt v. State, 550 So. 2d 102, 105 (Fla. 1st DCA 1989), review denied, 560 So. 2d
234 (Fla. 1990). See also State v. Raneiri, 25 Fla. L. Weekly Supp. 456 (Fla. Pinellas Cty. Ct. May 5,

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§ 8:1.Opinion testimony and scientific evidence, 11 Fla. Prac., DUI Handbook § 8:1...

2016)State v. Raneiri, 25 Fla. L. Weekly Supp. 456 (Fla. Pinellas Cty. Ct. May 5, 2016) (lay opinion is
permissible as to impairment and performance on the Field Sobriety Exercises; Daubert does not change
this rule); State v. Choate, 26 Fla. L. Weekly Supp. 30 (Fla. Pinellas Cty. Ct. May 5, 2016) State v.
Choate, 26 Fla. L. Weekly Supp. 30 (Fla. Pinellas Cty. Ct. May 5, 2016) (same holding); State v. Walsh,
21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013)State v. Walsh, 21 Fla. L. Weekly
Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013); State v. Ellison, 20 Fla. L. Weekly Supp. 590 (Fla.
Brevard Cty. Ct. Feb. 26, 2013)State v. Ellison, 20 Fla. L. Weekly Supp. 590 (Fla. Brevard Cty. Ct. Feb.
26, 2013).
3
Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997), review dismissed, 697 So.2d 1217 (Fla.
1997). See also Quaknine v. State, 189 So.3d 290, 292 (Fla. 4th DCA 2016); Nardone v. State, 798
So. 2d 870 (Fla. 4th DCA 2001); Lewek v. State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997).
4
R.C. v. State, 192 So.3d 606 (Fla. 2d DCA 2016). See also State v. Mark, 24 Fla. L. Weekly Supp. 550
(Fla. Polk Cty. Ct. Feb. 19, 2016)State v. Mark, 24 Fla. L. Weekly Supp. 550 (Fla. Polk Cty. Ct. Feb. 19,
2016) (while recognizing that an officer can give lay opinion testimony as to the significance of a color
change in a drug test kit, neither the officer nor counsel can use terms that attach undue significance to
the procedure, like “test,” “conclusion,” “confirm,” “positive”).
5
L.L. v. State, 189 So.3d 252, 259 (Fla. 3d DCA 2016).
6
R.C. v. State, 192 So.3d 606 (Fla. 2d DCA 2016); L.L. v. State, 189 So.3d 252 (Fla. 3d DCA 2016). See
also Johnson v. State, 2018 WL 4042459 (Fla. 1st DCA Opinion Filed August 24, 2018).
7
See e.g. Terry v. State, 668 So. 2d 954, 960 (Fla. 1996). See also State v. Bodden, 11 Fla. L. Weekly
Supp. 197 (Fla. 11th Cir. Ct. Jan. 27, 2004)State v. Bodden, 11 Fla. L. Weekly Supp. 197 (Fla. 11th Cir.
Ct. Jan. 27, 2004), clarification at 11 Fla. L. Weekly Supp. 401 (Fla. 11th Cir. Ct. March 9, 2004)11 Fla.
L. Weekly Supp. 401 (Fla. 11th Cir. Ct. March 9, 2004) (court reversed trial judge’s exclusion of state’s
toxicologists and recognized application of four prong test: (1) the testimony must be helpful to trier of
fact; (2) witness must be qualified; (3) testimony must apply to evidence offered during the trial; and (4)
the probative value must not be outweighed by substantial danger of unfair prejudice).
8
Terry v. State, 668 So. 2d 954, 960 (Fla. 1996).
9
Seropian v. Forman, 652 So. 2d 490, 497 (Fla. 4th DCA 1995). See also Florida Power Corp. v. Barron,
481 So. 2d 1309 (Fla. 2d DCA 1986), review dismissed, 488 So.2d 829 (Fla. 1986). See also Mootry v.
Bethune-Cookman University, Inc., 186 So.3d 15 (Fla. 5th DCA 2016); Ramirez v. State, 23 Fla. L.
Weekly Supp. 308 (Fla. 15th Cir. Ct. Aug 3, 2015)Ramirez v. State, 23 Fla. L. Weekly Supp. 308 (Fla.
15th Cir. Ct. Aug 3, 2015) (in a refusal case where p/c was an element, trooper’s opinion that there was
p/c based on the facts was inadmissible; it failed to assist the jury in understanding the issues for two
reasons: (1) subjective opinion as to p/c is irrelevant as a matter of law; (2) p/c is within the
understanding of ordinary jurors; trooper “ ‘[i]n essence … directed the jury to render a conclusion that
it should have been free to arrive at independent from his interpretations.’”).
10
Gulley v. Pierce, 625 So. 2d 45 (Fla. 1st DCA 1993), review denied, 637 So. 2d 236 (Fla. 1994). See
also Gutierrez v. Vargas, 239 So.3d 615, 622 (Fla. 2018); Estate of Murray ex rel. Murray v. Delta
Health Group, Inc., 30 So. 3d 576, 578 (Fla. 2d DCA 2010); County of Volusia v. Kemp, 764 So. 2d
770 (Fla. 5th DCA 2000); Ramirez v. State, 23 Fla. L. Weekly Supp. 308 (Fla. 15th Cir. Ct. Aug 3,
2015)Ramirez v. State, 23 Fla. L. Weekly Supp. 308 (Fla. 15th Cir. Ct. Aug 3, 2015) (in a refusal case,
trooper improperly applied probable cause standard to facts of the case; invaded province of the jury;
“[t]he term ‘probable cause’ is a legal term with a legal definition, and the term is being used
specifically in a legal context as an element of the charge.”).
11
Gulley v. Pierce, 625 So. 2d 45 (Fla. 1st DCA 1993), review denied, 637 So. 2d 236 (Fla. 1994).
12
City of Jacksonville v. Cook, 765 So. 2d 289 (Fla. 1st DCA 2000), decision quashed on other
grounds, 823 So. 2d 86, 112 A.L.R.5th 701 (Fla. 2002). See also Milla v. State, 8 Fla. L. Weekly
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Supp. 756 (Fla. 11th Cir. Sept. 4, 2001)Milla v. State, 8 Fla. L. Weekly Supp. 756 (Fla. 11th Cir. Sept. 4,
2001) (a three-judge circuit court appellate panel ruled that an officer’s opinion that the defendant was
impaired by alcohol or a controlled substance and that if he had not been impaired he would not have
refused, was inadmissible because the state treated the officer as an expert, and it is improper for an
expert to instruct the jury on how to decide the case).
13
Town of Palm Beach v. Palm Beach County, 460 So. 2d 879, 882 (Fla. 1984).
14
Dinkens v. State, 976 So. 2d 660 (Fla. 1st DCA 2008).
15
Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984) . See also Estate of Murray
ex rel. Murray v. Delta Health Group, Inc., 30 So. 3d 576 (Fla. 2d DCA 2010).
16
See Ehrhardt, 1 Florida Practice: Florida Evidence § 703:1 (2018).
17
§ 90.702, Fla. Stat. See State v. Supina, 11 Fla. L. Weekly Supp. 248 (Fla. Palm Beach Cty. Ct. Jan.
5, 2004)State v. Supina, 11 Fla. L. Weekly Supp. 248 (Fla. Palm Beach Cty. Ct. Jan. 5, 2004) (the trial
judge rejected an expert’s opinion on the effect of a provision requiring the subject to blow until a tone
stops; the opinion illustrates the process of analysis that the court used in rejecting the opinion).
18
Tengbergen v. State, 9 So. 3d 729, 737 (Fla. 4th DCA 2009). See also Estate of Murray ex rel. Murray v.
Delta Health Group, Inc., 30 So. 3d 576, 578 (Fla. 2d DCA 2010); Chambliss v. White Motor Corp., 481
So. 2d 6, 8 (Fla. 1st DCA 1985), review denied, 491 So. 2d 278 (Fla. 1986).
19
Osorio v. State, 186 So.3d 601, 610 (Fla. 4th DCA 2016), review denied, 2016 WL 1749455 (Fla.
Opinion Filed May 03, 2016). See also Norfleet v. State, 223 So. 3d 395 (Fla. 1st DCA 2017). Contra
Mitchell v. State, 207 So.3d 369, 370-71 (Fla. 5th DCA 2017) (While the court agreed that “it is the
better practice for the court to avoid declaring the witness an expert in the presence of the jury,” to do so
does not comment on the testimony or place court’s approval on the witness and is not error).
20
Quinn v. State, 549 So. 2d 208 (Fla. 2d DCA1989).
21
Washington v. State, 653 So. 2d 362, 365 (Fla. 1994), cert. denied, 516 U.S. 946, 116 S.Ct. 387, 133
L.Ed.2d 309 (1995). See also Murray v. State, 838 So. 2d 1073, 1078 (Fla. 2002); Robinson v. State,
610 So. 2d 1288, 1291 (Fla. 1992), cert. denied, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 553
(1994).
22
Hadden v. State, 690 So. 2d 573, 580 (Fla. 1997). See also Taylor v. State, 62 So. 3d 1101, 1118
(Fla. 2011); Murray v. State, 838 So. 2d 1073, 1078 (Fla. 2002); McDonald v. State, 743 So. 2d 501,
506 (Fla. 1999); Correll v. State, 523 So. 2d 562, 567 (Fla. 1988), cert. denied, 488 U.S. 871, 109
S.Ct. 183, 102 L.Ed.2d 152 (1988) (the objection was untimely where the evidence had been regularly
admitted in courts throughout the state, the defense knew the state would be presenting it, and the
defense waited until the day of trial to raise the objection).
23
Murray v. State, 838 So. 2d 1073, 1078 (Fla. 2002).
24
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
25
Booker v. Sumter County Sheriff’s Office/North American Risk Services, 166 So. 3d 189 (Fla. 1st DCA
2015).
26
Laws of Florida, Ch 2013-107 (amending §§ 90.702, 90.704, Fla. Stat.). See also R.C. v. State,
192 So.3d 606 (Fla. 2d DCA 2016); L.L. v. State, 189 So.3d. 252 (Fla. 3d DCA 2016).
27
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27

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U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979
(1993).
28
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923).
29
Laws of Florida, Ch 2013-107.
30
DeLisle v. Crane Co., 2018 WL 5075302 (Fla. 2018).
31
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
32
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
33
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
34
DeLisle v. Crane Co., 2018 WL 5075302 (Fla. 2018).
35
Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007).
36
DeLisle v. Crane Co., 2018 WL 5075302 (Fla. 2018).
37
Laws of Florida, Ch 2013-107.
38
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
39
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
40
DeLisle v. Crane Co., 2018 WL 5075302 (Fla. 2018).
41
Anderson v. State, 220 So. 3d 1133, 1151 (Fla. 2017).
42
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
43
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
44
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
45
State v. Gonzalez, 21 Fla. L. Weekly Supp. 405 (Fla. 11th Cir. Ct. Dec. 19, 2013)State v. Gonzalez, 21
Fla. L. Weekly Supp. 405 (Fla. 11th Cir. Ct. Dec. 19, 2013) (defense expert was unqualified to testify on
effects of dentures on BAL where years ago the witness tested one individual and attended a few
seminars; all of the evidence indicated this field required a forensic toxicologists; the witness was not a
forensic pathologists and only attended courses on the subject taught by forensic toxicologists, who he
met and whose works he read; “[t]he courts have opined that reading about a particular subject does not
qualify an individual as an expert;” further, even if he was an expert, the defense failed to show by a
preponderance of the evidence the three things required by the statute and failed to establish any of the
Daubert factors; additionally the testimony should be excluded pursuant to section 90.403 because it
would confuse the jury); State v. Dandiya, 22 Fla. L. Weekly Supp. 1089 (Fla. Hillsborough Cty. Ct.
Sept. 9, 2014) (defense expert could not testify because the defendant failed to show by a preponderance
of the evidence that his opinion was relevant and reliable in that his opinion was based on theories
concerning things that affected the I8000, but the witness had no knowledge of the machine involved in
the case or of the defendant and could not say whether an accurate reading would have actually been
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higher, lower or the same; this case is discussed in § 6:1); State v. Ullery, 21 Fla. L. Weekly Supp. 1096
(Fla. Brevard Cty. Ct. May 15, 2014) (Makes clear Daubert does not apply to breath test results under
the implied consent law because that is not expert testimony. “The legislature has specifically adopted a
statutory scheme to insure accurate and reliable breath test results and the rules promulgated by FDLE
have been shown to insure the accuracy and reliability of breath test results throughout the state of
Florida.”); State v. Boyd, 21 Fla. L. Weekly Supp. 428 (Fla. Duval Cty. Ct. Nov. 8, 2013)State v. Boyd,
21 Fla. L. Weekly Supp. 428 (Fla. Duval Cty. Ct. Nov. 8, 2013) (judge allowed defense expert to testify
without a Daubert hearing because witness had been recognized as an expert by other judges in the
circuit and allowed to give similar testimony; he relied on review parties agreed to of numerous trial
transcripts of witness’s testimony, found most of the testimony relevant under Daubert, and indicated he
would rule on specific objections during trial); State v. Clark, 21 Fla. L. Weekly Supp. 364 (Fla.
Broward Cty. Ct. Dec. 27, 2013)State v. Clark, 21 Fla. L. Weekly Supp. 364 (Fla. Broward Cty. Ct. Dec.
27, 2013) (State’s expert was allowed to testify on breath testing, operation and maintenance of the
I8000, absorption, elimination and distribution of alcohol, and Widmark’s formula; witness had 33 years
of experience in breath testing and has been permitted by FDLE as an operator and inspector; trained in
the science and theory underlying breath testing, including Widmark’s formula, Henry’s Law, Beer-
Lambert Law, and the absorption, elimination and distribution of alcohol throughout the body; trained,
certified, and experienced with several breath testing instruments, including the I8000; testified as an
expert many times on breath testing and the I8000 and in several areas of the science and theories
underlying breath testing; she attends continuing education courses, seminars, and conferences); State v.
Stern, 21 Fla. L. Weekly Supp. 193 (Fla. Broward Cty. Ct. Oct. 1, 2013)State v. Stern, 21 Fla. L.
Weekly Supp. 193 (Fla. Broward Cty. Ct. Oct. 1, 2013) (witness could testify as to how the I8000
works, direct vs indirect measurement, error rate, Widmark’s formula and calculation, absorption and
elimination of alcohol as related to defendant’s admission, but not when he consumed drinks; witness
could not testify as to the subject test electronic data record, effects of GERD on results, instrument’s
mouth alcohol detector, and any tests witness did or could have done on breath testing instruments;
defense failed to show that opinions were tested, subjected to peer review and/or publication, rate of
error of the technique or test, standards controlling operation of the technique or test, and whether the
theory or technique has been generally accepted in the relevant scientific community; additionally it was
not shown that any of the factors affected defendant’s breath test results); State v. Gelinas, 21 Fla. L.
Weekly Supp. 193 (Fla. Broward Cty. Ct. August 28, 2013)State v. Gelinas, 21 Fla. L. Weekly Supp.
193 (Fla. Broward Cty. Ct. August 28, 2013) (defense expert testimony as to analysis of breath was
unreliable where one of three samples defendant provided had an abnormal breath volume and testimony
was based on tests witness performed; there was insufficient validation and the testimony would not
assist the jury where there were “no publications or peer review regarding the method used by the
witness, no known potential error rates, there was no research submitted or described and no written
findings as to experiments done by the witness with regard to breath volume readings as to his
experiments.”); State v. Fernandes, 21 Fla. L. Weekly Supp. 191 (Fla. Broward Cty. Ct. Oct. 7,
2013)State v. Fernandes, 21 Fla. L. Weekly Supp. 191 (Fla. Broward Cty. Ct. Oct. 7, 2013) (defense
breath testing expert could not testify as to absorption and elimination phases of alcohol consumption,
breath temperature at time of breath test; he did not know what phase defendant was in or the
temperature of her breath and the witness had no training, experience, or knowledge in human
physiology or medicine; testimony was not based on sufficient data and facts because witness found
nothing unusual in all the inspections, did no independent testing of machine used by defendant, and was
not present when defendant was tested; witness could not testify on partition ratio and Henry’s Law
because he was only saying what other people wrote; this would not assist the jury and was inadmissible
hearsay); State v. Harley, 21 Fla. L. Weekly Supp. 179 (Fla. Alachua Cty. Ct. Sept. 27, 2013)State v.
Harley, 21 Fla. L. Weekly Supp. 179 (Fla. Alachua Cty. Ct. Sept. 27, 2013) (in case based solely on
UBAL, defense expert not allowed to opine as to factors affecting reliability of intoxilyzer because he
was not qualified under Section 90.702 and testimony would not assist jury; witness was a retired
deputy with 25 years extensive experience, knowledge and familiarity dealing with intoxilyzers, but he
had no “independent knowledge of the science underlying the machine, i.e. engineering, chemistry,
biology, etc.” and only knew “what he [had] been told of how the machine operates by others;” he had
done no scientific peer-review studies; court relied on Jordan v. State, 694 So. 2d 708 (Fla. 1997)).
46
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
47
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).

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48
Frye v. U.S., 293 F. 1013 (App. D.C. 1923). See also Anderson v. State, 220 So.3d 1133, 1145-46
(Fla. 2017); Calloway v. State, 210 So.3d 1160, 1179 (Fla. 2017); State v. Sercey, 825 So. 2d 959 (Fla.
1st DCA 2002) (court considered Frye’s application in a DUI Manslaughter case to certain tests for
marijuana usage that the court found were not new or novel, and that were generally accepted in the
scientific community).
49
Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993). See also Hadden v. State, 690 So. 2d 573,
579–580 (Fla. 1997); State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002) (In a DUI Manslaughter case,
the court ruled that those expert opinions as to when the defendant smoked marijuana based upon the
expert’s knowledge and experience, were not subject to Frye. Those opinions based on the Huestis
mathematical model, were subject to Frye.).
50
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
51
Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). See also Calloway v. State, 210 So.3d 1160, 1179
(Fla. 2017); Casias v. State, 94 So. 3d 611 (Fla. 2d DCA 2011), review denied, 92 So. 3d 212 (Fla.
2012) (court said trial judge is a gatekeeper and when the three Ramirez standards are met the “court
may ‘open the gate’ and allow the expert to testify to his or her opinion.”).
52
Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). See also Hawkins v. State, 933 So. 2d 1186, 1189-
1190 (Fla. 4th DCA 2006), review dismissed, 950 So. 2d 414 (Fla. 2007).
53
Ramirez v. State, 651 So. 2d 1164 (Fla. 1995). See also Calloway v. State, 210 So.3d 1160, 1179
(Fla. 2017); Brim v. State, 695 So. 2d 268 (Fla. 1997); Matos v. State, 899 So. 2d 403, 407 (Fla. 4th
DCA 2005), review denied, 912 So. 2d 1217 (2005).
54
Brim v. State, 695 So. 2d 268, 272 (Fla. 1997).
55
Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995).
56
Ramirez v. State, 651 So. 2d 1164 (Fla. 1995).
57
Ramirez v. State, 810 So. 2d 836 (Fla. 2001).
58
Ramirez v. State, 810 So. 2d 836, 849 (Fla. 2001).
59
Ramirez v. State, 810 So. 2d 836, 849-851 (Fla. 2001).
60
Ramirez v. State, 810 So. 2d 836, 844 (Fla. 2001). See also State v. Thompkins, 891 So. 2d 1151,
1152, 10 A.L.R.6th 785 (Fla. 4th DCA 2005) (polygraph did not meet Frye general acceptance standard
where the only evidence came from “an expert who has a personal stake in the theory or is prone to an
institutional bias.”).
61
Pierce v. State, 671 So. 2d 186 (Fla. 4th DCA 1996), quashed on other grounds, 686 So. 2d 572 (Fla.
1996). For additional information on this subject see e.g. Hinkle v. City of Clarksburg, W.Va., 81
F.3d 416, 44 Fed. R. Evid. Serv. 94 (4th Cir. 1996) (will lead to many other sources); Jennifer L.
Ceglinskia, Admitting Animations: Applied Psychology Research As A Call For Improved Guidance In
Assessing The Prejudicial Impact Of Computer-Generated Animations, 6 Drexel Law Rev 177 (Fall
2013); Mueller and Kirkpatrick, Federal Evidence § 9:26; Betsy S. Fiedler, Are Your Eyes Deceiving
You? The Evidentiary Crisis Regarding the Admissibility of Computer Generated Evidence, 48 N.Y. L.
Sch. L. Rev. 295 (2003/2004); Susan Webber Wright, High profile Cases In a Technological Age, 65
Mo. L. Rev. 785 (Summer 2000); Gregory P. Joseph, A Simplified Approach to Computer-generated
Evidence and Animations, 43 N.Y.L. Sch. L. Rev. 875 (1999–2000).

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62
Pierce v. State, 671 So. 2d 186, 190 (Fla. 4th DCA 1996), quashed on other grounds, 686 So. 2d 572
(Fla. 1996).
63
Pierce v. State, 671 So. 2d 186, 190 (Fla. 4th DCA 1996), quashed on other grounds, 686 So. 2d 572
(Fla. 1996).
64
Pierce v. State, 671 So. 2d 186, 190 (Fla. 4th DCA 1996), quashed on other grounds, 686 So. 2d 572
(Fla. 1996).
65
Dempsey v. Shell Oil Co., 589 So. 2d 373 (Fla. 4th DCA 1991).
66
Brown v. State, 477 So. 2d 609 (Fla. 1st DCA 1985).
67
Tyrrell v. State, 975 So. 2d 615 (Fla. 4th DCA 2008).
68
Brown v. State, 477 So. 2d 609 (Fla. 1st DCA 1985).
69
Lawlor v. State, 538 So. 2d 86 (Fla. 1st DCA 1989).
70
Lewek v. State, 702 So. 2d 527 (Fla. 4th DCA 1997); Martinez v. State, 692 So. 2d 199 (Fla. 3d
DCA 1997), review dismissed, 697 So. 2d 1217 (Fla. 1997).
71
Sajiun v. Hernandez, 226 So.3d 875 (Fla. 4th DCA 2017)(witness who was familiar with the speed of a
certain type of motorcycle based on previously having heard the sound of such motorcycles could give a
lay opinion that the vehicle was going at a high rate of speed).
72
Bryant v. Buerman, 739 So. 2d 710 (Fla. 4th DCA 1999), review denied, 752 So. 2d 625 (Fla. 4th DCA
1999). See also Carratelli v. State, 832 So. 2d 850 (Fla. 4th DCA 2002), review denied, 848 So. 2d 1158
(Fla. 2003).
73
Kolb v. State, 15 Fla. L. Weekly Supp. 422 (Fla. 9th Cir. Ct. Feb. 5, 2008)Kolb v. State, 15 Fla. L.
Weekly Supp. 422 (Fla. 9th Cir. Ct. Feb. 5, 2008) (quoting from its earlier decision in Jasper v. State, 14
Fla. L. Weekly Supp. 203 (Fla. 9th Cir. Ct. Dec. 5, 2006)Jasper v. State, 14 Fla. L. Weekly Supp. 203
(Fla. 9th Cir. Ct. Dec. 5, 2006).
74
Kolb v. State, 15 Fla. L. Weekly Supp. 422 (Fla. 9th Cir. Ct. Feb. 5, 2008)Kolb v. State, 15 Fla. L.
Weekly Supp. 422 (Fla. 9th Cir. Ct. Feb. 5, 2008).
75
Kolb v. State, 15 Fla. L. Weekly Supp. 422 (Fla. 9th Cir. Ct. Feb. 5, 2008)Kolb v. State, 15 Fla. L.
Weekly Supp. 422 (Fla. 9th Cir. Ct. Feb. 5, 2008).
76
Kemp v. State, 2017 WL 6371164 (Fla. 4th DCA Opinion Filed Dec. 13, 2017).
77
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).
78
Brown v. State, 477 So. 2d 609 (Fla. 1st DCA 1985).
79
Lopez v. State, 478 So. 2d 1110 (Fla. 3d DCA 1985).
80
Mathieu v. Schnitzer, 559 So. 2d 1244 (Fla. 4th DCA 1990), review dismissed, 570 So. 2d 1306 (Fla.
1990) (the investigator in this case had sufficient experience to qualify as a reconstructionist).
81
Tarin v. City Nat. Bank of Miami, 557 So. 2d 632 (Fla. 3d DCA 1990).
82
Gulley v. Pierce, 625 So. 2d 45 (Fla. 1st DCA 1993), review denied, 637 So. 2d 236 (Fla. 1994). See

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also Alexander v. Penske Logistics, Inc., 867 So. 2d 418 (Fla. 3d DCA 2003), review denied, 880
So. 2d 1200 (Fla. 2000).
83
Jones v. State, 698 So. 2d 1280 (Fla. 5th DCA 1997), review denied, 703 So. 2d 476 (Fla. 1997). See
also Kemp v. State, 2017 WL 6371164 (Fla. 4th DCA Opinion Filed Dec. 13, 2017) (good example
of qualifying officer as accident reconstructionist).
84
Behn v. State, 621 So. 2d 534 (Fla. 1st DCA 1993).
85
Behn v. State, 621 So. 2d 534, 536 (Fla. 1st DCA 1993). See also Stockwell v. Drake, 901 So. 2d
974 (Fla. 4th DCA 2005).

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Works.

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§ 8:2.Evidentiary problems with documentary and physical..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 8:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 8. Other Potential Evidentiary Problems

§ 8:2. Evidentiary problems with documentary and physical evidence

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 411, 425
• West’s Key Number Digest, Criminal Law 429 to 446

Legal Encyclopedias
• C.J.S., Criminal Law §§ 1025 to 1049
• C.J.S., Motor Vehicles §§ 1397 to 1411

In a DUI trial, as with other cases, the parties may seek to introduce various forms of documentary and physical
evidence. That material may be subject to objections other than relevancy or unfair prejudice. Those commonly
include chain of custody, lack of authenticity, hearsay, and violation of the best evidence rule. Each of these
objections are considered in this section.

Where physical evidence is secured at the scene of a crime, the State must generally establish that the evidence
introduced at trial is the same as that secured at the scene. That principle refers to what is commonly known as
the chain of custody. This principle applies to blood samples. The defense may argue that there is a gap in the
chain of custody; therefore, the results of any testing are inadmissible. For this argument to prevail “the
defendant must show that there was a probability of tampering with the evidence.”1 A possibility is not enough.

Even warnings on medical reports that lab tests were not administered for any legal purpose, may not meet the
probability standard. That was the case in Nimmons v. State.2 In Nimmons, the warning said: “SPECIMEN
ANALYSIS WAS PERFORMED WITHOUT CHAIN OF CUSTODY HANDLING. THESE RESULTS
SHOULD BE USED FOR MEDICAL PURPOSES ONLY AND NOT FOR ANY LEGAL OR
EMPLOYMENT PURPOSES.” There was, however, evidence of the test’s reliability and that physicians relied
on the test for diagnostic purposes. On those grounds, the court concluded that the warning went to the weight
of the evidence, not its admissibility.

Documentary or other physical evidence requires authentication. 3 That means proof that the document is what

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§ 8:2.Evidentiary problems with documentary and physical..., 11 Fla. Prac., DUI...

its proponent claims.4 The most obvious method of authentication is simply to have a witness with personal
knowledge identify the item. There may, however, be simpler and more economical methods of authentication.
Authenticity of business records can now be established by a certification or declaration that complies with
§§ 90.803(6)(c) and 90.902(11), Fla. Stat. The procedures pursuant to those provisions include very detailed
requirements, including written notice. Accordingly, those considering using this approach instead of the
custodian of the records, need to carefully review the statutes.5

In this section, authentication is considered with regard to several items that might be relevant in a DUI case.
Video tapes of field sobriety exercises do not require evidence as to the process generating the film; but only
proof that it fairly and accurately depicts the scene and the tests defendant performed. 6 The same is true of
videos of the defendant in the back of the police car.7

Many documents are self-authenticating.8 A car registration is not admissible under the self-authentication
provision unless it complies with the seal and signature requirement of the statute. 9 For the same reason, it was
more difficult for the state to establish the foundation for breathalyzer test results before the passage of the
affidavit option. The failure to properly authenticate documents needed to establish that the machine was in
compliance with the regulations, required the exclusion of test results.10

Two other issues relating to documentation arose in Riggins v. State.11 The first matter dealt with the sufficiency
of proof that a vehicle was not registered. The second had to do with the sufficiency of proof that the temporary
tag was expired. The only evidence the State presented to prove the vehicle was unregistered was the officer’s
testimony that he had run the car VIN through the FCIC/NCIC database and found that it was unregistered. This
was hearsay. The State argued that the officer’s testimony fell into the hearsay exception for absence of an entry
in public records. This provision only applies where the State provides a certification pursuant to § 90.902, Fla.
Stat. or testimony that diligent search failed to disclose the relevant record. No such evidence was presented
here. The State could also have relied on § 90.803(7), Fla. Stat. to show that there was nothing in a business
record, but the State failed to present the necessary foundation to establish that the involved records were
business records.

As to the expired temporary tag, the only evidence the State presented was the testimony of the officer as to the
date of the stop and the expiration date on the tag. The expiration date was hearsay because someone else had
written it on the tag and it was being introduced to prove the truth of the information. 12 The State may enforce
that law by obtaining proper documentation from the Department of Highway Safety and Motor Vehicles in
admissible form showing the issuance and expiration dates of temporary tags.

Computerized driving records are treated differently. A copy, computer copy, or transcript of abstracts of crash
reports and of court records of convictions received by the department shall be received in evidence without
further authentication, provided they are otherwise admissible. 13 The same is true of the complete driving record
of any individual duly certified by the department or by the clerk of the court.14

The statute also allows uncertified copies of these materials into evidence, if they are secured by the clerk of the
court through electronic link with the Department of Highway Safety and Motor Vehicles. 15 If, however, a
genuine issue as to the authenticity of that information is raised, the court may require a record certified by the
department.16

Computerized driving records are important in sentencing DUI offenders, and in establishing the necessary
foundation for enhancement of the charge. As previously recognized, by statute these are self-authenticating
documents.17 Such records are clearly “accepted as evidence where no genuine issue of authenticity is raised.” 18
And the courts have found them sufficient to prove the truth of the record. In Kohler v. State,19 the court ruled
that the computerized driving record was sufficient to prove that the defendant had four or more DUI
convictions in a Felony DUI case. “The computerized driving record is competent evidence since it is, as the
statute requires, an abstract of the court records of convictions and is a complete driving record duly certified by
the machine imprint of the Department of Highway Safety and Motor Vehicles.”20

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However, the viability of Kohler has been seriously undermined. In State v. Pelicane,21 the court relied upon the
Supreme Court’s decision in State v. Rodriquez,22 where the court established standards for handling DUI
charges based on prior convictions. In Pelicane, the court said:
Kohler seems to have been decided on a preponderance of the evidence standard of proof. The
Florida Supreme Court, however, subsequently decided Rodriquez, wherein the Court held that
the state must prove the priors beyond a reasonable doubt. We agree with the trial court’s
determination that the computerized driving record is too unreliable to meet this heightened
standard.23

The court also ruled that the electronic docket information did not cure the problem. That “evidence only tends
to link the defendant to the conviction by the fact that the name on the docket sheet matches the defendant’s
name.” This is clearly insufficient.24

There have been significant changes since Pelicane. Section 316.193(12), Fla. Stat. was enacted. It provides:
If the records of the Department of Highway Safety and Motor Vehicles show that the defendant
has been previously convicted of the offense of driving under the influence, that evidence is
sufficient by itself to establish that prior conviction for driving under the influence. However, such
evidence may be contradicted or rebutted by other evidence. This presumption may be considered
along with any other evidence presented in deciding whether the defendant has been previously
convicted of the offense of driving under the influence.25

In Fender v. State,26 the court rejected the ruling in Pelicane27 based on § 316.193(12), Fla. Stat. In Fender,28
the State was required to establish three prior DUI convictions to prove felony DUI. The court concluded that
the State met this burden. The court found that the State proved two priors by introducing a certified copy of the
defendant’s criminal history report from the clerk, fingerprints, and a report from a fingerprint analyst
connecting the defendant to two of the prior bookings for DUI. 29 Pursuant to § 316.193(12), Fla. Stat., the
State established a rebuttable presumption of the third conviction by introducing a certified copy of the
defendant’s driving record showing the third conviction. There were some issues as to the validity of this statute
that were not considered in Fender;30 however, they were subsequently resolved in other cases.31

Another interesting authentication issue involved a document entitled “Basic Training Program for Breath
Examiner Specialist, Student Study Guide.” The court ruled that this was self-authenticating pursuant to §
90.902(5), Fla. Stat., which provides that no outside evidence of authenticity is required for publications
purportedly issued by a governmental authority.32 The title page of the booklet stated that it was issued by the
U.S. Department of Transportation, National Highway Safety Administration, and the DOT seal was on the
cover. The court found that this was sufficient because authentication only requires a seal or statement that the
document was published by a government body. It does not matter that there is a disclaimer that the findings
and conclusions were not necessarily those of the government.33

Another major issue with documents that include out-of-court statements being introduced to prove the truth of
the statements, is whether the documents can withstand a hearsay objection. 34 That may come up in several
different ways in DUI cases. Clearly, the proponent of the evidence must either identify some exclusion or
exception that permits introduction of the hearsay. Those exclusions and exceptions are found in the statutes. 35

Laboratory reports may become important in a DUI case with regard to proof of drug or alcohol consumption.
Lab tests results are hearsay, and they are generally inadmissible at trial unless the foundation for the
application of some exception to the hearsay rule is established. One such exception is the business record
exception.36 The foundation for that exception can be established in two ways. 37 The proponent of the evidence

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can either “‘call a witness who can show that each of the foundational requirements set out in the statute is
present,’”38 or comply with the statutory process for certification or declaration.39

The necessary foundation is illustrated by several cases. In Davis v. State,40 a laboratory report showing that the
defendant’s urine sample was positive for cocaine, was properly admitted into evidence as a business record,
pursuant to § 90.803(6), Fla. Stat. The laboratory supervisor testified as custodian of records to the statutory
criteria, and the defense made no showing of lack of trustworthiness.

In a DUI Manslaughter case, 41 the State was allowed to introduce blood test evidence as to alcohol consumption
and cocaine use. The witness called by the State concerning the test results was the licensed toxicologist in
charge of the lab where the testing was done. The work of that witness was performed with the help of licensed
technicians. With respect to the alcohol tests, the lab records reflected which technician did the various stages of
testing as required by statute. The witness could not specifically identify which technician had performed the
drug testing. The court held that the cocaine test was admissible based on these considerations: (1) there is no
statutory requirement that the technicians who performed the test for drugs be specified with certainty as there
is for alcohol; (2) the testimony established that the test was properly administered; (3) the lab supervisor
testified that all drug testing was performed under his direct supervision and pursuant to an established protocol;
and (4) the witness and his assistants, as well as the tested blood, were available for pretrial investigation.

Medical and hospital records are treated much the same as lab reports. The custodian of the records or other
qualified persons must be called to establish the foundation. 42 The landmark case setting forth the standards that
apply to such records is Love v. Garcia.43

Love was a civil case where a pedestrian sued a driver for damages sustained in an accident. The driver sought
to have medical records containing the pedestrian’s blood alcohol levels introduced into evidence under the
business records exceptions. The Florida Supreme Court reached these conclusions: (1) “[t]he medical record
exception includes routine blood tests which disclose alcohol content if the tests are a component of the hospital
or medical records”;44 (2) medical records should be treated as any other business records and are admissible “if
made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course
of a regularly conducted business activity and if it was the regular practice of that business activity to make
such memorandum, report, record, or data compilation. . . .”; 45 (3) these elements must be established by the
testimony of the custodian or other qualified witness; (4) even if these elements are established, the records may
not be admissible if the sources of information or other circumstances show lack of trustworthiness; (5) once the
predicate is established, the burden is on the party opposing the introduction of the records to prove their
untrustworthiness; (6) if this burden is not met, the records are admissible in evidence as a business record
unless the documents do not withstand the test of relevancy, which means that the trial judge may still exclude
them if they are unfairly prejudicial or confusing; and (7) “[u]nder the business record exception, the
trustworthiness of medical records is presumed.” 46 These are the standards that the parties and the court should
look to in resolving most business records issues that might arise in a DUI case.

The courts have now applied the decision in Love v. Garcia47 to DUI cases. In Baber v. State,48 a DUI
Manslaughter case, the court ruled “that the Supreme Court’s decision in Love does apply in criminal cases, and
that the trial court properly admitted the blood alcohol report as a business record through the testimony of the
hospital medical records custodian.”49 The court specifically found that the technician who performed the test
did not need to testify and that this did not violate the Confrontation Clause. Furthermore, a circuit judge sitting
in her appellate capacity ruled that, unlike introduction of blood test results pursuant to the implied consent law,
introduction of the results under the business records exception does not require a showing that the person who
drew the blood was qualified to do so. 50 In State v. Eason,51 a trial judge applied the ruling in Baber to justify
introduction of blood alcohol reports from the Florida Department of Law Enforcement. In Zicheck v. State,52 a
circuit judge sitting in his appellate capacity, ruled that the business records exception applied to permit the
defendant to introduce some chiropractor’s records into evidence that tended to show the defendant suffered
from a medical condition that affected his ability to perform field sobriety exercises.

The decision in Love53 does not permit lab records to be used as a conduit for otherwise inadmissible hearsay.
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Thus, in State v. Rosario,54 the court ruled that where the records custodian for a lab established the foundation
for introduction of the lab’s records, information contained in those records coming from another independent
lab was inadmissible under the business records exception to the hearsay rule. 55 For the results from that
independent lab to be admissible the records custodian from that facility would be needed. 56

The Florida Supreme Court directly addressed the issue of lab reports and the confrontation clause as it was
construed in Crawford v. Washington.57 In State v. Johnson,58 the Court recognized that its decision in Baber v.
State59 held that admission of a medical record reflecting the amount of alcohol in the defendant’s system in a
DUI manslaughter as a business record did not violate the Confrontation Clause. The medical record was
generated for medical treatment.60

In contrast, a FDLE report prepared to show the illegal nature of a substance is made for purposes of a criminal
prosecution. It “is the functional equivalent of an affidavit submitted instead of testimony from a live witness.” 61
As such it is testimonial. And if the witness is unavailable and the defendant did not have a prior opportunity for
cross-examination, the confrontation clause bars consideration of the FDLE report even if it is a business
record.62 Similarly, in State v. Jones,63 the court recognized that a medical lab test ordered for prosecutorial
purposes would be testimonial and treated like an FDLE report. However, the burden is on the defendant to
show the prosecutorial purpose of the test. That burden cannot be met by the unsworn assertion of counsel. 64

However, in Smith v. State,65 the Florida Supreme Court recognized a distinction between cases like State v.
Johnson,66 where a supervisor testifies as to the interpretations and conclusions of an employee set forth in a lab
report, and cases where a supervisor testifies as to his or her interpretations and conclusions based on the data in
employees’ reports. In Johnson,67 the supervisor was allowed to testify to conclusions contained in an
employee’s lab report to establish the illegal nature of a substance. In Smith,68 the supervisor was allowed to
testify to her own conclusions about DNA matches based on data generated and reported out-of-court by
employees. In contrast to Johnson,69 the Court in Smith70 concluded that the supervisor’s testimony was
admissible because she testified about her own conclusions from the raw data produced by those under her
supervision and control, and she was subject to cross-examination.

Recently, in Calloway v. State,71 the Court took another step; ruling that the Confrontation Clause does not bar
the testimony of a medical examiner who did not perform the autopsy, prepare the report, or supervise the
person who did. The testifying examiner gave his independent opinion as to cause of death and victim injuries
based on crime scene photos and the autopsy report, but the report was not introduced through the substitute
medical examiner.

The situation and results were different in Bullcoming v. New Mexico.72 In a DUI, one analyst, who was
allegedly unavailable and had not been cross-examined by the defendant, did a blood test and certified to the
report to prove a fact at the criminal trial. A different analyst testified at trial for the purpose of introducing the
report but he, “did not sign the certification or personally perform or observe the performance of the test
reported in the certification.”73 The United States Supreme Court ruled that the Confrontation Clause barred
introduction of the report through the testifying analyst and the fact that the certification was unsworn did not
change the result.74

The application of the business records exception to the hearsay rule only solves the hearsay problem as to such
documents. As suggested previously, it does not address issues of unfair prejudice or the tendency to mislead or
confuse raised pursuant to § 90.403, Fla. Stat. Thus, in Bradley v. Brotman,75 the court ruled pursuant to that
section, that the trial judge erred in allowing medical records into evidence that contained a telephone note that
was unfairly prejudicial. In reaching that decision, the court considered several factors identified by various
authorities that would support an objection under § 90.403, Fla. Stat. They included: (1) the opinions in the
records related to a complex condition and the expert was unavailable for cross-examination; (2) lack of
trustworthiness resulting from a lack of expert qualifications or a lack of factual support; (3) lack of
trustworthiness because the report was prepared by an independent medical examiner solely for litigation; (4)
failure of the expert to testify and to be available for cross-examination. 76 This case makes it clear that
objections under § 90.403, Fla. Stat. may be an option in dealing with records that are otherwise admissible

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under the business records exception.

The parties must also be cautious not to violate the prohibition against hearsay within hearsay. 77 Hearsay
statements contained in a report, may require their own exceptions.

While the business records exception is probably most commonly raised in dealing with documents, other
exceptions have potential application. In Cosker v. State,78 the court considered two such exceptions. There the
issue was whether the document “Basic Training Program for Breath Examiner Specialist, Student Study
Guide,” was admissible over a hearsay objection. The court rejected the records and reports exception set forth
in § 90.803(8), Fla. Stat., because the document did not set forth either the activities of a government agency
or matter in which an agency is required to report. The court also concluded that the ancient document
exception set forth in § 90.803(16), Fla. Stat., did not apply.

The application of the best evidence rule is another frequent problem. It is regularly misunderstood and
misapplied. In State v. Eubanks,79 the court ruled that the best evidence rule did not justify the exclusion of a
traffic ticket, which was being introduced to prove that the ticket was issued, not to prove the truth of the
material in the ticket. The trial judge excluded it because the driving record was the best evidence of the
offense. The appellate court said that the best evidence rule is inapplicable “[if] the matter sought to be proved
is the fact that a written order … was made and delivered, as distinguished from the terms or provisions of such
written order.”80 The best evidence rule only applies “where the contents of a writing is at issue.” 81 The rule does
not prevent the introduction of primary or original evidence because stronger primary or original evidence is
available.

Obviously, there are many situations where tangible evidence is being introduced not just to establish that the
item was created or issued, but rather to establish the contents of the item. If the item relates to “a controlling
issue”82 and there is no claim that the item is unavailable, the best evidence rule, which has been codified in the
evidence code, requires introduction of the item itself, rather than a description of its contents. 83 Thus, it was
improper to permit an officer to describe the substance of a videotape of the defendant committing a robbery. 84
However, H.A. v. State85 makes it clear that a duplicate of a surveillance video in the form of a still photo in
contrast to a mere description of the video, is admissible pursuant to § 90.953, Fla. Stat. Additionally, if a
witness is merely describing events the witness actually observed that were also recorded, that testimony is not
barred by the best evidence rule because it is being introduced to prove what the witness saw rather than the
content of the video.86

A fourth issue that a trial judge identified in State v. Benedetti87 is whether the past recollection recorded
exception to the hearsay rule88 permits an officer to read his or her police report. The exception does not permit
the proponent of the document to introduce it into evidence, but it does permit the witness to read the document
if the proponent establishes the statutory foundation. 89 In Benedetti, the court ruled that this hearsay exception
does not apply to police reports even in a hearing on a motion to suppress.90

In assessing the application of this decision, there are several interesting features of the decision. First, the court
relies on the exclusion of police reports from the public records exception to the hearsay rule, 91 but there is no
similar exclusion in the past recollection recorded provision. 92 Second, the court relies on the decision in
Hendrieth v. State.93 In that case, the court ruled that a police report could not be admitted into evidence
pursuant to the past recollection recorded provision to present the statement of a nonparty witness who had not
prepared the report, but whose statement had been included in the report. 94 It did not address whether a police
report containing the officer’s personal observations falls within the past recollection recorded provision. Third,
the court expressed concern about violation of the Confrontation Clause. 95 At the time of Beneditti,96 the issue of
whether evidence violated the Confrontation Clause was controlled by the “firmly rooted” exception. 97 About
five years after the decision in Beneditti,98 the U.S. Supreme Court rejected that approach in favor of
“testimonial” analysis.99 However, that only comes into play when the declarant is unavailable to testify at
trial.100 And the past recollection recorded provision only comes up when the declarant is testifying at trial,
forgets the matter about which he/she is testifying, and is available to vouch for the accuracy of the out-of-court

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statement.101 Some courts have applied that principle to breath test affidavits, allowing them into evidence
notwithstanding Crawford,102 if the operator and inspector testify.103

A circuit judge sitting in his appellate capacity, relied on past recollection recorded in State v. Tippie.104 That
judge said:

Although Fla. Stat. § 90.803(8) (2000), states that police reports are excluded
from the hearsay exception for public records and reports and are thus inadmissible,
when a foundation is laid for the admission of the contents of a memorandum as past
recollection recorded, the relevant contents of the record or memorandum may be
read into evidence.

Accordingly, the court ruled that an officer could read from his intoxilyzer operator report prepared during the
twenty minute observation period. The court also recognized, however, that “a prior recollection recorded is
admissible only if the recorded statement is one that was recorded by the witness themselves.” Further, the court
stressed that only the opposing party could actually introduce the report itself.105

Clearly, the use of police reports in DUI cases is extremely important. Police officers frequently forget details
that they have preserved in various reports. This subject awaits further development.

Another issue arising from time to time involving police officers, is whether past conduct can be used to
impeach an officer. In a very short opinion, a three-judge circuit court appellate panel addressed that issue. 106
The court ruled that the trial court did not abuse its discretion when it allowed the defense to introduce evidence
of the officer’s past DUI stops for the purpose of showing bias.

In this section, the focus has been largely on different kinds of out-of-court statements. As the discussion
indicates, the admissibility of such evidence is often problematic. It has become even more complex with the
decision in Crawford v. Washington.107 In Crawford, the Court said:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford
the States flexibility in their development of hearsay law—as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause scrutiny altogether. Where
testimonial evidence is at issue, however the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination. We leave for another day
any effort to spell out a comprehensive definition of “testimonial.”108

Thus, the states remain free to maintain and develop their own rules as to nontestimonial evidence. 109 The Court
says, “Most of the hearsay exceptions covered statements that by their nature were not testimonial—for
example business records.”110 Further, Chief Justice Rehnquist recognized in an opinion concurring in the result,
that “[t]o its credit, the Court’s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as
business records and official records.” 111 Thus, resolution of whether Crawford bars the introduction of such
evidence depends on whether it is determined to be “testimonial,” as the Court uses that term.

In Davis v. Washington,112 the U.S. Supreme Court gave more definition to the term “testimonial” as the Court
used it in Crawford.113 There were actually two cases in Davis. Each case involved statements made by victims
of domestic violence. In deciding which statements were testimonial, the Court considered the purpose of the
statements as they related to the emergency nature of the contact. The Court said:
Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are testimonial when the circumstances

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objectively indicate that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.114

Thus, in determining whether there is a Crawford115 issue with any out-of-court statement, the trial court must
look to the primary purpose of the interrogation.

As explained in § 6:2, “Foundation for establishing compliance with regulations,” in State v. Belvin,116 the
Florida Supreme Court relied on the foregoing language from Davis117 to conclude that the portions of the breath
test affidavit prepared by the operator is testimonial as that term is used in Crawford.118 The primary purpose of
the breath test affidavit is to prove past events for a DUI prosecution.119

Since the decision in Crawford was rendered, Florida courts have considered the application of these principles
to other documents. In Desue v. State,120 the court ruled that a Department of Correction’s computer printout
called “‘Crime and Time Report’” is admissible as a business record to show the release dates for inmates. In
Card v. State,121 the court concluded that the driving records maintained by the Department of Highway Safety
and Motor Vehicles are not testimonial hearsay. Additionally in Gonzalez v. State,122 the court ruled that a pawn
shop transaction form, which is filled out when an item is pawned and by statute submitted to law enforcement
every day, is not prepared primarily for use in a criminal prosecution. Mainly, it provides a clear statement of
the terms of the transaction. Similarly, in Peterson v. State123 the court ruled that an airbag control system
report124 was not testimonial because it contained only objective data and nothing suggesting the driver
committed a crime.

In DUI cases, the State may seek to prove some traffic infractions either because they are companion charges or
they provide additional proof of impaired judgment. That may raise issues as to admissibility of testimony and
documents. Speeding charges present such issues. In Eisenmenger v. State,125 a three-judge circuit court
appellate panel reversed a speeding conviction and concluded for many reasons that the certification used to
prove that the radar gun was in good working order was improperly received in evidence. 126 In State v. Roeder,127
the county judge found the accused not guilty of speeding based on a speed testing device because the officer
could not testify that the daily tests to determine accuracy had been performed.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Jordan v. State, 707 So. 2d 816, 818 (Fla. 5th DCA 1998), decision approved, 720 So. 2d 1077 (Fla.
1998). See also Thompson v. State, 2018 WL 3673232 (Fla. 1st DCA Opinion Filed August 3, 2018);
Armstrong v. State, 73 So. 3d 155, 171-72 (Fla. 2011), cert. denied, 132 S. Ct. 2741, 183 L. Ed. 2d 618
(2012); Murray v. State, 3 So. 3d 1108, 1115 (Fla. 2009), cert. denied, 558 U.S. 949, 130 S. Ct. 396,
175 L. Ed. 2d 273 (2009); Floyd v. State, 850 So. 2d 383, 399 (Fla. 2002), cert. denied, 540 U.S.
1112, 124 S. Ct. 1040, 157 L. Ed. 2d 902 (2004); Martin v. State, 207 So.3d 310 (Fla. 5th DCA 2016);
State v. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010) (trial court departed from the essential requirements of
law by excluding urinalyses test results; appellate court found defendant failed to meet burden of
proving a probability of tampering and made no argument suggesting tampering).
2
Nimmons v. State, 814 So. 2d 1153 (Fla. 5th DCA 2002). See also State v. Knopp, 11 Fla. L. Weekly
Supp. 367 (Fla. Brevard Cty. Ct. Jan. 9, 2004)State v. Knopp, 11 Fla. L. Weekly Supp. 367 (Fla.
Brevard Cty. Ct. Jan. 9, 2004).
3
§ 90.901, Fla. Stat.

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4
§ 90.901, Fla. Stat.
5
Parker v. State, 973 So. 2d 1167 (Fla. 1st DCA 2007), review denied, 1 So. 3d 173 (Fla. 2009)
(applied statutory provisions to prison records in prison releasee reoffender case and held that the
certification procedure did not violate the ex post facto provision).
6
State v. Houston, 17 Fla. L. Weekly Supp. 265 (Fla. 17th Cir. Ct. Dec. 23, 2009)State v. Houston, 17
Fla. L. Weekly Supp. 265 (Fla. 17th Cir. Ct. Dec. 23, 2009) (the trial judge erred in excluding video
tape; trial judge rejected tape because the officer could not testify about the reliability of the process;
foundation was testimony that video fairly and accurately depicted the scene and the tests defendant
performed). See also Groff v. State, 18 Fla. L. Weekly Supp. 760 (Fla. 17th Cir. Ct. April 15,
2011)Groff v. State, 18 Fla. L. Weekly Supp. 760 (Fla. 17th Cir. Ct. April 15, 2011) (court held
foundation was sufficient where tape was introduced through deputy who was on-the-scene, but was not
the one who made the tape; defense did not challenge the chain of custody and had no evidence of
tampering; deputy was in the video and testified as to time and date of events in the video; deputy also
identified himself, the investigating deputy, and the defendant; he recognized the investigating deputy’s
voice and testified that the video was a fair and accurate depiction of the defendant’s appearance and
condition).
7
Stewart v. State, 20 Fla. L. Weekly Supp. 970 (Fla. 19th Cir. Ct. April 24, 2013)Stewart v. State, 20 Fla.
L. Weekly Supp. 970 (Fla. 19th Cir. Ct. April 24, 2013) (even though officer was not in police car with
the defendant when the defendant’s ranting was recorded on video, officer placed defendant in the car
and could be seen on camera outside the car during the rant and probably heard him; therefore, officer
had personal knowledge and his testimony that the recording was accurate was sufficient to establish the
foundation); Lacey v. State, 17 Fla. L. Weekly Supp. 951 (Fla. 6th Cir. Ct. July 21, 2010)Lacey v. State,
17 Fla. L. Weekly Supp. 951 (Fla. 6th Cir. Ct. July 21, 2010) (photo of defendant in back of police car
was inadmissible because the officer used to establish the foundation that it was accurate never saw the
defendant in the car; therefore, the officer lacked personal knowledge).
8
§ 90.902, Fla. Stat.
9
T.A. v. State, 553 So. 2d 1310 (Fla. 3d DCA 1989). See also State v. Alfares, 19 Fla. L. Weekly Supp.
197 (Fla. Polk Cty. Ct. Oct. 12, 2011)State v. Alfares, 19 Fla. L. Weekly Supp. 197 (Fla. Polk Cty. Ct.
Oct. 12, 2011) (in a red light violation case detected by camera, the trial judge ruled that the ownership
information on the citation was hearsay and the registration was not admissible because it was not
properly self-authenticated pursuant to § 90.902, Fla. Stat.).
10
Turk v. State, 403 So. 2d 1077 (Fla. 1st DCA 1981).
11
Riggins v. State, 67 So. 3d 244 (Fla. 2d DCA 2010). See also Alexandre v. State, 21 Fla. L. Weekly
Supp. 387 (Fla. 9th Cir. Ct. Nov. 15, 2013)Alexandre v. State, 21 Fla. L. Weekly Supp. 387 (Fla. 9th
Cir. Ct. Nov. 15, 2013) (deputy’s testimony as to what was on defendant’s driving record was
inadmissible hearsay). But see State v. Jones, 21 Fla. L. Weekly Supp. 860 (Fla. 9th Cir. Ct. April 19,
2014)State v. Jones, 21 Fla. L. Weekly Supp. 860 (Fla. 9th Cir. Ct. April 19, 2014) (officer’s testimony
at hearing on motion to suppress that computer showed defendant’s license was suspended was not
inadmissible hearsay because it was not being introduced to prove the truth of what was on the
computer, but only what the officer knew when he made the arrest for DWLS).
12
Riggins v. State, 67 So. 3d 244 (Fla. 2d DCA 2010). But see Jones v. State, 127 So. 3d 622 (Fla. 4th
DCA 2013) (testimony of an officer as to the age on the defendant’s driver’s license for the purpose of
proving age, was admissible as an adoptive admission).
13
§ 322.201, Fla. Stat.
14
§ 322.201, Fla. Stat.
15
§ 322.201, Fla. Stat.

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16
§ 322.201, Fla. Stat.
17
§ 322.201, Fla. Stat.
18
Gowins v. State, 745 So. 2d 1156 (Fla. 5th DCA 1999) (relying on Kohler v. State, 534 So. 2d 1213
(Fla. 5th DCA 1988)). See also Francis v. State, 47 So. 3d 366 (Fla. 4th DCA 2010) (“allows the
admission of a copy of a defendant’s driving record to show both habitual traffic offender status and
notice of revocation”).
19
Kohler v. State, 534 So. 2d 1213 (Fla. 5th DCA 1988).
20
Kohler v. State, 534 So. 2d 1213, 1214 (Fla. 5th DCA 1988). See also State v. Perkins, 977 So. 2d
643 (Fla. 5th DCA 2008), review denied, 991 So. 2d 387 (Fla. 2008) (in a felony suspended license case,
prosecutor complied with Fla. R. Crim. P. 3.140(g), requiring prosecutor to attest to good faith and
certify that the charge is based on testimony under oath from material witnesses, where prosecutor relied
on sworn affidavit of deputy who stopped defendant and the certified, but unsworn driving record).
21
State v. Pelicane, 729 So. 2d 534 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.1999).
22
State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991) holding modified by, State v. Harbaugh, 754 So.
2d 691 (Fla. 2000).
23
State v. Pelicane, 729 So. 2d 534, 535 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.
1999).
24
State v. Pelicane, 729 So. 2d 534, 535 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla.
1999).
25
The Statute has also been incorporated into the standard instructions on DUI. In re Standard Jury
Instructions In Criminal Cases-Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).
26
Fender v. State, 980 So. 2d 516 (Fla. 4th DCA 2007), review denied, 980 So. 2d 489 (Fla. 2008).
27
State v. Pelicane, 729 So. 2d 534 (Fla. 3d DCA 1999), review denied, 740 So. 2d 529 (Fla. 1999).
28
Fender v. State, 980 So. 2d 516 (Fla. 4th DCA 2007), review denied, 980 So. 2d 489 (Fla. 2008).
29
Fender v. State, 980 So. 2d 516 (Fla. 4th DCA 2007), review denied, 980 So. 2d 489 (Fla. 2008).
30
Fender v. State, 980 So. 2d 516 (Fla. 4th DCA 2007), review denied, 980 So. 2d 489 (Fla. 2008).
31
Explained in § 2:7.
32
Cosker v. State, 2 Fla. L. Weekly Supp. 249 (Fla. 18th Cir. Ct. April, 1994)Cosker v. State, 2 Fla. L.
Weekly Supp. 249 (Fla. 18th Cir. Ct. April, 1994).
33
Cosker v. State, 2 Fla. L. Weekly Supp. 249 (Fla. 18th Cir. Ct. April, 1994)Cosker v. State, 2 Fla. L.
Weekly Supp. 249 (Fla. 18th Cir. Ct. April, 1994).
34
§ 90.801, Fla. Stat.
35
§§ 90.801 to 90.806, Fla. Stat.
36
Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989).
37
Butler v. State, 970 So. 2d 919 (Fla. 1st DCA 2007).

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38
Butler v. State, 970 So. 2d 919, 921 (Fla. 1st DCA 2007) (quoting from Forester v. Norman Roger
Jewell & Brooks Intern., Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1992)). See also Twilegar v.
State, 42 So. 3d 177, 198-99 (Fla. 2010), cert. denied, 131 S. Ct. 1476, 179 L. Ed. 2d 315 (2011).
39
§ 90.803(6)(c), Fla. Stat.
40
Davis v. State, 562 So. 2d 431 (Fla. 1st DCA 1990). See also Russell v. State, 801 So. 2d 999
(Fla. 4th DCA 2001).
41
Stover v. State, 612 So. 2d 661 (Fla. 4th DCA 1993).
42
Phillips v. State, 621 So. 2d 734 (Fla. 3d DCA 1993) (finding hospital records inadmissible based on
testimony of a nurse who was not the records custodian). See also Cooper v. State, 45 So. 3d 490
(Fla. 4th DCA 2010), review denied, 59 So. 3d 107 (Fla. 2011); Mann v. State, 787 So. 2d 130 (Fla. 3d
DCA 2001); Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369 (Fla. 1st DCA
1992) (excluding EMS records because there was no showing they “were prepared by or made from
information transmitted by a person with personal knowledge.”).
43
Love v. Garcia, 634 So. 2d 158 (Fla. 1994). See also Brock v. State, 676 So. 2d 991 (Fla. 1st DCA
1996).
44
Love v. Garcia, 634 So. 2d 158, 159 n.2(Fla. 1994).
45
Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994) (quoting § 90.803(6), Fla. Stat.).
46
Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994). See also Nimmons v. State, 814 So. 2d 1153 (Fla.
5th DCA 2002).
47
Love v. Garcia, 634 So. 2d 158 (Fla. 1994).
48
Baber v. State, 738 So. 2d 379 (Fla. 4th DCA 1999), decision approved, 775 So. 2d 258 (Fla.
2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149 L. Ed. 2d 758 (2001). See also Filan v.
State, 768 So. 2d 1100 (Fla. 4th DCA 2000) (court relied on Baber, but found that a non-specific
objection of “lack of foundation” or “improper predicate” was not sufficient to preserve alleged
deficiency in business records exception for appeal); Friedrich v. State, 743 So. 2d 1125 (Fla. 4th DCA
1999), decision approved, 767 So. 2d 451 (Fla. 2000).
49
Baber v. State, 738 So. 2d 379, 382 (Fla. 4th DCA 1999), decision approved, 775 So. 2d 258
(Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964, 149 L. Ed. 2d 758 (2001).
50
State v. Hedengren, 8 Fla. L. Weekly Supp. 612 (Fla. 17th Cir. Ct. July 10, 2001)State v. Hedengren, 8
Fla. L. Weekly Supp. 612 (Fla. 17th Cir. Ct. July 10, 2001).
51
State v. Eason, 8 Fla. L. Weekly Supp. 435 (Fla. 13th Cir. Ct. May 2, 2001)State v. Eason, 8 Fla. L.
Weekly Supp. 435 (Fla. 13th Cir. Ct. May 2, 2001). Unless the person who prepared the report is
available to testify, this decision has been effectively abrogated by the application of Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv. 1077 (2004), as
explained in the discussion later in this section.
52
Zicheck v. State, 9 Fla. L. Weekly Supp. 819 (Fla. 13th Cir. Ct. Oct. 1, 2002)Zicheck v. State, 9 Fla. L.
Weekly Supp. 819 (Fla. 13th Cir. Ct. Oct. 1, 2002).
53
Love v. Garcia, 634 So. 2d 158 (Fla. 1994).
54
State v. Rosario, 12 Fla. L. Weekly Supp. 534 (Fla. 11th Cir. Ct. March 15, 2005)State v. Rosario, 12
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Fla. L. Weekly Supp. 534 (Fla. 11th Cir. Ct. March 15, 2005).
55
State v. Rosario, 12 Fla. L. Weekly Supp. 534 (Fla. 11th Cir. Ct. March 15, 2005)State v. Rosario, 12
Fla. L. Weekly Supp. 534 (Fla. 11th Cir. Ct. March 15, 2005). But see State v. Schreiber, 12 Fla. L.
Weekly Supp. 387 (Fla. Broward Cty. Ct. Feb. 7, 2005)State v. Schreiber, 12 Fla. L. Weekly Supp. 387
(Fla. Broward Cty. Ct. Feb. 7, 2005) (Crawford does not apply to a toxicology report contained in
medical records, and those records are admissible under the business records exception to the hearsay
rule).
56
State v. Rosario, 12 Fla. L. Weekly Supp. 534 (Fla. 11th Cir. Ct. March 15, 2005)State v. Rosario, 12
Fla. L. Weekly Supp. 534 (Fla. 11th Cir. Ct. March 15, 2005).
57
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
58
State v. Johnson, 982 So. 2d 672 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28, 171 L. Ed.
2d 930 (2008). See also Rivera v. State, 917 So. 2d 210 (Fla. 5th DCA 2005).
59
Baber v. State, 775 So. 2d 258, 260-261 (Fla. 2000), cert. denied, 532 U.S. 1022, 121 S. Ct. 1964,
149 L. Ed. 2d 758 (2001). See also Sellers v. State, 973 So. 2d 543 (Fla. 1st DCA 2007) (blood test
taken in emergency room at direction of doctor for diagnosis and treatment of defendant’s injuries was
not testimonial in DUI manslaughter case).
60
State v. Johnson, 982 So. 2d 672, 676–677 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28,
171 L. Ed. 2d 930 (2008).
61
State v. Johnson, 982 So. 2d 672, 678 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28, 171
L. Ed. 2d 930 (2008). See also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174
L. Ed. 2d 314 (2009).
62
State v. Johnson, 982 So. 2d 672, 678 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28, 171
L. Ed. 2d 930 (2008). See also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174
L. Ed. 2d 314 (2009); Martin v. State, 936 So. 2d 1190 (Fla. 1st DCA 2006); Sobota v. State, 933
So. 2d 1277 (Fla. 2d DCA 2006), review denied, 988 So. 2d 623 (Fla. 2008) (same issues and ruling as
to a legal blood draw); Rivera v. State, 917 So. 2d 210 (Fla. 5th DCA 2005).
63
State v. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010).
64
State v. Jones, 30 So. 3d 619, 622 (Fla. 2d DCA 2010).
65
Smith v. State, 28 So. 3d 838 (Fla. 2009), cert. denied, 564 U.S. 1062, 131 S. Ct. 3087, 180 L. Ed. 2d
912 (2011).
66
State v. Johnson, 982 So. 2d 672, 678 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28, 171
L. Ed. 2d 930 (2008).
67
State v. Johnson, 982 So. 2d 672, 678 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28, 171
L. Ed. 2d 930 (2008).
68
Smith v. State, 28 So. 3d 838 (Fla. 2009), cert. denied, 564 U.S. 1062, 131 S. Ct. 3087, 180 L. Ed. 2d
912 (2011).
69
State v. Johnson, 982 So. 2d 672, 678 (Fla. 2008), cert. dismissed 554 U.S. 943, 129 S. Ct. 28, 171
L. Ed. 2d 930 (2008).

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70
Smith v. State, 28 So. 3d 838 (Fla. 2009), cert. denied, 564 U.S. 1062, 131 S. Ct. 3087, 180 L. Ed. 2d
912 (2011).
71
Calloway v. State, 210 So.3d 1160, 1193-95 (Fla. 2017).
72
Bullcoming v. New Mexico, 564 U.S. 647, 657, 131 S. Ct. 2705, 2713, 180 L. Ed. 2d 610 (2011).
73
Bullcoming v. New Mexico, 564 U.S. 647, 657, 131 S. Ct. 2705, 2713, 180 L. Ed. 2d 610 (2011).
74
Bullcoming v. New Mexico, 564 U.S. 647, 664, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610 (2011).
75
Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003). See also Keefe v. State, 23 Fla. L. Weekly
Supp. 404 (Fla. 17th Cir. Ct. June 30, 2015)Keefe v. State, 23 Fla. L. Weekly Supp. 404 (Fla. 17th Cir.
Ct. June 30, 2015) (court affirmed trial court’s decision to exclude medical records defendant sought to
introduce; records were inadmissible pursuant to 90.403; there was no expert to explain records; no
evidence as to date defendant received records; defendant only sought to introduce part of records;
nothing indicated what they contained).
76
Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003). See also Shorter v. State, 98 So. 3d 685 (Fla.
4th DCA 2012), review denied, 133 So. 3d 528 (Fla. 2014).
77
§ 90.805, Fla. Stat. See also Powell v. State, 908 So. 2d 1185, 1187 (Fla. 2d DCA 2005).
78
Cosker v. State, 2 Fla. L. Weekly Supp. 249 (Fla. 18th Cir. Ct. April, 1994)Cosker v. State, 2 Fla. L.
Weekly Supp. 249 (Fla. 18th Cir. Ct. April, 1994).
79
State v. Eubanks, 609 So. 2d 107 (Fla. 4th DCA 1992). See also Sarvis v. State, 7 Fla. L. Weekly
Supp. 7 (Fla. 9th Cir. Ct. Oct. 19, 1999)Sarvis v. State, 7 Fla. L. Weekly Supp. 7 (Fla. 9th Cir. Ct. Oct.
19, 1999) (A three judge circuit court appellate panel relied on Eubanks in support of its ruling that,
where an officer in a hearing on a motion to suppress testified as to what a tipster told him, the trial
judge was not required to exclude that testimony under the best evidence rule even though a tape
recording had been made of the conversation).
80
State v. Eubanks, 609 So. 2d 107, 109 (Fla. 4th DCA 1992).
81
State v. Eubanks, 609 So. 2d 107, 110 (Fla. 4th DCA 1992).
82
§§ 90.952, 90.954, Fla. Stat.
83
McKeehan v. State, 838 So. 2d 1257 (Fla. 5th DCA 2003). See also Russell v. State, 844 So. 2d
725 (Fla. 5th DCA 2003).
84
McKeehan v. State, 838 So. 2d 1257 (Fla. 5th DCA 2003). See also T.D.W. v. State, 137 So. 3d
574 (Fla. 4th DCA 2014) (detective’s testimony that a surveillance video not introduced into evidence
showed the defendant’s face at the scene of a burglary violated the best evidence rule and the State
failed to show any exception); Dyer v. State, 26 So. 3d 700 (Fla. 4th DCA 2010) (the best evidence
rule (Section 90.952) barred store manager’s testimony of what a surveillance DVD would show in lieu
of the DVD; temporary technical problems with the DVD did not qualify it as “‘lost or destroyed’ within
the meaning of the statute.”). But see J.J. v. State, 170 So.3d 861 (Fla. 3d DCA 2015) (best evidence
rule was not violated where witness saw theft while it was occurring through a closed circuit TV, which
also recorded; witness was describing what he actually saw while it was happening, not what was on
recording; “[T]he mere existence of a recording of what [witness] saw live [does not] make his
testimony about a live event subject to the best evidence rule.”).
85
H.A. v. State, 24 So. 3d 752 (Fla. 3d DCA 2009). But see Lerner v. Halegua, 154 So. 3d 445 (Fla. 3d
DCA 2014) (court distinguished ruling in H.A. and concluded that photos from a surveillance tape were

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inadmissible based on testimony of a witness who did not actually see the events depicted in the photos,
had nothing to do with the video camera, and had no direct knowledge as to securing part of video
relating to the investigation).
86
J.J. v. State, 170 So. 3d 861, 863 (Fla. 3d DCA 2015).
87
State v. Benedetti, 7 Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999)State v. Benedetti, 7
Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999).
88
§ 90.803(5), Fla. Stat.
89
§ 90.803(5), Fla. Stat. See also Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004), decision
approved, 116 So. 3d 270 (Fla. 2013) (Court in Smith held that foundation was not established for
playing witnesses’s interview tapes as past recollection recorded during detective’s testimony, where the
witnesses either did not recall or denied giving the interviews and the witnesses did not indicate that
they could not remember the circumstances); Possati v. Dep’t of Highway Safety & Motor Vehicles, 10
Fla. L. Weekly Supp. 970 (Fla. 11th Cir. Ct. Nov. 5, 2002)Possati v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 970 (Fla. 11th Cir. Ct. Nov. 5, 2002), reversed on other grounds, 866
So. 2d 737 (Fla. 3d DCA 2004) (court held that police report was improperly considered because the
evidence did not establish that the report was prepared while the matter was still fresh in the officer’s
mind).
90
State v. Benedetti, 7 Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999)State v. Benedetti, 7
Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999). See also State v. Donner, 11 Fla. L.
Weekly Supp. 976 (Fla. 17th Cir. Ct. July 28, 2004)State v. Donner, 11 Fla. L. Weekly Supp. 976 (Fla.
17th Cir. Ct. July 28, 2004) (the court seems to also hold that even if the foundation for an officer to
read from the officer’s report pursuant to § 90.803(5), Fla. Stat. (past recollection recorded) is
established, such testimony must still be excluded pursuant to § 90.803(8), Fla. Stat. (public records
and reports) because police reports are specifically excluded from the public records exception). State v.
Chin, 17 Fla. L. Weekly Supp. 833 (Fla. Broward Cty. Ct. May 5, 2010)State v. Chin, 17 Fla. L. Weekly
Supp. 833 (Fla. Broward Cty. Ct. May 5, 2010) (past recollection recorded exception to hearsay rule
does not permit officer to read from police report or probable cause affidavit even if foundation for past
recollection recorded is established because such reports are excluded from the public records exception
to hearsay rule). Cf. State v. Moore, 11 Fla. L. Weekly Supp. 58 (Fla. Broward Cty. Ct. Sept. 17,
2003)State v. Moore, 11 Fla. L. Weekly Supp. 58 (Fla. Broward Cty. Ct. Sept. 17, 2003) (court ruled
that police report was not admissible under business records exception to the hearsay rule).
91
§ 90.803(8), Fla. Stat.
92
§ 90.803(5), Fla. Stat.
93
Hendrieth v. State, 483 So. 2d 768 (Fla. 1st DCA 1986).
94
Hendrieth v. State, 483 So. 2d 768 (Fla. 1st DCA 1986). See also Carter v. State, 951 So. 2d 939 (Fla.
4th DCA 2007) (police report containing victim’s affidavit was not admissible as a business record or
public record).
95
State v. Benedetti, 7 Fla. L. Weekly Supp. 130, 132 (Fla. Dade Cty. Ct. Nov. 16, 1999) State v.
Benedetti, 7 Fla. L. Weekly Supp. 130, 132 (Fla. Dade Cty. Ct. Nov. 16, 1999). See also Possati v. Dep’t
of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 970 (Fla. 11th Cir. Ct. Nov. 5,
2002)Possati v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 970 (Fla. 11th Cir.
Ct. Nov. 5, 2002), reversed on other grounds, 866 So. 2d 737 (trial court suggested that one of the
reasons for excluding consideration of the police report as to performance of field sobriety exercises was
that it violated the confrontation clause).
96
State v. Benedetti, 7 Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999)State v. Benedetti, 7
Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999).

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97
White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848, 33 Fed. R. Evid. Serv. 881 (1992).
98
State v. Benedetti, 7 Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999)State v. Benedetti, 7
Fla. L. Weekly Supp. 130 (Fla. Dade Cty. Ct. Nov. 16, 1999).
99
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
100
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004); State v. Johnson, 982 So. 2d 672 (Fla. 2008), cert. denied. 554 U.S. 943, 129 S. Ct. 28,
171 L. Ed.2d 930 (2008).
101
§ 90.803(5), Fla. Stat.; Polite v. State, 116 So. 3d 270 (Fla. 2013). See also Blount v. State, 152 So.
3d 29, 30 (Fla. 1st DCA 2015) (victim’s deposition was admissible under the past recollection recorded
rule where victim testified at trial he had insufficient memory of events, once had knowledge of them,
that he described the events in his deposition when they were still fresh in his mind, and he told the truth
in his deposition about the events).
102
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
103
State v. Creo, 14 Fla. L. Weekly Supp. 681 (Fla. Broward Cty. Ct. May 2, 2007)State v. Creo, 14 Fla. L.
Weekly Supp. 681 (Fla. Broward Cty. Ct. May 2, 2007). See also State v. Davis, 15 Fla. L. Weekly
Supp. 101 (Fla. Broward Cty. Ct. Nov. 5 2007)State v. Davis, 15 Fla. L. Weekly Supp. 101 (Fla.
Broward Cty. Ct. Nov. 5 2007); State v. Daigle, 14 Fla. L. Weekly Supp. 789 (Fla. Bay Cty. Ct. April
30, 2007)State v. Daigle, 14 Fla. L. Weekly Supp. 789 (Fla. Bay Cty. Ct. April 30, 2007); State v.
Salesman, 14 Fla. L. Weekly Supp. 445 (Fla. Broward Cty. Ct. Feb. 23, 2007)State v. Salesman, 14 Fla.
L. Weekly Supp. 445 (Fla. Broward Cty. Ct. Feb. 23, 2007); State v. Evanchyk, 14 Fla. L. Weekly Supp.
392 (Fla. Broward Cty. Ct. Jan. 10, 2007)State v. Evanchyk, 14 Fla. L. Weekly Supp. 392 (Fla. Broward
Cty. Ct. Jan. 10, 2007); State v. Tavernia, 14 Fla. L. Weekly Supp. 290 (Fla. Broward Cty. Ct. Jan. 4,
2007)State v. Tavernia, 14 Fla. L. Weekly Supp. 290 (Fla. Broward Cty. Ct. Jan. 4, 2007).
104
State v. Tippie, 9 Fla. L. Weekly Supp. 655 (Fla. 4th Cir. Ct. Sept. 28, 2001)State v. Tippie, 9 Fla. L.
Weekly Supp. 655 (Fla. 4th Cir. Ct. Sept. 28, 2001). See also State v. Kromke, 17 Fla. L. Weekly Supp.
904 (Fla. 17th Cir. Ct. April 29, 2010)State v. Kromke, 17 Fla. L. Weekly Supp. 904 (Fla. 17th Cir. Ct.
April 29, 2010) (circuit judge in appellate capacity ruled: “a police officer may offer testimony from a
police report as a past recollection recorded provided the proper predicate is laid and the report is not
received in evidence as an exhibit unless offered by an adverse party;” court takes the position that
exclusion of police reports as public records does not apply to the entire statute and suggests that in
K.E.A. v. State, 802 So. 2d 410 (Fla. 3d DCA 2001), the court implicitly found past recollection
recorded provision applicable to police reports); State v. Galfo, 12 Fla. L. Weekly Supp. 466 (Fla. 17th
Cir. Ct. Feb. 4, 2005)State v. Galfo, 12 Fla. L. Weekly Supp. 466 (Fla. 17th Cir. Ct. Feb. 4, 2005)
(where deputy lost his memory, court ruled that arrest affidavit could be introduced as past recollection
recorded if the deputy testified and established the predicate). But see State v. Donner, 11 Fla. L.
Weekly Supp. 976 (Fla. 17th Cir. Ct. July 28, 2004)State v. Donner, 11 Fla. L. Weekly Supp. 976 (Fla.
17th Cir. Ct. July 28, 2004) (the court seems to hold that even if the foundation for an officer to read
from the officer’s report pursuant to § 90.803(5), Fla. Stat. (past recollection recorded) is established,
such testimony must still be excluded pursuant to § 90.803(8), Fla. Stat. (public records report)
because police reports are specifically excluded from the public records exception).
105
State v. Tippie, 9 Fla. L. Weekly Supp. 655 (Fla. 4th Cir. Ct. Sept. 28, 2001)State v. Tippie, 9 Fla. L.
Weekly Supp. 655 (Fla. 4th Cir. Ct. Sept. 28, 2001). See also Fiscus v. State, 8 Fla. L. Weekly Supp.
527 (Fla. 6th Cir. Ct. April 30, 2001)Fiscus v. State, 8 Fla. L. Weekly Supp. 527 (Fla. 6th Cir. Ct. April
30, 2001) (court ruled that video of interview with passenger did not meet the test for past recollection
recorded).
106
Freeman v. State, 8 Fla. L. Weekly Supp. 822 (Fla. 15th Cir. Ct. ) Freeman v. State, 8 Fla. L. Weekly

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§ 8:2.Evidentiary problems with documentary and physical..., 11 Fla. Prac., DUI...

Supp. 822 (Fla. 15th Cir. Ct. ). See also McKeown v. State, 16 So. 3d 247 (Fla. 4th DCA 2009)
(percentage of nonarrests is irrelevant).
107
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
108
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 63 Fed. R.
Evid. Serv. 1077 (2004).
109
Card v. State, 927 So. 2d 200 (Fla. 5th DCA 2006). See also Washington v. State, 18 So. 3d 1221
(Fla. 4th DCA 2009); Pflieger v. State, 952 So. 2d 1251 (Fla. 4th DCA 2007).
110
Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177, 63 Fed. R.
Evid. Serv. 1077 (2004).
111
Crawford v. Washington, 541 U.S. 36, 75, 124 S. Ct. 1354, 1378, 158 L. Ed. 2d 177, 63 Fed. R.
Evid. Serv. 1077 (2004).
112
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224, 70 Fed. R. Evid. Serv. 472,
30 A.L.R.6th 599 (2006).
113
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
114
Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74, 165 L. Ed. 2d 224, 70 Fed. R.
Evid. Serv. 472, 30 A.L.R.6th 599 (2006).
115
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
116
State v. Belvin, 986 So. 2d 516, 521 (Fla. 2008) (quoting Davis v. Washington, 547 U.S. 813, 126
S. Ct. 2266, 165 L. Ed. 2d 224, 70 Fed. R. Evid. Serv. 472, 30 A.L.R.6th 599 (2006)).
117
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224, 70 Fed. R. Evid. Serv. 472,
30 A.L.R.6th 599 (2006).
118
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 63 Fed. R. Evid. Serv.
1077 (2004).
119
State v. Belvin, 986 So. 2d 516 (Fla. 2008).
120
Desue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005), review denied, 920 So. 2d 626 (Fla. 2005).
See also Yisrael v. State, 993 So. 2d 952, 954 (Fla. 2008), as revised on denial of reh’g, (July 10,
2008).
121
Card v. State, 927 So. 2d 200 (Fla. 5th DCA 2006). See also Sproule v. State, 927 So. 2d 46 (Fla. 4th
DCA 2006), review denied, 935 So. 2d 2 (Fla. 2006); State v. Jones, 21 Fla. L. Weekly Supp. 860 (Fla.
9th Cir. Ct. April 19, 2014)State v. Jones, 21 Fla. L. Weekly Supp. 860 (Fla. 9th Cir. Ct. April 19,
2014).
122
Gonzalez v. State, 965 So. 2d 273, 276 (Fla. 5th DCA 2007).
123
Peterson v. State, 129 So. 3d 451 (Fla. 2d DCA 2014), review denied, 147 So.3d 526 (Fla. 2014).

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§ 8:2.Evidentiary problems with documentary and physical..., 11 Fla. Prac., DUI...

124
The court explained that this is also known as the “‘black box’” or the “‘event data recorder.’” 129 So.
3d at 452.
125
Eisenmenger v. State, 19 Fla. L. Weekly Supp. 183 (Fla. 18th Cir. Ct. Nov. 22, 2011) Eisenmenger v.
State, 19 Fla. L. Weekly Supp. 183 (Fla. 18th Cir. Ct. Nov. 22, 2011).
126
Those reasons were: (1) hearsay; (2) lack of business records foundation; (3) no certificate of
authenticity; (4) improper authentication under § 90.902 because no custodian signed attesting to the
authenticity of the seal, no official’s signature was affixed, and there was no certification of correctness
by a custodian or other authorized person; and (5) § 316.1905(3)(b), creating a presumption that the
device is working properly where a signed and witnessed certificate shows that it was tested within the
specified time period and was working properly, is unconstitutional because it is a procedural rule
unapproved by the Florida Supreme Court.
127
State v. Roeder, 18 Fla. L. Weekly Supp. 101 (Fla. Broward Cty. Ct. Sept. 15, 2010)State v. Roeder, 18
Fla. L. Weekly Supp. 101 (Fla. Broward Cty. Ct. Sept. 15, 2010) (officer said that the targets used to test
the device were separated by 20 feet when the distance must be 100 feet).

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§ 8:3.Other hearsay issues, 11 Fla. Prac., DUI Handbook § 8:3 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 8:3 (2018-2019 ed.)

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David A. Demers, Esquirea0

Chapter 8. Other Potential Evidentiary Problems

§ 8:3. Other hearsay issues

Many hearsay issues may arise in a DUI. That is illustrated by the preceding section on documents, but
sometimes a hearsay question may come up in such cases unrelated to documents. For that reason this small
section on hearsay is included.

In Escandell v. State,1 a three-judge circuit court appellate panel ruled that the trial judge erroneously excluded
the testimony of a witness that the officer who administered the field sobriety exercises said the defendant had
passed. The court concluded that the officer’s statement was an admission of an agent pursuant to §
90.803(18)(d), Fla. Stat., but that provision requires independent indicia of reliability before the out-of-court
statement can be assumed to be true and admissible. 2 The court found that the officer’s statement met the test of
reliability in that there would be no reason for an officer to make up such a statement. 3 The jury decides whether
the witness was telling the truth about the officer’s out-of-court statement. 4

Another hearsay issue came up in State v. Holland.5 It relates to both the defendant’s and the officer’s comments
on videotape. The court ruled that the defendant’s comments were admissions of a party opponent and the
officer’s statements were nonhearsay verbal acts. 6 “A verbal act is defined as ‘an utterance of an operative fact
that gives rise to legal consequences.’ Banks v. State, 790 So.2d 1094, 1097 (Fla.2001).”7 The court explained
that verbal acts are not hearsay because they are not introduced to prove the truth of the statement, but rather to
show that they were made. 8 Thus, in the instant case, the officer’s statements on the videotape “were offered to
give meaning to Holland’s otherwise ambiguous acts …. Holland’s reactions on the videotape would be
meaningless without having the benefit of [the officer’s] statements prompting Holland’s reactions.” 9

Admissibility of the accused’s out-of-court statements was also considered recently in Newton v. State.10 That
was a DUI Manslaughter and the State was allowed to introduce a paramedic’s testimony that the defendant
admitted being drunk. But the trial judge sustained an objection to the defense effort on cross to elicit the next
part of the same statement where the defendant said he had not been driving. On appeal, the State conceded that
the trial judge erred and the testimony was admissible under the Rule of Completeness. 11 Under that rule, the
defendant was entitled to introduce his hearsay statement because the State opened the door. 12

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Escandell v. State, 19 Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011)Escandell v. State, 19
Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011).
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§ 8:3.Other hearsay issues, 11 Fla. Prac., DUI Handbook § 8:3 (2018-2019 ed.)

2
Escandell v. State, 19 Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011)Escandell v. State, 19
Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011).
3
Escandell v. State, 19 Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011)Escandell v. State, 19
Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011).
4
Escandell v. State, 19 Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011)Escandell v. State, 19
Fla. L. Weekly Supp. 228 (Fla. 11th Cir. Ct. Dec. 12, 2011).
5
State v. Holland, 76 So. 3d 1032 (Fla. 4th DCA 2011).
6
State v. Holland, 76 So. 3d 1032 (Fla. 4th DCA 2011).
7
State v. Holland, 76 So. 3d 1032, 1034 (Fla. 4th DCA 2011).
8
State v. Holland, 76 So. 3d 1032, 1034 (Fla. 4th DCA 2011).
9
State v. Holland, 76 So. 3d 1032, 1035 (Fla. 4th DCA 2011).
10
Newton v. State, 160 So. 3d 524 (Fla. 5th DCA 2015), review denied, 173 So. 3d 964 (Fla. 2015).
11
§ 90.108(1), Fla. Stat.
12
Newton v. State, 160 So. 3d 524 (Fla. 5th DCA 2015), review denied, 173 So. 3d 964 (Fla. 2015).

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§ 8:4.Other objections, 11 Fla. Prac., DUI Handbook § 8:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 8:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 8. Other Potential Evidentiary Problems

§ 8:4. Other objections

There are many possible objections other than hearsay that may come up in a DUI trial. One such objection
deals with the relevance of the stopping officer’s history. In McKeown v. State,1 over a defense objection, the
trial judge allowed the arresting officer to testify on direct that he arrests only 50% of the DUI suspects he
investigates. The prosecutor then mentioned this testimony in closing argument. The appellate court concluded
that the evidence was irrelevant because the only issue was whether the defendant was guilty of DUI. 2
Additionally, it “tended to improperly bolster the credibility of the state’s case.” 3

It may be that such irrelevant or otherwise inadmissible testimony is received over objection because an inquiry
opened the door. In fact, that was one of the State’s arguments in McKeown.4 The defense attorney asserted that
the officer was a “rookie” and the State argued that this opened the door to inquiry as to what percentage of
DUI stops the officer made actually resulted in arrest. 5 The court noted that the concept of opening the door
allows otherwise inadmissible testimony “on redirect which tends to qualify, explain or limit testimony given on
cross-examination.”6 The reference to “rookie” did not meet this test because the prosecutor elicited the
impermissible testimony before the defense reference to “rookie” and it had nothing to do with the percentage
of stops resulting in arrest.7

In Hayward v. State,8 the court was confronted with what appeared to be a better example of opening the door,
but in a two to one decision the court ruled to the contrary. In that case, the defendant testified that he had
refused the breath test because “‘I’ve heard from people, and I’ve seen breath tests go wrong.’” 9 The trial judge
concluded that the testimony opened the door to cross-examination about two previous DUI convictions. On
appeal, the court ruled that the defendant’s testimony did not open the door to the inquiry and, even if it did, the
evidence of the prior convictions should have been excluded pursuant to § 90.403, Fla. Stat.10
Essentially, Mr. Hayward’s testimony was that he did not trust breath testing machines. The
statement was not misleading or incomplete, nor was it a small part of a story that required further
explanation in consideration of fairness to both sides. He only provided his subjective state of
mind, his opinion or his belief of the equipment’s unreliability.11

There are obviously many other evidentiary problems that might arise during the course of a DUI trial, but they
are beyond the scope of this work. The purpose of this discussion has been to provide a starting point and some
guidance for most evidentiary matters that may arise in a DUI case. For other problems, the scholarly work
mentioned in this chapter and others should be consulted.

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§ 8:4.Other objections, 11 Fla. Prac., DUI Handbook § 8:4 (2018-2019 ed.)

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
McKeown v. State, 16 So. 3d 247 (Fla. 4th DCA 2009).
2
McKeown v. State, 16 So. 3d 247, 249 (Fla. 4th DCA 2009).
3
McKeown v. State, 16 So. 3d 247, 249 (Fla. 4th DCA 2009).
4
McKeown v. State, 16 So. 3d 247 (Fla. 4th DCA 2009).
5
McKeown v. State, 16 So. 3d 247, 249 (Fla. 4th DCA 2009).
6
McKeown v. State, 16 So. 3d 247, 249 (Fla. 4th DCA 2009) (relying on Cartwright v. State, 885 So.
2d 1010, 1013 (Fla. 4th DCA 2004)).
7
McKeown v. State, 16 So. 3d 247, 249 (Fla. 4th DCA 2009).
8
Hayward v. State, 59 So. 3d 303 (Fla. 2d DCA 2011).
9
Hayward v. State, 59 So. 3d 303, 305 (Fla. 2d DCA 2011).
10
Hayward v. State, 59 So. 3d 303, 306-307 (Fla. 2d DCA 2011).
11
Hayward v. State, 59 So. 3d 303, 306 (Fla. 2d DCA 2011).

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 9 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 9 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 9. Drug Use

Introduction

INTRODUCTION
The elements of driving under the influence of alcohol and driving under the influence of chemical or controlled
substance drugs are virtually identical. 1 It is unnecessary to prove possession of the drug in addition to these
elements.2 The requirements of the Florida DUI statute relating to chemical and controlled substances is
discussed fully in § 1:4 of this book. It is important, however, that attorneys prosecuting or defending “driving
under the influence of drugs” cases have some knowledge of drugs and pharmacology. Further, they should
have an understanding of other procedures and principles that relate primarily to driving while under the
influence of drugs. That is the subject of this chapter.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Erwin, Defense of Drunk Driving Cases, § 1:09[b][i].
2
Erwin, Defense of Drunk Driving Cases, § 1:09[b][i].

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§ 9:1.The Drug Evaluation and Classification Program (DEC), 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 9:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 9. Drug Use

§ 9:1. The Drug Evaluation and Classification Program (DEC)

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 355(6), 422

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• C.J.S., Motor Vehicles §§ 1407 to 1411, 1545

In some cases, the officer may have reasonable grounds to believe that the defendant’s impairment is caused by
the use of chemical or controlled substances. Florida law permits testing for such substances by urine or blood
under exactly the same circumstances as it does for alcohol. 1 There is, however, a program which provides a
more comprehensive testing protocol for drugs. It is called the Drug Evaluation and Classification Program
(DEC). This program is designed to train and certify police officers to be Drug Recognition Experts (DREs), or
Drug Recognition Technicians (DRTs).2 They learn to administer the Drug Influence Evaluation (DIE) test.3

Since 1987, more than half the states (including Florida) and the District of Columbia have adopted DEC
programs.4 States adopting this program must have, as part of their implied consent laws, a provision which
provides for multiple testing. This is necessary because a breath and blood or urine test are essential parts of the
drug recognition procedure. Further, the implied consent law must authorize the officer to choose the type of
chemical tests to be taken, rather than give the suspect the opportunity of selecting the tests. Florida permits the
officer to require both a breath and urine test. 5 The officer may require blood testing only in previously
described special circumstances.

The Drug Evaluation and Classification (DEC) Program is a “post-arrest investigative procedure that requires a
carefully controlled environment ….”6 The following seven broad categories of drugs can be identified through
the DEC procedure: (1) central nervous system depressants (CNS), e.g. alcohol, xanax, valium; (2) CNS
Stimulants, e.g. cocaine and amphetamines; (3) hallucinogens, e.g. LSD; (4) phencyclidine (PCP); (5) narcotic
analgesics, e.g. morphine, codeine; (6) inhalants, e.g. glue, solvents, and nitrous oxide; and (7) cannabis. 7

Laboratory confirmation of the presence of specific drugs is important because two problems may interfere with

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§ 9:1.The Drug Evaluation and Classification Program (DEC), 11 Fla. Prac., DUI...

the drug category identification.8 First, a drug may have a different effect on the individual after it is first
ingested than later on. Second, an individual may be under the influence of more than one drug, which could
change the effect that it has on the suspect.9

There are twelve major components of the testing protocol: (1) “the breath–alcohol test;” (2) “the interview of
the arresting officer;” (3) “the preliminary examination;” (4) “the examination of the eyes;” (5) “the divided
attention psychophysical tests;” (6) “the vital signs examination;” (7) “the dark room examinations;” (8)
“examination for muscle tone;” (9) “examination for injection sites;” (10) “suspect’s statements and other
observations;” (11) “opinions of the evaluator;” and (12) “the toxicological examination.” 10

Any officer, who is proficient in the performance of standardized field sobriety testing, can become a Drug
Recognition Expert (DRE), but the officer must meet certain specific requirements to be certified as having
completed the program. A DRE must undergo preliminary testing, which involves the officer’s familiarization
with the broad categories of drugs to be tested. 11 The officer must also practice the clinical and psychophysical
examinations that the officer will have to administer. 12 Additionally, the officer must complete classroom and
certification training.13

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§§ 316.1932(1)(a), 316.1932(1)(c), 316.1933, Fla. Stat.
2
Erwin, Defense of Drunk Driving Cases, § 12.04.
3
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So.2d 1111 (Fla. 1998).
4
Erwin, Defense of Drunk Driving Cases, § 12.04[2]. In Florida this program has not been adopted by
statute or regulation, but some police agencies have used it.
5
§ 316.1932(1), Fla. Stat.
6
Erwin, Defense of Drunk Driving Cases, § 12.04[3].
7
Erwin, Defense of Drunk Driving Cases, § 12:04[3][a][ii]. See also Williams, 710 So. 2d at 27, n.5.
8
Erwin, Defense of Drunk Driving Cases, § 12:04[3][a][ii].
9
Erwin, Defense of Drunk Driving Cases, § 12:04[3][a][ii].
10
Erwin, Defense of Drunk Driving Cases, § 12.04[3][b]. See also Williams v. State, 710 So. 2d 24,
26–27 n.4, (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
11
Erwin, Defense of Drunk Driving Cases, § 12.04[3][m].
12
Erwin, Defense of Drunk Driving Cases, § 12.04[3][m].
13
Erwin, Defense of Drunk Driving Cases, § 12.04[3][m]. In Florida, the Institute of Police
Technology and Management has a program for training DREs. Information on the program is on-line.

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§ 9:1.The Drug Evaluation and Classification Program (DEC), 11 Fla. Prac., DUI...

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§ 9:2.Admissibility of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:2...

11 Fla. Prac., DUI Handbook § 9:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
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Chapter 9. Drug Use

§ 9:2. Admissibility of evidence of drug use

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• West’s Key Number Digest, Automobiles 355(6), 411

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• C.J.S., Motor Vehicles §§ 1397 to 1411, 1545

The arguments against the admissibility of evidence of drug use are usually that the DRE evidence is unreliable.
This is based on the fact that it does not meet the Frye1 standard, the officer testifying is not a DRE, and the
evidence of minimal drug use is irrelevant and unduly prejudicial. 2 A trial judge3 rejected the testimony of a
defense expert who had been a DRE, based on Daubert,4 but some of the language in the order suggests that the
result may have been the same under Frye.5

Williams v. State6 deals comprehensively with the admissibility of DRE evidence. The court ruled that the Frye
test does not apply because the general portion of the DRE protocol is not scientific and “because use of the
HGN test to establish the presence of alcohol has already gained general acceptance in the scientific community
and has satisfied the requirements of Frye.”7 The court also held that DRE testimony (including HGN and other
field sobriety testing) is relevant.

In Williams,8 the court also focused on whether the HGN test could be used to establish a specific blood alcohol
level. This was covered in greater detail in Chapter 7 of this book. Based on Williams, a DRE cannot testify to a
specific blood alcohol range established by an HGN test to prove guilt based on the reading, in the absence of a
statutorily authorized chemical test.9 Further, the HGN test cannot be used to invoke the statutory presumptions,
but it can be considered as proof of impairment.

HGN is a planned part of the DRE protocol, but it has some special requirements. In Williams, the court
concluded that HGN tests results are admissible as part of the DRE protocol, “once a proper foundation has
been laid that the test was correctly administered by a qualified DRE.” 10 In State v. Meador,11 which was fully
discussed in Chapter 7 of this book, the court ruled that HGN tests results are only admissible if the State

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§ 9:2.Admissibility of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:2...

establishes the traditional scientific foundation. Thus, the State must show (1) the reliability of the test, (2) the
qualifications of the person doing the testing, and (3) the meaning of the test.

Obviously, in addition to the DRE protocol, drug use can be established by a blood test. In State v. Sercey,12 a
DUI Manslaughter case, the court considered the application of the Frye13 standard to expert opinion on whether
the defendant had used marijuana, and, if so, the time that she used it. This opinion testimony was based on
blood tests. The court concluded that expert opinion as to whether the defendant had smoked marijuana, rather
than ingested it, was based on the expert’s knowledge and experience and undisputed pharmacokinetics;
therefore, it was not subject to Frye.14 Similarly, certain expert opinions as to when the defendant had used
marijuana that was based on the expert’s knowledge and experience alone, was not subject to Frye.15 On the
other hand, other expert opinions as to when the defendant had used marijuana, were based on the “Huestis
mathematical models,” and were subject to the Frye16 analysis. In that regard, the court conducted a de novo
review, and determined that “[t]he results of the initial study on which the Huestis models are based, and the
other articles referring to the Huestis models, have been peer-reviewed and published in respected scientific
journals, an indication that they may be generally accepted among toxicologists, within the announced limits of
their application.”17 Nevertheless, for reasons explained in the next section, the court concluded that the trial
judge did not abuse his discretion in excluding such evidence based on § 90.403, Fla. Stat.18

The critical nature of expert testimony in drug cases pursuant to Daubert19 was recently underscored in
Hawthorne v. State.20 That was a DUI Manslaughter where the State relied heavily on expert testimony to
establish that the defendant was impaired by methamphetamine at the time of the fatal accident. On appeal, the
court found that the three requirements set forth in Section 90.70221 had been met where: (1) the witness
explained that, while it was too dangerous to actually test the drug on human beings, there was “‘more than a
century’ of medical data and observation” as to the impact of the drug on people; (2) the expert opinion was
based on sufficient data consisting of “blood tests, crash data, lay testimony, and other evidence”; (3) the
evidence showed that the opinion “was the ‘product of reliable principles and methods,’” where the witness
testified that “the method proposed by the State—whereby the prosecutor would pose a hypothetical situation
identical to the facts of the present case, and he would testify as to whether those facts were consistent with
someone impaired by methamphetamine—was a method that is generally accepted in the field of forensic
toxicology.”22

As previously discussed, recently, in DeLisle v. Crane Co.,23 the Florida Supreme Court ruled that the
Florida Statute adopting the Daubert standards is unconstitutional and the admissibility of expert
testimony in Florida is controlled by Frye v. U.S.24 While the decision in Hawthorne v. State25 was based on
the Daubert26 standards as incorporated into § 90.702 Fla. Stat., it is likely the results would have been the
same under a Frye27 analysis. This is so because the Florida Supreme Court 28 recognized that Daubert29 is more
lenient than Frye.30 And also, the Court in Hawthorne31 specifically recognized that the record supported the
conclusion that the method used was generally accepted in the relevant scientific community.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923).
2
Erwin, Defense of Drunk Driving Cases, § 12.15. Matters concerning the sufficiency of testing
procedures and other evidentiary issues not dealt with in this chapter have been presented in earlier
chapters.
3
State v. Feinstein, 21 Fla. L. Weekly Supp. 587 (Fla. Broward Cty. Ct. Dec. 9, 2013) State v. Feinstein,
21 Fla. L. Weekly Supp. 587 (Fla. Broward Cty. Ct. Dec. 9, 2013) (witness’s opinion hadn’t been peer-
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§ 9:2.Admissibility of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:2...

reviewed or discussed in publication, there was no evidence of error rate, maintenance or control
standards or whether the opinions have been accepted in the relevant scientific community; testimony
would not assist the jury in understanding the evidence or resolving the facts; and it “is not based on
sufficient facts or data [or a] product of reliable principles or methods”).
4
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
5
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
6
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
See also Faires v. State, 711 So. 2d 597 (Fla. 3d DCA 1998).
7
Williams v. State, 710 So. 2d 24, 32 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
8
Williams v. State, 710 So. 2d 24 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla. 1998).
See also Bowen v. State, 745 So. 2d 1108 (Fla. 3d DCA 1999).
9
Williams v. State, 710 So. 2d 24, 32 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
10
Williams v. State, 710 So. 2d 24, 32 (Fla. 3d DCA 1998), review denied, 725 So. 2d 1111 (Fla.
1998).
11
State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996), review denied, 686 So. 2d 580 (Fla. 1996).
12
State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002).
13
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923).
14
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923).
15
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923).
16
Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923).
17
State v. Sercey, 825 So. 2d 959, 982 (Fla. 1st DCA 2002).
18
State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002).
19
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).
20
Hawthorne v. State, 248 So.3d 1261 (Fla. 1st DCA 2018).
21
Fla. Stat. Ann. § 90.702.
22
Hawthorne v. State, 248 So.3d 1261, 1263–64 (Fla. 1st DCA 2018).
23
DeLisle v. Crane Co., 2018 WL 5075302 (Fla. 2018).
24
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).

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§ 9:2.Admissibility of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:2...

25
Hawthorne v. State, 248 So. 3d 1261 (Fla. 1st DCA 2018).
26
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
27
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
28
Anderson v. State, 220 So. 3d 1133, 1151 (Fla. 2017).
29
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
30
Frye v. U.S., 293 F. 1013 (App. D.C. 1923).
31
Hawthorne v. State, 248 So. 3d 1261, 1263 (Fla. 1st DCA 2018).

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

11 Fla. Prac., DUI Handbook § 9:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

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David A. Demers, Esquirea0

Chapter 9. Drug Use

§ 9:3. Prejudicial effect of evidence of drug use

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• West’s Key Number Digest, Automobiles 411

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1397 to 1411

Undoubtedly, the presence of drugs in a defendant’s body may result in unfair prejudice even if the evidence of
the effect that the drug had on the defendant is unconvincing. 1 The admissibility of such evidence is determined
by consideration of its relevance2 and by weighing the probative value of the evidence against its prejudicial
impact.3 This requirement is set forth in § 90.403, Fla. Stat. The Supreme Court of Florida considered this issue
in State v. McClain.4

In McClain, the defendant was charged with DUI Manslaughter. He had a blood alcohol level of .14 and an
amount of cocaine in his urine that was so small the instrument for qualitative analysis did not record it. The
expert witness could not say whether it would have affected the defendant’s driving. The trial judge held that
the probative value of this evidence was outweighed by its unfairly prejudicial impact. The Supreme Court held
that, since the statute contemplates impairment by cocaine, it would appear that even a trace amount would have
some relevance. The Court concluded, however, that the trial court did not abuse its discretion because the
defendant could have been unfairly prejudiced had it become known he had consumed even a trace of cocaine.
The Court ruled that in weighing the probative value of the evidence against the danger of unfair prejudice, the
trial judge may consider the need for the evidence, the tendency of the evidence to suggest an improper basis for
the jury to resolve the matter, the chain of inference necessary to establish the material fact, and the
effectiveness of a limiting instruction.5

The McClain Court also made some observations concerning the decision in State v. Weitz.6 In that case, the
district court held that the trial judge erred in not allowing evidence concerning the presence of a small amount
of various drugs even though no expert could testify as to the effect on the defendant. There the blood alcohol
level was only .017. The Supreme Court said that the Weitz decision correctly held that it was unnecessary for

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

an expert to estimate the degree of impairment caused by the involved drugs for the results of a test showing the
presence of those drugs to be allowed into evidence. The Court concluded, however, that the decision was
wrong only in stating that, even if the defendant was unfairly prejudiced by the presence of a small amount of
drugs, he could have protected himself by exercising more jury challenges. 7 Nevertheless, the Supreme Court
concluded that the district court in Weitz and the district court in McClain8 may not be in conflict.

The Supreme Court specifically declined to reverse the district court decision in Weitz9 that the drug evidence
was admissible. In Weitz,10 the blood alcohol level was only .017, whereas in McClain,11 it was well above the
legal limit. Thus, in Weitz,12 the presence of even a small amount of drugs in the defendant’s system would have
provided an explanation for his impaired conduct; whereas, in McClain,13 the blood alcohol level was
sufficiently high that the presence of a small amount of drugs added little to the State’s case. The Court said that
in both cases the prejudicial impact was equal, but the difference in probative value tipped the scales.

In another case, the State elected to prosecute the defendant for DUI Manslaughter. 14 The court allowed the
State to introduce evidence that the defendant had a trace amount of valium in his system. Since the expert
testimony was that the valium had no measurable effect on the defendant’s driving, the evidence had no
probative value and was unfairly prejudicial. This decision was based on State v. McClain.15

The standards promulgated in McClain were applied by a county judge to justify the conclusion that urine test
results, showing that the defendant had consumed an unquantified amount of cocaine and marijuana, were
admissible where the defendant’s breath alcohol level was .010%. 16 The court reached that conclusion even
though the State’s expert could not specify the level of impairment corresponding to the test results, nor could
the expert opine when within a 48-hour period the marijuana had been ingested.

All of the previously mentioned district court cases and the Supreme Court decision in McClain, were
thoroughly considered in State v. Tagner.17 In Tagner, the defendant was accused of DUI Manslaughter. Blood
tests showed that the defendant had more than a trace amount of cocaine. Expert testimony showed that the
blood alcohol range (BAL) when the defendant was driving was .06% to .12%, and that the amount of cocaine
was equivalent to a surgical dose to eliminate pain. The expert also said that between .1 mg/l, and .3 mg/l,
people experience the “ ‘subjective’ high associated with cocaine,” and there is no information allowing the
correlation of various levels of cocaine with various levels of impairment as there is with alcohol. The trial
judge suppressed the cocaine evidence because the amount of cocaine was an “ ‘unquantifiable’ trace.” On
appeal, the court reversed and remanded for application of the standards established in McClain.

In Tagner,18 the court held that it is unnecessary for the evidence to quantify the degree of impairment from
cocaine for evidence of cocaine use to be admissible. Further, the court stated that even a trace amount of
cocaine could be relevant. Thus, in Hoffman v. State,19 the court found that the trial judge properly revoked the
defendant’s community control based on a new charge of driving under the influence of drugs, even though
there was no evidence as to the degree of impairment caused by the drugs or the amount of drugs in the
defendant’s system.

Clearly, analysis of § 90.403 objections necessarily focuses largely on the probative value of the evidence, and
the outcome varies significantly based on this factor. For example, in Weitz,20 the defendant had a low BAL, so
that the trace amount of drugs was very significant because it explained the defendant’s impaired conduct. On
the other hand, in McClain,21 the defendant’s BAL exceeded the amount necessary to raise a presumption of
impairment. Thus, evidence of a trace amount of cocaine added little to the State’s case. That was the Supreme
Court’s analysis in McClain.

In Tagner, the court said:

The state’s inability here to show a specific measurable effect of the cocaine on the defendant did
not per se render the evidence inadmissible. Unlike West and McClain, the testimony of the state’s
expert established the probative value of the cocaine on the issue of “under the influence.”
Moreover, unlike West, this is a prosecution for driving under the influence of alcoholic beverages
or a controlled substance.22

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

The court concluded that even if the evidence is probative, it is still necessary under § 90.403, Fla. Stat. for the
trial court to determine whether its probative value is outweighed by the danger of unfair prejudice. 23 It is
important to remember that the mere fact that jurors may be prejudiced by evidence of illegal drugs is not in
itself sufficient.24 “By basing its decision to exclude the evidence solely on a determination of ‘no measurable
effect,’ the trial court misinterpreted our holding in West and the subsequent Supreme Court decision in
McClain.”25

Other evidence of drug usage may also be subject to a 403 analysis. In State v. Dougherty,26 the issue was
whether the defendant’s statement at the time of the stop (2:30 a.m.) that she had used marijuana “this
morning,” was erroneously excluded by the trial judge pursuant to Section 90.403. The driver had committed a
traffic infraction, had red glassy eyes, thick slurred speech, an odor of alcohol, and she refused to take a breath
test. On appeal, the court found that the statement was probative of these facts: (1) impairment, (2) the
accused’s judgment and state of mind, (3) the influence of marijuana at the time of driving, and (4) marijuana’s
enhancing effect on alcohol at the time of driving. 27 There was no finding that the statement would suggest an
emotional or unfair basis to the jury for deciding the case. 28 As is often the case, the points raised by the
objection went to the weight of the evidence.29

As pointed out in the preceding section, in State v. Sercey,30 the court upheld a trial court ruling excluding
evidence as to when the defendant had used marijuana, based on § 90.403, Fla. Stat., even though the court
found that the mathematical model that the expert relied on was peer-tested. The court reached that conclusion
because there were experts who testified that those models do not apply to excessive levels of the involved
substance, they are of limited value with chronic users, and the time of marijuana usage indicated by the model
in this case (i.e. three hours after the accident) could not have happened. Thus, the court decided that the trial
judge properly concluded that the probative value of the mathematical models was substantially outweighed by
the danger of misleading the jury.

In Sercey,31 the court also ruled that the evidence of the unlawful substance in the defendant’s blood was
admissible even if it could not be quantitatively related to impairment. In other words, no specific number could
be attached to the drug level, as it could be with the alcohol level. The appellate court rejected the trial court’s
ruling excluding such evidence based on § 90.403, Fla. Stat., because the trial court erroneously concluded that
the expert’s testimony on this subject did not meet the Frye32 test. The appellate court observed that: (1) the
defendant did not challenge the analysis that the expert had used for this testimony; (2) the involved analysis
has for many years been considered the “gold standard” for drug analysis; (3) this was really a rejection of the
way the witness had performed the particular test; and (4) the way a test is administered goes to the weight and
credibility of the evidence, rather than its admissibility.

Thus, in Sercey,33 the appellate court concluded that the expert testimony as to the presence of the controlled
substance in the defendant’s blood was admissible. Further, the court concluded that the State could prove
impairment by proof that the defendant used a combination of alcohol and a controlled substance. In reaching
this conclusion as to the Section 90.403 claim, the court relied on the cases discussed above.

In Estrich v. State,34 the court reached a different conclusion as to marijuana evidence. The circumstances were
more like those in McClain.35 Defendant was charged with DUI Manslaughter and possession of a misdemeanor
amount of marijuana found on the defendant’s person at the scene. Xanax, a prescription drug, was found in the
car and there was substantial evidence that the defendant may have been under the influence of Xanax. While
defendant’s blood contained marijuana metabolite, the evidence indicated that the marijuana had no impact. The
trial judge denied a motion to exclude the marijuana evidence. On appeal, the court reversed because the
“probative value of the marijuana metabolite in the defendant’s blood was substantially outweighed by the
danger of unfair prejudice.”36

The same court reached a different conclusion in Gonzales v. State,37 involving cocaine possession, but no

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

testimony as to whether the defendant was, in fact, under the influence of cocaine. In Gonzales,38 the defendant
was passed out behind the wheel of a car in an intersection at about 4:00 a.m. There was substantial proof of
impairment. A deputy observed the defendant’s condition and smelled alcohol. After a DUI arrest, the deputy
discovered cocaine in the defendant’s pocket and the defendant was charged with DUI and possession of
cocaine. The defense sought unsuccessfully to sever the charges on the grounds, “that the State improperly
bolstered its proof of the DUI charge with evidence of the cocaine when the State was unable to prove that the
defendant had actually consumed the cocaine.” 39 On appeal, in a two to one decision, the court rejected the
defense argument and affirmed the denial of the severance because the possession of cocaine was circumstantial
evidence that the defendant was under the influence of cocaine and the evidence of impairment was
significant.40

A three-judge circuit court appellate panel attempted to reconcile the rulings in Estrich41 and Gonzales42 in State
v. Varney.43 The issue in Varney was whether evidence of drug use is admissible over a 403 objection where
there are no test results showing that drugs were in the defendant’s system at the time of driving. The court
concluded that together Estrich44 and Gonzales45 permit such evidence if these elements are present: (1) “there is
significant evidence that the accused was impaired;” (2) “the accused is in possession of evidence indicating
that he or she could have recently used a controlled or chemical substance;” (3) “there is insufficient evidence
that the accused has consumed any other substance that explains his or her impairment;” and (4) “the evidence
does not show that the substance found on the accused could not have contributed to the impairment.” 46 In State
v. Detro,47 these four elements were applied to hydrocodone found in the driver’s car. The trial judge excluded
the evidence, but the appellate court reversed and remanded for reconsideration. 48

In Detro,49 the court emphasized the rationale for the decision in Varney:50

In both cases there was significant evidence of impairment. In Estrich, the possible
causes for the impairment were Xanax and marijuana. In Gonzales, the possible
culprits were alcohol and cocaine. But in Estrich, the evidence focused on Xanax as
being responsible for the impairment and established that the marijuana had no
effect. [I]n Gonzales, while there was some evidence of alcohol use, it was
insufficient to explain the defendant’s condition and there was no evidence that
cocaine could not have caused his condition. The Gonzales court concluded that the
possession of cocaine was circumstantial evidence that the defendant was under the
influence of a controlled substance. [T]he court reached that decision in Gonzales in
the absence of any direct evidence showing that there was any cocaine in the
defendant’s system ….

The decisions of the Fourth District are controlling until the Second District or the Supreme Court
renders a conflicting ruling. State v. Barnum, 921 So.2d 513 (Fla. 2005) Obviously, as the
dissenter in Gonzales observed, Estrich and Gonzalez appear to be in conflict. In Varney, this
Court attempted to synthesize and reconcile the law as expressed in Estrich and Gonzales in a way
that is consistent with the leading authority— State v. McClain, 525 So.2d 420 (Fla. 1988) and
its progeny ….51

The standards set forth in the key cases were nicely summarized by a trial judge in State v. Raulerson52 in
applying section 90.403 analysis to evidence that the defendant had used Ibuprofen at the same time that he was
using alcohol. The defendant had refused an alcohol test; therefore, there was no evidence as to the amount of
alcohol that he had consumed. The court concluded that if the evidence showed that Ibuprofen contributed
either directly or indirectly to impairment, evidence of its usage would be admissible. In reaching this
conclusion, the court said:

Thus, the following standards are clear: (a) when an amount of drugs is too small to be
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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

measured, and there is unrefuted expert testimony that the drugs could not have contributed to
impairment, evidence of the drugs should be excluded (McClain, supra); and (b) where there is
more than a trace of drugs, and the amount is measurable, then evidence of the drugs is
admissible even if experts admit that it is not possible to make a quantitative link between the
measured amount to degree of impairment (Tagner, Weitz, both supra); (c) the presence of any
measurable amount of drugs may be mentioned, unless there is unrefuted expert testimony that
the drugs could not have contributed to impairment (Tagner); (d) the higher the blood alcohol
level is, the less probative is the presence of drugs, unless the quantity of drugs is enough for the
jury to find that the drugs contributed to impairment (McClain); and most important, (e) a
combination of observations of discernible indicia of impairment, coupled with ingestion of
alcohol or drugs of unknown quantity, without more, is enough to convict for driving under the
influence (Tagner, McClain, Hoffman, supra). (emphasis by court.)

The law on impaired driving based on drug use is in some ways more complicated than the same charge based
on alcohol use. It will almost invariably involve a 40353 analysis based on the foregoing standards.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Erwin, Defense of Drunk Driving Cases, § 12.15[4].
2
In Devers–Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998), the court reversed the trial court’s order
denying the defendant’s motion to exclude urinalysis results showing the presence of drugs, because the
State’s expert said the drugs had no effect on her driving and she was not charged with driving while
under the influence of those drugs. Thus, the evidence was irrelevant and unfairly prejudicial.
3
Erwin, Defense of Drunk Driving Cases, § 12.15[4].
4
State v. McClain, 525 So. 2d 420 (Fla. 1988). See also Burton v. State, 237 So.3d 1138 (Fla. 3d
DCA 2018); Opsincs v. State, 185 So.3d 654 (Fla. 4th DCA 2016); Walker v. State, 707 So. 2d
300, 309–310 (Fla. 1997); State v. Gerry, 855 So. 2d 157 (Fla. 5th DCA 2003); Persaud v. State, 755 So.
2d 150 (Fla. 4th DCA 2000).
5
State v. McClain, 525 So. 2d 420, 422 (Fla. 1988). See also State v. Dougherty, 12 Fla. L. Weekly
Supp. 1026 (Fla. 15th Cir. Ct. Aug. 10, 2005).
6
State v. Weitz, 500 So.2d 657 (Fla. 1st DCA 1986), disapproved of by, State v. McClain, 525
So.2d 420 (Fla. 1988).
7
State v. McClain, 525 So. 2d 420 (Fla. 1988).
8
State v. McClain, 508 So. 2d 1259 (Fla. 4th DCA 1987), decision approved, 525 So. 2d 420 (Fla.
1988).
9
State v. Weitz, 500 So.2d 657 (Fla. 1st DCA 1986), disapproved of by, State v. McClain, 525
So.2d 420 (Fla. 1988).
10
State v. Weitz, 500 So.2d 657 (Fla. 1st DCA 1986), disapproved of by, State v. McClain, 525

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

So.2d 420 (Fla. 1988).

11
State v. McClain, 508 So. 2d 1259 (Fla. 4th DCA 1987), decision approved, 525 So. 2d 420 (Fla.
1988).
12
State v. Weitz, 500 So.2d 657 (Fla. 1st DCA 1986), disapproved of by, State v. McClain, 525
So.2d 420 (Fla. 1988).
13
State v. McClain, 508 So. 2d 1259 (Fla. 4th DCA 1987), decision approved, 525 So. 2d 420 (Fla.
1988).
14
West v. State, 553 So.2d 254 (Fla. 4th DCA 1989), disapproved of on others grounds by, State v.
Norstrom, 613 So.2d 437 (Fla. 1993).
15
State v. McClain, 508 So. 2d 1259 (Fla. 4th DCA 1987), decision approved, 525 So. 2d 420 (Fla.
1988).
16
State v. O’Connor, 31 Fla. Supp. 2d 50 (Fla. Palm Beach Cty. Ct. 1988).
17
State v. Tagner, 673 So. 2d 57 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996).
18
State v. Tagner, 673 So. 2d 57 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996).
19
Hoffman v. State, 743 So. 2d 130 (Fla. 4th DCA 1999).
20
State v. Weitz, 500 So.2d 657 (Fla. 1st DCA 1986), disapproved of by, State v. McClain, 525
So.2d 420 (Fla. 1988). See also State v. Matthews, 7 Fla. L. Weekly Supp. 139 (Fla. Manatee Cty. Ct.
Oct. 25, 1999)State v. Matthews, 7 Fla. L. Weekly Supp. 139 (Fla. Manatee Cty. Ct. Oct. 25, 1999)
(drug test results were admissible where defendant charged with DUI based on alcohol or drugs, reading
was .000, urine test positive for three controlled substances, and defendant’s conduct consistent with
impairment); State v. Amico, 7 Fla. L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999)State v.
Amico, 7 Fla. L. Weekly Supp. 64 (Fla. Broward Cty. Ct. Sept. 21, 1999) (court denied severance of
misdemeanor and DUI charges because driving with such substances in the car relates to ability to make
judgments and the paraphernalia should not be excluded under § 90.403, Fla. Stat. because public
reaction would not be as adverse as it is to cocaine and there was other substantial evidence of DUI).
21
State v. McClain, 508 So. 2d 1259 (Fla. 4th DCA 1987), decision approved, 525 So. 2d 420 (Fla.
1988).
22
State v. Tagner, 673 So. 2d 57, 60 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996).
23
State v. Tagner, 673 So. 2d 57, 60 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996).
24
State v. Tagner, 673 So. 2d 57, 60 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996). See
also State v. Dougherty, 12 Fla. L. Weekly Supp. 1026 (Fla. 15th Cir. Ct. Aug. 10, 2005).
25
State v. Tagner, 673 So. 2d 57, 60 (Fla. 4th DCA 1996), review denied, 677 So. 2d 841 (Fla. 1996).
26
State v. Dougherty, 12 Fla. L. Weekly Supp. 1026 (Fla. 15th Cir. Ct. Aug. 10, 2005) (2-1 decision).
27
State v. Dougherty, 12 Fla. L. Weekly Supp. 1026 (Fla. 15th Cir. Ct. Aug. 10, 2005) (2-1 decision).
28
State v. Dougherty, 12 Fla. L. Weekly Supp. 1026 (Fla. 15th Cir. Ct. Aug. 10, 2005) (2-1 decision).
29
State v. Dougherty, 12 Fla. L. Weekly Supp. 1026 (Fla. 15th Cir. Ct. Aug. 10, 2005) (2-1 decision).
30
State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002).

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

31
State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002).
32
See discussion in Section 8.1 about abandonment of Frye standard in favor of federal standards. See
Laws of Florida, Ch 2013-107 (amending §§ 90.702 & 90.704, Fla. Stat.).
33
State v. Sercey, 825 So. 2d 959 (Fla. 1st DCA 2002).
34
Estrich v. State, 995 So. 2d 613 (Fla. 4th DCA 2008).
35
State v. McClain, 525 So. 2d 420 (Fla. 1988).
36
Estrich v. State, 995 So. 2d 613, 618 (Fla. 4th DCA 2008).
37
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
38
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
39
Gonzales v. State, 9 So. 3d 725, 727 (Fla. 4th DCA 2009).
40
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
41
Estrich v. State, 995 So. 2d 613 (Fla. 4th DCA 2008).
42
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
43
State v. Varney, 18 Fla. L. Weekly Supp. 780 (Fla. 6th Cir. Ct. January 8, 2010)State v. Varney, 18 Fla.
L. Weekly Supp. 780 (Fla. 6th Cir. Ct. January 8, 2010) (marijuana pipe and empty pill bottle with
marijuana odor was found on Defendant’s person and Defendant refused a breath and urine test; on
remand the trial judge could consider the admissibility of the paraphernalia and refusal evidence based
on the four elements).
44
Estrich v. State, 995 So. 2d 613 (Fla. 4th DCA 2008).
45
Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).
46
State v. Varney, 18 Fla. L. Weekly Supp. 780 (Fla. 6th Cir. Ct. January 8, 2010)State v. Varney, 18 Fla.
L. Weekly Supp. 780 (Fla. 6th Cir. Ct. January 8, 2010).
47
State v. Detro, 17 Fla. L. Weekly Supp. 1162 (Fla. 6th Cir. Ct. September 24, 2010).
48
State v. Detro, 17 Fla. L. Weekly Supp. 1162 (Fla. 6th Cir. Ct. September 24, 2010).
49
State v. Detro, 17 Fla. L. Weekly Supp. 1162 (Fla. 6th Cir. Ct. September 24, 2010).
50
State v. Varney, 18 Fla. L. Weekly Supp. 780 (Fla. 6th Cir. Ct. January 8, 2010)State v. Varney, 18 Fla.
L. Weekly Supp. 780 (Fla. 6th Cir. Ct. January 8, 2010).
51
State v. Detro, 17 Fla. L. Weekly Supp. 1162 (Fla. 6th Cir. Ct. September 24, 2010).
52
State v. Raulerson, 9 Fla. L. Weekly Supp. 198 (Fla. Palm Beach Cty. Ct. March 19, 2001)State v.
Raulerson, 9 Fla. L. Weekly Supp. 198 (Fla. Palm Beach Cty. Ct. March 19, 2001).
53
§ 90.403, Fla. Stat.

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§ 9:3.Prejudicial effect of evidence of drug use, 11 Fla. Prac., DUI Handbook § 9:3...

Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 10 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 10 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 10. Refusal to Submit to Tests

Introduction

INTRODUCTION
In DUI cases, the accused may refuse to submit to some or all of the tests that officers request. The state
typically seeks to introduce testimony on refusals as evidence of guilty knowledge. This chapter focuses on the
admissibility and use of such testimony.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 10:1.Constitutional issues relating to refusals, 11 Fla. Prac., DUI Handbook § 10:1...

11 Fla. Prac., DUI Handbook § 10:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 10. Refusal to Submit to Tests

§ 10:1. Constitutional issues relating to refusals

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 413, 421

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

In South Dakota v. Neville,1 the Court considered the constitutional ramifications of introducing a refusal to
submit to a chemical alcohol test. Admission into evidence of a refusal to submit to such a test is not prohibited
by the privilege against self-incrimination nor does it violate the due process clause, even though the defendant
is not told that the refusal can be used by the State at trial. The Court stressed the fact that Mr. Neville was told
that his refusal would result in suspension of his license. Accordingly, it was made clear to him that his refusal
was not a “ ‘safe harbor’ free of adverse consequences.”2

Based on such evidence, the State may argue the significance of the refusal in closing argument. In Morris v.
State,3 the court said:

[W]hen a law enforcement officer has probable cause to believe that an accused has committed a
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.4) (emphasis added)

However, in Morris, the prosecutor went beyond simply suggesting to the jury that the refusal was proof of
consciousness of guilt. The prosecutor argued: “‘I haven’t been drinking, why are you arresting me? That
[innocent] man is thinking, yes, get me to that, get me to that instrument, let me take that breath test, let me
prove this officer wrong.’”5 The court ruled that this argument violated the defendant’s Fifth Amendment rights
and improperly shifted the burden to the defense. 6 Similarly, in Concha v. State,7 the court ruled that the State’s
inquiry on redirect of the arresting officer into the defendant’s failure to demand field sobriety tests and a breath
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§ 10:1.Constitutional issues relating to refusals, 11 Fla. Prac., DUI Handbook § 10:1...

test was fairly susceptible of being interpreted as a comment on the defendant’s exercise of his right to remain
silent. It was not admissible as impeachment because the defendant did not testify until after the redirect of the
officer.8

As explained in §§ 5:1 et seq., there is no constitutional right to counsel prior to submission to an alcohol test. 9
Thus, the failure to provide counsel prior to submission to the test, cannot be grounds for suppression of a
refusal.10 Further, the failure to provide counsel after the test is refused cannot be grounds for suppression of the
refusal.11

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983) . See also Morris v.
State, 988 So. 2d 120 (Fla. 5th DCA 2008); Hewett v. Dep’t of Highway Safety & Motor Vehicles, 14
Fla. L. Weekly Supp. 318 (Fla. 4th Cir. Ct. Feb. 1, 2007)Hewett v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 318 (Fla. 4th Cir. Ct. Feb. 1, 2007) (Fifth Amendment did not bar
admissibility of verbal refusal to take a breath test even though the defendant was informed of his
Miranda rights and invoked his right to remain silent after the refusal). See also Henley v. Dep’t of
Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 742 (Fla. 7th Cir. Ct. Jan. 15, 2014)Henley
v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 742 (Fla. 7th Cir. Ct. Jan. 15,
2014) (court ruled that refusal to submit to FSEs was admissible in an administrative proceeding even
though the defendant was not told the refusal could be used against him).
2
South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983).
3
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
4
Morris v. State, 988 So. 2d 120, 122–123 (Fla. 5th DCA 2008). See also Concha v. State, 972 So. 2d
996, 998 (Fla. 4th DCA 2008); Watson v. State, 17 Fla. L. Weekly Supp. 262 (Fla. 17th Cir. Ct. Dec. 23,
2009)Watson v. State, 17 Fla. L. Weekly Supp. 262 (Fla. 17th Cir. Ct. Dec. 23, 2009) (where evidence
revealed a refusal, prosecutor properly commented on refusal in rebuttal, despite failure to mention it in
the first closing where the defense closing included comment that the jury should “‘draw reasonable
inferences from whatever the evidence is in this case’ and to ‘use your common sense with respect to the
element of impairment.’”). State v. Lowary, 16 Fla. L. Weekly Supp. 828 (Fla. 17th Cir. Ct. June 22,
2009)State v. Lowary, 16 Fla. L. Weekly Supp. 828 (Fla. 17th Cir. Ct. June 22, 2009) (failure to perform
roadsides without an explanation of consequences is not a comment on the exercise of Fifth Amendment
rights; court quotes from Morris).
5
Morris v. State, 988 So. 2d 120, 122 (Fla. 5th DCA 2008).
6
Morris v. State, 988 So. 2d 120, 123 (Fla. 5th DCA 2008). See also State v. Moreno, 25 Fla. L. Weekly
Supp. 582 (Fla. 11th Cir. Ct. August 25, 2017)State v. Moreno, 25 Fla. L. Weekly Supp. 582 (Fla. 11th
Cir. Ct. August 25, 2017) (where defendant claimed a toothache caused him to refuse the breath test, the
following prosecutor’s comments improperly shifted the burden and were not invited: (1) “Does a
toothache mean that you are not going to blow into a machine, show the officer that, hey, you’re wrong;
everything you have seen, everything you have done, so far …No. Knowing you’re guilty of DUI …
that’s why you don’t have evidence in front of you showing his alcohol level.” (2) “He was conscious
that he was inebriated, that he was under the influence of alcohol, and he kept that from you.”); Arguello
v. State, 24 Fla. L. Weekly Supp. 593 (Fla. 11th Cir. Ct. Nov. 4, 2016)Arguello v. State, 24 Fla. L.
Weekly Supp. 593 (Fla. 11th Cir. Ct. Nov. 4, 2016) (prosecutor improperly shifted the burden by
arguing: “‘knowing … that she would lose her license for 12 months, she refused to provide a [breath]
sample. If it was just a concussion, if it was just an accident that someone else had crashed in to her,
then why not—if have you (sic) nothing to lose, demonstrate that you are not impaired.’”); Rodriguez v.

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State, 24 Fla. L. Weekly Supp. 486 (Fla. 11th Cir. Ct. Sept. 15, 2016)Rodriguez v. State, 24 Fla. L.
Weekly Supp. 486 (Fla. 11th Cir. Ct. Sept. 15, 2016) (it was proper for State to comment on refusal to
submit to breathalyzer but the State improperly commented on defendant’s failure to produce evidence,
which shifted the burden when the prosecutor said in closing “‘[r]emember that he chose to refuse to
blow’ … the Defendant ‘could have blown our case away’.”); Hurtado v. State, 20 Fla. L. Weekly Supp.
763 (Fla. 11th Cir. Ct. May 1, 2013)Hurtado v. State, 20 Fla. L. Weekly Supp. 763 (Fla. 11th Cir. Ct.
May 1, 2013) (State properly commented on defendant’s consciousness of guilt, but improperly shifted
the burden when prosecutor said: “we’ve proved our case beyond a reasonable doubt, the roadside
exercise, all the signs of impairment that you heard from the officers, and the fact that the Defendant had
a chance to prove her innocence—… When she was offered a breath and refused.”); Bonham v. State,
20 Fla. L. Weekly Supp. 353 (Fla. 5th Cir. Ct. Jan. 11, 2013)Bonham v. State, 20 Fla. L. Weekly Supp.
353 (Fla. 5th Cir. Ct. Jan. 11, 2013) (court reversed conviction because prosecutor shifted the burden by
telling the jury: “he [the defendant] was offered the opportunity to blow into an intoxilyzer, into a breath
test that would have showed you the quantity of alcohol in his system but he refused to do that. He
decided to hide that evidence from you.”); Darling v. State, 19 Fla. L. Weekly Supp. 329 (Fla. 6th Cir.
Ct. Jan. 30, 2012)Darling v. State, 19 Fla. L. Weekly Supp. 329 (Fla. 6th Cir. Ct. Jan. 30, 2012) (in
closing prosecutor said: “‘the defendant refused to cooperate. He refused to cooperate again by
performing field sobriety exercises. If he had nothing to hide …’”; the defense objected and moved for a
mistrial; the trial judge denied the mistrial but gave a curative instruction; on appeal, the court relied on
Morris and found that the state made an improper comment on Defendant’s right to remain silent and
had improperly attempted to shift the burden, but the trial judge acted properly by recognizing the error,
sustaining the objection, and giving a curative instruction emphasizing the state’s burden and the
defense’s lack of burden); Sandez v. State, 10 Fla. L. Weekly Supp. 81 (Fla. 11th Cir. Ct. Dec. 3,
2002)Sandez v. State, 10 Fla. L. Weekly Supp. 81 (Fla. 11th Cir. Ct. Dec. 3, 2002) (a three judge circuit
court appellate panel reversed conviction where defendant’s refusal was properly in evidence, but the
prosecutor said in closing, “that the defendant: ‘had an opportunity to tell each and every one of you, tell
me, tell the judge, the court reporter, tell the whole world what his blood alcohol level was.’” (emphasis
by court)); Leech v. State, 9 Fla. L. Weekly Supp. 746 (Fla. 19th Cir. Ct. Oct. 10, 2001)Leech v. State, 9
Fla. L. Weekly Supp. 746 (Fla. 19th Cir. Ct. Oct. 10, 2001) (this argument was improper: “‘why would
[the defendant] refuse to take the [breatholyzer](sic) test? If he truly had two martinis, why wouldn’t he
prove his innocence to the world?’”(emphasis by court)). But see Kirby v. State, 9 Fla. L. Weekly Supp.
530 (Fla. 17th Cir. Ct. May 29, 2002)Kirby v. State, 9 Fla. L. Weekly Supp. 530 (Fla. 17th Cir. Ct. May
29, 2002) (This argument was proper: “‘Now, the defendant is given the opportunity to take a breath
test. Now, if her only problem is that she’s disabled and she can’t do these exercises only because she’s
disabled why not just blow into this breath machine, prove that you’re not under the influence of
alcohol, and you’re not impaired and go home?’”).
7
Concha v. State, 972 So. 2d 996, 998 (Fla. 4th DCA 2008).
8
Concha v. State, 972 So. 2d 996, 998 (Fla. 4th DCA 2008).
9
See § 5:1.
10
State v. Hoch, 500 So. 2d 597 (Fla. 3d DCA 1986), review denied, 509 So. 2d 1118 (Fla. 1987). See also
Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010); State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA
2008), review denied, 992 So. 2d 819 (Fla. 2008); Hubert v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 651 (Fla. 17th Cir. April 2, 2013)Hubert v. Dep’t of Highway Safety
& Motor Vehicles, 20 Fla. L. Weekly Supp. 651 (Fla. 17th Cir. April 2, 2013) ; Hewett v. Dep’t of
Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 318 (Fla. 4th Cir. Ct. Feb. 1, 2007)Hewett
v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 318 (Fla. 4th Cir. Ct. Feb. 1,
2007); State v. Johnson, 7 Fla. L. Weekly Supp. 237 (Fla. 9th Cir. Ct. Dec. 9, 1999)State v. Johnson, 7
Fla. L. Weekly Supp. 237 (Fla. 9th Cir. Ct. Dec. 9, 1999).
11
State v. Johnson, 7 Fla. L. Weekly Supp. 237 (Fla. 9th Cir. Ct. Dec. 9, 1999) State v. Johnson, 7 Fla. L.
Weekly Supp. 237 (Fla. 9th Cir. Ct. Dec. 9, 1999); State v. Godby, 6 Fla. L. Weekly Supp. 3 (Fla. 9th
Cir. Ct. Sept. 10, 1998)State v. Godby, 6 Fla. L. Weekly Supp. 3 (Fla. 9th Cir. Ct. Sept. 10, 1998) . But
see State v. Madlem, 10 Fla. L. Weekly Supp. 1056 (Fla. Brevard Cty. Ct. Oct. 9, 2003) (court
acknowledged circuit court ruling in 18th circuit that the time following refusal is crucial stage of
proceedings and under Traylor right to counsel attaches, but found that ruling inapplicable where the
accused asked to call “someone” after he refused and did not specifically mention an attorney).

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End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 10:2.Admissibility of refusal to submit to chemical or..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 10:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 10. Refusal to Submit to Tests

§ 10:2. Admissibility of refusal to submit to chemical or physical tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 144.1(1.20), 413, 418, 421

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 290 to 296, 328 to 335, 1407

An officer’s testimony that the defendant refused to take a breath test after being read the implied consent law
suspension provisions was properly admitted.1 The same is true of urine testing. However, both tests must be
authorized, which requires that there be reasonable grounds to believe defendant is under the influence of
alcohol for a breath test2 or controlled substances for a urine test. 3 A trial judge has ruled that this does not apply
to bicycles.4 While the law prohibiting driving while under the influence of alcohol or drugs applies to all
vehicles including bicycles, the implied consent portions of the law apply only to “motor vehicles” not
including bicycles.5 Thus, since there is no statutory duty to submit to a breath test, a bicyclist’s refusal is
inadmissible.6

A trial judge also ruled that the fact that the defendant was told that if he did not take the test, his license would
be suspended for one year if it was his first refusal and for 18 months if he had previously refused, was
admissible.7 The court concluded that such evidence was admissible so that the jury could properly evaluate the
weight to give to the refusal.8 For the same reason, in Cunningham v. State,9 despite defendant’s refusal, the
court ruled it was proper to instruct the jury that they could find the defendant guilty if they found the defendant
was impaired or had a blood alcohol level of .08 percent or above. This was necessary to put the refusal in
context.10 However, the court stated it would have been better for the trial judge to tell the jury that they should
base their decision on impairment of normal faculties.11

The fact that the defendant was advised of her Miranda rights did not bar consideration of the refusal.12
However, the reading of Miranda rights prior to asking the defendant to submit to a breath test has lead to what
has become known as the “confusion doctrine.”13 In such cases, the defendant argues that the refusal cannot be
punished because the reading of Miranda rights created confusion as to the duty to take the test. 14 Several

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Florida courts stress that this doctrine can only be properly invoked if the accused made his or her subjective
confusion known to law enforcement, so that officers had an opportunity to clarify. 15 At least two circuit courts
concluded that this doctrine does not excuse a refusal in Florida. 16 Furthermore, one circuit court specifically
declined the opportunity to expand the confusion doctrine to include an alleged misunderstanding as to what the
implied consent form said about the right to make a phone call. 17 A trial judge rejected the argument that the
officer’s request that the defendant, “‘take a breath test to determine the alcoholic content of [his] blood,’”
rather than the alcoholic content of his breath, was so misleading and confusing to justify suppression of the
breath test results.18

In Kurecka v. State,19 a district court thoroughly addressed the confusion doctrine for the first time. This matter
involved two consolidated cases. While the facts differed in some ways, they were the same on the critical issue
and the trial judges certified essentially the same question to the district court. The issue was whether
defendant’s mistaken belief that there is a right to counsel prior to a breath test, made known to the officer and
left uncorrected, requires exclusion of any refusal resulting from the mistake. In each case, the officers did
nothing to cause the mistake. The court ruled that the refusals were admissible and reached these conclusions:
(1) exclusion of the refusal where the officer does not contribute to the mistake is inappropriate; (2) the statute
does not require that the officer advise an accused that the right to counsel does not apply to the breath test, but
there would be no harm in “placing a minimal burden on officers to briefly explain this to suspects who request
counsel when asked to submit to a breath test;” (3) however, whether such a duty should be included in the
statute is for the Legislature; and (4) exclusion of the refusal is not a remedy set forth in the statute.

One trial judge applied Kurecka20 to exclude the words used in refusing 21 and in a subsequent ruling, to exclude
the refusal in its entirety.22 Both rulings were based on the same findings and reasoning. 23 The officer read
Miranda warnings immediately after reading the implied consent warnings. The judge suppressed both the
words used in the refusal and the refusal in its entirety because the officer specifically told the defendant he had
a right to remain silent and as a direct result, the defendant exercised his right to remain silent and the officer
did nothing to clear up the confusion.24 On appeal, the court affirmed the ruling as to the words used, but did not
address the admissibility of the refusal in its entirety.25

A circuit court sitting in its appellate capacity 26 viewed the ruling in Kurecka27 in a completely different light. It
reversed suppression of a refusal after the deputy advised the defendant of both Miranda warnings and the
implied consent warnings and the defendant said he did not understand. 28 The three-judge panel ruled: (1) the
confusion doctrine is not clearly recognized in Florida; (2) the defendant has an affirmative duty to make any
confusion known to the officer, which includes confusion caused by the reading of Miranda warnings; (3) the
defendant’s conduct constituted a refusal; (4) Kurecka29 holds that suppression is not provided for by the statute
and therefore it is not a proper remedy.

It is clear that the accused has a duty to submit to the breath test under the terms set forth in the statute and
repeatedly discussed in this book. The refusal must be willful to the extend that if the defendant is able to
submit, he or she is expected to take the test. Essentially, that means if the defendant does not unequivocally
agree to take the breath test, it will be treated as a refusal. 30 However, there may be factors beyond the accused’s
control that cause inability to submit, so that the refusal is not willful. Thus, the court ruled that the refusal was
inadmissible under § 90.403 where the evidence established that the defendant suffered from a medical
condition which made her physically incapable of submitting to the test. 31 Similarly, the refusal to submit to a
urine test was not willful where the defendant testified that he was physically unable to urinate with an officer
watching him.32 On the other hand, the defendant’s claim that he did not willfully refuse the breath test because
he was too drunk to take it was rejected where there was no evidence that he was physically incapable of
blowing into the tube.33 The officer had no duty to offer the individual a blood test as an alternative. 34

Similarly, the result was the same where the defendant claimed that his refusal was not willful because he did
not understand all of his options.35 The trier of fact is in the best position to resolve such a claim. 36 However,
where the defendant was told that his license would be suspended as required by Florida law, his refusal was
nonetheless involuntary because he held a license from another state and it would not have been suspended as a
result of the refusal.37 Another court rejected this position and concluded that an officer has no duty to add to or

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clarify the language of the statute as it might apply to foreign licenses.38

Evidence of refusal has not always been admissible. Prior to amendment of the statute 39 to permit evidence of
refusals, it was inadmissible because the Florida Supreme Court ruled that if the Legislature intended it to be
admissible it would have said so. 40 Since the Court required that the implied consent law provide for the
introduction of refusals, an argument can be made that only refusals to submit to tests shown to be authorized
by the statute are admissible.

The ruling in State v. Polak41 provides some support for this contention. The Polak court ruled that where the
test instrument has been substantially modified but not recertified, it is not an approved chemical test, and it is
improper to tell the defendant that if he or she refuses to take such a test his or her license will be suspended.
The court upheld suppression of the breath test results. In Polak, the court said:
We reject appellant’s argument that section 316.1932 permits license suspension for failure to
take any lawful test. The statute clearly states that the operator of a motor vehicle is deemed to
give his or her consent to submit to an approved test. When the statute discusses suspension based
on refusal to take any lawful test, we consider this provision must be read in pari materia with the
consent portion of the statute requiring submission to an approved test.42

In Dep’t of Highway Safety & Motor Vehicles v. Berry,43 the court considered this analysis from Polak and
concluded that these principles do not apply to administrative suspension proceedings. The court suggested in
dicta, that the requirement the State show that the test was approved, applies only to the admissibility of test
results during the criminal trial. Two other courts expressed the same principle in dicta. 44

None of the foregoing cases directly addressed in other than dicta, whether the state has a duty to prove the
availability of an authorized test as a foundation for the admissibility of refusals. Subsequently, in State v.
Kline,45 the district court ruled squarely on this issue. The court held that a refusal to take a breath test is
admissible without regard for whether the testing machine is in compliance with the administrative rule. 46 The
defendant can explain his concern about the test to the jury.47

Defendants have presented several other grounds for excluding refusals to submit to breath tests. First, in one
case, the defendant argued that his refusal was inadmissible because it was hearsay. 48 In other words, the
defendant suggested that an officer’s testimony as to the defendant’s out-of-court statement refusing the test,
was hearsay. The trial judge rejected this argument because § 316.1932, Fla. Stat. says a refusal is
admissible.49 The court did not comment on whether this was hearsay, but it could be argued that it was not,
because it was being introduced to show the defendant’s state of mind (i.e. guilty knowledge). 50 Furthermore,
the court did not comment on whether this was admissible as an admission. 51 However, in State v. Holland,52 the
court squarely ruled that the accused’s statements on videotape are admissible as admissions of a party
opponent pursuant to § 90.803(18)(a), Fla. Stat.

Second, the failure to comply with statutory requirements has been cited as grounds for exclusion of a refusal.
Thus, in State v. Karosas,53 one person argued that his refusal was inadmissible because the officer did not
advise him that if he refused the test his license would be suspended. The trial judge in Karosas pointed out that
in State v. Gunn,54 the court ruled that the failure to advise a suspect of the suspension is not grounds for
excluding test results. However, the trial judge took a different position as to a refusal. The judge ruled that
failure to advise the defendant of the sanction for a refusal may cause the defendant to believe that refusal is a
“safe harbor.” Thus, the judge found that the refusal could only be introduced into evidence if the jury was
advised that the defendant was not warned of the consequences of the refusal and should have been warned.
According to the trial judge in State v. Shuler,55 if the defendant claims to not understand the implied consent
law, interpretation by the officer may create problems. Thus, the court found the refusal inadmissible where
officers interpreted the law with focus on the potential suspension and what they thought might or might not
happen. They did not reread the warnings or restate that if Defendant refused or if his misunderstanding was

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treated as a refusal, the refusal could be used as evidence. In State v. Richman,56 the trial judge ruled that where
the defendant cut the deputy off so that he could not finish reading the implied consent warnings, the defendant
was deemed to have been advised of the warnings.

Similarly, according to the Fifth District in Department of Highway Safety and Motor Vehicles v. Pelham,57 “an
individual does not violate the implied consent law when he or she refuses to take a test that is not incidental to
a lawful arrest.” The Pelham58 decision involved the provisions of § 322.2615, Fla. Stat., which deals with the
procedures for administrative license suspension and the requirements for sustaining the suspension. That
statute was amended to eliminate the requirement that there be proof of a lawful arrest to sustain a refusal
suspension. In Pelham,59 the court construed that provision in light of § 316.1932, Fla. Stat., which requires a
lawful arrest before there is a duty to submit to an alcohol level test. The court concluded that there still must be
a lawful arrest before there can be a refusal suspension.60

However, there was a conflict among the districts. The First District agreed 61 with the Fifth District’s decision in
Pelham62 that the involved statutes had to be considered together, with the result that proof of a lawful arrest is
still required. The Second District disagreed and ruled that the changes to the statute were clear, and proof of a
lawful arrest is not required.63 In Department of Highway Safety and Motor Vehicles v. Hernandez,64 the Florida
Supreme Court resolved this conflict and ruled that to sustain a license suspension for refusal to take a breath
test the State must still prove that the test was offered incidental to a lawful arrest.

Third, a refusal to submit to a breath test may be inadmissible because of representations officers made in an
effort to get the defendant to submit. That was the argument the defendant made in State v. Cushing.65 In that
case, the arresting officer properly advised the defendant that his license would be suspended if he refused to
take the breath test, but then the officer told the defendant that his license “can” and “could” be suspended,
instead of “will.” The trial judge granted a motion to suppress. On appeal, a three-judge circuit court appellate
panel found that the officer had provided adequate warning to make it clear that refusal was not safe harbor, and
thus the refusal was admissible. The fact that the officer misstated the law in his explanation did not require
suppression.

The potentially confusing nature of the officer’s advice as to the defendant’s duty was considered by the district
courts with conflicting result. In Dep’t of Highway Safety & Motor Vehicles v. Clark,66 the Fourth District
upheld a circuit court ruling that suspension for refusing a breath test was invalid because the officer incorrectly
advised the driver that her driving privileges would be suspended for refusing to submit to a breath, blood, or
urine test. Only a breath test was authorized. In Dep’t of Highway Safety & Motor Vehicles v. Nader,67 the
Second District disagreed. In Nader v. Dep’t of Highway Safety & Motor Vehicles,68 the Supreme Court resolved
the conflict and ruled that “A law enforcement officer’s request that a driver submit to a breath, blood, or urine
test, under circumstances in which the breath-alcohol test is the only required test, [does not] violate the implied
consent provisions of Section 316.1932(1)(A)(a) such that the Department may not suspend the driver’s
license for refusing to take any test.”69 The court concluded that such language did not mislead the driver into
thinking that a more invasive procedure than the one required by law must be used. 70 Use of “or” makes it clear
that the driver is free to choose the breath test, the least invasive procedure. 71

The officer’s representations to the defendant took on a different dimension with the passage of the statute
making it a crime to refuse the test. 72 While that statute makes it an element of the crime that the defendant be
advised that refusal is a misdemeanor if the defendant’s license has previously been suspended for refusal, 73
there is no such requirement in the statute as a foundation for introduction of a refusal as evidence in a DUI. But
as might have been expected, that issue has been raised.

In Grzelka v. State,74 the court considered that issue. In that case, the officer warned the defendant that her
license would be suspended if she refused to submit to the breath test, but the officer did not advise her of the
potential criminal consequences of the refusal. Nevertheless, the court agreed with the trial judge’s decision to
allow the refusal into evidence. The court observed that the refusal is admissible pursuant to the express
language of the statute, and the statute does not require that the defendant be told of all of the consequences of
refusal.75 Additionally, the refusal is relevant as proof of consciousness of guilt, if the defendant is advised of
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consequences of a refusal. But advice as to one adverse consequence is sufficient. 76

Fourth, occasionally, a suspect may initially refuse the test, but then withdraw the refusal. Sometimes, officers
deny such people the opportunity to take the test. In Larmer v. Dep’t of Highway Safety & Motor Vehicles,77 the
court found it improper to deny the defendant the opportunity to take the test where: (1) the defendant agreed to
take the test just moments after the refusal; (2) the defendant was constantly in the presence of officers; and (3)
there would have been no inconvenience from allowing the defendant to take the test. 78 But the recantation must
be unconditional and unequivocal.79

In Coman v. Dep’t of Highway Safety & Motor Vehicles,80 the court concluded that in Larmer81 the court adopted
these standards from Lund v. Hjelle82 for finding that there was no refusal based on recantation: (1) the
recantation of the refusal takes place within a reasonable time after the refusal, (2) the test would still be
accurate, (3) the equipment is still available, (4) allowing the test after the withdrawal of the refusal will not
result in any “substantial inconvenience” to police, and (5) the suspect has been in custody and under
observation since the time of the arrest. The court applied these factors to uphold an administrative suspension. 83
In Barker v. Dep’t of Highway Safety & Motor Vehicles,84 the court also affirmed an administrative suspension
based on these factors, but added additional ones. Those included: (1) whether the evidence of subsequent
consent was persuasive; (2) whether the consent was clear and unequivocal; and (3) whether the subsequent test
would involve additional expense for the police.

The same approach was followed by the trial court in another case. 85 The court suppressed defendant’s refusal,
consisting of conduct that the officer felt constituted a refusal. While the court acknowledged that a refusal can
be verbal or physical, in this case the court found that the defendant properly retracted her refusal. She did so
less than five minutes after refusing, and she had been in the constant presence of the officer. Further, the court
found that there was no substantial inconvenience or cost arising from letting the defendant take the test. The
test equipment was available, and the test results would have still been accurate. 86 But there is no requirement
that an accused who has been advised of implied consent, refuses and then recants, must again be read implied
consent for the second refusal to be admissible.87

As mentioned above, a refusal may be by words or by conduct. Thus, where a defendant deliberately blows into
the machine in a way that causes the machine not to register properly, that conduct constitutes a refusal. 88 This is
consistent with Fla. Admin. Code R. 11D–8.002(12), which states: “Refusal or failure to provide the required
number of valid breath samples constitutes a refusal to submit to the breath test.” Additionally, the test results
may still be admissible, if the State can show that they are reliable despite the defendant’s lack of cooperation.
In that regard, the same administrative rule provides, “Notwithstanding the foregoing sentence, the result(s)
obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.” 89

The defendant may attempt to provide an explanation for refusing the test. In one such case, 90 the defendant
attempted to testify that he refused the test because a friend of his who was a police officer told him to never
take the test. The trial judge sustained a hearsay objection. On appeal, a three-judge circuit court appellate panel
ruled that this was not hearsay because the defendant was introducing it to show his own state of mind, not to
prove the truth of the statement. But in another case 91 the defendant took a different approach. He asserted that
he should have been able to argue to the jury that the reason he refused the breath test was because his license
was already suspended. On appeal, the court affirmed the trial court’s rejection of that position because the
defendant refused three times and never suggested the refusals were related to his license suspension and there
was no evidence presented at trial supporting such an inference.92

These issues often have a direct affect on closing arguments. In the same case where the defendant sought to
argue that he refused the breath test because his license was suspended, issues arose as to how that refusal and
the additional refusal to submit to field sobriety exercises was presented in closing. 93 On appeal, the court
rejected the claim that the State made an improper “conscious of the community” argument when the prosecutor
argued that if all a person had to do to avoid a DUI conviction was not cooperate, the State could never prove a
case.94 And the prosecutor went on to say: “Members of the jury, you know that’s not the case because you
know your conscience tells you that somebody can still be found guilty of DUI because you can base it off of

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that decision.”95 The court also concluded that this comment was invited by the defense argument that these
refusals were defects in the State’s case in that the State failed to present any evidence as to what the results of
these exercises and tests would have been and no one testified that the defendant refused because he knew he
was guilty.96

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Smith v. State, 681 So. 2d 894 (Fla. 4th DCA 1996) (trooper’s testimony that the defendant refused
breath test after being read implied consent was admissible, but testimony that defendant refused after
being read Miranda was an improper comment on the defendant’s exercise of right to remain silent). See
also State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla.
1996); Sutton v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 88 (Fla. 10th Cir.
Ct. Sept. 18, 2012)Sutton v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 88
(Fla. 10th Cir. Ct. Sept. 18, 2012) (officer read implied consent warnings at the scene of the arrest and
petitioner refused to take the breath test; contrary to petitioner’s position, the officer was not required to
read the warnings again; petitioner would not take breath test when asked to do so at the police
department); State v. Bloomquist, 13 Fla. L. Weekly Supp. 1020 (Fla. Brevard Cty. Ct. July 10, 2006),
clarified, 14 Fla. L. Weekly Supp. 104 (Fla. Brevard Cty. Ct. Oct. 3, 2006)14 Fla. L. Weekly Supp. 104
(Fla. Brevard Cty. Ct. Oct. 3, 2006).
2
Xhokli v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 664 (Fla. 6th Cir. Ct.
Dec. 23, 2014)Xhokli v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 664 (Fla.
6th Cir. Ct. Dec. 23, 2014) (suspension for refusal to submit to breath test was proper where there was
substantial evidence of impairment and odor of alcohol but deputy said impairment could also have been
caused by drugs); Zvierko v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1120
(Fla. 7th Cir. Ct. July 9, 2013) (suspension for refusal to submit to breath test was invalid because the
test was not authorized where officer smelled an odor of cannabis coming from petitioner’s breath, but
no odor of alcohol, petitioner admitted to smoking cannabis 30 minutes earlier and had very glassy and
red eyes, slow and slurred speech; officer did not say whether he believed petitioner was under the
influence of alcohol, drugs, or both); Stachura v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L.
Weekly Supp. 1073 (Fla. 15th Cir. Ct. August 25, 2011) (suspension invalid where the evidence
supported the conclusion that petitioner was under the influence of controlled substances, but not
alcohol; petitioner admitted being under the influence of Xanax and Seroquel and had many indicia of
impairment, but no odor of alcohol and deputy, who was a DRE, suspected petitioner was under the
influence of drugs, but not alcohol); Gruszeczki v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla.
L. Weekly Supp. 642 (Fla. 4th Cir. Ct. July 8, 2008)Gruszeczki v. Dep’t of Highway Safety & Motor
Vehicles, 18 Fla. L. Weekly Supp. 642 (Fla. 4th Cir. Ct. July 8, 2008) (refusal suspension was reversed
because petitioner did not refuse a lawful breath test where petitioner was impaired, but there was no
odor of alcohol or other evidence impairment was caused by alcohol; there was evidence it was caused
by a chemical or controlled substance in the form of prescription meds).
3
State v. Yates, 16 Fla. L. Weekly Supp. 319 (Fla. 18th Cir. Ct. Feb. 6, 2009)State v. Yates, 16 Fla. L.
Weekly Supp. 319 (Fla. 18th Cir. Ct. Feb. 6, 2009) (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 on
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); State v. Mata, 14 Fla. L. Weekly Supp. 440
(Fla. 17th Cir. Ct. March 12, 2007)State v. Mata, 14 Fla. L. Weekly Supp. 440 (Fla. 17th Cir. Ct. March
12, 2007) (affirmed trial court’s suppression of refusal to submit to urine test, where defendant had an
odor of alcohol, had several indications of alcohol impairment, and had .077 and .082 breath test
results); State v. Hills, 16 Fla. L. Weekly Supp. 175 (Fla. Escambia Cty. Ct. Nov. 25, 2008) State v.
Hills, 16 Fla. L. Weekly Supp. 175 (Fla. Escambia Cty. Ct. Nov. 25, 2008) (refusal to submit to test was
inadmissible because there were no reasonable grounds to believe that defendant was under the

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influence of controlled substances, and the officer just “made the request to cover his bases.”); State v.
Desmaison, 14 Fla. L. Weekly Supp. 1060 (Fla. Dade Cty Ct. Aug. 23, 2007) (refusal to submit to urine
test was inadmissible where officer did not have reasonable suspicion to believe defendant was under
the influence of a controlled substance and he told defendant his license would be suspended); State v.
Stanis, 13 Fla. L. Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 2, 2006)State v. Stanis, 13 Fla. L.
Weekly Supp. 997 (Fla. Volusia Cty. Ct. Aug. 2, 2006) (defendant not required to give urine sample
where breath test results were .078 and .075, video of FSTS was consistent with a person with that BAL,
and there was no other evidence of drug use).
4
State v. Perez, 14 Fla. L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007)State v. Perez, 14 Fla.
L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007).
5
State v. Perez, 14 Fla. L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007)State v. Perez, 14 Fla.
L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007). See also Morris v. State, 19 Fla. L. Weekly
Supp. 687 (Fla. 6th Cir. Ct. April 24, 2012)Morris v. State, 19 Fla. L. Weekly Supp. 687 (Fla. 6th Cir.
Ct. April 24, 2012).
6
State v. Perez, 14 Fla. L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007)State v. Perez, 14 Fla.
L. Weekly Supp. 679 (Fla. Collier Cty. Ct. April 18, 2007). But see Morris v. State, 19 Fla. L. Weekly
Supp. 687 (Fla. 6th Cir. Ct. April 24, 2012)Morris v. State, 19 Fla. L. Weekly Supp. 687 (Fla. 6th Cir.
Ct. April 24, 2012) (the trial judge ruled in a DUI-bicyclist case that the refusal to submit to the breath
test was admissible as proof of consciousness of guilt; on appeal, the court reversed because there was
no evidence of a substantial motivation to take the test, but did not reach the issue of whether, even if
there was such evidence, would a bicyclist’s refusal be admissible).
7
State v. Rodriguez, 8 Fla. L. Weekly Supp. 456 (Fla. Dade Cty. Ct. Jan. 22, 2001)State v. Rodriguez, 8
Fla. L. Weekly Supp. 456 (Fla. Dade Cty. Ct. Jan. 22, 2001). See also Gotopo v. State, 9 Fla. L. Weekly
Supp. 30 (Fla. 17th Cir. Ct. Oct. 26, 2001)Gotopo v. State, 9 Fla. L. Weekly Supp. 30 (Fla. 17th Cir. Ct.
Oct. 26, 2001) (where defendant refused, and was trying to give the impression that he did not
understand the implied consent warnings due to a language barrier, prosecutor could properly ask him
on cross whether those warnings had been read to him on two prior occasions).
8
State v. Rodriguez, 8 Fla. L. Weekly Supp. 456 (Fla. Dade Cty. Ct. Jan. 22, 2001)State v. Rodriguez, 8
Fla. L. Weekly Supp. 456 (Fla. Dade Cty. Ct. Jan. 22, 2001).
9
Cunningham v. State, 739 So. 2d 1200 (Fla. 5th DCA 1999).
10
Cunningham v. State, 739 So. 2d 1200 (Fla. 5th DCA 1999).
11
Cunningham v. State, 739 So. 2d 1200 (Fla. 5th DCA 1999).
12
State v. Fara, 9 Fla. L. Weekly Supp. 88 (Fla. 12th Cir. Ct. Dec. 18, 2001)State v. Fara, 9 Fla. L. Weekly
Supp. 88 (Fla. 12th Cir. Ct. Dec. 18, 2001). See also Hewett v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 318 (Fla. 4th Cir. Ct. Feb. 1, 2007)Hewett v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 318 (Fla. 4th Cir. Ct. Feb. 1, 2007) (Fifth
Amendment did not bar admissibility of verbal refusal to take a breath test even though the defendant
was informed of his Miranda rights and invoked his right to remain silent after the refusal).
13
Crawley v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 412 (Fla. 7th Cir. Ct.
April 20, 2016)Crawley v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 412
(Fla. 7th Cir. Ct. April 20, 2016); Vanek v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L.
Weekly Supp. 544 (Fla. 6th Cir. Ct. Jan. 13, 2014)Vanek v. Dep’t of Highway Safety & Motor Vehicles,
21 Fla. L. Weekly Supp. 544 (Fla. 6th Cir. Ct. Jan. 13, 2014); Platte v. Dep’t of Highway Safety &
Motor Vehicles, 21 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. April 9, 2013) Platte v. Dep’t of Highway
Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. April 9, 2013); Moore v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932 (Fla. 9th Cir. Ct. Aug. 3, 2006)Moore
v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932 (Fla. 9th Cir. Ct. Aug. 3,
2006); Brown v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 53 (Fla. 18th Cir.
Ct. Oct. 18, 2004)Brown v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 53
(Fla. 18th Cir. Ct. Oct. 18, 2004); Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly

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Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004)Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004); Bosch v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003)Bosch v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003) ; Ringel v. Dep’t
of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678 (Fla. 18th Cir. Ct. July 30,
2002)Ringel v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678 (Fla. 18th Cir.
Ct. July 30, 2002); State v. Alves, 3 Fla. L. Weekly Supp. 553 (Fla. 9th Cir. Ct. April 24, 1995)State v.
Alves, 3 Fla. L. Weekly Supp. 553 (Fla. 9th Cir. Ct. April 24, 1995); State v. Nutt, 13 Fla. L. Weekly
Supp. 1094 (Fla. Broward Cty. Ct. Aug. 25, 2006); State v. Bloomquist, 13 Fla. L. Weekly Supp. 1020
(Fla. Brevard Cty. Ct. July 10, 2006), clarified, 14 Fla. L. Weekly Supp. 104 (Fla. Brevard Cty. Ct. Oct.
3, 2006)14 Fla. L. Weekly Supp. 104 (Fla. Brevard Cty. Ct. Oct. 3, 2006); State v. Wymer, 4 Fla. L.
Weekly Supp. 113 (Fla. Hillsborough Cty. Ct. Nov. 30, 1995)State v. Wymer, 4 Fla. L. Weekly Supp.
113 (Fla. Hillsborough Cty. Ct. Nov. 30, 1995).
14
Crawley v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 412 (Fla. 7th Cir. Ct.
April 20, 2016)Crawley v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 412
(Fla. 7th Cir. Ct. April 20, 2016); Vanek v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L.
Weekly Supp. 544 (Fla. 6th Cir. Ct. Jan. 13, 2014)Vanek v. Dep’t of Highway Safety & Motor Vehicles,
21 Fla. L. Weekly Supp. 544 (Fla. 6th Cir. Ct. Jan. 13, 2014); Platte v. Dep’t of Highway Safety &
Motor Vehicles, 21 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. April 9, 2013) Platte v. Dep’t of Highway
Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. April 9, 2013); Moore v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932 (Fla. 9th Cir. Ct. Aug. 3, 2006)Moore
v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932 (Fla. 9th Cir. Ct. Aug. 3,
2006); Brown v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 53 (Fla. 18th Cir.
Ct. Oct. 18, 2004)Brown v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 53
(Fla. 18th Cir. Ct. Oct. 18, 2004); Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly
Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004)Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004); Bosch v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003)Bosch v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003) ; Ringel v. Dep’t
of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678 (Fla. 18th Cir. Ct. July 30,
2002)Ringel v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678 (Fla. 18th Cir.
Ct. July 30, 2002); State v. Alves, 3 Fla. L. Weekly Supp. 553 (Fla. 9th Cir. Ct. April 24, 1995)State v.
Alves, 3 Fla. L. Weekly Supp. 553 (Fla. 9th Cir. Ct. April 24, 1995); State v. Nutt, 13 Fla. L. Weekly
Supp. 1094 (Fla. Broward Cty. Ct. Aug. 25, 2006); State v. Bloomquist, 13 Fla. L. Weekly Supp. 1020
(Fla. Brevard Cty. Ct. July 10, 2006), clarified, 14 Fla. L. Weekly Supp. 104 (Fla. Brevard Cty. Ct. Oct.
3, 2006)14 Fla. L. Weekly Supp. 104 (Fla. Brevard Cty. Ct. Oct. 3, 2006); State v. Wymer, 4 Fla. L.
Weekly Supp. 113 (Fla. Hillsborough Cty. Ct. Nov. 30, 1995)State v. Wymer, 4 Fla. L. Weekly Supp.
113 (Fla. Hillsborough Cty. Ct. Nov. 30, 1995).
15
Crawley v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 412 (Fla. 7th Cir. Ct.
April 20, 2016)Crawley v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 412
(Fla. 7th Cir. Ct. April 20, 2016); Vanek v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L.
Weekly Supp. 544 (Fla. 6th Cir. Ct. Jan. 13, 2014)Vanek v. Dep’t of Highway Safety & Motor Vehicles,
21 Fla. L. Weekly Supp. 544 (Fla. 6th Cir. Ct. Jan. 13, 2014); Platte v. Dep’t of Highway Safety &
Motor Vehicles, 21 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. April 9, 2013) Platte v. Dep’t of Highway
Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. April 9, 2013); Mastenbroek v.
Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 949 (Fla. 6th Cir. Ct. April 16,
2010)Mastenbroek v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 949 (Fla.
6th Cir. Ct. April 16, 2010); Lavin v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly
Supp. 605 (Fla. 6th Cir. Ct. May 15, 2009)Lavin v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla.
L. Weekly Supp. 605 (Fla. 6th Cir. Ct. May 15, 2009); Bolek v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 215 (Fla. 6th Cir. Ct. Dec. 16, 2005)Bolek v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 215 (Fla. 6th Cir. Ct. Dec. 16, 2005); Beyer v. Dep’t
of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1117 (Fla. 6th Cir. Ct. Sept. 7, 2005);
Brown v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 53 (Fla. 18th Cir. Ct.
Oct. 18, 2004)Brown v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 53 (Fla.
18th Cir. Ct. Oct. 18, 2004); Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly
Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004)Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004); Bosch v. Dep’t of Highway Safety & Motor

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Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003)Bosch v. Dep’t of Highway
Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757 (Fla. 7th Cir. Ct. Aug. 6, 2003) ; Ringel v. Dep’t
of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678 (Fla. 18th Cir. Ct. July 30,
2002)Ringel v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678 (Fla. 18th Cir.
Ct. July 30, 2002); State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017)State
v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017) ; State v. Power, 15 Fla. L.
Weekly Supp. 730 (Fla. Palm Beach Cty Ct. May 15, 2008)State v. Power, 15 Fla. L. Weekly Supp. 730
(Fla. Palm Beach Cty Ct. May 15, 2008); State v. Nutt, 13 Fla. L. Weekly Supp. 1094 (Fla. Broward
Cty. Ct. Aug. 25, 2006). But see Green v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L.
Weekly Supp. 43 (Fla. 4th Cir. Ct. Oct. 9, 2006)Fla. Broward Cty. Ct. Aug. 25, 2006). But see Green v.
Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 43 (Fla. 4th Cir. Ct. Oct. 9, 2006)
(court recognized confusion doctrine, but refused to apply it because the defendant invoked a right she
did not have, where the defendant asked for counsel as advised in Miranda rights prior to breath test).
16
Potts v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 783 (Fla. 12th Cir. Ct.
June 9, 2008)Potts v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 783 (Fla.
12th Cir. Ct. June 9, 2008); Bishop v. Dep’t of Highway Safety & Motor Vehicles, 3 Fla. L. Weekly
Supp. 14 (Fla. 10th Cir. Ct. Feb. 10, 1992)Bishop v. Dep’t of Highway Safety & Motor Vehicles, 3 Fla.
L. Weekly Supp. 14 (Fla. 10th Cir. Ct. Feb. 10, 1992).
17
Chlebek v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 843 (Fla. 20th Cir. Ct.
June 5, 2005)Chlebek v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 843 (Fla.
20th Cir. Ct. June 5, 2005).
18
State v. Mertens, 14 Fla. L. Weekly Supp. 777 (Fla. Brevard Cty Ct. June 8, 2007)State v. Mertens, 14
Fla. L. Weekly Supp. 777 (Fla. Brevard Cty Ct. June 8, 2007) (it was not believable that if the officer
had said “breath alcohol level” defendant would have submitted).
19
Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010). See also Brown v. Dep’t of Highway Safety &
Motor Vehicles, 20 Fla. L. Weekly Supp. 339 (Fla. 17th Cir. Jan. 7, 2013) Brown v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 339 (Fla. 17th Cir. Jan. 7, 2013) (confusion doctrine
did not apply where defendant asked for a lawyer and officer said he did not need one at the moment,
but there was no evidence officer advised petitioner of his Miranda rights before he read implied
consent warnings and requested breath test; request for counsel was based on petitioner’s own mistaken
belief that he was entitled to speak with an attorney, which existed prior to officer’s statement; officer
was not required to correct petitioner’s mistake); Hubert v. Dep’t of Highway Safety & Motor Vehicles,
20 Fla. L. Weekly Supp. 651 (Fla. 17th Cir. April 2, 2013)Hubert v. Dep’t of Highway Safety & Motor
Vehicles, 20 Fla. L. Weekly Supp. 651 (Fla. 17th Cir. April 2, 2013) (same as Brown; video showed that
the officer advised the petitioner numerous times that she was not entitled to speak to an attorney;
petitioner claimed confusion and refusal resulted from the fact that officer told her that her attorney said
she should take the breath test and she thought the officer was lying; the officer was telling the truth);
State v. Hart, 25 Fla. L. Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017)State v. Hart, 25 Fla. L.
Weekly Supp. 461 (Fla. Volusia Cty. Ct. June 15, 2017) (confusion doctrine did not apply where
arresting officer did not advise defendant of Miranda rights before or during the reading of implied
consent; there was no evidence of confusion; and defendant never indicated he was confused so that the
deputy could have eliminated the confusion).
20
Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010).
21
State v. Jahada, 18 Fla. L. Weekly Supp. 78 (Fla. Duval Cty. Ct. Sept. 21, 2010)State v. Jahada, 18 Fla.
L. Weekly Supp. 78 (Fla. Duval Cty. Ct. Sept. 21, 2010), affirmed, 18 Fla. L. Weekly Supp. 647 (Fla.
4th Cir. Ct. June 14, 2011)18 Fla. L. Weekly Supp. 647 (Fla. 4th Cir. Ct. June 14, 2011) (Defendant
became silent upon being advised of his rights and remained silent until the officer pressed for a verbal
response to the request for a breath test and the defendant said: “‘Well, I guess I’ll hire a driver for the
next year.’” When asked if that meant he was refusing, the defendant said “yes.”).
22
State v. Jahada, 18 Fla. L. Weekly Supp. 369 (Fla. Duval Cty. Ct. Jan. 24, 2011) State v. Jahada, 18 Fla.
L. Weekly Supp. 369 (Fla. Duval Cty. Ct. Jan. 24, 2011).
23
State v. Jahada, 18 Fla. L. Weekly Supp. 369 (Fla. Duval Cty. Ct. Jan. 24, 2011) State v. Jahada, 18 Fla.

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L. Weekly Supp. 369 (Fla. Duval Cty. Ct. Jan. 24, 2011).
24
State v. Jahada, 18 Fla. L. Weekly Supp. 78 (Fla. Duval Cty. Ct. Sept. 21, 2010)State v. Jahada, 18 Fla.
L. Weekly Supp. 78 (Fla. Duval Cty. Ct. Sept. 21, 2010), affirmed, 18 Fla. L. Weekly Supp. 647 (Fla.
4th Cir. Ct. June 14, 2011)18 Fla. L. Weekly Supp. 647 (Fla. 4th Cir. Ct. June 14, 2011); State v. Jahada,
18 Fla. L. Weekly Supp. 369 (Fla. Duval Cty. Ct. Jan. 24, 2011)State v. Jahada, 18 Fla. L. Weekly Supp.
369 (Fla. Duval Cty. Ct. Jan. 24, 2011).
25
State v. Jahada, 18 Fla. L. Weekly Supp. 647 (Fla. 4th Cir. Ct. June 14, 2011)State v. Jahada, 18 Fla. L.
Weekly Supp. 647 (Fla. 4th Cir. Ct. June 14, 2011).
26
State v. Heffron, 18 Fla. L. Weekly Supp. 1088 (Fla. 6th Cir. Ct. Aug. 10, 2011).
27
Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010).
28
State v. Heffron, 18 Fla. L. Weekly Supp. 1088 (Fla. 6th Cir. Ct. Aug. 10, 2011) (Despite the deputy
reading implied consent warnings several times, simplifying the instructions by telling the defendant that
if he did not take the test he would lose his license for a year, and attempting to find out what the
defendant did not understand, the defendant would not specify and still acted confused; the deputy told
the defendant if he did not answer whether or not he would take the test, he would be counted as a
refusal and after 10 to 15 minutes interacting, the deputy wrote down a refusal.).
29
Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010).
30
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011) (the
administrative finding that defendant refused was supported by substantial evidence because the
defendant gave two breath samples but neither of them was valid; the breath volume was deficient
causing them to be “ ‘not reliable to determine Breath Alcohol Level.’”); June v. Dep’t of Highway
Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 941 (Fla. 6th Cir. Ct. August 8, 2013)June v. Dep’t
of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 941 (Fla. 6th Cir. Ct. August 8, 2013)
(where control test showed that machine was out of tolerance, the two tests were invalid even though
they resulted in a.198 and a.185 and petitioner’s failure to provide another test was a refusal); Webb v.
Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 608 (Fla. 9th Cir. Ct. March 11,
2004)Webb v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 608 (Fla. 9th Cir.
Ct. March 11, 2004) (finding of willful refusal was supported by substantial evidence where the
defendant’s first blow was a low volume sample and the second blow resulted in an aborted test within
the three minutes required to obtain an adequate sample, and the defendant was given a “reasonable and
sufficient opportunity to take and complete the breath test”); State v. Richman, 17 Fla. L. Weekly Supp.
1265 (Fla. Brevard Cty. Ct. Sept. 27, 2010) (Defendant constructively refused when he initially said he
would not take the test; then said he didn’t know whether he would—he would ask his lawyer; and then
when the officer told him he had refused, he did not say anything; and when the defendant insisted on an
attorney, the deputy had no duty to advise the defendant that would be treated as a refusal).
31
State v. Burrier, 19 Fla. L. Weekly Supp. 415 (Fla. Pinellas County Ct. Jan. 6, 2012) State v. Burrier, 19
Fla. L. Weekly Supp. 415 (Fla. Pinellas County Ct. Jan. 6, 2012). See also Counts v. Dep’t of Highway
Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 1002 (Fla. 15th Cir. Ct. Sept. 5, 2012) (petitioner did
not refuse breath test where she tried to breathe into the machine but was only able to submit one
sample; throughout the test she said she had asthma; she breathed heavily, coughed, and repeatedly
requested a blood test; after repeated unsuccessful attempts at a second sample, officer said she refused;
petitioner said she was trying the best she could; the evidence showed that she had asthma).
32
Wolok v. Dep’t of Highway Safety & Motor Vehicles, 1 Fla. L. Weekly Supp. 204 (Fla. 11th Cir. Ct.
1992)Wolok v. Dep’t of Highway Safety & Motor Vehicles, 1 Fla. L. Weekly Supp. 204 (Fla. 11th Cir.
Ct. 1992). See also Strouse v. Dep’t of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 309
(Fla. 9th Cir. Ct. Sept. 15, 2014)22 Fla. L. Weekly Supp. 309 (Fla. 9th Cir. Ct. Sept. 15, 2014)
(petitioner did not refuse urine test where he tried to urinate, asked for water but the trooper refused,
after an hour trooper made petitioner stop trying, and trooper stated at hearing petitioner never refused
request for urine test); Brass v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 5
(Fla. 15th Cir. Ct. Sept. 5, 2012)Brass v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly
Supp. 5 (Fla. 15th Cir. Ct. Sept. 5, 2012) (petitioner did not willfully refuse to provide a urine sample
where he promptly did FSES and a breath test, agreed to provide a urine sample, and was cooperative;
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prostate issue which required medication and affected his ability to urinate); Stack v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322 (Fla. 11th Cir. Ct. Jan. 10, 2006)Stack v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322 (Fla. 11th Cir. Ct. Jan. 10, 2006)
(evidence was not sufficient to support a finding of refusal where it indicated that the defendant could
not provide a urine sample because she did not understand). But see Dunn v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 18 (Fla. 9th Cir. Ct. July 26, 2005) Dunn v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 18 (Fla. 9th Cir. Ct. July 26, 2005) (there was
sufficient evidence of refusal where defendant claimed she could not blow with her hands cuffed behind
her because of pain from a prior shoulder injury; but the officer said she was advised of the
consequences of refusal numerous times, said she would not take the test with her arms behind her, and
never attempted it). Skeadas v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp.
278 (Fla. 9th Cir. Ct. Jan. 7, 2004)Skeadas v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 278 (Fla. 9th Cir. Ct. Jan. 7, 2004) (defendant’s claim that he was unable to take the
breath test because he had an asthmatic condition was rejected because the refusal was unequivocal,
there was no indication of a willingness to take any other form of test, and there was substantial
evidence to support hearing officer’s findings).
33
Perryman v. State, 242 So. 2d 762 (Fla. 1st DCA 1971).
34
Perryman v. State, 242 So. 2d 762 (Fla. 1st DCA 1971).
35
Malone v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 511 (Fla. 9th Cir. Ct.
May 22, 2002)Malone v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 511 (Fla.
9th Cir. Ct. May 22, 2002). See also Fox v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004)Fox v. Dep’t of Highway Safety & Motor Vehicles,
11 Fla. L. Weekly Supp. 776 (Fla. 9th Cir. Ct. Jan. 21, 2004); Long v. Dep’t of Highway Safety &
Motor Vehicles, 11 Fla. L. Weekly Supp. 176 (Fla. 9th Cir. Ct. Dec. 2, 2003)Long v. Dep’t of Highway
Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 176 (Fla. 9th Cir. Ct. Dec. 2, 2003) (defendant
claimed that his refusal was not willful because he did not have all the relevant facts). Contra Stack v.
Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322 (Fla. 11th Cir. Ct. Jan. 10,
2006)Stack v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322 (Fla. 11th Cir.
Ct. Jan. 10, 2006) (evidence was not sufficient to support a finding of refusal where the evidence
indicated that the defendant could not provide a urine sample because she did not understand).
36
Malone v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 511 (Fla. 9th Cir. Ct.
May 22, 2002)Malone v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 511 (Fla.
9th Cir. Ct. May 22, 2002).
37
Peters v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 872 (Fla. 10th Cir. Ct.
June 19, 2003)Peters v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 872 (Fla.
10th Cir. Ct. June 19, 2003). See also State v. Kirpalani, 15 Fla. L. Weekly Supp. 1021 (Fla. Broward
Cty. Ct. August 21, 2008) (where officer incorrectly advised that New Jersey driver’s license would be
automatically suspended for a year, trial court excluded breath test results because State failed to present
clear and convincing evidence defendant freely and voluntarily consented). But in Kirpalani v. State
Dept. of Highway Safety and Motor Vehicles, 997 So. 2d 502 (Fla. 4th DCA 2008), the court found that
the misadvice as to the effect on the New Jersey license was of no significance because even, if the
defendant had refused and not been “‘coerced,’” her license still would have been suspended for one
year for the refusal.
38
Acosta v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 435 (Fla. 9th Cir. Ct.
Feb. 12, 2007)Acosta v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 435 (Fla.
9th Cir. Ct. Feb. 12, 2007); Andrew v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly
Supp. 221 (Fla. 9th Cir. Ct. Oct. 11, 2006)Andrew v. Dep’t of Highway Safety & Motor Vehicles, 14
Fla. L. Weekly Supp. 221 (Fla. 9th Cir. Ct. Oct. 11, 2006).
39
§ 316.1932(1)(a) 1. and (c), Fla. Stat. provides that the refusal is admissible.
40
Sambrine v. State, 386 So. 2d 546 (Fla. 1980).

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41
State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992).
42
State v. Polak, 598 So. 2d 150, 153–154 n.7 (Fla. 1st DCA 1992).
43
State, Dept. of Highway Safety and Motor Vehicles v. Berry, 619 So. 2d 976 (Fla. 2d DCA 1993).
See also Department of Highway Safety and Motor Vehicles v. Coleman, 787 So. 2d 90 (Fla. 2d DCA
2001).
44
Department of Highway Safety and Motor Vehicles v. Riggen, 654 So. 2d 221 (Fla. 1st DCA 1995) ;
Conahan v. Department of Highway Safety and Motor Vehicles, Bureau of Driver Imp., 619 So. 2d 988
(Fla. 5th DCA 1993).
45
State v. Kline, 764 So. 2d 716 (Fla. 5th DCA 2000).
46
State v. Kline, 764 So. 2d 716 (Fla. 5th DCA 2000). See also State v. Holland, 76 So. 3d 1032 (Fla. 4th
DCA 2011); State v. Benhekuma, 21 Fla. L. Weekly Supp. 298 (Fla. 9th Cir. Ct. Sept. 23, 2013) State v.
Benhekuma, 21 Fla. L. Weekly Supp. 298 (Fla. 9th Cir. Ct. Sept. 23, 2013) (trial court erred in
suppressing refusal because of an alleged discovery violation; the discovery order was based on an en
banc decision of the county court relating to the Intoxilyzer; the appellate court ruled that this decision
did not apply to refusals; pursuant to State v. Kline, 764 So. 2d 716, 717 (Fla. 5th DCA 2000) refusals
are admissible even if the machine is not in compliance with administrative rules); Morefield v. Dep’t of
Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 25 (Fla. 9th Cir. Ct. Aug. 31,
2012)Morefield v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 25 (Fla. 9th
Cir. Ct. Aug. 31, 2012) (petitioner could not avoid the consequences of her refusal based on the fact that
the “‘control test’” showed a malfunction; because petitioner refused the test “the issue of whether the
breath test device was working properly [was] irrelevant.”); State v. Hicks, 6 Fla. L. Weekly Supp. 243,
245 (Fla. 9th Cir. Ct. Feb. 18, 1999)State v. Hicks, 6 Fla. L. Weekly Supp. 243, 245 (Fla. 9th Cir. Ct.
Feb. 18, 1999); State v. Reid, 6 Fla. L. Weekly Supp. 1, 2 (Fla. 9th Cir. Ct. Sept. 18, 1998) State v. Reid,
6 Fla. L. Weekly Supp. 1, 2 (Fla. 9th Cir. Ct. Sept. 18, 1998) (if defendant refuses, whether test is
approved, is irrelevant if the lack of an approved test is not the reason for refusal); Sauer v. State, 2 Fla.
L. Weekly Supp. 185 (Fla. 11th Cir. Ct. Feb. 25, 1994)Sauer v. State, 2 Fla. L. Weekly Supp. 185 (Fla.
11th Cir. Ct. Feb. 25, 1994); State v. Lagardere, 25 Fla. L. Weekly Supp. 456 (Fla. Pasco Cty. Ct.
August 25, 2015)State v. Lagardere, 25 Fla. L. Weekly Supp. 456 (Fla. Pasco Cty. Ct. August 25, 2015)
(based on Kline trial judge ruled that refusal to take breath test was admissible without proof that
machine was in substantial compliance); State v. Alves, 15 Fla. L. Weekly Supp. 1000 (Fla. Osceola
Cty. Ct. July 7, 2008) (whether it was impractical or impossible to secure a breath or urine sample was
not a factor in determining whether refusal to submit to blood test is admissible); State v. McKinnon, 15
Fla. L. Weekly Supp. 520 (Fla. Brevard Cty. Ct. Feb. 17, 2008)State v. McKinnon, 15 Fla. L. Weekly
Supp. 520 (Fla. Brevard Cty. Ct. Feb. 17, 2008) (since defendant refused, substantial compliance with
regulations did not matter). Contra State v. Gibson, 15 Fla. L. Weekly Supp. 817 (Fla. Escambia Cty. Ct.
June 19, 2008)State v. Gibson, 15 Fla. L. Weekly Supp. 817 (Fla. Escambia Cty. Ct. June 19, 2008)
(without commenting on State v. Kline trial judge ruled that refusal was inadmissible where the machine
was not in compliance; court said it was misrepresented that the test was approved).
47
State v. Kline, 764 So. 2d 716 (Fla. 5th DCA 2000).
48
Garcia v. State, 6 Fla. L. Weekly Supp. 744, 745 (Fla. 10th Cir. Ct. Sept. 20, 1999)Garcia v. State, 6 Fla.
L. Weekly Supp. 744, 745 (Fla. 10th Cir. Ct. Sept. 20, 1999).
49
Garcia v. State, 6 Fla. L. Weekly Supp. 744, 745 (Fla. 10th Cir. Ct. Sept. 20, 1999)Garcia v. State, 6 Fla.
L. Weekly Supp. 744, 745 (Fla. 10th Cir. Ct. Sept. 20, 1999).
50
State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995); State v. Kline, 764 So. 2d 716 (Fla. 5th DCA 2000);
State v. Reid, 6 Fla. L. Weekly Supp. 1, 2 (Fla. 9th Cir. Ct. Sept. 18, 1998)State v. Reid, 6 Fla. L.
Weekly Supp. 1, 2 (Fla. 9th Cir. Ct. Sept. 18, 1998).
51
§ 90.803(18), Fla. Stat.

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52
State v. Holland, 76 So. 3d 1032 (Fla. 4th DCA 2011) (the court also ruled that the officer’s statements
on the tape were nonhearsay verbal acts and did not violate the confrontation clause; see § 8:3 of this
book for more detailed discussion).
53
State v. Karosas, 7 Fla. L. Weekly Supp. 482 (Fla. Palm Beach Cty. Ct. April 3, 2000)State v. Karosas, 7
Fla. L. Weekly Supp. 482 (Fla. Palm Beach Cty. Ct. April 3, 2000). See also Smart v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 867 (Fla. 9th Cir. Ct. June 28, 2006)Smart v. Dep’t
of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 867 (Fla. 9th Cir. Ct. June 28, 2006)
(refusal to submit to field sobriety tests improperly considered by hearing officer where record did not
show the defendant was advised of adverse consequences); State v. Curley, 11 Fla. L. Weekly Supp. 423
(Fla. 17th Cir. Ct. Feb. 17, 2004)State v. Curley, 11 Fla. L. Weekly Supp. 423 (Fla. 17th Cir. Ct. Feb.
17, 2004) (refusal to submit to field sobriety exercises was inadmissible because the defendant was not
advised of adverse consequences of refusal); State v. MacDonald, 25 Fla. L. Weekly Supp. 202 (Fla.
Brevard Cty Ct. Oct. 17, 2016)State v. MacDonald, 25 Fla. L. Weekly Supp. 202 (Fla. Brevard Cty Ct.
Oct. 17, 2016) (refusal to take breath test was admissible where officer read, “the full implied consent
warnings, including the loss of … driver’s license, and that the refusal would be admissible in court”;
this also eliminated any safe harbor concerns even though the refusal came before the defendant was
arrested); State v. Alstott, 18 Fla. L. Weekly Supp. 618 (Fla. Seminole Cty. Ct. March 28, 2011)State v.
Alstott, 18 Fla. L. Weekly Supp. 618 (Fla. Seminole Cty. Ct. March 28, 2011) (refusal to submit to
breath test was inadmissible where evidence did not show that Implied Consent was read to Defendant
so that she could understand it; she did not acknowledge understanding it or agree to the language; she
was not properly advised of the consequences of a refusal; the deputy did not answer reasonable
questions, which were necessary for Defendant to knowingly, intelligently, and voluntarily refuse).
54
State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA 1981). See also State v. Dubiel, 958 So. 2d 486 (Fla. 4th
DCA 2007); State v. Iaco, 906 So. 2d 1151 (Fla. 4th DCA 2005); State v. Lambertus, 13 Fla. L. Weekly
Supp. 81 (Fla. 17th Cir. Ct. Nov.17, 2005)State v. Lambertus, 13 Fla. L. Weekly Supp. 81 (Fla. 17th Cir.
Ct. Nov.17, 2005).
55
State v. Shuler, 14 Fla. L. Weekly Supp. 981 (Fla. Monroe Cty. Ct. May 8, 2007)State v. Shuler, 14 Fla.
L. Weekly Supp. 981 (Fla. Monroe Cty. Ct. May 8, 2007).
56
State v. Richman, 17 Fla. L. Weekly Supp. 1265 (Fla. Brevard Cty. Ct. Sept. 27, 2010) (trial judge
distinguished Shuler and denied the motion to suppress; in that case, Defendant said he would cooperate
when his attorney arrived; repeatedly said he did not understand the warnings; and the second time
Shuler said he wanted his attorney, officers started explaining and interpreting the warnings but failed to
say anything about the consequences of the refusal; in Richman, the defendant never said he would take
the test or that he didn’t understand, and the deputy did not explain or interpret the warnings; in Shuler,
it was the defendant’s claimed lack of understanding, not his desire for an attorney, that was the reason
for the suppression—the officer could have just reread the warnings or told the defendant that his
behavior would be considered a refusal).
57
Department of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304, 306 (Fla. 5th DCA
2008), review denied, 989 So. 2d 519 (Fla. 2008). See also Smith v. Department of Highway Safety and
Motor Vehicles, 24 Fla. L. Weekly Supp. 12 (Fla. 7th Cir. Ct. March 9, 2016)24 Fla. L. Weekly Supp.
12 (Fla. 7th Cir. Ct. March 9, 2016); Failla v. Department of Highway Safety and Motor Vehicles, 14
Fla. L. Weekly Supp. 812 (Fla. 7th Cir. Ct. June 20, 2007)Failla v. Department of Highway Safety and
Motor Vehicles, 14 Fla. L. Weekly Supp. 812 (Fla. 7th Cir. Ct. June 20, 2007); State v. Woodward, 7
Fla. L. Weekly Supp. 715 (Fla. 11th Cir. Ct. Aug. 9, 2000)State v. Woodward, 7 Fla. L. Weekly Supp.
715 (Fla. 11th Cir. Ct. Aug. 9, 2000); State v. Gowins, 19 Fla. L. Weekly Supp. 48 (Fla. Brevard Cty.
Ct. Oct. 13, 2011)State v. Gowins, 19 Fla. L. Weekly Supp. 48 (Fla. Brevard Cty. Ct. Oct. 13, 2011)
(refusal to submit to breath test offered after arrest on DWLS and VOP, but before arrest on DUI was
inadmissible despite decision in State, Dept. of Highway Safety and Motor Vehicles v. Whitley, 846 So.
2d 1163 (Fla. 5th DCA 2003), where court upheld suspension for refusal before DUI arrest, but after
fleeing and eluding arrest); State v. O’Keefe, 23 Fla. L. Weekly Supp. 348 (Fla. Volusia Cty. Ct. April
17, 2015)State v. O’Keefe, 23 Fla. L. Weekly Supp. 348 (Fla. Volusia Cty. Ct. April 17, 2015) (refusal
was inadmissible where officer told defendant he was beginning a DUI investigation, read Miranda
warnings, obtained some potentially incriminating statements, administered FSEs, decided to arrest her,
but didn’t advise her by word or deed until after asking defendant to submit to a breath test and advising
her of implied consent twice); State v. Siegel, 18 Fla. L. Weekly Supp. 699 (Fla. Volusia Cty. Ct. June 9,

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2011)State v. Siegel, 18 Fla. L. Weekly Supp. 699 (Fla. Volusia Cty. Ct. June 9, 2011) (refusal to submit
to breath test before arrest is inadmissible even though the officer read Implied Consent and the
defendant was told that his refusal could be used against him); State v. Michelli, 15 Fla. L. Weekly
Supp. 616 (Fla. Volusia Cty. Ct. March 20, 2008)State v. Michelli, 15 Fla. L. Weekly Supp. 616 (Fla.
Volusia Cty. Ct. March 20, 2008); State v. Desmaison, 14 Fla. L. Weekly Supp. 1060 (Fla. Dade Cty.
Ct. Aug. 23, 2007) (refusal to submit to urine test was inadmissible where officer did not have
reasonable suspicion to believe defendant was under the influence of a controlled substance and he told
defendant his license would be suspended); State v. Tripolino, 13 Fla. L. Weekly Supp. 747 (Fla. Collier
Cty. Ct. March 8, 2006)State v. Tripolino, 13 Fla. L. Weekly Supp. 747 (Fla. Collier Cty. Ct. March 8,
2006) (the court excluded the refusal because everything that happened between the officer handing the
defendant a traffic citation and advising the defendant he was under arrest for DUI constituted an
investigatory detention). For rules on what constitutes an arrest see § 5:4.
58
Department of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008),
review denied, 984 So. 2d 519 (Fla. 2008).
59
Department of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008),
review denied, 984 So. 2d 519 (Fla. 2008).
60
Department of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008),
review denied, 984 So. 2d 519 (Fla. 2008).
61
Hernandez v. Department of Highway Safety and Motor Vehicles, 995 So. 2d 1077 (Fla. 1st DCA
2008), decision approved, 74 So. 3d 1070 (Fla. 2011), as revised on denial of reh’g, (Nov. 10, 2011).
62
Department of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008),
review denied, 984 So. 2d 519 (Fla. 2008).
63
McLaughlin v. Department of Highway Safety and Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA
2008), decision quashed, 74 So. 3d 1070 (Fla. 2011), as revised on denial of reh’g, (Nov. 10, 2011).
64
Florida Dept. of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011), as
revised on denial of reh’g, (Nov. 10, 2011).
65
State v. Cushing, 7 Fla. L. Weekly Supp. 591 (Fla. 15th Cir. Ct. July 6, 2000) State v. Cushing, 7 Fla. L.
Weekly Supp. 591 (Fla. 15th Cir. Ct. July 6, 2000). See also State v. Isaacs, 11 Fla. L. Weekly Supp.
152 (Fla. Broward Cty. Ct. Oct. 24, 2003)State v. Isaacs, 11 Fla. L. Weekly Supp. 152 (Fla. Broward
Cty. Ct. Oct. 24, 2003) (same).
66
Dep’t of Highway Safety & Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. 4th DCA 2007),
disapproved of by Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla. 2012).
67
Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) , decision
approved, 87 So. 3d 712 (Fla. 2012). See also Dep’t of Highway Safety & Motor Vehicles v. Freeman,
63 So. 3d 23 (Fla. 3d DCA 2011) (court agreed with decision in Nader and disagreed with decision in
Clark); Brown v. Dep’t. of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 525 (Fla. 6th
Cir. Ct. March 11, 2009)Brown v. Dep’t. of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly
Supp. 525 (Fla. 6th Cir. Ct. March 11, 2009); State v. Montiel, 16 Fla. L. Weekly Supp. 186 (Fla. Dade
Cty Ct. Dec. 12, 2008)State v. Montiel, 16 Fla. L. Weekly Supp. 186 (Fla. Dade Cty Ct. Dec. 12, 2008)
(refusal to submit to breath test was relevant where the defendant was advised of adverse consequences
of refusal; the defendant’s claim that he did not take the test because the officer requested a breath,
blood and/or urine test and he was afraid of needles was something he could present to the jury).
68
Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla. 2012).
69
Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla. 2012). See also State v. Pugh,

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20 Fla. L. Weekly Supp. 1103 (Fla. Brevard Cty. Ct. April 4, 2013) (refusal was admissible where
defendant would not take the test until he had a chance to speak to an attorney and the officer told him
that he was required to take “‘any and all’” sobriety tests required by law, meaning blood, breath or
urine tests).
70
Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012).
71
Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012).
72
§ 316.1939, Fla. Stat.
73
§ 316.1939, Fla. Stat.
74
Grzelka v. State, 881 So. 2d 633 (Fla. 5th DCA 2004).
75
Grzelka v. State, 881 So. 2d 633 (Fla. 5th DCA 2004).
76
Grzelka v. State, 881 So. 2d 633 (Fla. 5th DCA 2004). See also State v. Capozzi, 20 Fla. L. Weekly
Supp. 16 (Fla. 17th Cir. Ct. Aug. 28, 2012)State v. Capozzi, 20 Fla. L. Weekly Supp. 16 (Fla. 17th Cir.
Ct. Aug. 28, 2012) (court holds that a refusal to take breath test is relevant as proof of consciousness of
guilt and “is admissible if the defendant was advised of at least one adverse consequence that would
result from his refusal;” in this case, officer only told defendant that his license could be suspended up to
a year; that was enough because defendant knew refusal was not “‘safe harbor.’”); State v. McCoy, 16
Fla. L. Weekly Supp. 450 (Fla. Hillsborough Cty. Ct. March 13, 2009)State v. McCoy, 16 Fla. L.
Weekly Supp. 450 (Fla. Hillsborough Cty. Ct. March 13, 2009) (“a defendant’s refusal to submit to an
appropriate chemical test in a DUI case is admissible as long as the defendant is advised of at least one
adverse consequence that would result from the refusal.”); State v. McKinnon, 15 Fla. L. Weekly Supp.
520 (Fla. Brevard Cty. Ct. Feb. 17, 2008)State v. McKinnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard
Cty. Ct. Feb. 17, 2008).
77
Larmer v. State, Dept. of Highway Safety & Motor Vehicles, 522 So. 2d 941 (Fla. 4th DCA 1988),
review denied, 531 So. 2d 1352 (Fla. 1988). See also Department of Highway Safety and Motor
Vehicles v. Auster, 52 So. 3d 802, 804 (Fla. 5th DCA 2010); Department of Highway Safety v. Dean,
662 So. 2d 371 (Fla. 5th DCA 1995), cause dismissed, 667 So. 2d 774 (Fla. 1996); Paradis v. Dep’t of
Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 131 (Fla. 13th Cir. Ct. Nov. 13,
2007)Paradis v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 131 (Fla. 13th
Cir. Ct. Nov. 13, 2007).
78
Larmer v. State, Dept. of Highway Safety & Motor Vehicles, 522 So. 2d 941, 944 (Fla. 4th DCA
1988), review denied, 531 So. 2d 1352 (Fla. 1988). See also Gonzales v. Dep’t of Highway Safety &
Motor Vehicles, 7 Fla. L. Weekly Supp. 173 (Fla. 11th Cir. Ct. Dec. 29, 1999)Gonzales v. Dep’t of
Highway Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 173 (Fla. 11th Cir. Ct. Dec. 29, 1999) ; State
v. Burch, 25 Fla. L. Weekly Supp. 289 (Fla. Sarasota Cty Ct. April 20, 2017)State v. Burch, 25 Fla. L.
Weekly Supp. 289 (Fla. Sarasota Cty Ct. April 20, 2017).
79
Department of Highway Safety and Motor Vehicles v. Satter, 643 So. 2d 692 (Fla. 5th DCA 1994),
review denied, 651 So.2d 1195 (Fla. 1995). See also Adams v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 899 (Fla. 1st Cir. Ct. Aug. 8, 2007) Adams v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 899 (Fla. 1st Cir. Ct. Aug. 8, 2007) (Larmer did not
justify conclusion that refusal was withdrawn where defendant was in holding cell 10 to 15 minutes,
allowed to use telephone, went to the bathroom, told only people she thought were corrections officers
that she wanted to take the test, who told her it was too late, but the arresting officer was not told).
80
Coman v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 365 (Fla. 11th Cir. Ct.
April 7, 1999)Coman v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 365 (Fla.
11th Cir. Ct. April 7, 1999).

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81
Larmer v. State, Dept. of Highway Safety & Motor Vehicles, 522 So. 2d 941 (Fla. 4th DCA 1988),
review denied, 531 So. 2d 1352 (Fla. 1988).
82
Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974), as set forth in Coman v. Dep’t of Highway Safety
& Motor Vehicles, 6 Fla. L. Weekly Supp. 365Coman v. Dep’t of Highway Safety & Motor Vehicles, 6
Fla. L. Weekly Supp. 365.
83
Coman v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 365 (Fla. 11th Cir. Ct.
April 7, 1999)Coman v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 365 (Fla.
11th Cir. Ct. April 7, 1999).
84
Barker v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 331 (Fla. 8th Cir. Ct.
March 9, 2001)Barker v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 331 (Fla.
8th Cir. Ct. March 9, 2001).
85
State v. Eng, 6 Fla. L. Weekly Supp. 649 (Fla. Pinellas Cty. Ct. Sept. 15, 1998)State v. Eng, 6 Fla. L.
Weekly Supp. 649 (Fla. Pinellas Cty. Ct. Sept. 15, 1998) and 6 Fla. L. Weekly Supp. 511 (Fla. Pinellas
Cty. Ct. Sept. 15, 1998)6 Fla. L. Weekly Supp. 511 (Fla. Pinellas Cty. Ct. Sept. 15, 1998). See also State
v. Burch, 25 Fla. L. Weekly Supp. 289 (Fla. Sarasota Cty Ct. April 20, 2017)State v. Burch, 25 Fla. L.
Weekly Supp. 289 (Fla. Sarasota Cty Ct. April 20, 2017) (court denied motion to suppress refusal; at the
scene of the arrest defendant refused, but then asked to take the test at the jail; he was continuously in
officers’ presence; there was no material inconvenience since there were two available Intoxilyzers and
operators and trooper actually ran the Intoxilyzer after retraction solely to obtain the “‘refusal’” on the
affidavit; time between refusal and retraction was not so long as to render the breath test invalid).
86
State v. Eng, 6 Fla. L. Weekly Supp. 649 (Fla. Pinellas Cty. Ct. Sept. 15, 1998)State v. Eng, 6 Fla. L.
Weekly Supp. 649 (Fla. Pinellas Cty. Ct. Sept. 15, 1998) and 6 Fla. L. Weekly Supp. 511 (Fla. Pinellas
Cty. Ct. Sept. 15, 1998)6 Fla. L. Weekly Supp. 511 (Fla. Pinellas Cty. Ct. Sept. 15, 1998).
87
Riggio v. Dep’t of Highway Safety & Motor Vehicle, 22 Fla. L. Weekly Supp. 327 (Fla. 13th Cir. Ct.
May 21, 2014)Riggio v. Dep’t of Highway Safety & Motor Vehicle, 22 Fla. L. Weekly Supp. 327 (Fla.
13th Cir. Ct. May 21, 2014). See also Coleman v. Dep’t of Highway Safety & Motor Vehicles, 24 Fla.
L. Weekly Supp. 660 (Fla. 7th Cir. Ct. Sept. 19, 2016)Coleman v. Dep’t of Highway Safety & Motor
Vehicles, 24 Fla. L. Weekly Supp. 660 (Fla. 7th Cir. Ct. Sept. 19, 2016).
88
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011) (the
administrative finding that Defendant refused was supported by substantial evidence because the
defendant gave two breath samples but neither of them was valid; the breath volume was deficient
causing them to be “ ‘not reliable to determine Breath Alcohol Level.’”); Buckley v. Dep’t of Highway
Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 708 (Fla. 20th Cir. Ct. May 21, 2012)Buckley v.
Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 708 (Fla. 20th Cir. Ct. May 21,
2012); Bennett v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1118 (Fla. 6th
Cir. Ct. Sept 7, 2005); Haselden v. v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly
Supp. 587 (Fla. 4th Cir. Ct. Aug 2, 2001)Haselden v. v. Dep’t of Highway Safety & Motor Vehicles, 8
Fla. L. Weekly Supp. 587 (Fla. 4th Cir. Ct. Aug 2, 2001); State v. Black, 7 Fla. L. Weekly Supp. 633
(Fla. 17th Cir. Ct. June 27, 2000)State v. Black, 7 Fla. L. Weekly Supp. 633 (Fla. 17th Cir. Ct. June 27,
2000); Davis v. State, 4 Fla. L. Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997) Davis v. State, 4 Fla.
L. Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997). See also Underwood v. Dep’t of Highway Safety
& Motor Vehicles, 15 Fla. L. Weekly Supp. 299 (Fla. 4th Cir. Ct. Jan 15, 2008)15 Fla. L. Weekly Supp.
299 (Fla. 4th Cir. Ct. Jan 15, 2008) (failure to provide two reliable samples, meaning samples of
sufficient flow to be valid, was a refusal and evidence supported finding that defendant was doing this
deliberately, so officer was not required to offer another test); State v. Geller, 348 N.J. Super. 359, 791
A.2d 1138 (Law Div. 2001); Borbon v. Motor Vehicle Admin., 345 Md. 267, 691 A.2d 1328 (1997);
State v. Sherwin, 236 N.J. Super. 510, 566 A.2d 536 (App. Div. 1989); Baker v. State, Dept. of
Revenue, Motor Vehicle Division, 42 Colo. App. 133, 593 P.2d 1384 (App. 1979). But see Wilson v.
Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1143 (Fla. 7th Cir. Ct. April 30,
2001) (where the defendant gave two valid samples in accord with the rules, his unwillingness to give a
third sample could not be treated as a refusal); Sherrill v. Department of Transportation, 165 Ariz.

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§ 10:2.Admissibility of refusal to submit to chemical or..., 11 Fla. Prac., DUI...

495, 799 P.2d 836 (1990) (court ruled that the State failed to prove refusal where the machine indicated
a deficient sample, but there was no evidence that the defendant was uncooperative, and the State was
able to introduce a test result that exceeded the legal limit).
89
Fla. Admin. Code R. 11D–8.002(12). See also Davis v. State, 4 Fla. L. Weekly Supp. 501 (Fla. 10th Cir.
Ct. Jan. 2, 1997)Davis v. State, 4 Fla. L. Weekly Supp. 501 (Fla. 10th Cir. Ct. Jan. 2, 1997) (court held
that where defendant refused by providing only low volume samples, those results would be admissible
if the State proved they were reliable). But see State v. Berfield, 23 Fla. L. Weekly Supp. 258 (Fla.
Volusia Cty. Ct. March 4, 2015)State v. Berfield, 23 Fla. L. Weekly Supp. 258 (Fla. Volusia Cty. Ct.
March 4, 2015) (results were inadmissible where they were outside .02 tolerance and the samples were
low volume).
90
Peters v. State, 7 Fla. L. Weekly Supp. 507 (Fla. 15th Cir. Ct. March 29, 2000) Peters v. State, 7 Fla. L.
Weekly Supp. 507 (Fla. 15th Cir. Ct. March 29, 2000).
91
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).
92
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).
93
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).
94
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).
95
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).
96
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).

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§ 10:3.Admissibility of refusals to submit to field sobriety tests, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 10:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 10. Refusal to Submit to Tests

§ 10:3. Admissibility of refusals to submit to field sobriety tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 413, 421

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

As discussed in §§ 7:1 et seq., a defendant is usually asked to take a variety of field sobriety tests before arrest.
Sometimes the defendant will refuse to submit to all or part of those tests. As explained in the preceding section
on refusal to submit to breath tests, one issue is whether the defendant’s words or conduct constitutes a refusal.
Much of the reasoning dealing with refusals to take breath tests would also apply to refusals to participate in
field sobriety exercises, including recantation of the refusal.1

The question then is whether such refusals are admissible. A beginning point for this analysis is Herring v.
State.2 That case dealt with the refusal to submit to a hand swab test for gunshot residue in a murder case. The
court ruled that the refusal was inadmissible because it lacked probative value and was unfairly prejudicial. The
court distinguished Herring from South Dakota v. Neville.3 Logically, these conclusions should apply to a
refusal to submit to a field sobriety test.4

The Herring court applied Neville and United States v. Hale,5 establishing the principle that a refusal to submit
to a test can be used against the defendant only if there is “substantial motivation” for submitting to the test. In
the absence of such motivation, it would be natural for one to conclude that the refusal was “safe harbor,” and
the evidence of refusal could not be said to be probative of consciousness of guilt. In addition, the court
concluded that where there is no evidence the defendant was told anything about the nature of the involved test,
a refusal to submit “is so entirely ambiguous as to be totally lacking in probative value.” 6 The court also found
that it would be unfair to allow evidence of the refusal where the defendant is not told that the test is
compulsory.

Other decisions have conflicted with the ruling in Herring.7 In Wilson v. State,8 the defendant was ordered to

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§ 10:3.Admissibility of refusals to submit to field sobriety tests, 11 Fla. Prac., DUI...

provide handwriting samples and he refused. Over the defense objection, the court allowed the refusal into
evidence. The defendant argued that the decision in Herring required that the evidence be excluded. The Wilson
court disagreed and ruled that, since the defendant had no right to refuse the test, his refusal had significant
probative value.9 The court also ruled that even under Herring, the refusal would have been admissible because
the defendant’s awareness of the court order was sufficiently established, and there was no evidence that the
defendant was not chargeable with general knowledge that court orders are to be obeyed. This decision clearly
restricted the reach of Herring.

The application of Herring to field sobriety tests appeared to be further narrowed in State v. Taylor.10 In Taylor,
the Florida Supreme Court ruled that it violates no rights for an officer to ask a person to take field sobriety tests
based on reasonable suspicion, and the refusal to do so is admissible. The Court reached this conclusion even
though the defendant had not been told that the tests were compulsory or about the adverse consequences of
refusal.

The defendant in Taylor suggested that the refusal did not permit an inference of guilty knowledge, because he
may have been motivated by innocent considerations, such as the desire to terminate the contact with the
officer. The Court rejected this position because: (1) the officer observed circumstances indicating that the
defendant was intoxicated; (2) the officer asked the defendant 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 have to make a decision concerning the defendant’s sobriety based on what he had observed up
to that point. The Court concluded that the defendant had ample motivation for taking the tests and that he was
aware of the circumstances surrounding the officer’s request. The Court also noted that the defendant had two
prior DUI convictions and had discussed the advisability of taking the tests with his lawyer. Thus, the
defendant’s contention that he had innocent reasons for the refusal was for the jury to consider.

District courts have allowed evidence of a refusal to submit to pre-arrest field sobriety tests based on Taylor.11 In
State v. Burns,12 the court reached the same conclusion as to a refusal to submit to non-testimonial, post-arrest
field sobriety tests. The court specifically relied on Taylor,13 Wilson,14 and Justice Grimes’s concurring opinion
in Occhicone v. State.15 The fact that the defendant was advised of her Miranda rights did not affect the
admissibility of a refusal to submit to nontestimonial field sobriety tests. 16 And a trial judge ruled that refusal to
submit to field sobriety exercises was admissible despite the fact that the defendant was misadvised her license
would be suspended if she did not submit.17 In fact, officers have no duty to advise the defendant of implied
consent for a refusal to submit to field sobriety exercises to be admissible. 18 But that should not be confused
with the necessity for establishing the foundation for admissibility explained in the following cases.

The foregoing decisions have created some uncertainty as to the law in this area. The intent of the decision in
Taylor19 was not entirely clear, although some courts have had no trouble construing it as being consistent with
Herring.20 One trial court21 discerned from Taylor the requirement that the defendant be advised or otherwise be
aware of: (1) the fact that the officer suspected the defendant of being DUI or was investigating that offense, (2)
the purpose of the tests, and (3) the fact that adverse consequences may result from the refusal. 22 The court
viewed this as the necessary foundation for the introduction of a refusal to submit to field sobriety exercises. 23
One circuit judge24 considered the application of Herring under Taylor and Neville. The court ruled that the
refusal was inadmissible where the officer asked the defendant to voluntarily submit to field sobriety testing,
but did not indicate that there might be adverse consequences from a refusal to submit. The defendant may have
merely chosen the “safe harbor” of refusal and the refusal was not probative of guilt. Thus, the court found that
this approach is still viable under Taylor. Subsequently, a three judge panel from the same jurisdiction adhered
to this position.25

Any conflict and uncertainty was eliminated by the Florida Supreme Court in Menna v. State.26 In Menna, the
defendant had not been advised of any adverse consequences of refusing to submit to a gunpowder residue test.
Furthermore, the defendant was led to believe that the test was optional. “Thus, 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 possible path totally devoid of negative consequences.”27 The Supreme Court concluded:
the trial court was justified in relying on Herring and the law set out therein when it determined

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§ 10:3.Admissibility of refusals to submit to field sobriety tests, 11 Fla. Prac., DUI...

Menna did not have “any inkling that the refusal to take the test was anything other than a safe
harbor.” Accordingly, because Herring contains a sound analysis and was binding law as to
similar facts, the trial court did not violate a clearly established principle of law resulting in a
miscarriage of justice in granting the petitioner’s motion in limine.28

Thus, the Supreme Court left no doubt as to the viability of the Herring29 decision and that court’s analysis.
Furthermore, the Court specifically held that Taylor30 did not overrule Herring.31

As with breath tests, defendants may seek to explain their refusal to submit to field sobriety tests. In one such
case, the defendant sought to provide an unusual explanation. 32 He wanted to argue to the jury that he might
have refused because the sanction would have been license suspension and his license was already suspended.
The trial judge refused to allow such an argument. On appeal, the court affirmed because suspension is not a
sanction for refusing those tests, there was no evidence anyone told the defendant it was, and there was no
testimony that this was the reason for the refusal. 33 Thus, it was not a reasonable inference that the defendant
refused because his license was already suspended and the argument that this “might” have been the reason was
pure speculation.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Moon, 18 Fla. L. Weekly Supp. 78 (Fla. Duval Cty. Ct. June 17, 2010) State v. Moon, 18 Fla. L.
Weekly Supp. 78 (Fla. Duval Cty. Ct. June 17, 2010) (refusal to submit to FSES cannot show
consciousness of guilt and is inadmissible when the defendant recants and begs to do the FSES moments
after refusing, the defendant is continuously in the presence of the officer, no inconvenience would have
resulted, and the results would not been affected; court relied on Larmer v. State, Dept. of Highway
Safety and Motor Vehicles, 522 So. 2d 941 (Fla. 4th DCA 1988)).
2
Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986).
3
South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983).
4
Elledge and Pellegrino, Must DUI Suspects Be Advised that Refusal to Take Field Sobriety Tests Is
Admissible at Trial? The Florida Bar Journal, p. 44–48 (Nov. 1991). See also State v. Guccione, 2 Fla.
L. Weekly Supp. 104 (Fla. 18th Cir. Ct. Dec. 17, 1993)Nov. 1991). See also State v. Guccione, 2 Fla. L.
Weekly Supp. 104 (Fla. 18th Cir. Ct. Dec. 17, 1993); State v. Cohn, 33 Fla. Supp. 2d 160 (Fla. 18th Cir.
Ct. 1988); State v. Holcomb, 39 Fla. Supp. 2d 220 (Fla. Hillsborough Cty. Ct. 1990).
5
U.S. v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975).
6
Herring v. State, 501 So. 2d 19, 21 (Fla. 3d DCA 1986).
7
Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986).
8
Wilson v. State, 596 So. 2d 775 (Fla. 1st DCA 1992).
9
Wilson adopts Justice Grimes’ concurring opinion in Occhicone v. State, 570 So. 2d 902 (Fla. 1990).
10
State v. Taylor, 648 So. 2d 701 (Fla. 1995). See also Morris v. State, 988 So. 2d 120 (Fla. 5th DCA
2008); Concha v. State, 972 So. 2d 996, 998 (Fla. 4th DCA 2008); State v. Gschwendther, 13 Fla. L.

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§ 10:3.Admissibility of refusals to submit to field sobriety tests, 11 Fla. Prac., DUI...

Weekly Supp. 334 (Fla. 17th Cir. Ct. Dec. 22, 2005)State v. Gschwendther, 13 Fla. L. Weekly Supp.
334 (Fla. 17th Cir. Ct. Dec. 22, 2005) (defendant not misled where officer told him that if he did not
take the field sobriety tests he would not have the opportunity to dispute officer’s suspicion that
defendant was DUI).
11
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008); Concha v. State, 972 So. 2d 996, 998 (Fla. 4th
DCA 2008); State v. Cook, 659 So. 2d 473 (Fla. 2d DCA 1995).
12
State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996).
13
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
14
Wilson v. State, 596 So. 2d 775 (Fla. 1st DCA 1992).
15
Occhicone v. State, 570 So. 2d 902, 907–908 (Fla. 1990).
16
State v. Fara, 9 Fla. L. Weekly Supp. 88 (Fla. 12th Cir. Ct. Dec. 18, 2001)State v. Fara, 9 Fla. L. Weekly
Supp. 88 (Fla. 12th Cir. Ct. Dec. 18, 2001).
17
State v. Mayer, 22 Fla. L. Weekly Supp. 941 (Fla. Volusia Cty. Ct. March 5, 2015)State v. Mayer, 22
Fla. L. Weekly Supp. 941 (Fla. Volusia Cty. Ct. March 5, 2015) (court noted that the refusal was not
induced by the incorrect information).
18
State v. Ocasio, 23 Fla. L. Weekly Supp. 677 (Fla. 9th Cir. Ct. Oct. 29, 2015)State v. Ocasio, 23 Fla. L.
Weekly Supp. 677 (Fla. 9th Cir. Ct. Oct. 29, 2015) (the officer need only have reasonable suspicion of
DUI to request FSEs).
19
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
20
Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986).
21
State v. Wilkins, 6 Fla. L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999)State v. Wilkins, 6 Fla.
L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999).
22
State v. Wilkins, 6 Fla. L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999)State v. Wilkins, 6 Fla.
L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999).
23
State v. Wilkins, 6 Fla. L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999)State v. Wilkins, 6 Fla.
L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999).
24
State v. Sonsini, 7 Fla. L. Weekly Supp. 644 (Fla. 17th Cir. Ct. July 17, 2000)State v. Sonsini, 7 Fla. L.
Weekly Supp. 644 (Fla. 17th Cir. Ct. July 17, 2000); State v. McLeod, 13 Fla. L. Weekly Supp. 1096
(Fla. Broward Cty. Ct. Aug. 7, 2006) (refusal to submit to FSES was inadmissible because officer told
the defendant numerous times they were voluntary and the defendant did not have to do them; thereby,
creating an impression of “safe harbor”).
25
State v. Thrift, 26 Fla. L. Weekly Supp. 11 (Fla. 17th Cir. Ct. Dec. 14, 2017)State v. Thrift, 26 Fla. L.
Weekly Supp. 11 (Fla. 17th Cir. Ct. Dec. 14, 2017) (where officer failed to advise defendant of any
adverse consequences of refusal to submit to FSES, trial judge excluded evidence of the refusal based on
the conclusion that it had no probative value; in a detailed and thorough opinion, the court affirmed).
26
Menna v. State, 846 So. 2d 502 (Fla. 2003). See also Allen v. State, 192 So.3d 554 (Fla. 4th DCA
2016) (prearrest refusal to submit to a DNA swab test in a murder case was inadmissible where the
defendant was told he had a right to refuse and was not advised of any adverse consequences); Acierno
v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct. Jan. 9,
2013)Acierno v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 313 (Fla. 9th Cir.
Ct. Jan. 9, 2013) (where there was no evidence that petitioner was ever informed of any adverse
consequence of refusing to submit to FSES, evidence that he refused to submit to exercises was

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§ 10:3.Admissibility of refusals to submit to field sobriety tests, 11 Fla. Prac., DUI...

inadmissible); Morris v. State, 19 Fla. L. Weekly Supp. 687 (Fla. 6th Cir. Ct. April 24, 2012) Morris v.
State, 19 Fla. L. Weekly Supp. 687 (Fla. 6th Cir. Ct. April 24, 2012) (refusal was inadmissible where
defendant was not advised of consequences of refusal or purpose of the test and was led to believe test
was optional when officer advised him that he could refuse if he wanted; thus, there was no evidence of
a “‘substantial motivation’” to submit to the test; this case involved a refusal by a bicyclist who was not
required under the implied consent law to take the test); Smart v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 867 (Fla. 9th Cir. Ct. June 28, 2006)Smart v. Dep’t of Highway
Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 867 (Fla. 9th Cir. Ct. June 28, 2006) (refusal to
submit to field sobriety tests improperly considered by hearing officer where record did not show the
defendant was advised of adverse consequences); State v. Curley, 11 Fla. L. Weekly Supp. 423 (Fla.
17th Cir. Ct. Feb. 17, 2004)State v. Curley, 11 Fla. L. Weekly Supp. 423 (Fla. 17th Cir. Ct. Feb. 17,
2004) (refusal to submit to field sobriety exercises was inadmissible because the defendant was not
advised of adverse consequences of refusal); State v. Conn, 25 Fla. L. Weekly Supp. 1022 (Fla. Flagler
Cty. Ct. Jan. 5, 2018) (court excluded refusal to participate in FSES where evidence showed officer did
not advise defendant of any adverse consequences; the fact that six years before in another DUI
arresting officer had advised defendant that refusal could be used against him, and arrest decision would
be made based on observations without FSES, was not sufficient to show that defendant was on notice
of adverse consequences for purpose showing probative value of refusal in recent DUI); State v.
Tattersall, 23 Fla. L. Weekly Supp. 791 (Fla. Seminole Cty. Ct. Oct. 30, 2015)State v. Tattersall, 23 Fla.
L. Weekly Supp. 791 (Fla. Seminole Cty. Ct. Oct. 30, 2015) (refusal was not probative when officer
indicated FSEs were voluntary and was vague when he said if she refused he would have to make his
decision on what he saw and heard; defendant told officer she had a bad knee; but then when she was
arrested the officer refused her request to try the FSEs); State v. Bryan, 19 Fla. L. Weekly Supp. 408
(Fla. Monroe Cty. Ct. Oct. 5, 2011)State v. Bryan, 19 Fla. L. Weekly Supp. 408 (Fla. Monroe Cty. Ct.
Oct. 5, 2011) (refusal to submit to FSES was inadmissible because the officer’s instructions were
confusing and created an impression of safe harbor where officer first told Defendant that FSES were
completely voluntary and he didn’t have to perform them; but then, the officer told Defendant that
refusal could be used against him in a criminal proceeding); State v. Foley, 18 Fla. L. Weekly Supp. 616
(Fla. Clay Cty. Ct. April 18, 2011)State v. Foley, 18 Fla. L. Weekly Supp. 616 (Fla. Clay Cty. Ct. April
18, 2011) (refusal to submit to FSES was inadmissible where the officer did not advise the defendant
that adverse consequences would come from the refusal; “therefore the probative value of the refusal is
diminished to such an extent that its value is outweighed by the danger of undue prejudice.”); State v.
Carroll, 17 Fla. L. Weekly Supp. 210 (Fla. Palm Beach Cty Ct. Oct. 27, 2009)State v. Carroll, 17 Fla. L.
Weekly Supp. 210 (Fla. Palm Beach Cty Ct. Oct. 27, 2009) (refusal to do “walk and turn” and “one leg
stand” exercises was inadmissable because officers did not advise defendant of consequences of
refusal); State v. Mattingly, 15 Fla. L. Weekly 934 (Fla. Monroe Cty. Ct. July 9, 2008)State v.
Mattingly, 15 Fla. L. Weekly 934 (Fla. Monroe Cty. Ct. July 9, 2008) (refusal inadmissible where
defendant told FSES were voluntary and defendant said unequivocally he did not want to do them; result
not affected by fact that officers testified the defendant agreed to have his eyes checked); State v. Isaacs,
11 Fla. L. Weekly Supp. 152 (Fla. Broward Cty. Ct. Oct. 24, 2003)State v. Isaacs, 11 Fla. L. Weekly
Supp. 152 (Fla. Broward Cty. Ct. Oct. 24, 2003) (same). But see Edwards v. Dep’t of Highway Safety &
Motor Vehicles, 24 Fla. L. Weekly Supp. 313 (Fla. 9th Cir. Ct. 2016)24 Fla. L. Weekly Supp. 313 (Fla.
9th Cir. Ct. 2016) (defendant was sufficiently advised of adverse consequences when trooper told
defendant that decision regarding whether he was driving while impaired would have to be made based
on what the trooper had previously seen, and there was no indication trooper suggested test was
optional); Wells v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 983 (Fla. 4th
Cir. Ct. April 23, 2014)Wells v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp.
983 (Fla. 4th Cir. Ct. April 23, 2014) (court ruled that refusal to submit to FSEs was properly considered
by hearing officer in deciding whether there was probable cause where petitioner was not informed of
consequences, but was advised of his rights; so, at a minimum, he was told the refusal would be used
against him); Henley v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly Supp. 742 (Fla.
7th Cir. Ct. Jan. 15, 2014)Henley v. Dep’t of Highway Safety & Motor Vehicles, 21 Fla. L. Weekly
Supp. 742 (Fla. 7th Cir. Ct. Jan. 15, 2014) (court ruled that refusal to submit to FSEs was properly
considered by hearing officer in deciding whether there was probable cause where the trooper informed
petitioner exercises were mandatory and petitioner made it clear he had experience with FSEs); State v.
Vilcea, 24 Fla. L. Weekly Supp. 50 (Fla. Leon Cty. Ct. Feb. 26, 2016)State v. Vilcea, 24 Fla. L. Weekly
Supp. 50 (Fla. Leon Cty. Ct. Feb. 26, 2016) (refusal to submit to FSE’s was relevant and admissible
where officer told defendant “his decision to arrest her would be based on his existing observations ….
[S]he had been warned that her refusal could result in her direct arrest, which it did.”).

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§ 10:3.Admissibility of refusals to submit to field sobriety tests, 11 Fla. Prac., DUI...

27
Menna v. State, 846 So. 2d 502, 508 (Fla. 2003).
28
Menna v. State, 846 So. 2d 502, 508 (Fla. 2003).
29
Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986).
30
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
31
Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986).
32
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).
33
Gibson v. State, 22 Fla. L. Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014)Gibson v. State, 22 Fla. L.
Weekly Supp. 500 (Fla. 6th Cir. Ct. Dec. 3, 2014).

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Works.

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§ 10:4.Jury instructions relating to refusal, 11 Fla. Prac., DUI Handbook § 10:4...

11 Fla. Prac., DUI Handbook § 10:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 10. Refusal to Submit to Tests

§ 10:4. Jury instructions relating to refusal

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• West’s Key Number Digest, Automobiles 357, 413

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• C.J.S., Motor Vehicles §§ 1350, 1377 to 1378, 1407, 1413, 1442, 1449, 1479 to 1482, 1486 to 1487,
1501, 1509, 1522, 1526, 1537, 1543 to 1544, 1546 to 1547, 1550

In Fenelon v. State,1 the Florida Supreme Court ruled that in cases involving flight, it is the better policy not to
give a jury instruction on flight, and to leave it to counsel to comment on the subject during closing. The Court
observed that an instruction on flight invades the province of the jury by commenting on evidence or indicating
what inferences should be drawn.

Similarly, it was improper for a trial judge to instruct the jury as follows: “If you find from the evidence that the
defendant endeavored to evade arrest and prosecution by making a false statement, that fact may be considered
as evidence of guilt.”2 While such facts are admissible as evidence of consciousness of guilt, it is improper for
the court to advise the jury how they should view that evidence.

Courts have taken the same position regarding refusal evidence. Thus, the court found an instruction on refusal
to provide a handwriting exemplar to be improper. 3 In Whitfield v. State,4 the Court ruled that it was error for the
trial judge to instruct the jury that the refusal to submit to fingerprinting could be considered as proof of
consciousness of guilt. “We find that the instruction was an impermissible comment evaluating the evidence.” 5
This decision led to the holding in Edwards v. State,6 that although a refusal to submit to a breath test is
admissible, it is improper to instruct a jury as to the significance of the refusal. These instructions improperly
indicate to the jury that such evidence is more important than other evidence. 7

Notwithstanding the decision in Edwards,8 in State v. Allison,9 a trial judge ruled that the jury should be
instructed on refusal to take the breath alcohol test. The instruction was:
Proof that defendant refused to submit a breath alcohol test gives rise to an inference that the

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§ 10:4.Jury instructions relating to refusal, 11 Fla. Prac., DUI Handbook § 10:4...

defendant knew his/her normal faculties were impaired, but you may find this inference is
rebutted by other evidence in this case. Refusal or failure to provide the required number of valid
breath samples constitutes a refusal to submit to the breath test.10

The court reached this conclusion based on the Supreme Court’s decision in Walker v. State,11 where the Court
sustained a jury instruction in a burglary that possession of recently stolen property creates an inference that the
possessor knew or should have known the property was stolen. In Allison,12 the court observed that in Walker13
the Court distinguished Fenelon14 and Whitfield15 by pointing out that those cases involved incriminating factors
that are “‘extrinsic to the crime,’”16 whereas possession of recently stolen property “‘involves the fruits of the
theft or burglary and is therefore inextricably intertwined with the crime itself.’”17 The court then reasoned:
In sum, the BAL is extensively and intrinsically intertwined in Florida’s DUI offense/punishment
scheme. Consequently, the refusal extensively and intrinsically interferes with the resolution of
the DUI case in the manner set forth by the statutes. At the time of the refusal, the defendant has
already received and exercised the benefit of driving on Florida’s roadways. That benefit/privilege
was conditioned [on] the implied consent to the breath alcohol test. It is only fair that the jury be
instructed of the inference a refusal raises and the playing field be thereby leveled. 18

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Fenelon v. State, 594 So. 2d 292 (Fla. 1992).
2
Simpson v. State, 562 So. 2d 742, 745 (Fla. 1st DCA 1990), review denied, 574 So. 2d 143 (Fla. 1990).
3
Wilson v. State, 596 So. 2d 775 (Fla. 1st DCA 1992).
4
Whitfield v. State, 452 So. 2d 548 (Fla. 1984).
5
Whitfield v. State, 452 So. 2d 548, 549 (Fla. 1984).
6
Edwards v. State, 603 So. 2d 89 (Fla. 5th DCA 1992).
7
State v. Lynch, 16 Fla. L. Weekly C34 (Fla. 7th Cir. Ct. March 4, 1991)State v. Lynch, 16 Fla. L.
Weekly C34 (Fla. 7th Cir. Ct. March 4, 1991).
8
Edwards v. State, 603 So. 2d 89 (Fla. 5th DCA 1992) (The court found this instruction to be
improper: “[W]hen a person is suspected of committing the offense of driving or operating a motor
vehicle while under the influence of alcoholic beverages to the extent that his normal faculties are
impaired and it is shown beyond and to exclusion of every reasonable doubt that he refuses to take an
approved chemical test, such a fact may be shown into evidence as a circumstance from which guilt may
be inferred. Now, while evidence of a refusal to take a chemical test does not raise a presumption of
guilt, it is a circumstance which the jury may consider along with all the other evidence and
circumstances in the case.”).
9
State v. Allison, 13 Fla. L. Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006)State v. Allison, 13 Fla. L.
Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006).

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§ 10:4.Jury instructions relating to refusal, 11 Fla. Prac., DUI Handbook § 10:4...

10
State v. Allison, 13 Fla. L. Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006)State v. Allison, 13 Fla. L.
Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006).
11
Walker v. State, 896 So. 2d 712 (Fla. 2005).
12
State v. Allison, 13 Fla. L. Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006)State v. Allison, 13 Fla. L.
Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006).
13
Walker v. State, 896 So. 2d 712 (Fla. 2005).
14
Fenelon v. State, 594 So. 2d 292 (Fla. 1992).
15
Whitfield v. State, 452 So. 2d 548 (Fla. 1984).
16
State v. Allison, 13 Fla. L. Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006)State v. Allison, 13 Fla. L.
Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006) (quoting Walker).
17
State v. Allison, 13 Fla. L. Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006)State v. Allison, 13 Fla. L.
Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006) (quoting Walker).
18
State v. Allison, 13 Fla. L. Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006)State v. Allison, 13 Fla. L.
Weekly Supp. 832 (Fla. Bay Cty. Ct. June 1, 2006).

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Works.

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§ 10:5.Independent offense for refusal, 11 Fla. Prac., DUI Handbook § 10:5...

11 Fla. Prac., DUI Handbook § 10:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 10. Refusal to Submit to Tests

§ 10:5. Independent offense for refusal

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 144.1(1.20), 413, 421

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• C.J.S., Motor Vehicles §§ 290 to 296, 328 to 335, 1407

In 2002, the Legislature created a first degree misdemeanor for refusal to submit to a lawful test of breath, urine,
or blood as described in § 316.1932, Fla. Stat.1 This only applies to a person whose driving privileges were
previously suspended for a refusal.2 In addition to proving that the defendant had previously had his or her
driving privileges previously suspended for a refusal, 3 the state must prove these elements beyond a reasonable
doubt: (a) the “arresting law enforcement officer had probable cause to believe the defendant was driving or in
actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages,
chemical substances, or controlled substances;” (b) the defendant “was placed under lawful arrest for a violation
of Fla. Stat. § 316.193, unless such test was requested pursuant to Fla. Stat. § 316.1932(1)(c);” (c) the
defendant “was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor
vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period
of 18 months;” (d) the defendant “was informed that a refusal to submit to a lawful test of his or her breath,
urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a
lawful test of his or her breath, urine, or blood, is a misdemeanor;” and (e) the defendant, “after having been so
informed, refused to submit to any such test when requested to do so by a law enforcement officer or
correctional officer.”4 All of the elements for this charge are set forth in a standard jury instruction. 5 (Appendix
H)

In such cases, there will usually be an administrative license suspension for the same refusal that is the subject
of the criminal prosecution. According to the statute, “[t]he disposition of any administrative proceeding that
relates to the suspension of a person’s driving privilege does not affect a criminal action” for the same refusal. 6
On the other hand, the criminal proceeding “does not affect any administrative proceeding that relates to the
suspension of a person’s driving privilege.”7
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§ 10:5.Independent offense for refusal, 11 Fla. Prac., DUI Handbook § 10:5...

The statute also addresses the evidentiary burden. “The department’s records showing that a person’s license
has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood
shall be admissible and shall create a rebuttable presumption of such suspension.” 8

There are a number of questions that have come up in Florida and other jurisdictions concerning this and similar
statutes. The most recent issue relates to whether § 316.1939, Fla. Stat. unconstitutionally punishes the exercise
of Fourth Amendment rights. This claim arises from the recent United States Supreme Court holding in
Missouri v. McNeely,9 that a search warrant is required to secure a blood sample from an impaired driver unless
there are exigent circumstances; and the fact that the blood alcohol level alone will degrade to some degree is
not sufficient to establish those circumstances.

McNeely,10 did not address the question of whether criminally punishing refusals to provide warrantless blood or
breath samples is unconstitutional. That question has now been answered.

Several Florida trial courts ruled that § 316.1939, Fla. Stat. does not violate the Fourth Amendment based on
their conclusions that Fourth Amendment concerns were addressed by Florida’s Implied Consent Law. 11
Recently, in Birchfield v. North Dakota,12 the United States Supreme Court reached a different conclusion. The
Court ruled that criminal punishment for refusing a breath test is lawful if the test would have been incident to a
lawful arrest. However, the Court held that criminal sanctions for refusing a blood test, even incident to arrest,
are impermissible because that constitutes criminal punishment for an unlawful seizure.

The effect of Birchfield13 is that refusals of warrantless blood tests in the absence of exigent circumstances
cannot be criminally punished. How many individuals have been convicted under Section 316.193914 based on
such refusals? That is a really important question because an argument can be made that Birchfield15 is
retroactive and those convictions are subject to collateral attack. That was the ruling in the recent Minnesota
Supreme Court case of Johnson v. State,16 where the court found that Birchfield17 applied retroactively to
convictions based on the refusal to submit to warrantless blood and urine testing in the absence of exigent
circumstances.

The second question involves separation of issues and charges. Bifurcation of issues for trial and severance of
charges is of concern. In the trial of a charge of refusal to submit to the test, it is improper to bifurcate
consideration of the issue of whether the defendant refused to submit to the test in the refusal case being tried
from the prior refusal suspension.18 That is so because the prior refusal is an element of the crime of refusing to
submit to a test.19 However, severance of the refusal from the DUI may be necessary to insure a fair trial. 20 That
issue is also covered in § 3:6, Fla. R. Crim. P. 3.151 and 3.152, as it relates to suspended license charges and
DUI.

In State v. Crites,21 the court adopted an alternative to severance to deal with the unfair prejudice from trying the
DUI and refusal together. The court followed this procedure: (1) trial first on the DUI only; (2) in the DUI
phase, evidence of the refusal may be presented, absent any evidence as to the prior refusal; (3) the court will
instruct the jury on the DUI and the jury will deliberate on the DUI alone; (4) after the jury reaches the verdict
on the DUI, the trial will proceed on the refusal charge; (5) evidence on the refusal will be received and the jury
will be instructed to consider the evidence on the DUI as it relates to the refusal charge; (6) the jury will then be
instructed and deliberate on the refusal and they will be told that their verdict on the DUI should not influence
their verdict as to the refusal.

A third question is whether the statute violates the constitutional prohibition against ex post facto laws. That
was considered in State v. Tewes.22 The court explained that the prohibition against ex post facto laws precludes
provisions that criminalize an act or increase the penalty for an act after the act has been committed. The
defense argued that the refusal statute violates this provision because one of the elements is that the defendant
previously refused. The court ruled that the refusal statute does not violate the prohibition against ex post facto
laws because it punishes new conduct (i.e. the most recent refusal), and does not punish prior conduct.

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§ 10:5.Independent offense for refusal, 11 Fla. Prac., DUI Handbook § 10:5...

A fourth question is whether, despite the language of the statute, the double jeopardy clause will bar various
proceedings. Some of the discussions in §§ 3:1 et seq., on this subject may be of value. In Rivera v. Pugh,23 the
court considered whether the administrative suspension for refusal would bar criminal prosecution for the same
refusal. And the court concluded there was no bar because the administrative suspension was civil in nature. 24
Similarly, in State v. Stabler,25 the court ruled that a prosecution for refusal did not bar a subsequent DUI
prosecution for conduct arising out of the same incident.

A fifth question is whether the defendant is compelled to make testimonial statements in violation of the Fifth
Amendment by criminalization of the refusal. This question has been considered both in Florida and in other
jurisdictions. In State v. Taylor,26 the Florida Supreme Court affirmed the principle that submission to a blood
alcohol test does not constitute compelled self-incrimination. In State v. Tewes,27 the trial judge ruled that
criminalization of the refusal to submit to the test does not change that principle. It does not mean that the
refusal is compelled. In Deering v. Brown28 and State v. Morale,29 the courts reached the same conclusion. Those
courts observed that the defendant must make a difficult choice, but the defendant also had to make a difficult
choice before criminalization.

In State v. Busciglio,30 the court relied on the decisions in Deering31 and Morale32 and concluded that the
defendant’s “refusal to submit to a breath test could not qualify as a testimonial response because the primary
purpose of any solicitation was not to establish or prove a past event.” (emphasis by court)33 The request to take
the breath test “was merely a current event” dealing with whether the defendant would take the test at that
moment.34 No crime had occurred when the officer made the request. 35 The refusal did not become testimonial
merely because the refusal was made “a direct element of a crime.” (emphasis by court) 36 Additionally, the
refusal is not compelled because the criminalization of the refusal increases the “‘compulsion to submit to the
breathalyzer test, not the compulsion to refuse, and refusal is the conduct made criminal in the statute.’”
(emphasis by court)37 The court in Busciglio38 observed that the defendant had consented to the test when he
exercised his privilege to drive and he was merely given the opportunity to withdraw that consent. The fact that
he had to choose between following the law and violating the law by refusing with criminal consequences under
certain circumstances, did not mean that the refusal was compelled in violation of his Fifth Amendment rights. 39

Furthermore, some courts have ruled that Miranda rights need not be read in these situations. 40 The Miranda
requirements are met to prevent abusive police practices designed to secure confessions. 41 That doesn’t apply
under these circumstances, because the defendant has already consented as a matter of law, and the purpose of
reading the implied consent warnings is to get the defendant to give a breath sample, not to coerce the defendant
into refusing.42 Additionally, the request for a test does not constitute interrogation.43

A sixth question is whether the defendant has a Sixth Amendment right to counsel when asked to submit to a
breath or blood alcohol test, since refusal is now a crime. As previously pointed out, there is no right to consult
with counsel before responding to a request for the alcohol test. 44 The fact that refusals have been criminalized
does not change that principle.45

A seventh question that was raised in one foreign court is whether the criminalization of the refusal invades the
defendant’s right to privacy. In State v. Mellett,46 the Minnesota court rejected this argument as applied to its
state statute, and found that there was a compelling state interest for requiring these tests.

Some courts have also considered other constitutional attacks. Two trial judges 47 have ruled that the statute does
not deny substantive due process in violation of the 14th Amendment, because it bears “a reasonable
relationship to a permissible legislative objective and the (sic) is not discriminatory, arbitrary, or oppressive.” 48
A trial judge has also ruled that the statute does not result in cruel and unusual punishment nor does it deny
equal protection of the law. 49 Another trial judge in a comprehensive opinion, rejected arguments that the statute
is void for vagueness because it does not define the phrase, “under the influence,” and that it violates the Due
Process Clause because it does not provide for sufficient judicial review of the prior license suspension. 50 There
have been many other attacks,51 some of which are not included here because they were unclear.

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§ 10:5.Independent offense for refusal, 11 Fla. Prac., DUI Handbook § 10:5...

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.1939, Fla. Stat. promulgated by Ch. 2002–263, § 5, Laws of Florida.
2
§ 316.1939(1), Fla. Stat.
3
See Folden v. State, 16 So. 3d 849 (Fla. 5th DCA 2009) (State conceded that entry on certified driving
record, “BAL unknown” was insufficient to prove a prior refusal); State v. Heater, 12 Fla. L. Weekly
Supp. 504 (Fla. Brevard Cty. Ct. Jan. 28, 2005)State v. Heater, 12 Fla. L. Weekly Supp. 504 (Fla.
Brevard Cty. Ct. Jan. 28, 2005) (Defendant was not entitled to dismissal of refusal charge where she
waived an administrative hearing on her first refusal by not requesting it, but argued that this procedure
was fundamentally unfair because she was not advised of her right to a hearing, to be represented by an
attorney at the hearing, and her right to appeal an adverse ruling).
4
State v. Heater, 12 Fla. L. Weekly Supp. 504 (Fla. Brevard Cty. Ct. Jan. 28, 2005)State v. Heater, 12
Fla. L. Weekly Supp. 504 (Fla. Brevard Cty. Ct. Jan. 28, 2005).
5
In re Standard Jury Instructions in Criminal Cases—Report No. 2012-08, 131 So.3d 692 (Fla. 2013).
6
§ 316.1939(2), Fla. Stat.
7
§ 316.1939(3), Fla. Stat.
8
§ 316.1939(3), Fla. Stat.
9
Missouri v. McNeely, 133 S.Ct. 1552, 185 L. Ed.2d 696 (2013).
10
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
11
State v. Tista, 22 Fla. L. Weekly Supp. 632 (Fla. Dade Cty. Ct. Dec. 1, 2014) State v. Tista, 22 Fla. L.
Weekly Supp. 632 (Fla. Dade Cty. Ct. Dec. 1, 2014); State v. Nickell, 21 Fla. L. Weekly Supp. 933 (Fla.
Volusia Cty. Ct. May 22, 2014)State v. Nickell, 21 Fla. L. Weekly Supp. 933 (Fla. Volusia Cty. Ct. May
22, 2014); State v. Caporuscio, 21 Fla. L. Weekly Supp. 930 (Fla. Volusia Cty. Ct. May 22, 2014)State
v. Caporuscio, 21 Fla. L. Weekly Supp. 930 (Fla. Volusia Cty. Ct. May 22, 2014). See also State v.
Osmundsen, 14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006)State v. Osmundsen, 14 Fla.
L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006) (years before McNeely, this court rejected the
claim that § 316.1939, Fla. Stat. violated the Due Process Clause by requiring the defendant to submit to
a nonconsensual search or suffer criminal penalties).
12
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed.2d 560 (2016). See also Williams v. State,
210 So.3d 774 (Fla. 5th DCA 2017).
13
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed.2d 560 (2016).
14
Fla. Stat. Ann. § 316.1939.
15
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed.2d 560 (2016).
16
Johnson v. State, 2018 WL 3999734 (Minn. Opinion Filed August 22, 2018) (this is a lengthy and
comprehensive opinion that covers the relevant U.S. Supreme Court authorities on the subject). See also
State v. Vargas, 404 P.3d 416 (N.M. 2017) (court found Birchfield retroactive as to cases pending on
appeal).
17
Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed.2d 560 (2016).

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§ 10:5.Independent offense for refusal, 11 Fla. Prac., DUI Handbook § 10:5...

18
State v. Osmundsen, 14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006)State v. Osmundsen,
14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006); Adrian v. State, 14 Fla. L. Weekly Supp.
518 (Fla. 18th Cir. Ct. March 6, 2007)Adrian v. State, 14 Fla. L. Weekly Supp. 518 (Fla. 18th Cir. Ct.
March 6, 2007). See also State v. Leasure, 43 N.E.3d 477, 488 (Ohio 4th DCA 2015).
19
State v. Osmundsen, 14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006)State v. Osmundsen,
14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006); Adrian v. State, 14 Fla. L. Weekly Supp.
518 (Fla. 18th Cir. Ct. March 6, 2007)Adrian v. State, 14 Fla. L. Weekly Supp. 518 (Fla. 18th Cir. Ct.
March 6, 2007). See also State v. Leasure, 43 N.E.3d 477, 488 (Ohio 4th DCA 2015).
20
State v. Livengood, 14 Fla. L. Weekly Supp. 469 (Fla. Volusia Cty. Ct. March 6, 2007) State v.
Livengood, 14 Fla. L. Weekly Supp. 469 (Fla. Volusia Cty. Ct. March 6, 2007) (Parties stipulated that
severance was necessary, and the court ruled that upon a waiver of jury trial by the defendant, the judge
would try the refusal at the same time the jury tried the DUI, but no mention of prior DUIs or refusals
would be made unless the defendant opened the door through defense testimony.) See also State v.
Osmundsen, 14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006)State v. Osmundsen, 14 Fla.
L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006) (severance also by stipulation).
21
State v. Crites, 17 Fla. L. Weekly Supp. 1267 (Fla. Brevard Cty Ct. Aug. 26, 2010) (the court was
concerned about speedy trial and the fact that a separate trial would require selecting another jury and
repeating much of the DUI evidence).
22
State v. Tewes, 10 Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla.
L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003). See also Briganti v. State, 13 Fla. L. Weekly
Supp. 450 (Fla. 17th Cir. Ct. Feb. 7, 2006)Briganti v. State, 13 Fla. L. Weekly Supp. 450 (Fla. 17th Cir.
Ct. Feb. 7, 2006); State v. Paolucci, 13 Fla. L. Weekly Supp. 200 (Fla. Broward Cty. Ct. Oct. 20,
2005)State v. Paolucci, 13 Fla. L. Weekly Supp. 200 (Fla. Broward Cty. Ct. Oct. 20, 2005); State v.
Mena–Vazquez, 13 Fla. L. Weekly Supp. 289 (Fla. Broward Cty. Ct. Nov. 28, 2005)State v. Mena–
Vazquez, 13 Fla. L. Weekly Supp. 289 (Fla. Broward Cty. Ct. Nov. 28, 2005); State v. Stephens, 12 Fla.
L. Weekly Supp. 785 (Fla. Manatee Cty. Ct. May 11, 2005)State v. Stephens, 12 Fla. L. Weekly Supp.
785 (Fla. Manatee Cty. Ct. May 11, 2005); State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange
Cty. Ct. June 25, 2003)State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25,
2003).
23
Rivera v. Pugh, 194 F.3d 1064 (9th Cir.1999).
24
Rivera v. Pugh, 194 F.3d 1064 (9th Cir.1999).
25
State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981). See also State v. Leasure, 43 N.E.3d 477, 485-
86 (Ohio 4th DCA 2015).
26
State v. Taylor, 648 So. 2d 701 (Fla. 1995).
27
State v. Tewes, 10 Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla.
L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003). See also State v. Gomez, 11 Fla. L. Weekly
Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003)State v. Gomez, 11 Fla. L. Weekly Supp. 61 (Fla.
Broward Cty. Ct. Nov. 10, 2003); State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct.
June 25, 2003)State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003);
McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn. 1991); State v. Mellett, 642
N.W.2d 779 (Minn. Ct. App. 2002).
28
Deering v. Brown, 839 F.2d 539, 24 Fed. R. Evid. Serv. 1086 (9th Cir. 1988) . See also State v.
Leasure, 43 N.E.3d 477, 484-86 (Ohio 4th DCA 2015).
29
State v. Morale, 174 Vt. 213, 811 A.2d 185 (2002).
30
State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).

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31
Deering v. Brown, 839 F.2d 539, 24 Fed. R. Evid. Serv. 1086 (9th Cir. 1988).
32
State v. Morale, 174 Vt. 213, 811 A.2d 185 (2002).
33
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).
34
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).
35
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).
36
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).
37
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008)
(quoting from Deering v. Brown, 839 F.2d 539, 543, 24 Fed. R. Evid. Serv. 1086 (9th Cir. 1988)).
38
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).
39
State v. Busciglio, 976 So. 2d 15, 21 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008).
40
State v. Tewes, 10 Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla.
L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003); State v. Morale, 174 Vt. 213, 811 A.2d
185 (2002).
41
State v. Tewes, 10 Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla.
L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003); State v. Morale, 174 Vt. 213, 811 A.2d
185 (2002).
42
State v. Tewes, 10 Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla.
L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003); State v. Morale, 174 Vt. 213, 811 A.2d
185 (2002).
43
South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983) ; State v. Tewes, 10
Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla. L. Weekly Supp.
540 (Fla. Sarasota Cty. Ct. June 2, 2003). See also State v. Gomez, 11 Fla. L. Weekly Supp. 61 (Fla.
Broward Cty. Ct. Nov. 10, 2003)State v. Gomez, 11 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct.
Nov. 10, 2003); State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003)State
v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003).
44
State v. Hoch, 500 So. 2d 597 (Fla. 3d DCA 1986), review denied, 509 So.2d 1118 (Fla. 1987). See also
Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010).
45
Grant v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1130 (Fla. 13th Cir. Ct.
Sept. 9, 2005); Salgado v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1129
(Fla. 13th Cir. Ct. Sept. 9, 2005); State v. Buttitta, 26 Fla. L. Weekly Supp. 27 (Fla. 18th Cir Ct. July 6,
2017)State v. Buttitta, 26 Fla. L. Weekly Supp. 27 (Fla. 18th Cir Ct. July 6, 2017); State v. Tewes, 10
Fla. L. Weekly Supp. 540 (Fla. Sarasota Cty. Ct. June 2, 2003)State v. Tewes, 10 Fla. L. Weekly Supp.
540 (Fla. Sarasota Cty. Ct. June 2, 2003). See also State v. Gomez, 11 Fla. L. Weekly Supp. 61 (Fla.
Broward Cty. Ct. Nov. 10, 2003)11 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003);
State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003)State v. Black, 10 Fla.
L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003).
46
State v. Mellett, 642 N.W.2d 779 (Minn. Ct. App. 2002).
47
State v. Gomez, 11 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003)State v. Gomez, 11
Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003); State v. Black, 10 Fla. L. Weekly Supp.
722 (Fla. Orange Cty. Ct. June 25, 2003)State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty.

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§ 10:5.Independent offense for refusal, 11 Fla. Prac., DUI Handbook § 10:5...

Ct. June 25, 2003).

48
State v. Gomez, 11 Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003)State v. Gomez, 11
Fla. L. Weekly Supp. 61 (Fla. Broward Cty. Ct. Nov. 10, 2003).
49
State v. Black, 10 Fla. L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003)State v. Black, 10 Fla.
L. Weekly Supp. 722 (Fla. Orange Cty. Ct. June 25, 2003).
50
State v. Mena–Vazquez, 13 Fla. L. Weekly Supp. 289 (Fla. Broward Cty. Ct. Nov. 28, 2005)State v.
Mena–Vazquez, 13 Fla. L. Weekly Supp. 289 (Fla. Broward Cty. Ct. Nov. 28, 2005).
51
State v. Osmundsen, 14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006)State v. Osmundsen,
14 Fla. L. Weekly Supp. 771 (Fla. 17th Cir. Ct. May 22, 2006) (court rejected claim that statute created
an unconstitutional rebuttal presumption); State v. Paolucci, 13 Fla. L. Weekly Supp. 200 (Fla. Broward
Cty. Ct. Oct. 20, 2005)State v. Paolucci, 13 Fla. L. Weekly Supp. 200 (Fla. Broward Cty. Ct. Oct. 20,
2005) (the court rejected a long list of such claims, including: (1) the statute creates an impermissible
mandatory rebuttal presumption; (2) the statute unconstitutionally reduces the burden of proof because
the burden for sustaining the suspension is by a preponderance of the evidence and the suspension is an
element of the crime and creates the presumption; (3) the statute violates the confrontation clause by
allowing police records of prior refusals into evidence without anyone to testify about underlying facts
associated with the records; and (4) the statute violates the prohibition against bills of attainder). See
also State v. Buttitta, 26 Fla. L. Weekly Supp. 27 (Fla. 18th Cir Ct. July 6, 2017)State v. Buttitta, 26 Fla.
L. Weekly Supp. 27 (Fla. 18th Cir Ct. July 6, 2017) (the court rejected multiple claims, including: (1)
underlying procedure was invalid because the first refusal was only proven by a preponderance of the
evidence; court pointed out that first refusal is not an element; rather, the driver’s license suspension is
an element; (2) statute violates the right to counsel; (3) due process rights were violated by failure to
advise that first suspension could be used in future criminal charges; (4) statute violated the rule again
ex post facto laws; (5) hearing officer is not competent to make legal conclusions).

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Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 11 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 11 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 11. Preservation of Evidence

Introduction

INTRODUCTION
A great deal of evidence is generated in a DUI investigation, which includes chemical and physical tests results
and videotapes. Invariably, the samples used to secure the tests results are unavailable. Occasionally, officers do
not secure videotapes of various aspects of the investigation despite having the means. Sometimes, they also
destroy videotapes of the defendant. All of these matters concern the preservation of evidence, which is the
subject of this chapter.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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Works.

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 11. Preservation of Evidence

§ 11:1. General principles

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 355(6), 422.1

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1407 to 1411, 1545

The watershed cases on the loss of, or failure to disclose evidence, are Brady v. Maryland1 and United States v.
Agurs.2 The Florida Supreme Court explained these and related cases. 3 They hold that the destruction of, or
failure to disclose material exculpatory evidence, is grounds for dismissal.

Exculpatory evidence is evidence that is favorable to the defendant. 4 It is material only if there is a reasonable
probability that disclosure of the evidence would have affected the outcome. 5 A “reasonable probability” is one
that would undermine confidence in the outcome.6 These principles generally do not require dismissal if the
defendant knows about the evidence or it is unimportant. 7 Thus, where the State failed to disclose impeachment
material, there was no Brady violation because it was either in the defendant’s possession through some other
source, or of little use to him.8 Similarly, the failure to disclose fingerprint reports, transcripts of a prior trial
involving a witness, and a police report did not constitute Brady violations because they were either known to
the defendant or irrelevant.9 It is unusual for Brady issues to arise in a DUI case. They come up primarily where
test results favorable to the defendant are destroyed or lost, or a favorable performance of field sobriety
exercises was videotaped and the tape was destroyed or lost.

Brady deals only with the destruction or loss of evidence that is known to be exculpatory. In Arizona v.
Youngblood,10 the United States Supreme Court dealt with the destruction or loss of evidence that was
potentially exculpatory. There the Court held that where “potentially useful” evidence is destroyed by police,
the defendant must show bad faith on the part of the police to establish a due process violation. 11 Youngblood
was a rape case where a police officer negligently failed to preserve and test semen samples that might have
proven that the defendant was not guilty. The Court held that there was no due process violation.

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

According to Dufour v. State,12 the Youngblood13 analysis applies only where officers “ ‘intentionally destroy
evidence they believe would exonerate a defendant.’ ” 14 The focus must be on what officers knew at the time the
evidence was destroyed.15

State v. Daniels16 illustrates the general application of these standards. There the trial court dismissed drug
charges because the police failed to record the drug transaction. The trial judge ruled that this failure deprived
the defendant of due process. Based on Youngblood,17 the appellate court reversed because there was no
showing of bad faith, or that the failure to make the tape deprived the defendant of the ability to defend the
charges.

The court followed the same path in State v. Rivers,18 where the trial judge dismissed a DUI with serious bodily
injury because the State lost an audio recording of the passenger’s oral statement made after the accident. The
statement had been transcribed, and the investigating officer acknowledged that the transcript was accurate.
Most of the statement referred to the defendant as the driver, but at the end, the passenger said, “ ‘I made a left
turn and lost control of the motorcycle.’ ” 19 The trial judge found that the loss of the statement denied the
defendant due process. On appeal, the court reversed, because the transcript met that the lost audiotape fell into
the Youngblood20 category of potentially useful evidence. The court observed that the only prejudice the
defendant would experience from not having the actual tape, was the inability to present the sound of the
passenger’s voice to the fact finder. But that did not justify dismissal.

A similar situation arose in State v. Gomez,21 which is particularly significant because it describes the process of
distinguishing between Brady22 material and Youngblood23 material. In Gomez, the trial judge dismissed charges
involving violence on law enforcement officers because a photo of the defendant showing blood on his face
disappeared. The court reversed because this was potentially useful evidence, not constitutionally material
evidence, and there was no showing of bad faith. The court concluded that it was only potentially useful by
eliminating the option that it was constitutionally material. 24 To be constitutionally material, evidence must “
‘possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that
the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” 25 The
court observed: “Given the facts in this case, the existence of additional photographs showing physical injury to
defendant’s face does not possess apparent exculpatory value,” as a matter of law. 26 The court also concluded
that the defendant was unable to meet the burden of showing that he couldn’t get “comparable evidence by
other reasonable available means.”27 Since there was no bad faith, it was error to dismiss the charges.

A trial judge applied these standards in a vehicular homicide case. 28 In that case, law enforcement failed to
preserve the vehicle containing a crash data recorder. The court ruled that the error did not justify dismissal
because the recorder might or might not have shown the defendant was speeding, and there was no evidence of
bad faith. Furthermore, suppression of other evidence as to speed was inappropriate because it was unclear that
the crash data recorder information was reliable, that experts would rely on that data to give opinions as to
speed, and that the data would even have been admissible in evidence.

Youngblood29 and Brady30 come up from time to time in DUI cases. Whenever a blood sample is destroyed or
the opportunity to secure a sample is lost these decisions come into play. The same is true where an officer fails
to tape field sobriety exercises or accidentally destroys a tape. These situations are the subject of later sections
of this chapter. But this subject has been thoroughly explored in Bennett v. State.31 Although the court
acknowledges much of the opinion to be dicta, it is invaluable reading.

Fla. R. Crim. P. 3.220(n), addresses the problem of failure to disclose evidence. It provides that if a party fails
to comply with a discovery rule, the court may order compliance or grant other relief. The court’s options
include granting a continuance or a mistrial, prohibiting the party from calling an undisclosed witness or
introducing undisclosed material, or entering any other order the court deems appropriate under the
circumstances. In one case, the court held that, while there was no denial of fundamental fairness by the
negligent destruction of cocaine, the trial court still had the discretion to exclude expert testimony concerning
the cocaine pursuant to this provision.32

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

In State v. Brusco,33 the trial judge effectively summarized the principles that apply to sanctions. Based on
extensive authority, the court recognized these principles: (1) if the evidence was destroyed in bad faith, the
appropriate sanction is dismissal; (2) “[b]ad faith includes the ‘willful, intentional destruction of evidence;’ ” (3)
bad faith does not include the negligent or grossly negligent destruction of evidence; (4) the court may sanction
the negligent destruction of evidence in some appropriate way, including suppression of related evidence
favoring the State; and (5) the bad faith of officers is imputed to the prosecution.

In Brusco,34 which involved a domestic battery, a state attorney lost photographs and a taped statement of the
victim. The trial judge found that the evidence did not establish bad faith, and in the context of the entire record,
the evidence was not material. Nevertheless, the court ruled that the defense was entitled to a sanction for the
State’s carelessness. The sanction was that the defendant would be entitled to a jury instruction that the tape and
photographs were unavailable because they had been lost or misplaced by the State.

However, a trial judge held in State v. Aris35 that the failure of a back-up officer to make a report was not
grounds for dismissal. The court found: (1) a report is not evidence; (2) the defendant failed to show that a
report would have contained material exculpatory evidence since the back-up officer was not closely monitoring
the FSES and was not well versed in such procedures; (3) the defendant failed to show that he could not secure
such evidence by any other means; (4) writing a report is only suggested, so the defendant could not show bad
faith; (5) the officer had no duty to create evidence for the defendant; and (6) the defense could cross-examine
the officer and present testimony. While this seems obvious, the reasons given by the court may be useful in
better understanding the law on preservation of evidence.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2
U.S. v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (holding modified by, U.S.
v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
3
Melton v. State, 193 So.3d 881 (Fla. 2016); Kelley v. State, 569 So. 2d 754 (Fla. 1990); Wasko v.
State, 505 So. 2d 1314 (Fla. 1987). See also Pittman v. State, 90 So. 3d 794 (Fla. 2011); Beasley v.
State, 18 So. 3d 473 (Fla. 2009); Archer v. State, 934 So. 2d 1187 (Fla. 2006).
4
Maharaj v. State, 778 So. 2d 944, 953-54 (Fla. 2000), cert. denied, 533 U.S. 935, 121 S. Ct. 2563,
150 L. Ed. 2d 727 (2001); Delap v. State, 505 So. 2d 1321 (Fla. 1987); Doyle v. State, 460 So. 2d
353, 356 (Fla. 1984).
5
U.S. v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). See also Smith v. State, 235
So.3d 265, 268–69 (Fla. 2017); Davis v. State, 136 So. 3d 1169, 1185 (Fla. 2014); Simmons v. State,
105 So. 3d 475, 499-500 (Fla. 2012); Mungin v. State, 79 So. 3d 726, 734 (Fla. 2011).
6
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40, 22 Fed. R. Evid. Serv. 1
(1987). See also Davis v. State, 136 So. 3d 1169, 1185 (Fla. 2014); Waterhouse v. State, 522 So. 2d
341 (Fla. 1988), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102 L.Ed.2d 99 (1988).
7
See e.g. Floyd v. State, 18 So. 3d 432, 451 (Fla. 2009).

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

8
Waterhouse v. State, 522 So. 2d 341, 343 (Fla. 1988), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102
L.Ed.2d 99 (1988).
9
Kelley v. State, 569 So. 2d 754 (Fla. 1990).
10
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). See also Illinois
v. Fisher, 540 U.S. 544, 124 S. Ct. 1200, 157 L. Ed. 2d 1060 (2004); Patterson v. State, 199 So.3d 253
(Fla. 2016), cert. denied, 137 S. Ct. 1076 (2017) (exclusion of State’s expert would be improper in a
truck arson case where State did not preserve the truck and defendant’s insurer destroyed it; there was
no evidence of bad faith—officers had no reason to believe truck was exculpatory in that everyone who
examined truck said the fire was not accidental; defense expert was able to opine fire was accidental
based on examination of about 300 photos of the truck and garage; and defense expert’s opinion that
electrical components should have been examined did not mean the destroyed truck was anything more
than potentially exculpatory); McLean v. State, 147 So. 3d 504 (Fla. 2014) (no denial of due process
where policy of destroying recordings of tips resulted in destruction of a recording of a tip concerning
the defendant; there was no allegation that the police or prosecution intentionally destroyed the
recording in bad faith and no showing that the recording was exculpatory or that the State knew of its
potential exculpatory value at the time the tape was reused); Armstrong v. State, 73 So. 3d 155, 171-72
(Fla. 2011), cert. denied, 132 S. Ct. 2741, 183 L. Ed. 2d 618 (2012) (Defendant was not denied due
process by loss of a bullet fragment where larger fragment was left intact and the record did not support
a finding of bad faith; Defendant did not show that the projectile exonerated him or that the State ever
believed it might or that the fragments were destroyed); Goodman v. State, 229 So.3d 366 (Fla. 4th
DCA 2017) (car involved in fatal accident was released, but there was no bad faith; additional testing on
the car was only potentially useful where the defense expert testified that the throttle malfunctioned and
affected the brakes; the fact that evidence of such a malfunction might have been discovered would
have merely bolstered the expert’s opinion and the expert had alternative sources, including a read out
from the cars diagnostic storage unit; and the State’s expert, who did additional testing, did not testify);
State v. Lambo, 193 So.3d 1006 (Fla. 2d DCA 2016) (in a leaving the scene, two witnesses shown a
photo pack including defendant’s photo, failed to identify defendant; the photo packs were destroyed,
but there was no showing of bad faith; the court reversed dismissal, reasoning that the photo packs were
not exculpatory; it was the testimony of the witnesses who were unable to identify the defendant that
was critical; without that testimony the photo packs were only potentially useful); State v. Miller, 159
So. 3d 992 (Fla. 5th DCA 2015) (judge erred in excluding testimony as to defendant’s recorded
noncustodial statements where the recording was lost or destroyed, defendant conceded it was
potentially exculpatory, but there was no evidence the recording was intentionally destroyed; trial
judge’s conclusion that gross negligence is sufficient to require a sanction was wrong, the law
enforcement conduct must be intentional); Yero v. State, 138 So. 3d 1179 (Fla. 3d DCA 2014)
(defendant was not entitled to dismissal where through no fault of the officer, a restaurant video of
defendant indicating he was in possession of a recently stolen wallet, was overwritten; defendant did not
argue it was exculpatory and there was no showing of bad faith); State v. Hampton, 113 So. 3d 109 (Fla.
5th DCA 2013) (two cases hold that there was no bad faith where surveillance video depicting defendant
was destroyed by private proprietor as part of the business’s security system, despite officer’s efforts to
retrieve the video); State v. Bennett, 111 So. 3d 943 (Fla. 2d DCA 2013) (officer thought he had down
loaded a surveillance tape of a fight in a grand theft and battery case; however, it was erroneously not
preserved, but there were three witnesses to the incident; the court found that the tape was potentially
exculpatory and there was no bad faith (“‘a flagrant and deliberate act done … with the intention of
prejudicing the defense.’”[quoting from Youngblood])); Guzman v. State, 868 So. 2d 498, 509 (Fla.
2003) (Court rejected defense contention that destruction of hair sample defendant claimed might have
proven his innocence required dismissal based on Youngblood, because the defendant failed to show that
the “police intentionally destroy[ed] evidence they believe[d] would exonerate [the] defendant.”); Felder
v. State, 873 So. 2d 1282 (Fla. 4th DCA 2004) (court ruled that failure of officer to retain the tools and
tool box Defendant was accused of stealing did not require dismissal, despite defense theory that they
were too heavy for him to transport, because he did not cross examine the officer on that subject); State
v. Lorenz, 23 Fla. L. Weekly Supp. 702 (Fla. 17th Cir. Ct. Nov. 6, 2015)State v. Lorenz, 23 Fla. L.
Weekly Supp. 702 (Fla. 17th Cir. Ct. Nov. 6, 2015) (defendant was charged only with DUI involving
alcohol; incident to arrest the trooper found a small amount of alleged marijuana; trooper dumped it
because it was too small to test; appellate court ruled trial judge erroneously dismissed the DUI; the
evidence wasn’t even potentially exculpatory since the defendant was not charged with possession of
marijuana); Laborusta v. State, 23 Fla. L. Weekly Supp. 403 (Fla. 17th Cir. Ct. Sept. 11, 2015)Laborusta

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

v. State, 23 Fla. L. Weekly Supp. 403 (Fla. 17th Cir. Ct. Sept. 11, 2015) (on a prostitution charge, case
was not subject to dismissal where officers observed the transaction on live video for safety reasons, but
did not record it; a recording would be only potentially useful because “it lacks any clear exculpatory
value;” defense failed to demonstrate that officers intentionally chose not to record the transaction
“because they believed a video of the transaction would exonerate him”); State v. Pastor, 25 Fla. L.
Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017)State v. Pastor, 25 Fla. L. Weekly Supp. 129
(Fla. Hendry Cty. Ct. Feb. 23, 2017) (where deputy did not preserve a potentially useful jail security
video of FSTs, which was destroyed pursuant to a retention policy, the evidence did not establish intent
to destroy the tape where the deputy didn’t know about the policy, had nothing to do with overwriting
procedures and deputy believed defendant performed poorly on FSTs; deputy was merely negligent and
there was no bad faith).
11
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) . See also State v.
Bennett, 111 So. 3d 943 (Fla. 2d DCA 2013); State v. Buitrago, 39 So. 3d 540 (Fla. 2d DCA 2010);
Bennett v. State, 23 So. 3d 782 (Fla. 2d DCA 2009); State v. Pastor, 25 Fla. L. Weekly Supp. 129 (Fla.
Hendry Cty. Ct. Feb. 23, 2017)State v. Pastor, 25 Fla. L. Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb.
23, 2017).
12
Dufour v. State, 905 So. 2d 42 (Fla. 2005). See also Fogelsanger v. State, 13 Fla. L. Weekly Supp. 1161
(Fla. 17th Cir. Aug. 15, 2006) (where State failed to give defendant information about a deputy other
than the arresting deputy who was present at the scene, trial court properly denied dismissal because
there was no indication deputy had exculpatory information or State intentionally destroyed evidence
they believed would exonerate defendant).
13
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
14
Arizona v. Youngblood, 488 U.S. 51, 66, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). See also
Anderson v. State, 220 So.3d 1133 (Fla. 2017) (in making a post-conviction Youngblood claim,
defendant had to establish bad faith by showing that officers intentionally allowed evidence to
deteriorate believing it would exonerate him; since defendant claimed the items were potentially
exculpatory because, if the items had been properly safeguarded, post-trial independent testing could
have been done to demonstrate bad faith, he needed to show that officers stored the items intending that
they deteriorate so they could not be retested); Yero v. State, 138 So. 3d 1179, 1183 (Fla. 3d DCA
2014); State v. Gomez, 915 So. 2d 698, 701 (Fla. 3d DCA 2005) (citing Guzman, 868 So.2d at 509);
State v. Pastor, 25 Fla. L. Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017)State v. Pastor, 25 Fla.
L. Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017).
15
Arizona v. Youngblood, 488 U.S. 51, 68, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) . See also
Williams v. State, 891 So. 2d 621 (Fla. 3d DCA 2005), review dismissed, 915 So. 2d 1198 (Fla. 2005)
(evidence that was lawfully destroyed many years ago would not entitle the defendant to relief under
Youngblood because the authorities could not have known of the future significance of DNA); State v.
Pastor, 25 Fla. L. Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017)State v. Pastor, 25 Fla. L.
Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017) (where deputy did not preserve a potentially
useful jail security video of FSTs, which was destroyed pursuant to a retention policy, the evidence did
not establish intent to destroy the tape where the deputy didn’t know about the policy, had nothing to do
with overwriting procedures and deputy believed defendant performed poorly on FSTs; deputy was
merely negligent and there was no bad faith); State v. Heater, 12 Fla. L. Weekly Supp. 504 (Fla. Brevard
Cty. Ct. Jan. 28, 2005)State v. Heater, 12 Fla. L. Weekly Supp. 504 (Fla. Brevard Cty. Ct. Jan. 28, 2005)
(misdemeanor prosecution for refusal to submit to breath test was not subject to dismissal on grounds
that DHSMV destroyed certain documents relating to the previous suspension of the defendant’s driving
privileges as part of routine records management, because the Department could not have known that the
prior refusal would be an element in a criminal prosecution under a statute that did not exist at the time).
16
State v. Daniels, 699 So. 2d 837 (Fla. 4th DCA 1997). See also State v. Buitrago, 39 So. 3d 540 (Fla. 2d
DCA 2010) (dismissal was error where defense claimed defendant’s name was not mentioned in lost
tape of conversations between CI and codefendant; court upheld finding that tape was Brady material,
there was prejudice, and there was no bad faith; tape was only potentially useful because absence of
name was not a material fact disproving State’s theory, and given the opportunity, the State might

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

present other evidence connecting defendant with transaction); Exantus v. State, 734 So. 2d 1176 (Fla.
4th DCA 1999) (where trial court could not determine that destroyed evidence was exculpatory,
dismissal was appropriate only on a showing of bad faith).
17
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
18
State v. Rivers, 837 So. 2d 594 (Fla. 2d DCA 2003). See also State v. Pistritto, 15 Fla. L. Weekly Supp.
1030 (Fla. Brevard Cty. Ct. July 30, 2008) (motion to suppress denied where videotape of driving
pattern was accidentally deleted, there was no evidence that the tape was exculpatory or material nor
was there evidence of bad faith).
19
State v. Rivers, 837 So. 2d 594 (Fla. 2d DCA 2003).
20
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
21
State v. Gomez, 915 So. 2d 698 (Fla. 3d DCA 2005).
22
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
23
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
24
State v. Gomez, 915 So. 2d 698, 700–701 (Fla. 3d DCA 2005).
25
State v. Gomez, 915 So. 2d 698, 700 (Fla. 3d DCA 2005) (quoting California v. Trombetta, 467 U.S.
479, 488–89, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)).
26
State v. Gomez, 915 So. 2d 698, 701 (Fla. 3d DCA 2005). The facts were: (1) the physical injury shown
in the photo was consistent with the defense theory that another driver hit him during a fight, but it did
not vindicate the defendant of the crimes against the officers; (2) that physical injury was also consistent
with an officer’s testimony that the defendant banged his head on the partition in the patrol car while
being transporting.
27
State v. Gomez, 915 So. 2d 698, 701 (Fla. 3d DCA 2005) (The defendant made no showing that he tried
to secure medical records from the hospital where he was admitted that night and an officer said that the
booking photo, which was available, accurately depicted the defendant’s injuries.). See also State v.
Bennett, 111 So. 3d 943 (Fla. 2d DCA 2013) (in ruling on the accidental destruction of a surveillance
tape of a fight, the court found that comparable evidence was available through the testimony of at least
three eye witnesses other than the two participants).
28
State v. Walker, 9 Fla. L. Weekly Supp. 623 (Fla. 20th Cir. Ct. Aug. 2, 2002)State v. Walker, 9 Fla. L.
Weekly Supp. 623 (Fla. 20th Cir. Ct. Aug. 2, 2002).
29
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
30
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
31
Bennett v. State, 23 So. 3d 782 (Fla. 2d DCA 2009).
32
Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990).
33
State v. Brusco, 9 Fla. L. Weekly Supp. 412 (Fla. Broward Cty. Ct. April 4, 2002)State v. Brusco, 9 Fla.
L. Weekly Supp. 412 (Fla. Broward Cty. Ct. April 4, 2002). See also State v. Miller, 159 So. 3d 992
(Fla. 5th DCA 2015) (gross negligence is insufficient to require a sanction; the law enforcement conduct
must be intentional).
34
State v. Brusco, 9 Fla. L. Weekly Supp. 412 (Fla. Broward Cty. Ct. April 4, 2002)State v. Brusco, 9 Fla.
L. Weekly Supp. 412 (Fla. Broward Cty. Ct. April 4, 2002).

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§ 11:1.General principles, 11 Fla. Prac., DUI Handbook § 11:1 (2018-2019 ed.)

35
State v. Aris, 18 Fla. L. Weekly Supp. 891 (Fla. Broward Cty. Ct. April 27, 2011) State v. Aris, 18 Fla.
L. Weekly Supp. 891 (Fla. Broward Cty. Ct. April 27, 2011).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 11. Preservation of Evidence

§ 11:2. Videotape

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 355(6), 422.1

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1407 to 1411, 1545

As indicated above, audio and videotapes are sometimes made in the course of investigations, but there is no
requirement that such tapes be made.1 There are three issues concerning such tapes: (1) if there is a policy to not
tape field sobriety tests, does the failure to make such tapes deny due process; (2) if there is a policy to tape
field sobriety tests, does the failure to make such tapes deny due process; and (3) if a tape is made, does the
destruction of that tape deny due process?

The first issue was considered in State v. Powers.2 There the sheriff’s office had a policy of not videotaping
field sobriety tests. Several years after the policy was established, the supervisor of the DUI squad prepared a
memo at the request of his immediate supervisor. It stated that he had received information that videotaping
field sobriety tests did not help the prosecution of DUI offenses, but instead favored the driver when the blood
alcohol test was just over the statutory presumption. It was his opinion that the testimony of the officers was the
best evidence of performance and the tests should not be videotaped. There was no evidence that the sheriff’s
policy of not videotaping was based on this memo or the deputy’s opinion.

In Powers,3 several defendants maintained that they performed better on the tests than the officers had described
and moved to dismiss the charges. The trial judge granted the motions because the evidence demonstrated bad
faith by law enforcement in intentionally failing to preserve potentially exculpatory evidence in violation of the
due process clause. The appellate court reversed4 and stated that: (1) since the policy to not videotape was
established long before the memo was written, in the absence of evidence that the policy was initiated in bad
faith, the court could not impute bad faith based on the opinion of one deputy given to the sheriff’s subordinate
several years later, and the fact that other agencies videotaped; (2) the policy was instituted in good faith, and
the deputies were operating under that continuing policy; (3) the issue was not the failure to gather and preserve

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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

evidence, but rather the failure to gather and preserve it in a particular way; (4) the sheriff’s duty to preserve the
evidence on tape was limited to evidence that had both exculpatory value that was apparent before it was
destroyed, and that was of such a nature that the defendants would not be able to secure comparable evidence by
other reasonably available means; and (5) in this case, even if the evidence was exculpatory, the defendants had
alternative means to defend against the tests results because there was no indication that the officers conducted
the field sobriety tests improperly, and the defendants retained the right to cross-examine the officers who saw
the tests and to present other evidence concerning the reliability of the tests.

A trial judge considered the same issue in another case, 5 where the defendant claimed that the policy of not
taping was a bad faith effort to suppress exculpatory evidence. The trial judge rejected the position and
concluded that: (1) the defendant had no right to have officers gather evidence for him; (2) the evidence in this
case was preserved in the form of the recollection of officers; (3) the videotaping is “merely a mechanical
reproduction of the observations made by the individuals who witnessed the actions of the defendant at the time
of videotaping”;6 (4) the defendant is not entitled to have the evidence preserved in any specific way; and (5) the
videotape would merely have been cumulative.

The second issue concerning videotapes has been considered in several cases. This issue deals with the failure
to follow an established policy of taping. In Smiddy v. State,7 the trial judge dismissed several charges after
hearing evidence that supported the conclusion that officers violated departmental policy by failing to videotape
drivers, and that they intended to avoid gathering exculpatory evidence. The judge concluded that the officers
acted in bad faith. The district court ruled that there was competent substantial evidence to support the trial
court’s ruling and reversed a circuit court order reversing the trial judge.

Several trial court decisions from one judge extended the ruling in Smiddy.8 The judge ruled that the continual,
consistent, and extended failure of a sheriff’s department to follow a mandatory policy of video taping, in and of
itself, constitutes bad faith and requires dismissal. 9 Those decisions focused exclusively on the sheriff’s policy
and included no analysis of whether the tapes were material. 10 On appeal, the court reversed and made it clear
that the tapes were not material.11

In reversing, the court said:

[T]he absence of the tape does not interfere with the Defendants’ abilities to present their
defenses…. Each can present the testimony of witnesses who were socializing with them and/or
who were in the car with them and experienced the Defendant’s driving. Each can cross-examine
the arresting deputy as to his reasons for effecting the traffic stop and the manner in which he
conducted the roadside sobriety tests. Each can call and examine the intoxilyzer operator and
determine whether the operator was qualified and the machine had been properly maintained and
calibrated. And, now, each Defendant will certainly argue the Sheriff’s videotaping policy to the
jury and claim that arrests without complying with that policy by itself creates a reasonable
doubt.12

It is clear that the unproduced tapes were at best potentially exculpatory; therefore, the defendants had to show
bad faith. The appellate court rejected the position that a department’s failure to follow its own policy rises to
the level of “a conscious, deliberate attempt to subvert justice.” 13 It does not establish that the police attempted
“to contribute to the conviction of a defendant even though the defendant’s innocence was suggested by the
evidence the police collected and then deliberately made unavailable, the exculpatory value of which was
‘apparent before the evidence was destroyed.’”14

In another case,15 the defendant sought dismissal of a DUI charge because the officer failed in bad faith to tell
the defendant to reperform field sobriety tests at the station and to videotape the results. The officer recorded
parts of his contact with the defendant, but not the field sobriety tests at the stations. It was department policy to
reperform and record the field sobriety tests at the station. The court focused on the officer’s stated reason for
departure from the policy without prior approval of his supervisors. He had been told at a seminar that there was

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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

no point in videotaping field sobriety tests because in Allred v. State,16 the Court held that some of those tests
are testimonial and may be subject to suppression if Miranda warnings are not given. The court found that if the
test had been performed again and videotaped, potentially exculpatory evidence might have been produced. 17
The court also ruled, based on Arizona v. Youngblood,18 that the defendant had to show bad faith. The trial judge
concluded that the officer was not motivated by a desire to avoid exculpatory evidence, but rather by a desire to
comply with the advice given by the instructors at the seminar. The recommendation to forego postarrest
sobriety testing alone did not establish bad faith; however, when combined with the fact that this was done
unilaterally by the officer in violation of department policy and without approval, it did establish bad faith.

Not all failures to follow a policy to videotape field sobriety tests deny due process. If the lack of a videotape
results from the mechanical failure of the camera, there is no violation because there is no intent to deprive the
defendant of evidence.19 Similarly, where a malfunction caused most of the audio portion of the tape to be lost,
the video portion was not subject to exclusion pursuant to § 90.403, Fla. Stat.20 However, where the video of the
defendant’s experience in the intoxilyer room worked, but the audio did not record under circumstances
reflecting conduct the court deemed willful or grossly negligent, dismissal was found to be appropriate. 21

In a somewhat unusual case involving a deliberate failure to tape part of a road contact in contravention of
Florida Highway Patrol rules, the court upheld the denial of a motion to dismiss. 22 The trooper did not tape the
initial contact in an effort to “‘conserve’” the tape, but the trooper taped the field sobriety exercises and testified
to the defendant’s appearance when he first contacted him. The court found this was only potentially useful
material and the defendant did not show bad faith.23

Several courts have addressed the third issue regarding the failure to preserve tapes. The courts generally take a
much harder line in this situation than where the failure is to make a tape at all. The State has a duty to preserve
a tape where one was made.24 In resolving the matter the courts focus on two issues: (1) was the tape material?
(2) what is the appropriate remedy?

Materiality was considered in the preceding section. Obviously, it is critical. As indicated earlier, the key is
whether the lost tape contained exculpatory material resulting in prejudice to the defendant. In State v. Gomez,25
the court set forth some clear standards as to who bears the burden. That case is discussed in more detail in §
11:1. In short, Gomez26 holds that the burden is on the defendant to show that it was apparent the involved
evidence had exculpatory value when it was lost or destroyed and to establish inability to get “comparable
evidence by other reasonable available means.” 27 If the defendant fails to meet this burden, the only remaining
question is whether the evidence was, at least, potentially useful. If not, the matter is resolved. If so, the
defendant must then meet the greater burden of demonstrating bad faith, which involves proof of an intent
element.

If the defendant shows that the recording contained exculpatory material, the burden shifts to the State. That
requires proof of lack of prejudice.28

There have been several drug cases where through defective materials, mistake, or oversight a tape became
unavailable and these issues were considered. The leading case on this subject is State v. Sobel.29 In Sobel,
officers were attempting to tape a drug transaction, but they heard nothing but static, music, or unintelligible
conversation; therefore, they turned the tape off. The defense argued that the tape was crucial because it would
have shown that he was not involved in the transaction and it should have been preserved, even though officers
said it was inaudible. The court ruled:
We … hold that a defendant is not denied due process where the contents of a lost or destroyed
tape recording would not have been beneficial to the accused, thus demonstrating a lack of
prejudice. The trial judge in the present case considered all the evidence and found that the tape in
question was valueless. We conclude that the state met its burden of showing that there was no
prejudice to the defendant, and we hold that the trial court acted correctly in denying the
defendant’s motion to dismiss.30

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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

However, the continued viability of Sobel31 has been called into question in Bennett v. State.32 In Bennett, the
court suggests in dicta that “Although the Florida Supreme Court has never expressly recognized that its
analysis in Sobel is significantly affected by Youngblood, it is obvious that it has been so affected.” 33 Bennett34
points out that Sobel35 places the initial burden on the State to show a lack of prejudice by demonstrating that the
lost tape would not be useful to the defendant; whereas, Youngblood36 “places the initial burden of proof and
persuasion on the defendant to prove that the lost evidence was material exculpatory evidence.” 37

Several circuit and county courts have found video and audio recordings of DUI investigations, including field
sobriety exercises, to meet the test of materiality.38 Others have reached a contrary conclusion.39

In State v. Davis,40 the Fourth District Court of Appeal ruled that a video recording of field sobriety exercises
was material and there was prejudice where the defendant refused to submit to a test of his alcohol level. The
court said:
The defendant refused to take a breathalyzer and, consequently, whether he was driving while
under the influence must be determined by resort to whether he demonstrated physical signs of
impairment. An evaluation of an individual’s impairment is necessarily somewhat subjective and
the tape would have provided a jury with the opportunity to assess for itself whether the defendant
was impaired. “[I]n the absence of the videotape, a jury would have only … [the arresting
officer’s] interpretation of defendant’s performance, … demeanor, appearance and speech
patterns, which, as noted, were to some extent not noticeably affected by alcohol ….
[D]efendant’s testimony carries the risk that the jury will view that testimony as extraordinarily
self-serving, whereas that risk is not present in the videotape evidence. Accordingly, the videotape
evidence is unique because it would provide defendant with an objective video replay of the
events from which a jury could draw its own conclusions.” (quoting from State v. Zinsli, 156
Or.App. 245, 966 P.2d 1200, 1205 (1998).41

The opinion in Davis42 strongly supports the conclusion that recordings of field sobriety exercises are generally
material.

However, in Bennett v. State,43 the court rejected an argument that the circuit court departed from the essential
requirements of law where the circuit court reversed the county court’s dismissal of a DUI case. The video tape
of the stop and field sobriety tests failed due to inadvertent technical problems. The county court correctly
concluded that the tape was material, but the circuit court properly concluded that the county judge erred by not
considering whether the tape would have been exculpatory.44

Where the court finds a due process violation, the remedy must be considered. Several circuit and county courts
have ruled that the appropriate remedy is dismissal. 45 In State v. Miller,46 a three-judge circuit panel held that the
sanction of dismissal for destruction of a tape will be upheld only where
the Defendant can demonstrate that some matter occurred which would have actually been
captured on such videotape, where there is inconsistency … between versions of events by
different credible witnesses, and where the videotape would actually have resolved the
inconsistency in a way that would favor the Defendant and discredit other witnesses to such an
extent that it would overwhelm other evidence that exists and that the outcome of a trial would
have been different.47

Also, in State v. Powers,48 the court indicated that if the field sobriety tests in that case had been videotaped and
the tape had not been preserved, dismissal would have been appropriate regardless of whether the officers had
been acting in good or bad faith.49

However, the decision in Davis50 holds to the contrary. The court concluded that the language in Powers51
favoring dismissal was “dicta and nothing in the opinion indicates that the court considered whether lesser

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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

sanctions would have sufficed.” Additionally, in Bennett v. State,52 the court expressly acknowledged that the
part of the opinion in Powers53 stating that if the tape had been made and not preserved, the court would have
affirmed dismissal without consideration of law enforcement’s good or bad faith, was not a holding of the court.

The Davis54 court noted that dismissal should only be used where no other sanction can remedy the prejudice
and it was too harsh in this case. In Davis,55 the court then considered alternatives:
The State suggests that an appropriate lesser sanction is to simply try the case without informing
the jury that the tape existed. We agree with the defendant, however, that this provides the
defendant no remedy at all for the loss of the tape. There are, however, other possibilities. One is
for the trial court to preclude the State from utilizing the roadside sobriety tests. See Lancaster,
457 So.2d at 506. Another possibility would be instructing the jury that they may infer that the
lost evidence is exculpatory …. Deberry v. State, 457 A.2d 744, 754 (Del.1983) (requiring
State to stipulate on retrial that if defendant’s clothing, lost by the State, were introduced, it would
not contain any evidence incriminating him).56

The court remanded the matter to the trial court for consideration of the appropriate sanction.

Although the decision in Davis57 should resolve many disputes about whether a recording is exculpatory, a
fundamental problem may linger—how to deal with situations where the nature of the material is unclear. In
fact, in Bennett v. State,58 the court expressed concern about this aspect of Davis.59 The court in Bennett60
observed that the Davis court seemed to just assume that the recording would support the defendant’s position
instead of the officer’s testimony. The court recognized that the tape could be exculpatory, inculpatory, or
useful to both sides.61 In dicta, the Bennett court suggests that before the trial judge finds the lost or destroyed
evidence to be “‘material exculpatory evidence,’” the defense must meet a threshold burden of showing
“perhaps by the preponderance of the evidence,” that: (1) the evidence “would have created a reasonable
probability that the outcome of the proceeding would have been different, and (2) the defendant did not have an
adequate alternative method to provide comparable evidence.” 62 The court suggests that then the burden should
shift to the State to prove a lack of prejudice.63

Some other county and circuit courts have also dealt with lost video evidence. In State v. Dunphy,64 an officer
testified that the defendant was driving, but the defendant’s mother testified that the defendant was not driving.
The officer had a camera in his vehicle. No one ever looked at the tape in the camera, and pursuant to
department policy, it was destroyed after 30 days. The defendant sought dismissal. The trial court concluded
that the most that could be said was that the tape “probably existed” and was “potentially exculpatory, and even
then, only if one blindly believes” the defense testimony. 65 The trial judge noted that any alleged exculpatory
value was not known at the time it was erased in accord with the normal department practice. Thus, the judge
denied the motion to dismiss. This was a driving on a suspended license charge.

In State v. Dinwiddie,66 a circuit court appellate judge struggled with the issue of whether a booking room tape
that was reused as a matter of routine practice was exculpatory. The trial judge had dismissed the case. The
appellate court concluded that dismissal was inappropriate because the chances that it was exculpatory were low
due to the time between arrest and booking, the fact that the tape could have been helpful to either side, and the
simple nature of the defendant’s task at booking. 67 Additionally, the Dinwiddie judge concluded that the chances
the absence of the tape had any impact on the defendant’s right to a fair trial were low. There was no sign that
the destruction of the tape hindered the defendant’s ability of developing alternative methods of defending
himself such as cross of the officers, testifying, or presenting other evidence.68

The foregoing principles apply to unavailable tapes and their impact on trials. Production of available tapes,
however, is not exactly the same. Thus, in State v. Rice,69 the trial judge ordered the State to produce jail video
surveillance tapes, including tapes of the jail salley-port, pedestrian salley-port, and booking hallway. The judge
disagreed with the ruling in Dinwiddie70 for four reasons.71 First, these tapes showed the defendant’s
characteristics (i.e. walking, talking, following directions, awareness, and ability to function) that relate to
impairment of normal faculties. Second, the time lapse between the arrest and the filming of the scenes on the
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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

videos was often short. In fact, the time gap between arrest and the breath test was about the same. Third, the
trial judge in Rice72 had observed a substantial number of videos in various cases where the defendant’s
movements appeared less impaired than as described by the arresting officer. Fourth, the observation in
Dinwiddie,73 that the defendant has other ways of defending himself, should not be a factor in resolving
discovery issues.

There may be times where an undisclosed tape is discovered after conviction or for some reason the usefulness
of the tape is affected by State action. For instance, in State v. Rogers,74 unbeknownst to prosecutors, police
carelessly misplaced the tape and the prosecutor advised the defense that the department no longer had a copy
of the tape. After the trial, the defense secured the tape, which showed that the defendant was not as impaired as
the officer who administered the field sobriety exercises testified. The trial judge ruled that this tape was
material, and the State was charged with the police department’s misconduct. The judge concluded beyond a
reasonable doubt that the verdict of guilty would have been different if the tape had been provided to the
defendant and ordered a new trial.

In another unusual case,75 the trial judge was confronted with a videotape of a conversation between a police
agent and the accused that involved an offer of a breath test. The tape contained many improper comments by
the agent, affecting the usefulness of the tape. The defendant argued that his appearance on the tape was good,
but that the conduct of the police agent required dismissal because the tape could not be used. The trial judge
ruled that the agent’s conduct was outrageous, but fell short of bad faith in that his inappropriate conduct was
not designed to destroy exculpatory evidence. The court ordered that portions of the tape be redacted.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Butler v. State, 13 Fla. L. Weekly Supp. 1135 (Fla. 6th Cir. Ct. Feb 28, 2006).
2
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
3
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
4
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
5
State v. Margolis, 2 Fla. L. Weekly Supp. 268 (Fla. Dade Cty. Ct. April 11, 1994)State v. Margolis, 2
Fla. L. Weekly Supp. 268 (Fla. Dade Cty. Ct. April 11, 1994).
6
State v. Margolis, 2 Fla. L. Weekly Supp. 268 (Fla. Dade Cty. Ct. April 11, 1994)State v. Margolis, 2
Fla. L. Weekly Supp. 268 (Fla. Dade Cty. Ct. April 11, 1994).
7
Smiddy v. State, 627 So. 2d 1257 (Fla. 3d DCA 1993). See also State v. Krnjaich, 17 Fla. L. Weekly
Supp. 376 (Fla. Leon Cty. Ct. Feb. 19, 2010)State v. Krnjaich, 17 Fla. L. Weekly Supp. 376 (Fla. Leon
Cty. Ct. Feb. 19, 2010) (officers deactivation of camera during DUI investigation in violation of
department policy constituted bad faith and grounds for dismissal); State v. Olman, 16 Fla. L. Weekly
Supp. 567 (Fla. Leon Cty Ct. Oct. 28, 2008)State v. Olman, 16 Fla. L. Weekly Supp. 567 (Fla. Leon Cty
Ct. Oct. 28, 2008) (charge dismissed where department had policy requiring videotaping, but officer
intentionally positioned defendant off camera for all but nine seconds prior to arrest); State v.
Thompson, 16 Fla. L. Weekly Supp. 435 (Fla. Leon Cty. Ct. Oct. 27, 2008)State v. Thompson, 16 Fla.
L. Weekly Supp. 435 (Fla. Leon Cty. Ct. Oct. 27, 2008) (charge dismissed based on bad faith where
officer videotaped FSES from patrol car, but stayed in vehicle with microphone on him so that, contrary
to department policy, nothing said by defendant or investigating officer could be heard for nine
minutes); State v. Tercyak, 16 Fla. L. Weekly Supp. 429 (Fla. Leon Cty. Ct. Feb. 29, 2008) State v.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

Tercyak, 16 Fla. L. Weekly Supp. 429 (Fla. Leon Cty. Ct. Feb. 29, 2008) (charge dismissed where
officer acted in bad faith by disregarding policy that officers with “in-car camera systems, should
activate … the system when conducting traffic stops” (emphasis by court); State acknowledged officer
did this because the tape could have been more helpful to defense than State); State v, Huggett, 15 Fla.
L. Weekly Supp. 1097 (Fla. Santa Rosa Cty. Ct. Aug. 27, 2008) (evidence secured from stop suppressed
where officer did not try to activate camera that worked about half the time to film FSES; officer gave
no explanation other than sometimes it didn’t work; only evidence of impairment was driving pattern
and FSES; no exigencies; defendant testified recording would have been exculpatory); State v. Lirette,
15 Fla. L. Weekly Supp. 194 (Fla. Brevard Cty. Ct. Nov. 15, 2007)State v. Lirette, 15 Fla. L. Weekly
Supp. 194 (Fla. Brevard Cty. Ct. Nov. 15, 2007) (failure to follow policy and record FSES resulted in a
loss of potentially useful evidence, which in this case resulted from an officer forgetting to turn the
recorder on; court held that this was gross negligence and the appropriate remedy was to allow
defendant to take depositions from other officers who were present and to instruct the jury that the
recording was unavailable because the State had lost or misplaced it); State v. Caglianone, 14 Fla. L.
Weekly Supp. 1158 (Fla. Broward Cty. Ct. Sept. 18, 2007), affirmed, 17 Fla. L. Weekly Supp. 637 (Fla.
17th Cir. Ct. April 5, 2010)17 Fla. L. Weekly Supp. 637 (Fla. 17th Cir. Ct. April 5, 2010) (where
department had policy of having back-up officer observe every part of investigation from exit to arrest,
which they violated, and court accepted defendant’s testimony that a back-up officer’s observation
would have been exculpatory, the court suppressed all evidence secured after arresting officer’s initial
observations); State v. Robbins, 14 Fla. L. Weekly Supp. 674 (Fla. Citrus Cty. Ct. March 27, 2007)State
v. Robbins, 14 Fla. L. Weekly Supp. 674 (Fla. Citrus Cty. Ct. March 27, 2007) (when state has a policy
of video taping in a DUI, the state must follow that policy).
8
Smiddy v. State, 627 So. 2d 1257 (Fla. 3d DCA 1993).
9
State v. Garcia, 13 Fla. L. Weekly Supp. 634 (Fla. Monroe Cty. Ct. March 23, 2006) State v. Garcia, 13
Fla. L. Weekly Supp. 634 (Fla. Monroe Cty. Ct. March 23, 2006); State v. Krogman, 13 Fla. L. Weekly
Supp. 634 (Fla. Monroe Cty. Ct. Feb. 20, 2006)State v. Krogman, 13 Fla. L. Weekly Supp. 634 (Fla.
Monroe Cty. Ct. Feb. 20, 2006); State v. Roberts, 13 Fla. L. Weekly Supp. 633 (Fla. Monroe Cty. Ct.
March 23, 2006)State v. Roberts, 13 Fla. L. Weekly Supp. 633 (Fla. Monroe Cty. Ct. March 23, 2006);
State v. Moore, 13 Fla. L. Weekly Supp. 632 (Fla. Monroe Cty. Ct. March 23, 2006)State v. Moore, 13
Fla. L. Weekly Supp. 632 (Fla. Monroe Cty. Ct. March 23, 2006). See also State v. Krnjaich, 17 Fla. L.
Weekly Supp. 376 (Fla. Leon Cty. Ct. Feb. 9, 2010)17 Fla. L. Weekly Supp. 376 (Fla. Leon Cty. Ct.
Feb. 9, 2010) (officer had functioning equipment, but she deactivated the microphone in violation of a
written policy, which she incorrectly believed was optional; the officer consistently violated the policy
by selectively recording; once a department establishes a policy, a duty to preserve the evidence arises;
repeated and flagrant violation of a written policy constitutes bad faith and a violation of the defendant’s
due process rights; the court dismissed the charges).
10
State v. Garcia, 13 Fla. L. Weekly Supp. 634 (Fla. Monroe Cty. Ct. March 23, 2006) State v. Garcia, 13
Fla. L. Weekly Supp. 634 (Fla. Monroe Cty. Ct. March 23, 2006); State v. Krogman, 13 Fla. L. Weekly
Supp. 634 (Fla. Monroe Cty. Ct. Feb. 20, 2006)State v. Krogman, 13 Fla. L. Weekly Supp. 634 (Fla.
Monroe Cty. Ct. Feb. 20, 2006); State v. Roberts, 13 Fla. L. Weekly Supp. 633 (Fla. Monroe Cty. Ct.
March 23, 2006)State v. Roberts, 13 Fla. L. Weekly Supp. 633 (Fla. Monroe Cty. Ct. March 23, 2006);
State v. Moore, 13 Fla. L. Weekly Supp. 632 (Fla. Monroe Cty. Ct. March 23, 2006)State v. Moore, 13
Fla. L. Weekly Supp. 632 (Fla. Monroe Cty. Ct. March 23, 2006).
11
State v. Krogmann, 14 Fla. L. Weekly Supp. 1030 (Fla. 16th Cir. Ct. March 23, 2007). The decision that
the tapes were not material may not survive the more recent district court ruling in State v. Davis, 14
So. 3d 1130 (Fla. 4th DCA 2009), which is explained in detail in this section. But see Bennett v. State,
23 So. 3d 782 (Fla. 2d DCA 2009).
12
State v. Krogmann, 14 Fla. L. Weekly Supp. 1030 (Fla. 16th Cir. Ct. March 23, 2007). See also State v.
Pastor, 25 Fla. L. Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017)Cir. Ct. March 23, 2007). See
also State v. Pastor, 25 Fla. L. Weekly Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017) (destroyed jail
video was only potentially useful where defendant testified he did the test well, but defendant’s BAL
was more than double the legal limit, the deputy contradicted defendant and the trial judge found the
deputy more credible).
13
State v. Krogmann, 14 Fla. L. Weekly Supp. 1030 (Fla. 16th Cir. Ct. March 23, 2007).

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14
State v. Krogmann, 14 Fla. L. Weekly Supp. 1030 (Fla. 16th Cir. Ct. March 23, 2007).
15
State v. Bunnell, 2 Fla. L. Weekly Supp. 304 (Fla. Brevard Cty. Ct. May 12, 1994) State v. Bunnell, 2
Fla. L. Weekly Supp. 304 (Fla. Brevard Cty. Ct. May 12, 1994).
16
Allred v. State, 622 So. 2d 984 (Fla. 1993).
17
State v. Bunnell, 2 Fla. L. Weekly Supp. 304 (Fla. Brevard Cty. Ct. May 12, 1994) State v. Bunnell, 2
Fla. L. Weekly Supp. 304 (Fla. Brevard Cty. Ct. May 12, 1994).
18
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
19
State v. Betts, 659 So. 2d 1137 (Fla. 5th DCA 1995), review denied, 668 So. 2d 602 (Fla. 1996). See
also State v. Quinlan, 20 Fla. L. Weekly Supp. 615 (Fla. Pasco Cty Ct. Aug,. 13, 2012)State v. Quinlan,
20 Fla. L. Weekly Supp. 615 (Fla. Pasco Cty Ct. Aug,. 13, 2012) (judge denied motion to dismiss or in
the alternative to exclude evidence of FSES where exercises were not recorded contrary to a specific
policy; however, deputy believed that the equipment was working and the exercises were being taped
and did not realize the equipment had malfunctioned until the defendant was handcuffed and removed to
the DUI command center; there was no evidence of bad faith or that the recording would have been
exculpatory); State v. Aris, 18 Fla. L. Weekly Supp. 891 (Fla. Broward Cty. Ct. April 27, 2011)State v.
Aris, 18 Fla. L. Weekly Supp. 891 (Fla. Broward Cty. Ct. April 27, 2011) (trial judge denied motion to
dismiss based on failure to record FSES; transport officer had a camera in cruiser, but it had been broken
for over a year; officer had reported it to his supervisor a couple of times, but it was never repaired
because of a lack of funds; department procedures provided that FSES should be videotaped if any
officer on the scene had a patrol car equipped with a video; based on State v. Betts the court found no
due process violation; there was no proof of bad faith); State v. Ditano, 18 Fla. L. Weekly Supp. 600
(Fla. Brevard Cty. Ct. March 28, 2011)State v. Ditano, 18 Fla. L. Weekly Supp. 600 (Fla. Brevard Cty.
Ct. March 28, 2011) (the court denied a motion to suppress FSES based on violation of department
policy to videotape; there was no bad faith where neither officer had a video camera and a third officer
was busy doing another investigation; additionally the court found there was no due process requirement
that alternative FSES be offered to a 65 year suspect who claimed back problems—that goes to weight
rather than admissibility). But see State v. Quintero, 14 Fla. L. Weekly Supp. 93 (Fla. Broward Cty. Ct.
Oct. 24, 2006)State v. Quintero, 14 Fla. L. Weekly Supp. 93 (Fla. Broward Cty. Ct. Oct. 24, 2006) (trial
judge found tape was material and dismissed charge where video of FSES was lost due to a technical
change in the way tapes were made; only driving problem was unlawful speed; defendant refused breath
tests; passenger testified that she observed the FSES and defendant performed well, did not have slurred
speech, or show any other signs of impairment; State failed to show lack of prejudice).
20
State v. Orcel, 7 Fla. L. Weekly Supp. 219, 220 (Fla. Broward Cty. Ct. Nov. 24, 1999)State v. Orcel, 7
Fla. L. Weekly Supp. 219, 220 (Fla. Broward Cty. Ct. Nov. 24, 1999). See also State v. Marsten, 18 Fla.
L. Weekly Supp. 73 (Fla. Leon Cty. Ct. Sept. 2, 2010)State v. Marsten, 18 Fla. L. Weekly Supp. 73 (Fla.
Leon Cty. Ct. Sept. 2, 2010) (there was no bad faith where the arresting officer used a back-up officer’s
camera to record, but through a mistake the microphone was attached to the officer who provided the
camera, and he was out of range so that the audio portion of FSES was not recorded; if there is no bad
faith, the burden is on the defendant to show that the lost evidence was exculpatory and the defendant
did not meet that burden); State v. Lunn, 8 Fla. L. Weekly Supp. 866 (Fla. Monroe Cty. Ct. Sept. 19,
2001)State v. Lunn, 8 Fla. L. Weekly Supp. 866 (Fla. Monroe Cty. Ct. Sept. 19, 2001) (court refused to
suppress videotape on the grounds that it did not have an audio recording). But see State v, Milian, 18
Fla. L. Weekly Supp. 414 (Fla. Broward Cty. Ct. Dec. 9, 2010)18 Fla. L. Weekly Supp. 414 (Fla.
Broward Cty. Ct. Dec. 9, 2010) (audio portion of tape stopped working; arresting officer knew his taping
equipment was not operating for some time and never reviewed his video tape to ensure satisfactory
quality and systematically ignored the department policies and procedures concerning such matters;
officer did not seek help on this occasion nor did he check the video and make a tape at the BAT
facility; the deputy reported the problem in the past to his Sergeant and tried to fix it himself, but he
never filed formal written reports of equipment failure and/or inspection or repairs; the conduct was
tantamount to bad faith and the court dismissed the charges).
21
State v. Robbins, 14 Fla. L. Weekly Supp. 674 (Fla. Citrus Cty. Ct. March 27, 2007)State v. Robbins, 14
Fla. L. Weekly Supp. 674 (Fla. Citrus Cty. Ct. March 27, 2007) (where there was a policy to video tape
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in the intoxilyzer room, but there was no procedure for maintaining the equipment or for detecting and
curing problems, the failure to record the audio portion of the defendant’s experience where the audio
had not been recorded for almost three months, constituted willful conduct or gross negligence and
required dismissal).
22
Lindo v. State, 14 Fla. L. Weekly Supp. 319 (Fla. 17th Cir. Ct. Feb. 5, 2007)Lindo v. State, 14 Fla. L.
Weekly Supp. 319 (Fla. 17th Cir. Ct. Feb. 5, 2007).
23
Lindo v. State, 14 Fla. L. Weekly Supp. 319 (Fla. 17th Cir. Ct. Feb. 5, 2007)Lindo v. State, 14 Fla. L.
Weekly Supp. 319 (Fla. 17th Cir. Ct. Feb. 5, 2007). See also State v. Hastings, 20 Fla. L. Weekly Supp.
530 (Fla. 6th Cir. Ct. Feb. 26, 2013)State v. Hastings, 20 Fla. L. Weekly Supp. 530 (Fla. 6th Cir. Ct.
Feb. 26, 2013) (trial court suppressed deputy’s testimony as to HGN because the deputy had recorded
the performance of other FSES, but not the HGN; “‘[h]aving an officer testify about evidence
intentionally not recorded makes any trial incorporating that evidence fundamentally unfair, due to lack
of cross examination.’” based on State v. Daniels, the court reversed, finding that such a ruling would
require that all HGN tests be recorded when officers have the means readily available; there is no
precedent for imposing such a requirement, there was no bad faith, no loss of existing evidence, and no
apparent deprivation of defendant’s ability to defend).
24
Shannon v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 930 (Fla. 13th Cir. Ct.
Jan. 10 2003)Shannon v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 930 (Fla.
13th Cir. Ct. Jan. 10 2003).
25
State v. Gomez, 915 So. 2d 698 (Fla. 3d DCA 2005).
26
State v. Gomez, 915 So. 2d 698 (Fla. 3d DCA 2005).
27
State v. Gomez, 915 So. 2d 698 (Fla. 3d DCA 2005).
28
Wiese v. State, 357 So. 2d 755 (Fla. 4th DCA 1978).
29
State v. Sobel, 363 So. 2d 324 (Fla. 1978).
30
State v. Sobel, 363 So. 2d 324, 328 (Fla. 1978). See also James v. State, 453 So. 2d 786, 790
(Fla. 1984), cert. denied, 469 U.S. 1098, 105 S. Ct. 608, 83 L. Ed. 2d 717 (1984) (no error in denying
sanctions where there was no showing tape existed, was suppressed, was material, or was exculpatory);
State v. Muro, 909 So. 2d 448 (Fla. 4th DCA 2005) (in child abuse case where defendant-caretaker was
filmed allegedly shaking child, the court reversed suppression of tape, which was based on fact that 78
hours of the recording was not collected or preserved through no bad faith; despite defense claim that
those other portions of the tape were exculpatory, court found that they were not relevant to whether
abuse occurred on the one portion of the tape, testimonial descriptions of what was on the destroyed tape
were unrebutted, and claimed technical problems arising from the slow speed of the surviving tape could
be presented through experts); State v. Thomas, 826 So. 2d 1048 (Fla. 2d DCA 2002) (court reversed a
dismissal where police inadvertently misplaced a tape of an undercover contact in a drug case, but all the
court had before it was defense’s unproven assertion that the tape might be helpful, and no allegation of
bad faith); Durham v. State, 738 So. 2d 477 (Fla. 5th DCA 1999); Wiese v. State, 357 So. 2d 755 (Fla.
4th DCA 1978); State v. Stenwall, 17 Fla. L. Weekly Supp. 691 (Fla. Palm Beach Cty. Ct. March 3,
2010)State v. Stenwall, 17 Fla. L. Weekly Supp. 691 (Fla. Palm Beach Cty. Ct. March 3, 2010) (where
defendant claimed that FDLE employees and inspectors from law enforcement agencies intentionally
and maliciously turned off power destroying data showing failed inspection, the motion to dismiss was
denied because the burden was on the defendant to show that the lost evidence was exculpatory and not
merely potentially useful to the defense).
31
State v. Sobel, 363 So. 2d 324 (Fla. 1978).
32
Bennett v. State, 23 So. 3d 782 (Fla. 2d DCA 2009).
33
Bennett v. State, 23 So. 3d 782, 792 (Fla. 2d DCA 2009).

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34
Bennett v. State, 23 So. 3d 782, 790 (Fla. 2d DCA 2009).
35
State v. Sobel, 363 So. 2d 324 (Fla. 1978).
36
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
37
Bennett v. State, 23 So. 3d 782, 794 (Fla. 2d DCA 2009). See also Peterson v. Dep’t of Highway Safety
& Motor Vehicles, 17 Fla. L. Weekly Supp. 918 (Fla. 20th Cir. Ct. June 15, 2010) Peterson v. Dep’t of
Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 918 (Fla. 20th Cir. Ct. June 15, 2010)
(even though petitioner asked that the incident be recorded, the officer had no duty to do so nor did the
officer have a duty to call a back-up officer who had functioning equipment; the defendant’s speculation
that a recording would have been material is insufficient where no recording was made and it is “only
potentially useful, not material exculpatory evidence, unless law enforcement admits it would have
contained evidence that supports a theory of sobriety.”); State v. Pastor, 25 Fla. L. Weekly Supp. 129
(Fla. Hendry Cty. Ct. Feb. 23, 2017)State v. Pastor, 25 Fla. L. Weekly Supp. 129 (Fla. Hendry Cty. Ct.
Feb. 23, 2017) (destroyed jail video was only potentially useful where defendant testified he did the test
well, but defendant’s BAL was more than double the legal limit, the deputy contradicted defendant and
the trial judge found the deputy more credible); State v. Gerencser, 17 Fla. L. Weekly Supp. 116 (Fla.
Santa Rosa Cty. Ct. Nov. 19, 2009)State v. Gerencser, 17 Fla. L. Weekly Supp. 116 (Fla. Santa Rosa
Cty. Ct. Nov. 19, 2009) (court denied motion to suppress for failure to make video; deputy did not use
available video equipment at the jail to film the defendant, there was no such policy alleged and the
deputy was unaware of one; there was no testimony suggesting that a video would have been material;
the defendant did not refute the deputy’s allegations about the performance on FSES or testify that the
video would have been helpful to her defense and there was no testimony refuting the deputy’s
testimony on other important points).
38
Salickram v. State, 49 Fla. Supp. 2d 17 (Fla. 9th Cir. Ct. 1991) (where State destroyed favorable tape
and only evidence was officer’s testimony and Defendant’s refusal to take breathalyzer test, circuit court
rejected trial judge’s conclusion that tape was not material because Defendant could testify as to
performance on FSES); State v. Sweeney, 38 Fla. Supp. 2d 24 (Fla. 11th Cir. Ct. 1990); State v. Miller,
14 Fla. Supp. 2d 136 (Fla. 11th Cir. Ct. 1985) (where State destroyed videotape through culpable
negligence, defense counsel submitted detailed affidavit showing it was favorable and was the only
evidence of his innocence, defense counsel’s trial testimony would not be an adequate substitute for tape
and would require counsel to withdraw, depriving the defendant of his counsel of choice); State v.
Rutenberg, 16 Fla. L. Weekly Supp. 774 (Fla. Monroe Cty. Ct. May 26, 2009)State v. Rutenberg, 16 Fla.
L. Weekly Supp. 774 (Fla. Monroe Cty. Ct. May 26, 2009) (court granted motion to dismiss for failure
to videotape at the scene or at the station; where the officer had a vehicle with a broken camera for a
year and “did not take the necessary steps to correct the problem in direct contravention of the General
Orders resulting in depriving the defendant of having his speech, demeanor, statements and physical
audio responses captured;” the State failed to prove lack of prejudice; “Defendant claims not to have
made several incriminating statements and rejects the allegation that his speech was in any way slurred;”
DUI cases are mostly opinion and in a case such as this where Defendant refused a blood draw and to
continue the FSES and there was no driving pattern, and there was evidence consistent with innocence,
“The audio section of the video would have captured the demeanor of the Defendant, his speech and his
statements, without such the criminal trial becomes fundamentally unfair.”); State v. Freglette, 14 Fla. L.
Weekly Supp. 295 (Fla. Broward Cty. Ct. Jan. 12, 2007)State v. Freglette, 14 Fla. L. Weekly Supp. 295
(Fla. Broward Cty. Ct. Jan. 12, 2007), affirmed, 15 Fla. L. Weekly Supp. 336 (Fla. 17th Cir. Ct. Jan. 3,
2008)15 Fla. L. Weekly Supp. 336 (Fla. 17th Cir. Ct. Jan. 3, 2008) (lost video of performance of FSES
at scene of accident; officers’ testimony conflicted; video at BAT facility did not display the indicia of
impairment allegedly observed at the scene; court said, “unlike potentially useful evidence that would
require further testing or study to reveal its exculpatory value, the missing videotape in this case would
have spoken for itself.”); State v. McIntire, 11 Fla. L. Weekly Supp. 43 (Fla. Duval Cty. Ct. Oct. 1,
2003)State v. McIntire, 11 Fla. L. Weekly Supp. 43 (Fla. Duval Cty. Ct. Oct. 1, 2003) (lost tape was
material where State charged based solely on excess alcohol level, defendant made unrebutted showing
that the defendant did several things properly, and the State did not show a lack of prejudice); State v.
Bader, 25 Fla. Supp. 2d 84 (Fla. Dade Cty. Ct. 1987) (Defendant’s condition was inconclusive, his
performance on field sobriety exercises was at best borderline, and his bal was .12 when the legal limit
was still .10; the videotape was material and favorable to the defendant).
39
State v. Bade, 20 Fla. Supp. 2d 149 (Fla. 11th Cir. Ct. 1986) (court reversed trial court’s finding of
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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

materiality because there was no evidence tape was favorable to defendant, material to guilt or
innocence, or prejudicial; tape would have been cumulative to officers’ testimony). See also State v.
Quintero, 14 Fla. L. Weekly Supp. 93 (Fla. 17th Cir. Cty. Ct. Oct. 24, 2006)State v. Quintero, 14 Fla. L.
Weekly Supp. 93 (Fla. 17th Cir. Cty. Ct. Oct. 24, 2006) (appellate court ruled that erased tape of FSES
was not material, where there was also a grainy tape from a surveillance camera available; and while
there may have been discrepancies between officer’s testimony and surveillance tape, those
discrepancies could be resolved through the testimony of the officer; therefore, the FSES tape was only
potentially useful).
40
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009) (officer swore defendant’s breath smelled of
alcohol; defendant’s eyes were bloodshot, face flushed, his speech slurred, movements slow and
deliberate, and defendant had difficulty retrieving his wallet; defendant admitted to consuming two beers
and taking oxycodone; officer testified that lost recording was consistent with his testimony and
demonstrated that the defendant was impaired; defendant claimed recording would have impeached
officer’s testimony that he was impaired and would have been helpful to defendant).
41
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009).
42
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009). See also State v. Powers, 555 So. 2d 888
(Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
43
Bennett v. State, 23 So. 3d 782 (Fla. 2d DCA 2009).
44
Bennett v. State, 23 So. 3d 782, 785–86 (Fla. 2d DCA 2009).
45
State v. Miller, 14 Fla. Supp. 2d 136 (Fla. 11th Cir. Ct. 1985) (where State destroyed videotape through
culpable negligence, defense counsel submitted detailed affidavit showing it was favorable and was the
only evidence of his innocence, defense counsel’s trial testimony would not be an adequate substitute for
tape and would require counsel to withdraw, depriving the defendant of his counsel of choice; circuit
court affirmed dismissal); State v. Bader, 25 Fla. Supp. 2d 84 (Fla. Dade Cty. Ct. 1987) (defendant’s
condition was inconclusive, his performance on field sobriety exercises was at best borderline, and his
bal .12 when the legal limit was still .10; the videotape was material and favorable to the defendant and
dismissal required); State v. Sweeney, 38 Fla. Supp. 2d 24 (Fla. 11th Cir. Ct. 1990); Salickram v. State,
49 Fla. Supp. 2d 17 (Fla. 9th Cir. Ct. 1991) (where State destroyed favorable tape and only evidence was
officer’s testimony and defendant’s refusal to take breathalyzer test, circuit court rejected trial judge’s
conclusion that tape was not material because defendant could testify as to performance on FSES;
dismissal was appropriate); State v. Freglette, 14 Fla. L. Weekly Supp. 295 (Fla. Broward Cty. Ct. Jan.
12, 2007)State v. Freglette, 14 Fla. L. Weekly Supp. 295 (Fla. Broward Cty. Ct. Jan. 12, 2007) ,
affirmed, 15 Fla. L. Weekly Supp. 336 (Fla. 17th Cir. Ct. Jan. 3, 2008)15 Fla. L. Weekly Supp. 336 (Fla.
17th Cir. Ct. Jan. 3, 2008) (DUI charge dismissed where video of FSES at scene of accident was
inexplicably lost; officers’ testimony conflicted; video at BAT facility did not display the indicia of
impairment allegedly observed at the scene); State v. McIntire, 11 Fla. L. Weekly Supp. 43 (Fla. Duval
Cty. Ct. Oct. 1, 2003)State v. McIntire, 11 Fla. L. Weekly Supp. 43 (Fla. Duval Cty. Ct. Oct. 1, 2003)
(where State charged based solely on excess alcohol level, court granted motion to dismiss because
officer lost tape of FSES, defendant made unrebutted showing that the defendant did several things
properly, and the State did not show a lack of prejudice); But see State v. Williams, 28 Fla. Supp. 2d 126
(Fla. 11th Cir. Ct. 1988) (dismissal was not required where defense counsel lost copy of tape provided
by State and, in the meantime, State lost its copy).
46
State v. Miller, 8 Fla. L. Weekly Supp. 79 (Fla. 20th Cir. Ct. Sept. 12, 2000) State v. Miller, 8 Fla. L.
Weekly Supp. 79 (Fla. 20th Cir. Ct. Sept. 12, 2000) (jail taping system recorded one out of every three
seconds, but it had been recorded over since the defendant’s arrest; the system did not tape in the
bathroom; appellate court reversed dismissal noting that the testimony indicated the only time
defendant’s behavior was negative was when he wasn’t being taped; image was favorable to defendant
during the filming). See also State v. Davis, 8 Fla. L. Weekly Supp. 230 (Fla. 20th Cir. Ct. Oct. 27,
2000)State v. Davis, 8 Fla. L. Weekly Supp. 230 (Fla. 20th Cir. Ct. Oct. 27, 2000).
47
State v. Miller, 8 Fla. L. Weekly Supp. 79 (Fla. 20th Cir. Ct. Sept. 12, 2000) State v. Miller, 8 Fla. L.
Weekly Supp. 79 (Fla. 20th Cir. Ct. Sept. 12, 2000). See also State v. Davis, 8 Fla. L. Weekly Supp. 230

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(Fla. 20th Cir. Ct. Oct. 27, 2000)State v. Davis, 8 Fla. L. Weekly Supp. 230 (Fla. 20th Cir. Ct. Oct. 27,
2000). For a valuable discussion of this subject see Elizabeth A. Bawden, Here Today, Gone Tomorrow
—Three Common Mistakes Courts Make When Police Lose or Destroy Evidence with Apparent
Exculpatory Value, 48 Clev. St. L. Rev. 335 (2000).
48
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
49
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
50
State v. Davis, 14 So. 3d 1130, 1133 (Fla. 4th DCA 2009).
51
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
52
Bennett v. State, 23 So. 3d 782, 787 (Fla. 2d DCA 2009).
53
State v. Powers, 555 So. 2d 888 (Fla. 2d DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990).
54
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009). See also State v. Schwartz, 21 Fla. L. Weekly
Supp. 756 (Fla. 17th Cir. Ct. March 27, 2014)State v. Schwartz, 21 Fla. L. Weekly Supp. 756 (Fla. 17th
Cir. Ct. March 27, 2014) (court reversed dismissal and remanded for trial judge to impose a less severe
sanction where officer failed to properly record FSEs due to fog on the windshield and failed to follow
department policy that he make sure video was properly working; but trial judge found officer did not
destroy evidence nor act in bad faith).
55
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009).
56
State v. Davis, 14 So. 3d 1130, 1133 (Fla. 4th DCA 2009). See also State v. Hankins, 15 Fla. L.
Weekly Supp. 151 (Fla. 7th Cir. Ct. Nov. 28, 2007)State v. Hankins, 15 Fla. L. Weekly Supp. 151 (Fla.
7th Cir. Ct. Nov. 28, 2007) (video tape of stop of vehicle was material to defendant’s consent to search
vehicle; proper remedy for destruction of tape was suppression of any testimony that defendant
consented); State v. Carroll, 17 Fla. L. Weekly 210 (Fla. Palm Beach Cty. Ct. Oct. 27, 2009)17 Fla. L.
Weekly 210 (Fla. Palm Beach Cty. Ct. Oct. 27, 2009) (where officer inadvertently damaged the tape, the
court concluded that an appropriate remedy was to give an instruction pursuant to Public Health
Trust of Dade County v. Valcin, 507 So. 2d 596, 69 A.L.R.4th 895 (Fla. 1987), where the court approved
a rebuttable presumption where records were negligently lost; the availability and nature of the
presumption varies depending on the circumstances); State v. Brown, 8 Fla. L. Weekly Supp. 575 (Fla.
Monroe Cty. Ct. May 8, 2001)State v. Brown, 8 Fla. L. Weekly Supp. 575 (Fla. Monroe Cty. Ct. May 8,
2001) (court denied a motion to dismiss where the recorder or tape malfunctioned when it was supposed
to be recording field sobriety tests, the tape was material and possibly exculpatory, but the defendant had
alternative means to present his defense, such as cross examination of the deputies and presenting his
own testimony).
57
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009).
58
Bennett v. State, 23 So. 3d 782 (Fla. 2d DCA 2009).
59
State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009).
60
Bennett v. State, 23 So. 3d 782, 787 (Fla. 2d DCA 2009).
61
Bennett v. State, 23 So. 3d 782, 787 (Fla. 2d DCA 2009).
62
Bennett v. State, 23 So. 3d 782, 784 (Fla. 2d DCA 2009). See also State v. Pastor, 25 Fla. L. Weekly
Supp. 129 (Fla. Hendry Cty. Ct. Feb. 23, 2017)State v. Pastor, 25 Fla. L. Weekly Supp. 129 (Fla.
Hendry Cty. Ct. Feb. 23, 2017) (where potentially useful jail video was unintentionally destroyed, trial
judge relied on Bennett’s dicta and applied the two part test; the judge concluded there was no

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reasonable probability of a different outcome where the deputy testified that defendant performed poorly
on FSTs and defendant’s BAL was more than double the legal limit; there were no cameras in the police
car so no roadside FSTs videos were made; but defendant had same adequate alternative methods of
providing comparable evidence as any defendant in that situation: cross of officer, impeachment where
possible, and testifying).
63
Bennett v. State, 23 So. 3d 782, 784 (Fla. 2d DCA 2009).
64
State v. Dunphy, 6 Fla. L. Weekly Supp. 297 (Fla. Palm Beach Cty. Ct. Feb. 18, 1999)State v. Dunphy,
6 Fla. L. Weekly Supp. 297 (Fla. Palm Beach Cty. Ct. Feb. 18, 1999).
65
State v. Dunphy, 6 Fla. L. Weekly Supp. 297 (Fla. Palm Beach Cty. Ct. Feb. 18, 1999)State v. Dunphy,
6 Fla. L. Weekly Supp. 297 (Fla. Palm Beach Cty. Ct. Feb. 18, 1999). State v. Caglianone, 14 Fla. L.
Weekly Supp. 1158 (Fla. Broward Cty. Ct. Sept. 18, 2007) (where department had policy of having
back-up officer observe every part of investigation from exit to arrest, which they violated, and court
accepted defendant’s testimony that a back-up officer’s observation would have been exculpatory, the
court suppressed all evidence secured after arresting officer’s initial observations).
66
State v. Dinwiddie, 5 Fla. L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998)State v. Dinwiddie, 5 Fla.
L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998).
67
State v. Dinwiddie, 5 Fla. L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998)State v. Dinwiddie, 5 Fla.
L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998).
68
State v. Dinwiddie, 5 Fla. L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998)State v. Dinwiddie, 5 Fla.
L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998). See also Eslinger v. State, 20 Fla. L. Weekly
Supp. 896 (Fla. 18th Cir. Ct. April 22, 2013)Eslinger v. State, 20 Fla. L. Weekly Supp. 896 (Fla. 18th
Cir. Ct. April 22, 2013) (jail security cameras are exempt from disclosure under the public records act
pursuant to § 281.301, Fla. Stat.; due process does not require the Sheriff to record people who are in
custody; however, if recordings of defendant exist, the State has a duty under the discovery rules to
disclose them); State v. Wiggins, 20 Fla. L. Weekly Supp. 614 (Fla. Flagler Cty. Ct. Dec. 5, 2012)State
v. Wiggins, 20 Fla. L. Weekly Supp. 614 (Fla. Flagler Cty. Ct. Dec. 5, 2012) (defendant was entitled to
no relief where security cameras at the jail were purged pursuant to policy; those cameras were
automatically activated when defendant walked in front of them, rather than specifically trained on the
defendant as part of the investigation; there was no evidence of bad faith nor that exculpatory evidence
was destroyed; demand for discovery was insufficient, rather defendant needed to make a specific
request for preservation to the entity that collected the evidence).
69
State v. Rice, 14 Fla. L. Weekly Supp. 992 (Fla. Collier Cty. Ct. July 30, 2007) State v. Rice, 14 Fla. L.
Weekly Supp. 992 (Fla. Collier Cty. Ct. July 30, 2007).
70
State v. Dinwiddie, 5 Fla. L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998)State v. Dinwiddie, 5 Fla.
L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998).
71
State v. Rice, 14 Fla. L. Weekly Supp. 992 (Fla. Collier Cty. Ct. July 30, 2007) State v. Rice, 14 Fla. L.
Weekly Supp. 992 (Fla. Collier Cty. Ct. July 30, 2007).
72
State v. Rice, 14 Fla. L. Weekly Supp. 992 (Fla. Collier Cty. Ct. July 30, 2007) State v. Rice, 14 Fla. L.
Weekly Supp. 992 (Fla. Collier Cty. Ct. July 30, 2007).
73
State v. Dinwiddie, 5 Fla. L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998)State v. Dinwiddie, 5 Fla.
L. Weekly Supp. 789 (Fla. 2d Cir. Ct. Aug 21, 1998).
74
State v. Rogers, 7 Fla. L. Weekly Supp. 751 (Fla. Palm Beach Cty. Ct. Sept. 5, 2000)State v. Rogers, 7
Fla. L. Weekly Supp. 751 (Fla. Palm Beach Cty. Ct. Sept. 5, 2000).
75
State v. Anderson, 6 Fla. L. Weekly Supp. 183 (Fla. Broward Cty. Ct. Nov. 12, 1998) State v. Anderson,
6 Fla. L. Weekly Supp. 183 (Fla. Broward Cty. Ct. Nov. 12, 1998).

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§ 11:2.Videotape, 11 Fla. Prac., DUI Handbook § 11:2 (2018-2019 ed.)

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 11:3.Preservation of samples, 11 Fla. Prac., DUI Handbook § 11:3 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 11:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 11. Preservation of Evidence

§ 11:3. Preservation of samples

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 422.1, 426

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1395 to 1405, 1407 to 1421

In many cases based upon the use or possession of substances, the defendant will argue that due process
guarantees the right to test those substances. Certainly, DUI defendants have made that argument as to breath
and blood samples. The matter has, however, been resolved.

In California v. Trombetta,1 the United States Supreme Court ruled that the Due Process Clause does not require
law enforcement agencies to preserve breath samples of suspected drunken drivers for the results of breath
analysis tests to be admissible in criminal prosecutions. 2 The Court stated that under the California system the
defendant’s rights were sufficiently protected. The defendant could check the machine for faulty calibration,
explain that there were other reasons for the test results, and cross-examine the operator to show error. The
Florida Supreme Court has applied the holding in Trombetta to blood tests.3 Similarly, the Third District Court
of Appeal has also found that there is no duty to preserve breath ampoules.4

In Davis v. State,5 the court recognized that Trombetta6 and Houser7 require “only that the defendant be provided
an adequate opportunity to inquire into the accuracy” 8 of the involved test, “which need not take the form of
cross-examination of the technician who actually performed the test.” 9 Davis involved a lab report showing the
results of a urine test for drugs in a violation of probation hearing. The sample had been destroyed and the
technician was not present. The report was allowed into evidence under the business records exception.

In a DUI Manslaughter case,10 the court considered the implications of Houser11 where a drug test had been
performed, but the lab technician who did it was not identified. The supervising lab toxicologist testified. The
court ruled that Houser did not require the exclusion of the test because the defendant had a “significant
opportunity to question the test results.”12

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§ 11:3.Preservation of samples, 11 Fla. Prac., DUI Handbook § 11:3 (2018-2019 ed.)

In another decision,13 two vials of blood were drawn from the defendant. One vial was completely used for the
test and the other was broken. The defendant moved to suppress the test results. The trial judge granted the
defendant’s motion. On appeal, the court reversed for two reasons. First, the State had no duty to collect two
vials nor was it required to preserve any portion of the sample, if it was “necessarily” used up during the testing.
Second, while the broken vial contained potentially exculpatory evidence, the defendant failed to show that the
state destroyed the vial in bad faith as required by Youngblood.14

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).
2
See also Houser v. State, 474 So. 2d 1193 (Fla. 1985); State v. Powers, 555 So. 2d 888 (Fla. 2d
DCA 1990), review denied, 563 So. 2d 633 (Fla. 1990); State v. Garafola, 459 So. 2d 1066 (Fla. 4th
DCA 1984); State v. Plawchan, 453 So. 2d 496 (Fla. 1st DCA 1984).
3
Houser v. State, 474 So. 2d 1193 (Fla. 1985).
4
State v. Phillipe, 402 So. 2d 33 (Fla. 3d DCA 1981), review denied, 412 So. 2d 469 (Fla. 1982).
5
Davis v. State, 562 So. 2d 431 (Fla. 1st DCA 1990).
6
California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).
7
Houser v. State, 474 So. 2d 1193 (Fla. 1985).
8
Davis v. State, 562 So. 2d 431, 433 (Fla. 1st DCA 1990).
9
Davis v. State, 562 So. 2d 431, 433 (Fla. 1st DCA 1990).
10
Cloe v. State, 613 So. 2d 70 (Fla. 4th DCA 1993), review denied, 623 So. 2d 493 (Fla. 1993).
11
Houser v. State, 474 So. 2d 1193 (Fla. 1985).
12
Cloe v. State, 613 So. 2d 70, 71 (Fla. 4th DCA 1993), review denied, 623 So. 2d 493 (Fla. 1993). “The
blood sample was not destroyed, the lab technicians and the toxicologist were available for questioning,
the machines could be tested, the test results were available, and the ‘fail safe’ procedures could be
questioned. The defense extensively cross-examined the witness who supervised the tests regarding the
methods used, issues of reliability, and his analysis of the test results.”
13
State v. Erwin, 686 So. 2d 688 (Fla. 5th DCA 1996).
14
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 11:3.Preservation of samples, 11 Fla. Prac., DUI Handbook § 11:3 (2018-2019 ed.)

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

§ 11:4.Independent chemical tests, 11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 11. Preservation of Evidence

§ 11:4. Independent chemical tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 415

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

In many DUI cases, the defense must challenge chemical and physical test results. Many of the ways of doing
that have been discussed in previous chapters. Another tool available to the defense would be to test the sample
secured by the officer, but that is neither possible nor required in most cases. The defense may, however, claim
entitlement to an independent test. This claim may be based on constitutional or statutory grounds. For many
years, the Florida Statutes have provided that the defendant has a right to secure an independent blood, breath,
or urine sample.1

In State v. Durkee,2 the court considered both the constitutional and statutory entitlement to an independent
blood test. There the court reviewed two cases where the officers flatly refused the defendants’ requests for an
independent test. The court concluded that it would be inappropriate for the trial courts to dismiss the charges,
unless they heard evidence of bad faith and made factual findings in accord with Youngblood3 and Trombetta.4

The court relied on the due process analysis from Durkee in State v. Bock.5 The court concluded that where the
defendant demands an independent blood test and the officer discourages it, the trial judge must apply a
Youngblood analysis. That means the defendant must show that the officer acted in bad faith.

In Bock, the defendant did not carry that burden. There the officer responded to the defendant’s request for an
independent blood test by indicating that it would cost between $250 and $300. In fact, the cost was much
lower. The defendant testified that as a result of this misinformation he did not seek the blood test. The officer
testified that he had just made a mistake based on his recollection of past experiences. The court found no bad
faith.

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§ 11:4.Independent chemical tests, 11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

In Durkee,6 the court reached a different conclusion as to the remedy of suppression. The court considered this
provision from the independent test statute: “The failure or inability to obtain an additional test by a person
shall7 not preclude the admissibility in evidence of the test taken at the direction of the law enforcement
officer.”8 According to Durkee, this only applies to the defendant’s inactivity or inability to secure the test, but
not to the officer’s conduct. The court ruled that the officers’ refusal to allow the defendants to secure an
independent test warranted the imposition of the discovery sanction of exclusion of test results, pursuant to Fla.
R. Crim. P. 3.220(n).9 In State v. Saylor10 and State v. Unruh,11 the courts disagreed with this ruling. Both of
these decisions were overturned by Unruh v. State.12

In Unruh v. State,13 the Court made two important rulings. First, when a defendant requests an independent
blood test, the officer “must render reasonable assistance in helping” the individual get the test. 14 Second, when
an officer fails to meet this duty, suppression pursuant to Fla. R. Crim. P. 3.220(n), of the results of the
chemical or physical test secured by the officer is the appropriate remedy as in Durkee.15

In Unruh,16 the Florida Supreme Court did not establish a bright line as to what constitutes “reasonable
assistance,” but the Legislature subsequently addressed this matter. After the decision in Unruh, the statute was
amended to read: “The law enforcement officer shall not interfere with the person’s opportunity to obtain the
independent test and shall provide the person with timely telephone access to secure the test, but the burden is
on the person to arrange and secure the test at the person’s own expense.” 17 Thus, the defendant’s license
suspension was set aside where he submitted to a breath test and blew over .08 and requested an independent
blood test, but was not provided with timely telephone access. 18 The prohibition against interference applies to
jail personnel as well as the arresting officer. 19 Furthermore, the fact that the defendant may not have the
financial means to pay for the test is irrelevant.20

However, it is important that the defendant actually make the request for the independent blood test. In
Smallridge v. State,21 the defendant made several calls to his father, who was an attorney, before an officer took
his cell phone away, and he had access to other telephones after his release. He never requested an independent
blood test, nor did he secure one after his release. Thus, the court ruled that his motion to suppress his blood test
results was properly denied.22

The defendant does not have the right to demand a blood test instead of a breath or urine test. 23 In fact, if the
defendant refuses the breath test, the defendant loses the right to an independent test. 24 Unruh25 holds that
compliance with the officer’s request for a breath test is a prerequisite to the right to an independent blood test.
If the defendant, pretends to comply with an officer’s request for a breath sample, the defendant is not entitled
to an independent blood test.26 However, if the defendant’s good faith efforts to provide a sample are thwarted
because the machine is not working, then the defendant is entitled to the independent blood test. 27

Where the defendant submits to the breath test after expressing a preference for a blood test, the results may
differ. In State v. Laurent,28 the judge ruled that there was no denial of the right to an independent blood test
where the defendant did not “clearly and unequivocally” ask for one, but instead, indicated a preference for a
blood test because she believed it was more accurate. In State v. Shelc,29 the judge found a denial of the right to
an independent blood test based on essentially the same request as in Laurent,30 prior to submission to the breath
test. There are two distinctions between the cases that may explain the different results: (1) in Shelc,31 the deputy
told the defendant that he could not do a blood test and a breath test was better, thereby, improperly creating the
impression that a blood test was unavailable; (2) in Shelc,32 the deputy did not provide timely telephone access,
whereas, in Laurent,33 the defendant had a cell phone with her in the holding cell.

Thus, the rules on independent tests seem clear. First, if the defendant shows that officers deprived him or her of
the opportunity to secure such a test in bad faith, the court should apply a Youngblood34 analysis, and the charge
may be dismissed. Second, officers have a statutory duty not to interfere with that opportunity and to provide
the defendant with timely access to a telephone, but the defendant must arrange for the test. Third, if officers
fail to carry out their statutory duty, the breath tests results may be suppressed, pursuant to Rule 3.220(n).

Providing a telephone may not always be sufficient. For instance, in one case where the defendant requested an

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§ 11:4.Independent chemical tests, 11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

independent test, the defendant was given access to a telephone that permitted only collect calls. 35 The evidence
did not show that the officer acted in bad faith. The defendant performed a breath test, but was unable to secure
an independent test. The trial judge found that the cause should not be dismissed, but that the breath test results
should be suppressed. The basis for the suppression was that providing access to a telephone permitting only
collect calls, violated the spirit of the statute requiring law enforcement to provide a defendant with timely
telephone access and prohibiting law enforcement interference with the opportunity to secure the test.

In Walters v. State,36 the three-judge circuit court appellate panel relied on Unruh37 to justify reversal of an order
denying a motion to suppress. The court noted that the facts were much like those in Unruh. While the officer
was administering the breath test, the defendant repeatedly asked for a blood test. The officer explained to the
defendant that he was only offering a breath test, but stated that he would take the defendant to the hospital to
get the blood test before taking him to jail. The defendant submitted to the breath test, but “[t]he state presented
no evidence to suggest that the officer took any steps to accommodate Appellant in obtaining a blood test.” The
court pointed out that the statute required that the defendant had to be detained for up to eight hours. “As a
consequence, without affirmative assistance from an officer, the mandatory holding period would effectively
prevent the arrestee from obtaining a meaningful and potentially exculpatory blood test.”

However, if the defendant does secure an independent test at a medical facility, he or she may do so at the risk
of generating evidence for the State. One trial judge ruled that where an officer took the defendant to a hospital
to secure an independent test, pursuant to the defendant’s request, the State could secure the medical records
upon notice and a motion for issuance of a subpoena. 38 The basis for this decision was the statutory provision
that medical records relating to the alcohol content of blood shall be released to the prosecuting attorney upon
request.39

On the other hand, another trial judge ruled that where the defendant refused a breath test, but secured an
independent blood test, the State could not use those test results. 40 In that case, the officers responded to the
defendant’s request for an independent blood test by arranging to have medics come to the jail to draw a blood
sample, but law enforcement actually tested the sample. The trial judge concluded that: (1) the State could not
use the test results because the defendant did not consent to a blood test to be used by law enforcement; (2) the
State should not benefit by doing something indirectly that it could not do directly (i.e. secure a blood sample);
and (3) the defendant did not consent to a blood draw for implied consent purposes.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.1932(1)(f) 3., Fla. Stat.
2
State v. Durkee, 584 So. 2d 1080 (Fla. 5th DCA 1991), cause dismissed, 592 So. 2d 682 (Fla. 1991).
3
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
4
California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).
5
State v. Bock, 659 So. 2d 1196 (Fla. 3d DCA 1995). See also Flynn v. Dep’t of Highway Safety &
Motor Vehicles, 15 Fla. L. Weekly Supp. 574 (Fla. 12th Cir. Ct. April 1, 2008)Flynn v. Dep’t of
Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 574 (Fla. 12th Cir. Ct. April 1, 2008) (no
denial of due process where defendant requested independent blood test; no bad faith where deputy
provided defendant with a telephone and inquired of jail nurses whether they could do the test;
defendant also said I will “‘just do the breath test,’” which could be abandonment of his request).

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§ 11:4.Independent chemical tests, 11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

6
State v. Durkee, 584 So. 2d 1080 (Fla. 5th DCA 1991), cause dismissed, 592 So. 2d 682 (Fla. 1991).
7
“Shall” has been changed to “does.”
8
§ 316.1932(1)(f) 3., Fla. Stat.
9
The court relied on the ruling in Louissaint v. State, 576 So. 2d 316 (Fla. 5th DCA 1990).
10
State v. Saylor, 625 So. 2d 907 (Fla. 2d DCA 1993), disapproved of by, Unruh v. State, 669 So.
2d 242 (Fla. 1996).
11
State v. Unruh, 658 So. 2d 1011 (Fla. 5th DCA 1994), decision quashed, 669 So. 2d 242 (Fla.
1996).
12
Unruh v. State, 669 So. 2d 242 (Fla. 1996).
13
Unruh v. State, 669 So. 2d 242 (Fla. 1996).
14
Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996). See also Craun v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 255 (Fla. 6th Cir. Ct. Nov. 18, 2005) Craun v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 255 (Fla. 6th Cir. Ct. Nov. 18, 2005)
(hearing officer properly concluded that the defendant was given reasonable assistance where officer
gave the defendant an opportunity to call someone to take the blood and urine test and the defendant said
he would call his fiancé). But see State v. Cardamone, 23 Fla. L. Weekly Supp. 724 (Fla. 7th Cir. Ct.
Dec. 7, 2015)State v. Cardamone, 23 Fla. L. Weekly Supp. 724 (Fla. 7th Cir. Ct. Dec. 7, 2015) (circuit
judge sitting in trial capacity suppressed a breath test on the grounds that officer failed to render
reasonable assistance where she refused counsel’s telephone request that his client be given an
independent blood test, offered to pay for the test and to meet the officer at the hospital on the way to the
jail); Harkins v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 514 (Fla. 2d Cir.
Ct. Oct. 1, 2015)Harkins v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 514
(Fla. 2d Cir. Ct. Oct. 1, 2015) (suspension reversed where defendant requested an independent blood test
before the breath test but did not renew request after breath test; “[n]othing in the Florida Statutes or
case law requires an arrestee to renew his or her request for an independent blood test after the breath
test is completed.”); State v. Ryan, 24 Fla. L. Weekly Supp. 452 (Fla. Manatee Cty. Ct. July 1,
2016)State v. Ryan, 24 Fla. L. Weekly Supp. 452 (Fla. Manatee Cty. Ct. July 1, 2016) (judge suppressed
breath test results where trooper first told defendant a blood test was not an option; then said it was, but
only at his own expense; this was an incomplete statement of the law and an incorrect summary, which
“materially and substantially interfered” with the defendant’s exercise of his statutory right to an
independent blood test); State v. Rivera, 24 Fla. L. Weekly Supp. 150 (Fla. Volusia Cty. Ct. May 17,
2016)State v. Rivera, 24 Fla. L. Weekly Supp. 150 (Fla. Volusia Cty. Ct. May 17, 2016) (judge found
that dismissal was too sever a sanction, but suppression was proper where defendant agreed to submit to
breath test, then asked in addition to that test, if she could get a blood test; officer said they use urine if
the breath test shows nothing, but they don’t do blood test unless there are exigent circumstances, which
were not present; court rejected State’s argument that the request for blood test must come after the
breath test; court also ruled that breath test procedure should be redacted from video so that the part
beneficial to defendant could be shown to the jury).
15
State v. Durkee, 584 So. 2d 1080 (Fla. 5th DCA 1991), cause dismissed, 592 So. 2d 682 (Fla. 1991).
16
Unruh v. State, 669 So. 2d 242 (Fla. 1996).
17
Ch. 96–330, Laws of Florida amending § 316.1932(1)(f) 3., Fla. Stat.
18
Pauli v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 267 (Fla. 9th Cir. Ct. Jan.
30, 2002)Pauli v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 267 (Fla. 9th Cir.
Ct. Jan. 30, 2002); Nicholson v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp.

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§ 11:4.Independent chemical tests, 11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

462 (Fla. 9th Cir. Ct. April 20, 1999)Nicholson v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L.
Weekly Supp. 462 (Fla. 9th Cir. Ct. April 20, 1999).
19
State v. Dunshee, 11 Fla. L. Weekly Supp. 1069 (Fla. Leon Cty. Ct. Sept. 22, 2004) (breath test results
suppressed where arresting officer helped get a hospital technologist to come to the jail for an
independent blood test, but the arresting officer left, and intake officer refused to let the technologist
draw blood).
20
Nicholson v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 462 (Fla. 9th Cir. Ct.
April 20, 1999)Nicholson v. Dep’t of Highway Safety & Motor Vehicles, 6 Fla. L. Weekly Supp. 462
(Fla. 9th Cir. Ct. April 20, 1999).
21
Smallridge v. State, 904 So. 2d 601 (Fla. 1st DCA 2005), review denied, 918 So. 2d 293 (Fla. 2005),
cert. denied, 547 U.S. 1193, 126 S. Ct. 2871, 165 L. Ed. 2d 897 (2006).
22
Smallridge v. State, 904 So. 2d 601, 604-5 (Fla. 1st DCA 2005), review denied, 918 So. 2d 293 (Fla.
2005), cert. denied, 547 U.S. 1193, 126 S. Ct. 2871, 165 L. Ed. 2d 897 (2006). See also Butler v. State,
13 Fla. L. Weekly Supp. 1135 (Fla. 6th Cir. Ct. Feb 28, 2006) (defendant did not ask for independent
blood test when he responded to officer’s request for a breath test with a request for a blood test instead
of the breath test, submitted to the breath test, and never again asked for a blood test; therefore, officers
did not fail to facilitate the request for an independent blood test).
23
Department of Highway Safety and Motor Vehicles v. Green, 702 So. 2d 584 (Fla. 2d DCA 1997). See
also Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011);
O’Neill v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1055 (Fla. 9th Cir. Aug
14, 2006); Gordon v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 207 (Fla. 9th
Cir. Ct. Jan. 30, 2002)Gordon v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp.
207 (Fla. 9th Cir. Ct. Jan. 30, 2002) (court rejected defendant’s argument that he did not actually refuse
a breath test, when he said that he would take a breath test if he was also given a blood test); State v.
Smith, 8 Fla. L. Weekly Supp. 656 (Fla. Palm Beach Cty. Ct. July 31, 2001) State v. Smith, 8 Fla. L.
Weekly Supp. 656 (Fla. Palm Beach Cty. Ct. July 31, 2001).
24
Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011);
Clark v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 503 (Fla. 1st Cir. Ct. Jan.
27, 2010)Clark v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 503 (Fla. 1st
Cir. Ct. Jan. 27, 2010); Gordon v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp.
207 (Fla. 9th Cir. Ct. Jan. 30, 2002)Gordon v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L.
Weekly Supp. 207 (Fla. 9th Cir. Ct. Jan. 30, 2002); State v. Godby, 6 Fla. L. Weekly Supp. 3, 4 (Fla. 9th
Cir. Ct. Sept. 10, 1998)State v. Godby, 6 Fla. L. Weekly Supp. 3, 4 (Fla. 9th Cir. Ct. Sept. 10, 1998).
See also State v. Fisk, 7 Fla. L. Weekly Supp. 486 (Fla. Broward Cty. Ct. April 18, 2000) 7 Fla. L.
Weekly Supp. 486 (Fla. Broward Cty. Ct. April 18, 2000).
25
Unruh v. State, 669 So. 2d 242 (Fla. 1996). See also Department of Highway Safety and Motor
Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011); Clark v. Dep’t of Highway Safety & Motor
Vehicles, 17 Fla. L. Weekly Supp. 503 (Fla. 1st Cir. Ct. Jan. 27, 2010)Clark v. Dep’t of Highway Safety
& Motor Vehicles, 17 Fla. L. Weekly Supp. 503 (Fla. 1st Cir. Ct. Jan. 27, 2010); Gordon v. Dep’t of
Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 207 (Fla. 9th Cir. Ct. Jan. 30, 2002)Gordon
v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 207 (Fla. 9th Cir. Ct. Jan. 30,
2002).
26
State v. Kilpatrick, 4 Fla. L. Weekly Supp. 176 (Fla. Palm Beach Cty. Ct. May 31, 1996)State v.
Kilpatrick, 4 Fla. L. Weekly Supp. 176 (Fla. Palm Beach Cty. Ct. May 31, 1996).
27
State v. Kilpatrick, 4 Fla. L. Weekly Supp. 176 (Fla. Palm Beach Cty. Ct. May 31, 1996)State v.
Kilpatrick, 4 Fla. L. Weekly Supp. 176 (Fla. Palm Beach Cty. Ct. May 31, 1996) . See also Counts v.
Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 1002 (Fla. 15th Cir. Ct. Sept. 5,
2012) (petitioner submitted to one breath test but was unable to give a second because she had asthma;
since she submitted she was entitled to reasonable assistance from law enforcement in obtaining an
independent blood test upon her request).

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§ 11:4.Independent chemical tests, 11 Fla. Prac., DUI Handbook § 11:4 (2018-2019 ed.)

28
State v. Laurent, 16 Fla. L. Weekly Supp. 119 (Fla. Brevard Cty. Ct. Oct. 27, 2008)State v. Laurent, 16
Fla. L. Weekly Supp. 119 (Fla. Brevard Cty. Ct. Oct. 27, 2008).
29
State v. Shelc, 16 Fla. L. Weekly Supp. 433 (Fla. Leon Cty Ct. Oct. 20, 2008)State v. Shelc, 16 Fla. L.
Weekly Supp. 433 (Fla. Leon Cty Ct. Oct. 20, 2008).
30
State v. Laurent, 16 Fla. L. Weekly Supp. 119 (Fla. Brevard Cty. Ct. Oct. 27, 2008)State v. Laurent, 16
Fla. L. Weekly Supp. 119 (Fla. Brevard Cty. Ct. Oct. 27, 2008).
31
State v. Shelc, 16 Fla. L. Weekly Supp. 433 (Fla. Leon Cty Ct. Oct. 20, 2008)State v. Shelc, 16 Fla. L.
Weekly Supp. 433 (Fla. Leon Cty Ct. Oct. 20, 2008).
32
State v. Shelc, 16 Fla. L. Weekly Supp. 433 (Fla. Leon Cty Ct. Oct. 20, 2008)State v. Shelc, 16 Fla. L.
Weekly Supp. 433 (Fla. Leon Cty Ct. Oct. 20, 2008).
33
State v. Laurent, 16 Fla. L. Weekly Supp. 119 (Fla. Brevard Cty. Ct. Oct. 27, 2008)State v. Laurent, 16
Fla. L. Weekly Supp. 119 (Fla. Brevard Cty. Ct. Oct. 27, 2008).
34
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
35
State v. Miceli, 8 Fla. L. Weekly Supp. 393 (Fla. Monroe Cty. Ct. Feb. 27, 2001)State v. Miceli, 8 Fla.
L. Weekly Supp. 393 (Fla. Monroe Cty. Ct. Feb. 27, 2001).
36
Walters v. State, 10 Fla. L. Weekly Supp. 481 (Fla. 15th Cir. Ct. May 19, 2003)Walters v. State, 10 Fla.
L. Weekly Supp. 481 (Fla. 15th Cir. Ct. May 19, 2003). See also State v. Watson, 12 Fla. L. Weekly
Supp. 958 (Fla. Volusia Cty. Ct. June 15, 2005)State v. Watson, 12 Fla. L. Weekly Supp. 958 (Fla.
Volusia Cty. Ct. June 15, 2005) (test results suppressed where defendant asked for blood test three
times; officer gave him a phone book, which defendant opened several times; when the defendant asked
to use the phone, the officer said he could use it at the jail; officer said he was unaware of any open
clinic or facility, but he would have taken defendant to one if defendant had found one, and he would
not have transported the defendant to the hospital).
37
Unruh v. State, 669 So. 2d 242 (Fla. 1996).
38
State v. Kleiman, 7 Fla. L. Weekly Supp. 544 (Fla. Dade Cty. Ct. May 26, 2000)State v. Kleiman, 7 Fla.
L. Weekly Supp. 544 (Fla. Dade Cty. Ct. May 26, 2000).
39
§ 316.1932(3), Fla. Stat.
40
State v. Smith, 8 Fla. L. Weekly Supp. 656 (Fla. Palm Beach Cty. Ct. July 31, 2001)State v. Smith, 8
Fla. L. Weekly Supp. 656 (Fla. Palm Beach Cty. Ct. July 31, 2001).

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Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 12 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 12 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

Introduction

INTRODUCTION
This chapter deals with the rules for admission of statements into evidence. In a DUI case, there is necessarily a
lot of contact between officers and the defendant. The extensive testing protocols virtually require such contact.
The fact that DUI cases often involve accidents also expands the contacts between officers and the defendant.
The accused, who is frequently under the influence of alcohol or drugs, has many opportunities to make
statements and often takes those opportunities. Consequently, there are many problems involving statements
that arise in DUI cases. Those problems are the subjects of this chapter.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

11 Fla. Prac., DUI Handbook § 12:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:1. Miranda rights at the scene of the stop

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.2

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 898 to 900, 903 to 904, 914 to 927

Generally, Miranda warnings are not required where the individual makes statements during a consensual
encounter.1 They are required only where the defendant is in custody and under interrogation. 2 If either element
is missing, the warnings are not required.3

In Davis, the Court reiterated the test for determining whether one is in custody for purposes of Miranda. The
test is whether there is a “restraint on freedom of movement of the degree associated with a formal arrest.” 4
Further, “[t]he proper inquiry is not the unarticulated plan of the police, but rather how a reasonable person in
the suspect’s position would have perceived the situation.”5

The test for determination of custody for Miranda purposes is not to be confused with the test for determination
of detention for Fourth Amendment purposes. The latter focuses exclusively on whether a reasonable person
would believe that he or she was free to go. 6 That same test is applied in deciding whether one is in custody for
Fifth Amendment purposes.7 However, unlike Fourth Amendment analysis, as pointed out above, the court must
often take the additional step of deciding whether the circumstances would cause a reasonable person to
perceive their detention as being equivalent to an arrest. 8 Thus, one may be detained for Fourth Amendment
purposes, but not be in custody for Fifth Amendment purposes. On the other hand, if one is not detained for
Fourth Amendment purposes, it is hard to see how they could be in custody for Fifth Amendment purposes.
This is made clear by the U.S. Supreme Court in Howes v. Fields9 where the Court said:

Determining whether an individual’s freedom of movement was curtailed, however, is simply the
first step in the analysis, not the last. Not all restraints on freedom of movement amount to
custody for purposes of Miranda. We have “decline[d] to accord talismanic power” to the
freedom-of-movement inquiry, Berkemer, supra, at 437, 104 S.Ct. 3138, and have instead
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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

asked the additional question whether the relevant environment presents the same inherently
coercive pressures as the type of station house questioning at issue in Miranda. “Our cases make
clear … that the freedom-of-movement test identifies only a necessary and not a sufficient
condition for Miranda custody.” Shatzer, 559 U.S., at _, 130 S.Ct., at 1224.

These standards have been specifically applied to traffic stops by the U.S. Supreme Court in Pennsylvania v.
Bruder,10 Berkemer v. McCarty,11 and the Florida Supreme Court in Allred v. State.12 These cases stand for the
proposition that Miranda warnings need not be given for an ordinary traffic stop until the defendant is subjected
to circumstances that are the functional equivalent of a formal arrest. This is so, because such stops do not
expose the defendant to a coercive environment warranting Miranda rights advisements.13 In making that
determination, the court must apply the same reasonable person test described above in Davis.14

The uncommunicated subjective intent of the officer is irrelevant in the determination of a reasonable person’s
understanding of his situation.15 Similarly, whether or not the defendant is the focus of the investigation is
irrelevant in that determination.16

According to State v. Alioto,17 a “reasonable person” is one who is “neither guilty of criminal conduct and thus
overly apprehensive nor insensitive to the seriousness of the circumstances.” 18 In this same case, the court
described three situations which have been identified as ones in which a reasonable person might believe he or
she was not free to go: (1) when an officer brandishes a weapon; (2) when an officer touches the suspect; and
(3) when an officer uses language or a tone indicating that compliance could be compelled. 19

Generally, there are four factors that the Florida Supreme Court has recognized for determining whether a
reasonable person would consider himself or herself in custody. 20 They are: (1) the way the police summoned
the suspect; (2) the purpose, place, and manner of the interrogation; (3) the degree to which the officers
confronted the suspect with the evidence; and (4) whether officers told the suspect he or she was free to leave.

To determine how these standards apply in a DUI case it is useful to consider the facts in Berkemer,21 where the
Court found that Miranda warnings were not required for on-the-scene questioning in a traffic stop. In that case,
the facts were: (1) the defendant was observed engaging in erratic driving, was stopped, and was asked to exit
the car; (2) when the defendant exited the car, the officer noticed that the defendant was having difficulty
standing and decided to charge the defendant with a traffic offense, but the officer did not tell the defendant that
he was taking him into custody; (3) the officer then asked the defendant to submit to a field sobriety test on the
street (i.e. a balance test), but the defendant could not do the test without falling; (4) after all of the foregoing
events, the officer asked the defendant whether he had used any intoxicants, to which the defendant responded
affirmatively; (5) the officer then formally arrested him; and (6) at no point during the foregoing events was the
defendant told that his detention would not be temporary.

As Berkemer suggested, requiring the defendant to submit to field sobriety tests does not necessarily mean that
the defendant is in custody for purposes of Miranda. In State v. Whelan,22 the court ruled that Miranda warnings
are not required before the administration of field sobriety tests, unless the defendant is in custody and the test is
designed to elicit a testimonial response. In that case, the defendant was handcuffed and the State conceded that
such restraint should be viewed as custody for Miranda purposes. In State v. Alvarez,23 the court relied on its
decision in Whelan in support of the conclusion that Miranda warnings were not required prior to the
administration of field sobriety tests, even though one of the tests required a verbal response.

A number of other Florida cases have applied these standards directly to DUI stops. In fact, two Florida district
court decisions have applied them to essentially the same facts, with arguably different results. These cases are
State v. Burns24 and State v. Evans.25

In Burns, the defendant was stopped for a traffic infraction. He was asked to show a license and registration and
to perform field sobriety tests. The entire transaction took about 11 minutes. The defendant was not advised of

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

his Miranda rights. Only one officer was present. This contact took place in a public area. Pursuant to
Berkemer,26 the court found that Miranda warnings were not required. “While his freedom of action was
curtailed, as it is in any detention, Burns did not bring forth any evidence that he was subjected to any restraints
comparable to those found in a formal arrest.”27

In Evans, the defendant was at the scene of an accident and the deputy told him not to leave the area. The
deputy took the defendant to a nearby gas station, said he was conducting a DUI investigation, and asked
questions about drinking. The deputy did not advise the defendant of his Miranda rights. The court ruled that
the deputy’s conduct “amounted to a custodial interrogation which required Miranda warnings.”28

While the court in Evans found Burns29 to be distinguishable, it did not elaborate. There are only two observable
differences: (1) Burns involved a traffic stop, while Evans involved an accident investigation; and (2) in Burns,
there is nothing indicating that the officer moved the defendant, whereas, in Evans, the officer moved the
defendant to a gas station. One can only wonder whether one or both of these facts make the two cases
distinguishable.

In Poey v. State,30 the court made it clear that the defendant was under formal arrest. There the defendant was
informed of his Miranda rights, handcuffed, and placed inside the patrol car.

In Johnson v. State,31 the court reached a different conclusion where the officer went to investigate an altercation
on the road. In full view of the public, the officer told the defendant to move his car to a parking lot and wait for
her, and subsequently asked the defendant, “what happened?” The defendant argued that his response should
have been suppressed because the officer did not advise him of his Miranda rights. In rejecting that position, the
court said: “Although the defendant was briefly detained by the police, he was not in custody and therefore not
entitled to be warned of his constitutional rights. . . . The defendant was not isolated or confronted, and it was
clear that the detention was for a limited purpose.” 32 The court also recognized that practical considerations at
the scene of an altercation involving traffic, such as traffic safety and sorting out the situation, make it
unrealistic for an officer to read Miranda to everyone at the scene.33

On the other hand, in Fowler v. State,34 the court ruled that the defendant was in custody where the officer made
a routine traffic stop, received a dispatch that the driver had been dealing drugs, ordered the driver out of the
vehicle, asked the driver if he had any drugs, and when the driver responded affirmatively, asked if he could
have them. However, the court distinguished Fowler and ruled there was no custody in State v. Rio35 based
solely on the fact that in Rio the trooper’s question as to whether the defendant had anything illegal, which was
asked after a routine traffic stop, stemmed from the trooper’s observation of a bulge in the defendant’s
waistband. In contrast, in Fowler,36 the officer’s question about drugs, which also came after a routine traffic
stop, was based on information that a dispatcher had provided concerning complaints that the defendant was
selling drugs and was “intended to gather information about specific accusations of other offenses.” 37

As in Rio,38 the court also found no custody and distinguished Fowler39 in State v. Poster.40 The court noted that
in Poster, while a deputy did stop the defendant’s vehicle, the defendant actually exited his vehicle, approached
the deputy, and started a conversation. Unlike Fowler, there was no coercive environment and the deputy and
defendant knew each other and had a cordial relationship. In contrast to Poster, in Fowler, three officers
confronted the defendant, an officer ordered the defendant to exit his vehicle and assumed a position at the rear
of the vehicle before telling the defendant he had heard that the defendant had been selling drugs, and asking
him if he had anything on him. Poster’s actions and demeanor demonstrated that he did not perceive that he was
in custody. Thus, the environment made the difference.

As in Poster,41 the court in Hewitt v. State42 distinguished Fowler43 based on the same factors. In Hewitt,44 an
officer stopped the defendant for a traffic infraction. When the defendant said she had no license, the officer
asked her to step out of the car and also asked whether she had a gun, knives, or drugs. At which point, the
defendant admitted possessing drugs. On appeal, the court ruled that Miranda warnings were not required
because no reasonable person in those circumstances would have believed she was going to be arrested. 45 “A
reasonable person, not in possession of illicit drugs, would not have believed he or she would be arrested merely

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

for driving without a valid driver’s license.”46 That belief would not change just because the officer asked the
defendant to step out of the car and asked a routine safety question.47

Similarly, in State v. Martissa,48 an officer lawfully stopped the defendant for having a defective tag light and
secured incriminating information before reading Miranda rights. The defendant told the officer that his license
was suspended and the officer detained the defendant to confirm that information, but the officer did not
handcuff the defendant. Before the officer went back to the patrol car to check the license, the officer told the
defendant that he was seen leaving an area where drugs were sold and asked the defendant if he had any
narcotics on him. The defendant admitted that he had crack cocaine. The court found that the defendant was not
subject to restraints comparable to those connected with a formal arrest, and therefore, the defendant was not in
custody for purposes of Miranda.49 It was important to the court that the officer did not actually accuse the
defendant of committing a drug crime as in Fowler v State.50

In making this decision, it should be apparent that the totality of the circumstances is important. 51 Several factors
should be considered in applying Berkemer.52 These include the number of police officers present; whether it is
in a public place; the proximity to the stop in terms of time and place; and whether the officer, by word or
action, informed the defendant of the arrest.53 The basic question for the court is whether the circumstances were
so intimidating as to be coercive. If the court answers this question affirmatively, any content oriented response
would have been coerced and would therefore be inadmissible.54

These standards were applied in another case 55 where a trooper made a traffic stop, examined the defendant’s
license and registration, and administered field sobriety tests. The defendant made incriminating statements
during the process. Pursuant to Berkemer,56 the court held that Miranda warnings were not required. The
trooper’s uncommunicated decision to arrest the defendant did not mean the defendant was in custody.
Similarly, the fact that two officers, with their flashing lights on, were at the scene of an accident questioning
the defendant did not meet the Berkemer test for custody.57

The court reached a different conclusion where the contact was more extended. 58 The court found that the
situation here was different from the one in Berkemer59 because questions were asked and answered. This
happened under these circumstances: (1) after the defendant was advised that he was the subject of a criminal
investigation; (2) after he was advised of his Miranda rights on the scene and invoked them; (3) after the
defendant was subjected to questioning by the officer; (4) at least one-half hour after commencement of the
accident investigation; and (5) on videotape, in the presence of the arresting officer and other officers on duty
with the BAT Mobile Unit. In another trial court case, 60 none of these factors were present; nevertheless, the
court found that the defendant was in custody for purposes of Miranda. This decision was based solely on the
fact that a deputy ordered the defendant to exit his vehicle and asked if he had been drinking. The only other
factors were that the defendant was stopped for a routine traffic violation, but a DUI investigator was called and
questioned the defendant. Similarly, when an officer made a traffic stop to investigate a suspected impaired
driver, the trial judge ruled that when the officer removed the keys from the ignition and placed them on his key
ring without consent, the defendant was in custody and should have been advised of his Miranda rights.61

In another case,62 the defendant made incriminating statements to two officers. The court found that the
defendant was not in custody when the defendant made the statements to the first officer. That officer stopped
the defendant for a traffic violation. The defendant submitted to four field sobriety exercises at the request of
the first officer. At that point, the second officer was called. He had the defendant submit to four roadside
exercises again. Three other officers arrived and no one told the defendant he was free to go. These factors, plus
the passage of more time since the initial stop, caused the trial judge to conclude that the second officer had the
defendant in custody and Miranda warnings were required.

A three-judge circuit court appellate panel 63 reached the same conclusion where the defendant refused to do the
field sobriety exercises and the officer told the defendant he would be arrested. The court said:

the Appellant for all practical purposes was rendered “in custody” and is entitled to the full
protection of Miranda. Dykes, 816 So.2d at 180. At the point when the Officer said that he “went

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

ahead and requested a midnight unit to process him [the Appellant],” that should be considered a
restraint on freedom of movement of a degree associated with a formal arrest. Ramirez, 739
So.2d at 573. Thus, the Appellant was “in custody” and entitled to the protection prescribed by
Miranda.

The presence of an exposed weapon may be an important factor in determining whether the defendant was in
custody for purposes of Miranda. Thus, the trial judge64 found that the defendant was in custody for purposes of
Miranda when the defendant made statements after exiting the vehicle, and after the officer pointed a tazer
weapon at him to keep him at the rear of the vehicle. The court found the fact that the defendant was concerned
about the tazer, and that it was unholstered during the conversation, to be significant. The judge took this
position even though the stop was not long before the arrest, the defendant was not moved, and the defendant
was not placed in the patrol car or any other enclosure.

All of the foregoing authorities illustrate the difficulty in applying Berkemer.65 Two out-of-state cases illustrate
some of the distinctions that might be important. In one of them, 66 the trooper told the defendant to sit in the
patrol car. While the defendant was there, the trooper administered an alcosensor test and an HGN test. The
officer then arrested the defendant while he was in the patrol car. Based on Berkemer, the court ruled that
Miranda warnings were not required. Another court 67 reached the opposite conclusion where the defendant was
locked in the patrol car with the officer, subjected to a number of questions, and denied access to her lawyer,
who was present.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. DeCosey, 596 So. 2d 149 (Fla. 2d DCA 1992).
2
Davis v. State, 698 So. 2d 1182 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S. Ct. 1076, 140 L. Ed.
2d 134 (1998). See also Senser v. State, 243 So.3d 1003 (Fla. 4th DCA 2018); Wilson v. State, 242
So.3d 484 (Fla. 2d DCA 2018); Gordon v. State, 213 So. 3d 1050 (Fla. 4th DCA 2017); State v.
Thompson, 193 So.3d 916, 920 (Fla. 2d DCA 2016), review denied, 2016 WL 6602417 (Fla. Opinion
Filed Nov. 8, 2016); Black v. State, 59 So. 3d 340 (Fla. 4th DCA 2011); Timmons v. State, 961
So. 2d 378, 379 (Fla. 4th DCA 2007).
3
Davis v. State, 698 So. 2d 1182 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S. Ct. 1076, 140 L. Ed.
2d 134 (1998).
4
Davis v. State, 698 So. 2d 1182, 1188 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S. Ct. 1076, 140
L. Ed. 2d 134 (1998) (quoting from Roman v. State, 475 So. 2d 1228, 1231 (Fla. 1985)). See also
Myers v. State, 211 So. 3d 962, 973 (Fla. 2017); State v. McAdams, 193 So.3d 824, 833 (Fla. 2016);
Ross v. State, 45 So. 3d 403 (Fla. 2010), as revised on denial of reh’g, (Sept. 8, 2010); Caldwell v.
State, 41 So. 3d 188 (Fla. 2010); Hunter v. State, 8 So. 3d 1052, 1063 (Fla. 2008), cert. denied, 556
U.S. 1191, 129 S. Ct. 2005, 173 L. Ed. 2d 1101 (2009); Cuervo v. State, 967 So. 2d 155 (Fla. 2007);
Schoenwetter v. State, 931 So. 2d 857, 867 (Fla. 2006), cert. denied, 549 U.S. 1035, 127 S. Ct. 587,
166 L. Ed. 2d 437 (2006); Perez v. State, 919 So. 2d 347, 361 (Fla. 2005), as revised on denial of
reh’g, (Jan. 5, 2006), cert. denied, 547 U.S. 1182, 126 S. Ct. 2359, 165 L. Ed. 2d 285 (2006);

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999), cert. denied, 528 U.S. 1131, 120 S. Ct. 970, 145 L.
Ed. 2d 841 (2000); Arbelaez v. State, 626 So. 2d 169 (Fla. 1993), cert. denied, 511 U.S. 1115, 114 S.
Ct. 2123, 128 L. Ed. 2d 678 (1994); Caso v. State, 524 So. 2d 422 (Fla. 1988), cert, denied, 488 U.S.
870, 109 S. Ct. 178, 102 L. Ed. 2d 147 (1988); Cushman v. State, 228 So.3d 607 (Fla. 2d DCA 2017);
State v. Thompson, 193 So.3d 916, 920 (Fla. 2d DCA 2016), review denied, 2016 WL 6602417 (Fla.
Opinion Filed Nov. 8, 2016); Anthony v. State, 108 So. 3d 1111, 1117 (Fla. 5th DCA 2013); Noto v.
State, 42 So. 3d 814 (Fla. 4th DCA 2010), review denied, 56 So. 3d 767 (Fla. 2011) and cert. denied,
132 S. Ct. 105, 181 L. Ed. 2d 32 (2011); State v. Busciglio, 976 So. 2d 15, 19 (Fla. 2d DCA 2008),
review denied, 992 So. 2d 819 (Fla. 2008); Timmons v. State, 961 So. 2d 378, 380 (Fla. 4th DCA
2007); M.W.H. v. State, 958 So. 2d 1022 (Fla. 5th DCA 2007); Cotton v. State, 901 So. 2d 241 (Fla. 3d
DCA 2005), review denied, 911 So. 2d 792 (2005); State v. Alexander, 810 So. 2d 552 (Fla. 5th DCA
2002); State v. Wilson, 747 So. 2d 1051, 1052 (Fla. 5th DCA 2000); State v. Alioto, 588 So. 2d 17 (Fla.
5th DCA 1991); Gresh v. State, 560 So. 2d 1266 (Fla. 1st DCA 1990); Martin v. State, 557 So.
2d 622 (Fla. 4th DCA 1990); State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct.
Aug. 3, 1994)State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994);
State v. Zemla, 2 Fla. L. Weekly Supp. 343 (Fla. Manatee Cty. Ct. March 28, 1994)State v. Zemla, 2
Fla. L. Weekly Supp. 343 (Fla. Manatee Cty. Ct. March 28, 1994).
5
Davis v. State, 698 So. 2d 1182, 1188 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S. Ct. 1076, 140
L. Ed. 2d 134 (1998). See also State v. McAdams, 193 So.3d 824, 833 (Fla. 2016); Caldwell v. State,
41 So. 3d 188 (Fla. 2010); Hunter v. State, 8 So. 3d 1052, 1063 (Fla. 2008), cert. denied, 556 U.S.
1191, 129 S. Ct. 2005, 173 L. Ed. 2d 1101 (2009); Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999),
cert. denied, 528 U.S. 1131, 120 S. Ct. 970, 145 L. Ed. 2d 841 (2000); Arbelaez v. State, 626 So. 2d
169 (Fla. 1993), cert. denied, 511 U.S. 1115, 114 S. Ct. 2123, 128 L. Ed. 2d 678 (1994); Cushman v.
State, 228 So.3d 607 (Fla. 2d DCA 2017); State v. Thompson, 193 So.3d 916, 920 (Fla. 2d DCA 2016),
review denied, 2016 WL 6602417 (Fla. Opinion Filed Nov. 8, 2016); State v. Mahoney, 191 So.3d 969,
973 (Fla. 5th DCA 2016); Anthony v. State, 108 So. 3d 1111, 1117 (Fla. 5th DCA 2013); Cotton v.
State, 901 So. 2d 241 (Fla. 3d DCA 2005), review denied, 911 So. 2d 792 (Fla. 2005); Bedoya v. State,
779 So. 2d 574 (Fla. 5th DCA 2001), review denied, 797 So. 2d 584 (Fla. 2001); Lewis v. State, 754
So. 2d 897 (Fla. 1st DCA 2000); State v. Alioto, 588 So. 2d 17 (Fla. 5th DCA 1991); State v. Buttner, 2
Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994)State v. Buttner, 2 Fla. L. Weekly
Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994); State v. Zemla, 2 Fla. L. Weekly Supp. 343 (Fla.
Manatee Cty. Ct. March 28, 1994)State v. Zemla, 2 Fla. L. Weekly Supp. 343 (Fla. Manatee Cty. Ct.
March 28, 1994).
6
See § 4:2.
7
See e.g. Ross v. State, 45 So. 3d 403, 415 (Fla. 2010), as revised on denial of reh’g, (Sept. 8, 2010).
See also Bannister v. State, 132 So. 3d 267, 275 (Fla. 4th DCA 2014), review denied, 157 So. 3d
1040 (Fla. 2014).
8
See e.g. Davis v. State, 698 So. 2d 1182 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S. Ct. 1076,
140 L. Ed. 2d 134 (1998). See also Bannister v. State, 132 So. 3d 267, 275 (Fla. 4th DCA 2014),
review denied, 157 So. 3d 1040 (Fla. 2014).
9
Howes v. Fields, 569 U.S. 499, 508-09, 132 S. Ct. 1181, 1189-1190, 182 L. Ed. 2d 17 (2012) (Court
considered when an inmate is in custody for Miranda purposes). See also MacKendrick v. State, 112 So.
3d 131, 136-37 (Fla. 1st DCA 2013).
10
Pennsylvania v. Bruder, 488 U.S. 9, 109 S. Ct. 205, 102 L. Ed. 2d 172 (1988).
11
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

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12
Allred v. State, 622 So. 2d 984 (Fla. 1993).
13
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). See also State v.
Sherrod, 893 So. 2d 654 (Fla. 4th DCA 2005) (court held that stop for riding a bicycle at night without
proper reflectors followed by a question by deputy whether defendant had weapons or drugs on him, to
which defendant responded affirmatively and handed drugs to the deputy, did not involve custodial
interrogation); State v. Dykes, 816 So. 2d 179 (Fla. 1st DCA 2002) (court reiterates proposition that
Miranda rights need not be read for routine traffic stop, and the fact that one officer questioned the
driver, while the other wrote the ticket did not require Miranda); State v. Wolfinger, 24 Fla. L. Weekly
Supp. 275 (Fla. 17th Cir. Ct. Feb. 26, 2016)State v. Wolfinger, 24 Fla. L. Weekly Supp. 275 (Fla. 17th
Cir. Ct. Feb. 26, 2016) (defendant was not in custody for purposes of Miranda when she was stopped for
traffic infractions and while she was still in her car, the officer asked where she was coming from); State
v. Bartz, 22 Fla. L. Weekly Supp. 491 (Fla. 6th Cir. Ct. Nov. 4, 20145)State v. Bartz, 22 Fla. L. Weekly
Supp. 491 (Fla. 6th Cir. Ct. Nov. 4, 20145) (defendant was not in custody for purposes of Miranda
where after a routine traffic stop, police conduct was in the open, there were only two polite and calm
deputies, who did not remove guns, threaten, coerce, handcuff, confront defendant with evidence, and
returned license and registration after civil traffic investigation; deputy’s statement to defendant that he
was being investigated for DUI and instruction to exit was not a restraint on freedom of movement to a
degree associated with a formal arrest); State v. Schmotzer, 16 Fla. L. Weekly Supp. 3 (Fla. 6th Cir. Ct.
June 26, 2009)State v. Schmotzer, 16 Fla. L. Weekly Supp. 3 (Fla. 6th Cir. Ct. June 26, 2009) (freedom
was not curtailed to extent associated with formal arrest where just one deputy made stop for racing,
talked about reason for stop and the offense and asked questions about what he saw; defendants mostly
stayed in their vehicles, weren’t handcuffed, placed in police car, or restrained; no search was done;
deputy didn’t give commands except for defendants to exit to sign citations; deputy asked limited
questions, the contact was not prolonged and defendants were given citations and left; “fact that the
traffic stop was in response to a criminal traffic offense rather than a traffic infraction does not transform
the stop into an arrest.”).
14
Davis v. State, 698 So. 2d 1182 (Fla. 1997), cert. denied, 522 U.S. 1127, 118 S. Ct. 1076, 140 L. Ed.
2d 134 (1998).
15
Whren v. U.S., 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); State, Dept. of
Highway Safety and Motor Vehicles v. Jones, 935 So. 2d 532, 534 (Fla. 3d DCA 2006), review denied,
945 So. 2d 1290 (Fla. 2006); State v. Richard, 46 Fla. Supp. 2d 30 (Fla. 9th Cir. Ct. 1991); State v.
Laningham, 2 Fla. L. Weekly Supp. 169 (Fla. Broward Cty. Ct. Feb. 14, 1994)State v. Laningham, 2
Fla. L. Weekly Supp. 169 (Fla. Broward Cty. Ct. Feb. 14, 1994).
16
State v. Alioto, 588 So. 2d 17 (Fla. 5th DCA 1991).
17
State v. Alioto, 588 So. 2d 17 (Fla. 5th DCA 1991).
18
State v. Alioto, 588 So. 2d 17, 18 (Fla. 5th DCA 1991). See also State v. Luckay, 697 So. 2d 221 (Fla.
5th DCA 1997).
19
State v. Alioto, 588 So. 2d 17, 18 (Fla. 5th DCA 1991). See also Bannister v. State, 132 So. 3d 267,
275 (Fla. 4th DCA 2014), review denied, 157 So. 3d 1040 (Fla. 2014); State v. Wilson, 747 So. 2d 1051
(Fla. 5th DCA 2000).
20
Mansfield v. State, 758 So. 2d 636, 644 (Fla. 2000), cert denied, 532 U.S. 998, 121 S. Ct. 1663, 149
L. Ed. 2d 644 (2001); Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999), cert. denied, 528 U.S. 1131,
120 S. Ct. 970, 145 L. Ed. 2d 841 (2000). See also Myers v. State, 211 So. 3d 962, 974 (Fla. 2017);
Wilson v. State, 242 So.3d 484 (Fla. 2d DCA 2018); Cushman v. State, 228 So.3d 607 (Fla. 2d DCA
2017); Bell v. State, 201 So. 3d 1267, 1274 (Fla. 2d DCA 2016); State v. Thompson, 193 So.3d 916, 920
(Fla. 2d DCA 2016), review denied, 2016 WL 6602417 (Fla. Opinion Filed Nov. 8, 2016); Reza v.
State, 163 So. 3d 572 (Fla. 3d DCA 2015); State v. Figueroa, 139 So. 3d 365, 368 (Fla. 5th DCA 2014);
Bannister v. State, 132 So. 3d 267, 276 (Fla. 4th DCA 2014), review denied, 157 So. 3d 1040 (Fla.

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2014); State v. E.W., 82 So. 3d 150, 151 (Fla. 4th DCA 2012); England v. State, 46 So. 3d 127,
130 (Fla. 2d DCA 2010); Noto v. State, 42 So. 3d 814 (Fla. 4th DCA 2010), review denied, 56 So. 3d
767 (Fla. 2011) and cert. denied, 132 S. Ct. 105, 181 L. Ed. 2d 32 (2011); State v. Rincon, 994 So. 2d
430 (Fla. 3d DCA 2008); State v. Pitts, 936 So. 2d 1111, 1124 (Fla. 2d DCA 2006); State v. Weiss,
935 So. 2d 110 (Fla. 4th DCA 2006); Louis v. State, 855 So. 2d 253, 255 (Fla. 4th DCA 2003), review
denied, 868 So. 2d 523 (Fla. 2004); Cillo v. State, 849 So. 2d 353 (Fla. 2d DCA 2003); Duddles v.
State, 845 So. 2d 939 (Fla. 5th DCA 2003); McDougle v. State, 828 So. 2d 454 (Fla. 4th DCA 2002);
Johnson v. State, 800 So. 2d 275 (Fla. 1st DCA 2001), review denied, 821 So. 2d 297 (Fla. 2002); State
v. Scott, 786 So. 2d 606 (Fla. 5th DCA 2001), review denied, 805 So.2d 809 (Fla. 2001); State v.
Rodriguez, 785 So. 2d 759 (Fla. 3d DCA 2001); Pollard v. State, 780 So. 2d 1015 (Fla. 4th DCA 2001);
Killian v. State, 761 So. 2d 1210 (Fla. 2d DCA 2000).
21
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
22
State v. Whelan, 728 So. 2d 807, 809 (Fla. 3d DCA 1999). See also State v. Edwards, 15 Fla. L.
Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008)State v. Edwards, 15 Fla. L. Weekly Supp. 636
(Fla. Brevard Cty Ct. March 17, 2008).
23
State v. Alvarez, 776 So. 2d 1060 (Fla. 3d DCA 2001). See also State v. Lowe, 9 Fla. L. Weekly Supp. 6
(Fla. 9th Cir. Ct. Oct. 22, 2001)State v. Lowe, 9 Fla. L. Weekly Supp. 6 (Fla. 9th Cir. Ct. Oct. 22, 2001)
(Miranda not required before officer told defendant to exit vehicle after stop for traffic infraction, and
asked defendant to submit to field sobriety exercises and whether he had been drinking).
24
State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996).
25
State v. Evans, 692 So. 2d 305 (Fla. 4th DCA 1997).
26
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
27
State v. Burns, 661 So. 2d 842, 844 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla.
1996). See also Duncan v. State, 659 So. 2d 1283 (Fla. 4th DCA 1995) (trial court did not abuse its
discretion by admitting a statement made during FSEs without Miranda); Lamas v. State, 14 Fla. L.
Weekly Supp. 1103 (Fla. 17th Cir. Ct. Sept. 5, 2007); State v. Fara, 9 Fla. L. Weekly Supp. 88 (Fla. 12th
Cir. Ct. Dec. 18, 2001)State v. Fara, 9 Fla. L. Weekly Supp. 88 (Fla. 12th Cir. Ct. Dec. 18, 2001); State
v. Morgan, 9 Fla. L. Weekly Supp. 206 (Fla. 9th Cir. Ct. Nov. 21, 2001)State v. Morgan, 9 Fla. L.
Weekly Supp. 206 (Fla. 9th Cir. Ct. Nov. 21, 2001); State v. Tassi, 8 Fla. L. Weekly Supp. 226 (Fla.
15th Cir. Ct. Feb. 12, 2001)State v. Tassi, 8 Fla. L. Weekly Supp. 226 (Fla. 15th Cir. Ct. Feb. 12, 2001);
State v. Nagy, 17 Fla. L. Weekly Supp. 145 (Fla. Brevard Cty. Ct. Oct. 21, 2009)State v. Nagy, 17 Fla.
L. Weekly Supp. 145 (Fla. Brevard Cty. Ct. Oct. 21, 2009); State v. Fanning, 11 Fla. L. Weekly Supp.
1085 (Fla. Hillsborough Cty. Ct. Aug. 28, 2002).
28
State v. Evans, 692 So. 2d 305, 307 (Fla. 4th DCA 1997). See also State v. Frechette, 20 Fla. L.
Weekly Supp. 682 (Fla. Brevard Cty. Ct. April 1, 2013)State v. Frechette, 20 Fla. L. Weekly Supp. 682
(Fla. Brevard Cty. Ct. April 1, 2013) (defendant was in custody for purposes of Miranda when he was
placed in the back of a patrol car without handcuffs and was transported to a safer location for FSES; he
was stopped on an interstate and the deputy asked whether he was willing to be moved to a parking lot at
the next exit and told him he was free to refuse; his car was left at the scene of the stop). But see
Sacacian v. State, 23 Fla. L. Weekly Supp. 89 (Fla. 17th Cir Ct. June 11th 2015)Sacacian v. State, 23
Fla. L. Weekly Supp. 89 (Fla. 17th Cir Ct. June 11th 2015) (Miranda warnings not required where
officer was investigating traffic accident; defendant acting erratic and appeared to be under the
influence; before arresting defendant officer asked about medications, health, and alcoholic beverages;
defendant admitted having two drinks; court distinguished State v. Evans based on fact that there the
defendant was told not to leave and was moved to another location); State v. Albanese, 7 Fla. L. Weekly
Supp. 807 (Fla. Palm Beach Cty. Ct. Aug. 14, 2000)State v. Albanese, 7 Fla. L. Weekly Supp. 807 (Fla.
Palm Beach Cty. Ct. Aug. 14, 2000) (court distinguished Evans and held defendant was not in custody,

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

because the defendant was never told to remain at the scene or transported in a police car; but the officer
asked the defendant to go to a parking lot across the street because sprinklers were covering the
sidewalk at scene of stop and the officer did not feel the roadway was safe).
29
State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996).
30
Poey v. State, 562 So. 2d 449 (Fla. 3d DCA 1990). See also Cocke v. State, 889 So. 2d 132 (Fla. 4th
DCA 2004).
31
Johnson v. State, 800 So. 2d 275 (Fla. 1st DCA 2001), review denied, 821 So. 2d 297 (Fla. 2002).
32
Johnson v. State, 800 So. 2d 275, 279 (Fla. 1st DCA 2001), review denied, 821 So. 2d 297 (Fla. 2002).
33
Johnson v. State, 800 So. 2d 275, 279 (Fla. 1st DCA 2001), review denied, 821 So. 2d 297 (Fla. 2002).
See also State v. McKinnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard Cty. Ct. Feb. 17, 2008)State v.
McKinnon, 15 Fla. L. Weekly Supp. 520 (Fla. Brevard Cty. Ct. Feb. 17, 2008) (after traffic stop, the fact
that defendant was locked in back of police car for his own safety for seven minutes without handcuffs,
did not mean defendant was in custody for purposes of Miranda).
34
Fowler v. State, 782 So. 2d 461 (Fla. 2d DCA 2001). See also England v. State, 46 So. 3d 127
(Fla. 2d DCA 2010) (defendant was in custody for purposes of Miranda where he was a passenger in a
vehicle stopped for a traffic violation, during a consent search a deputy located marijuana and the deputy
said to the driver and the defendant they would both be arrested if someone did not admit ownership;
defendant admitted ownership); Noto v. State, 42 So. 3d 814 (Fla. 4th DCA 2010), review denied, 56
So. 3d 767 (Fla. 2011), cert. denied, 132 S. Ct. 105, 181 L. Ed. 2d 32 (2011) (defendant was in custody
for purposes of Miranda after officer stopped him for an infraction, advised him that he was a narcotics
investigator and that defendant’s recent conduct in a parking lot was consistent with a drug transaction,
and asked him if he had anything illegal).
35
State v. Rio, 827 So. 2d 404 (Fla. 2d DCA 2002).
36
Fowler v. State, 782 So. 2d 461 (Fla. 2d DCA 2001).
37
State v. Rio, 827 So. 2d 404, 405 (Fla. 2d DCA 2002).
38
State v. Rio, 827 So. 2d 404 (Fla. 2d DCA 2002).
39
Fowler v. State, 782 So. 2d 461 (Fla. 2d DCA 2001).
40
State v. Poster, 892 So. 2d 1071 (Fla. 2d DCA 2004).
41
State v. Poster, 892 So. 2d 1071 (Fla. 2d DCA 2004).
42
Hewitt v. State, 920 So. 2d 802 (Fla. 5th DCA 2006).
43
Fowler v. State, 782 So. 2d 461 (Fla. 2d DCA 2001).
44
Hewitt v. State, 920 So. 2d 802 (Fla. 5th DCA 2006).
45
Hewitt v. State, 920 So. 2d 802, 805 (Fla. 5th DCA 2006). See also State v. Thomas, 109 So. 3d 814
(Fla. 5th DCA 2013) (officer made a lawful traffic stop and before reading Miranda asked for
permission to search defendant; court held that this was a routine traffic stop and Miranda was not
required prior to asking to search); State v. Hinman, 100 So. 3d 220 (Fla. 3d DCA 2012), review
dismissed as improvidently granted, 132 So. 3d 1114 (Fla. 2014) (admissions and pills were not a
product of custodial interrogation where officer made a lawful traffic stop and asked the defendant
whether she had any weapons or drugs and defendant admitted she had pills and produced them); State
v. Olave, 948 So. 2d 995 (Fla. 4th DCA 2007) (where defendant was lawfully stopped for a defective
taillight and officer learned defendant had a business purposes only license, officer could ask the

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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

defendant to exit vehicle and whether he had any drugs or weapons without advising him of Miranda
rights, because this was not custodial interrogation); State v. Santiago, 25 Fla. L. Weekly Supp. 30 (Fla.
11th Cir Ct. January 24, 2017)State v. Santiago, 25 Fla. L. Weekly Supp. 30 (Fla. 11th Cir Ct. January
24, 2017) (based on controlling authority, trial judge ruled that asking defendant lawfully stopped for a
traffic infraction and who had not been advised of his Miranda rights, whether he had any guns or drugs
on him was permitted; although the judge disagreed with the controlling authorities as to questions about
drugs); State v. Marino, 22 Fla. L. Weekly Supp. 904 (Fla. 17th Cir. Ct. March 10, 2015) State v.
Marino, 22 Fla. L. Weekly Supp. 904 (Fla. 17th Cir. Ct. March 10, 2015) (trial judge erred in
suppressing admission that marijuana was in vehicle after a stop for running a red light even though
officer never expressed any safety concerns; statement was made in response to uniformed officer’s
inquiry as to whether defendant had anything illegal in the car such as guns, knives or drugs); State v.
Nason, 20 Fla. L. Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19, 2012)State v. Nason, 20 Fla. L.
Weekly Supp. 177 (Fla. Duval Cty. Ct. Nov. 19, 2012) (asking defendant how much he had to drink
after a traffic stop was not custodial interrogation and the admission to having three beers was
admissible notwithstanding the absence of Miranda rights); State v. Nagy, 17 Fla. L. Weekly Supp. 145
(Fla. Brevard Cty. Ct. Oct. 21, 2009)State v. Nagy, 17 Fla. L. Weekly Supp. 145 (Fla. Brevard Cty. Ct.
Oct. 21, 2009) (two admissions of marijuana use were admissible and Miranda warnings were not
required because statements were not a product of custodial interrogation where officer stopped
defendant because of erratic driving and failure to maintain a single lane; defendant admitted smoking
marijuana in response to questioning during the initial traffic stop while the defendant was still in the
car, and there were no circumstances indicating custody and about five minutes later, the defendant
made the same admission to a different officer during the DUI investigation at the scene).
46
Hewitt v. State, 920 So. 2d 802, 805 (Fla. 5th DCA 2006). But see State v. Leird, 25 Fla. L. Weekly
Supp. 195 (Fla. Monroe Cty. Ct. April 20, 2017)State v. Leird, 25 Fla. L. Weekly Supp. 195 (Fla.
Monroe Cty. Ct. April 20, 2017) (based on Hewitt and Ramirez analysis court suppressed statements and
ruled they were not product of a routine traffic stop where stop was for tag light violation; officer
recovered marijuana from passenger and handcuffed passenger; ordered defendant-driver to exit and
took her license; without Miranda rights defendant retrieved a pipe from car in response to officer’s
questions whether anything else illegal was in car and admitted ownership of marijuana and pipe; the
contact became criminal investigation because defendant was confronted with evidence of guilt,
passenger had been detained and defendant was not free to go and her freedom was curtailed to a degree
associated with an arrest); State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3,
2007)State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3, 2007) (court applied
Fourth Amendment test for detention and concluded no reasonable person would feel they were free to
leave scene of accident investigation where officer took driver’s license and did not return it, rather than
Fifth Amendment test for custody (i.e. would a reasonable person believe they were under detention
tantamount to formal arrest); thus, the court concluded that any testimonial statements made without
Miranda warnings were inadmissible); State v. Myers, 14 Fla. L. Weekly Supp. 482 (Fla. Volusia Cty.
Ct.)State v. Myers, 14 Fla. L. Weekly Supp. 482 (Fla. Volusia Cty. Ct.) (court also applied test for
detention in deciding whether Miranda warnings were required).
47
Hewitt v. State, 920 So. 2d 802, 805 (Fla. 5th DCA 2006).
48
State v. Martissa, 18 So. 3d 49 (Fla. 2d DCA 2009).
49
State v. Martissa, 18 So. 3d 49, 52-53 (Fla. 2d DCA 2009).
50
Fowler v. State, 782 So. 2d 461 (Fla. 2d DCA 2001).
51
State v. Orcino, 7 Fla. L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999)State v. Orcino, 7 Fla.
L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999); State v. Laningham, 2 Fla. L. Weekly Supp.
169 (Fla. Broward Cty. Ct. Feb. 14, 1994)State v. Laningham, 2 Fla. L. Weekly Supp. 169 (Fla.
Broward Cty. Ct. Feb. 14, 1994) (finding that the defendant was not in custody for purposes of
Miranda).
52
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
53
State v. Orcino, 7 Fla. L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999)State v. Orcino, 7 Fla.
L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999); State v. Laningham, 2 Fla. L. Weekly Supp.
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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

169 (Fla. Broward Cty. Ct. Feb. 14, 1994)State v. Laningham, 2 Fla. L. Weekly Supp. 169 (Fla.
Broward Cty. Ct. Feb. 14, 1994) (finding that the defendant was not in custody for purposes of
Miranda).
54
State v. Orcino, 7 Fla. L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999)State v. Orcino, 7 Fla.
L. Weekly Supp. 144 (Fla. Broward Cty. Ct. Nov. 9, 1999); State v. Laningham, 2 Fla. L. Weekly Supp.
169 (Fla. Broward Cty. Ct. Feb. 14, 1994)State v. Laningham, 2 Fla. L. Weekly Supp. 169 (Fla.
Broward Cty. Ct. Feb. 14, 1994) (finding that the defendant was not in custody for purposes of
Miranda).
55
State v. Richard, 46 Fla. Supp. 2d 30 (Fla. 9th Cir. Ct. 1991). See also State v. Moonilal, 23 Fla. L.
Weekly Supp. 694 (Fla. 17th Cir. Ct. Oct. 2, 2015)23 Fla. L. Weekly Supp. 694 (Fla. 17th Cir. Ct. Oct.
2, 2015) (court reversed order suppressing admission of drinking; vehicle was stopped in the middle of
the road; driver was initially nonresponsive and appeared impaired; deputy had him exit, asked some
questions, including whether he had been drinking; court applied Ramirez test and concluded defendant
was not in custody for purposes of Miranda; especially since trial judge ruled that the detention was
based on reasonable suspicion); State v. Schmotzer, 16 Fla. L. Weekly Supp. 3 (Fla. 6th Cir. Ct. June 26,
2009)State v. Schmotzer, 16 Fla. L. Weekly Supp. 3 (Fla. 6th Cir. Ct. June 26, 2009) (a three judge
panel ruled defendant was not in custody for purposes of Miranda where he was stopped for racing;
deputy talked to defendant about the stop, the nature of the offense, and asked questions about the
racing; defendant was not handcuffed, placed in a police vehicle, searched, or otherwise restrained, and
the deputy gave defendant citations); Lamas v. State, 14 Fla. L. Weekly Supp. 1103 (Fla. 17th Cir. Ct.
Sept. 5, 2007) (there was sufficient evidence to support denial of motion to suppress statements where
Miranda not read after officer made traffic stop based on erratic driving; noticed strong odor of alcohol
and indicia of impairment; asked defendant where he was coming from and whether he had consumed
any alcohol, and whether there was any medical reason he could not do FSTS; and administered 8 FSTS
15 to 20 paces from vehicle); State v. Belluomo, 18 Fla. L. Weekly Supp. 1012 (Fla. Manatee Cty. Ct.
Dec. 22, 2010); State v. Campbell, 18 Fla. L. Weekly Supp. 1007 (Fla. Manatee Cty. Ct. October 26,
2010); State v. Groseclose, 18 Fla. L. Weekly Supp. 1003 (Fla. Manatee Cty. Ct. April 5, 2011)
(Belluomo, Campbell, and Groseclose involved either crashes and/or traffic violations leading to DUI
investigations, including FSES resulting in arrest after incriminating statements; in each case, the judge
ruled that Miranda warnings were not required because the case was on all fours with Berkemer in that
“[t]he time from the conclusion of the traffic crash investigation [or stop] until … arrest was short and at
no time was the Defendant told that his detention would be anything but temporary.”); State v. Edwards,
15 Fla. L. Weekly Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008)State v. Edwards, 15 Fla. L. Weekly
Supp. 636 (Fla. Brevard Cty Ct. March 17, 2008) (Miranda warnings were not required because
defendant was not in custody where officer approached improperly parked vehicle, defendant exited
vehicle, officer had reasonable suspicion for a stop, talked to defendant about implied consent and the
consequences of refusing field sobriety exercises, and administered the field sobriety exercises).
56
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
57
State v. Formica, 2 Fla. L. Weekly Supp. 444 (Fla. Palm Beach Cty. Ct. Aug. 16, 1994)State v. Formica,
2 Fla. L. Weekly Supp. 444 (Fla. Palm Beach Cty. Ct. Aug. 16, 1994).
58
State v. Wright, 44 Fla. Supp. 2d 55 (Fla. Brevard Cty. Ct. 1990).
59
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
60
State v. Serrano, 10 Fla. L. Weekly Supp. 57 (Fla. Palm Beach Cty. Ct. Nov. 26, 2002)State v. Serrano,
10 Fla. L. Weekly Supp. 57 (Fla. Palm Beach Cty. Ct. Nov. 26, 2002).
61
State v. Keene, 18 Fla. L. Weekly Supp. 227 (Fla. Hillsborough Cty. Ct. Oct. 5, 2010) State v. Keene, 18
Fla. L. Weekly Supp. 227 (Fla. Hillsborough Cty. Ct. Oct. 5, 2010). See also State v. Mannelly, 21 Fla.
L. Weekly Supp. 94 (Fla. Palm Beach Cty. Ct. Sept. 24, 2013)State v. Mannelly, 21 Fla. L. Weekly
Supp. 94 (Fla. Palm Beach Cty. Ct. Sept. 24, 2013) (officer pulled defendant over for speeding, but then
erroneously accused defendant of taking too long to pull over; demanded that he take the dip out of his
mouth and ordered defendant to give him the keys; the accusation alone did not require Miranda, but it
could be considered along with other factors; the order to spit out the dip was a reasonable search
because the officer needed to determine whether defendant’s speech had been affected by alcohol and
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§ 12:1.Miranda rights at the scene of the stop, 11 Fla. Prac., DUI Handbook § 12:1...

this did not require Miranda, but demanding the keys constituted custody and Miranda was required);
State v. Katsarelis, 20 Fla. L. Weekly Supp. 935 (Fla. Monroe Cty. Ct. May 10, 2013)State v. Katsarelis,
20 Fla. L. Weekly Supp. 935 (Fla. Monroe Cty. Ct. May 10, 2013) (when defendant was ordered to step
out of his pick-up and confronted with the evidence against him, he was under the functional equivalent
of arrest and all statements made from that point without Miranda warnings were inadmissible even
though just before deputy ordered the defendant out of the vehicle, deputy responded to the defendant’s
inquiry as to whether he was under arrest, with “‘not right now’”). But see State v. McCombs, 18 Fla. L.
Weekly Supp. 237 (Fla. Brevard Cty. Ct. August 2, 2010)State v. McCombs, 18 Fla. L. Weekly Supp.
237 (Fla. Brevard Cty. Ct. August 2, 2010) (defendant not in custody prior to formal arrest where
deputies received report that someone was passed out; driver was asleep behind steering wheel, car in
drive, motor running, driver’s foot on the brake and driver was intoxicated; a deputy removed key;
defendant was awakened, did FSES without hesitation or objection, and was arrested; no handcuffs were
used prior to FSES, car not blocked, and deputies didn’t order defendant to do anything nor draw
weapons, search vehicle, or use force prior to arrest; removing key did not prevent defendant from
refusing requests, keep him from leaving on foot or seeking help from family or friends).
62
State v. Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty. Ct. April 12, 1999) State v.
Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty. Ct. April 12, 1999). See also State v.
Durant, 22 Fla. L. Weekly Supp. 1095 (Fla. Hillsborough Cty. Ct. March 4, 2015) (defendant was not in
custody for purposes of Miranda when stopping officer asked him whether he consumed alcohol and
took his license and registration, called DUI investigator and told defendant to stay in vehicle; but
defendant was in custody when DUI investigator asked same question; investigating officer had
defendant exit and escorted him to front of unmarked police car to record the investigation; investigating
officer told defendant he was suspected of DUI and asked if had consumed alcohol that evening; both
officers were in uniform).
63
Castillo v. State, 10 Fla. L. Weekly Supp. 229 (Fla. 11th Cir. Ct. Feb. 18, 2003) Castillo v. State, 10 Fla.
L. Weekly Supp. 229 (Fla. 11th Cir. Ct. Feb. 18, 2003). See also State v. Pekoe, 18 Fla. L. Weekly
Supp. 1169 (Fla. Leon Cty. Ct. April 14, 2011) (defendant was in custody after traffic stop when
performing the Rhomberg Alphabet test; court found this was more than an ordinary traffic stop; officers
saw multiple indicators of impairment by alcohol; defendant was separated from her vehicle and
performed exercises at officer’s request; she was not free to go because one officer believed they had
probable cause before the FSES; while the defendant was not handcuffed or told she was under arrest,
she was treated in a way that rendered her in custody for practical purposes and Miranda warnings
should have been read).
64
State v. Chappas, 9 Fla. L. Weekly Supp. 494 (Fla. Brevard Cty. Ct. June 7, 2002)State v. Chappas, 9
Fla. L. Weekly Supp. 494 (Fla. Brevard Cty. Ct. June 7, 2002) (the court also discussed the issue of
whether the questions constituted interrogation).
65
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
66
McCall v. State, 549 So. 2d 623 (Ala. Crim. App. 1989).
67
State v. Fasching, 453 N.W.2d 761 (N.D. 1990).

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§ 12:2.Statements that may be exempt from Miranda..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 12:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:2. Statements that may be exempt from Miranda requirements

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.1, 412.2

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 892 to 904, 908 to 927, 929 to 930

Pennsylvania v. Muniz1 is the most important case in defining when Miranda warnings are required and when
they are not required in DUI cases. The Court recalled that Rhode Island v. Innis2 established the test for
interrogation where statements are not made in direct response to questions. Officers’ conduct may be
considered interrogation if it is the “functional equivalent” of express questioning when considered from the
perspective of the accused.3 Some responses may be considered a product of interrogation, but nonetheless, not
require Miranda warnings.

In considering this subject in Muniz, the Court recognized four categories of information that a defendant may
provide. Those categories are: (1) answers to questions calling for biographical information; (2) answers to
questions that require the defendant to make calculations based on knowledge of his past; (3) interactions
between the defendant and the officer during field sobriety tests; and (4) defendant’s comments in response to
the officer’s request that the defendant submit to a chemical test. These categories and others are considered in
the following subsections.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pennsylvania v. Muniz, 496 U.S. 582, 592, 110 S. Ct. 2638, 2645, 110 L. Ed. 2d 528 (1990).

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§ 12:2.Statements that may be exempt from Miranda..., 11 Fla. Prac., DUI...

2
Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
3
Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

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Works.

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§ 12:3.Biographical information, 11 Fla. Prac., DUI Handbook § 12:3 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 12:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:3. Biographical information

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.2

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 898 to 900, 903 to 904, 914 to 927

In Muniz,1 the defendant was asked his name, address, height, weight, eye color, date of birth, and current age at
the booking center. He was not advised of his Miranda rights, and he answered each question. Four justices
found that all of the statements were admissible under the “ ‘routine booking question’ exception, which
exempts from Miranda requirements, questions to secure the ‘biographical data necessary to complete booking
or pre-trial service.’ ”2 Such questions are reasonably related to the administrative concerns of the police. They
are not designed to elicit an incriminating response. 3 Furthermore, once officers stop the defendant at a lawful
DUI checkpoint, the defendant has the duty to give his name, and refusal to do so may result in an obstructing
conviction.4

The recognition that the questions are not designed to elicit an incriminating response is important. That theme
was also present in California v. Byers.5 In Byers, the United States Supreme Court held that a requirement for a
driver to stop at the scene of an accident and report his name and address does not offend the privilege against
self-incrimination because such actions are not, standing alone, testimonial nor incriminating. Similarly, in
Hibel v. Sixth Judicial District Court of Nevada, Humboldt County,6 the Court held that a state statute requiring
that one disclose his or her name during a Terry stop, did not violate the Fifth Amendment privilege to remain
silent.

Despite the general rule, all of this biographical information may, under certain circumstances, be considered
incriminating and subject to Miranda. That determination must be based on what is known at the time the
information is secured. Thus, booking-related identification information not initially subject to Miranda, does
not become subject to Miranda if it later becomes significant to the criminal prosecution. 7 This is so because the
purpose of the exclusionary rule is to prevent police misconduct in the gathering of information. 8

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§ 12:3.Biographical information, 11 Fla. Prac., DUI Handbook § 12:3 (2018-2019 ed.)

The privilege against self-incrimination applies to communications conveying information that might be used
against the defendant in a criminal proceeding. 9 It applies not only to communications that would support a
conviction, but also to those that would provide a link in the chain of evidence needed to prosecute. 10
Consequently, this privilege protects the defendant from being forced to disclose any information that he or she
reasonably believes could be used, or could lead to evidence that might be used, in a criminal prosecution
against the defendant.11 Once this privilege is invoked, the trial judge must determine whether there is a
reasonable basis to assert the privilege and whether it is asserted in good faith. 12 To sustain the privilege, the
trial court need only find that a responsive answer or an explanation of why the question cannot be answered,
might be injurious to the defendant.13

The focus on the incriminating nature of even routine booking questions is apparent in State v. Burns,14 which is
a DUI case. The Burns court stated that where officers ask routine booking questions solely to secure
incriminating evidence, the responses should be excluded if the defendant is in custody and Miranda rights are
not given. In this case, the officers were repeating questions they had already asked and taking notes. The court
concluded, however, that this was not done for any incriminating purpose, but rather to note how the defendant
gave his responses. Thus, Miranda warnings were not required.

In a similar case,15 a trial judge ruled that questions and responses on video as to name, address, date of birth,
height and weight, hair and eye color, and age (i.e. “preliminary biographical questions”) were admissible even
though the defendant was in custody and Miranda warnings were not given, because the defendant responded
correctly. Such evidence is admissible to show the manner of answering the questions, rather than the content of
the answers. Furthermore, the court stressed the fact that if the answers had been wrong, they would have been
incriminating and inadmissible.

Even though officers are asking about biographical information, they need to exercise caution with any question
once they read the Miranda warnings and suspects invoke their rights. One trial judge concluded that under
such circumstances even questioning eliciting biographical information should cease. 16

The case law indicates that usually questions that elicit routine booking information or biographical information
are not subject to Miranda warnings. Nevertheless, the parties and the court must always consider whether these
questions are really designed solely to secure incriminating testimony.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).
2
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990). See also Allred
v. State, 622 So. 2d 984 (Fla. 1993), overruling State v. Diandrea, 602 So. 2d 1322 (Fla. 4th DCA
1992), decision quashed, 622 So. 2d 984 (Fla. 1993); J.M. v. State, 34 So. 3d 163 (Fla. 3d DCA
2010) (question as to juvenile’s date of birth did not require reading of Miranda rights even if age was
essential to prove the charge of possession of a firearm by a minor); State v. Graham, 2 Fla. L. Weekly
Supp. 171 (Fla. Bay Cty. Ct. Dec. 30, 1993)State v. Graham, 2 Fla. L. Weekly Supp. 171 (Fla. Bay Cty.
Ct. Dec. 30, 1993) (finding that the exception applies whether the questions are asked by the booking
officer or another officer).
3
Allred v. State, 622 So. 2d 984 (Fla. 1993); Holland v. State, 773 So. 2d 1065, 1073-74 (Fla.
2000), cert. denied, 513 U.S. 943, 115 S. Ct. 351, 130 L. Ed. 2d 306 (1994) (question to ascertain real
name is not interrogation); Burkes v. State, 719 So. 2d 29 (Fla. 2d DCA 1998), review denied, 727 So.

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§ 12:3.Biographical information, 11 Fla. Prac., DUI Handbook § 12:3 (2018-2019 ed.)

2d 903 (Fla. 1999), cert. denied, 528 U.S. 829, 120 S. Ct. 82, 145 L. Ed. 2d 69 (1999); State v. Foster,
562 So. 2d 808 (Fla. 5th DCA 1990). See also Tobiassen v. State, 213 So. 3d 1045 (Fla. 4th DCA
2017) (a question as to employment was part of the booking process and was not subject to Miranda;
therefore, defendant’s confession without Miranda in response to the question was admissible); J.M. v.
State, 34 So. 3d 163 (Fla. 3d DCA 2010) (question as to juvenile’s date of birth did not require reading
of Miranda rights even if age was essential to prove the charge of possession of a firearm by a minor);
Bucknor v. State, 965 So. 2d 1200 (Fla. 4th DCA 2007) (contact number provided to booking officer to
fill “out the standard, computerized booking form” was routine booking information, and was
admissible without Miranda warnings where state sought to introduce evidence that a call was made on
a cell phone found in getaway car to the contact number, but the booking officer did not specify the type
of number sought and there was no evidence that when defendant was booked police had determined to
whom the cell phone belonged); Timmons v. State, 961 So. 2d 378, 380 (Fla. 4th DCA 2007)
(questions acquiring “basic information” such as routine booking information at the scene of and after
arrest, is not interrogation, and that applies to inquiry where in the hotel where the arrest was made the
defendant was staying); State v. Amos, 19 Fla. L. Weekly Supp. 892 (Fla. Volusia Cty. Ct. May 22,
2012)State v. Amos, 19 Fla. L. Weekly Supp. 892 (Fla. Volusia Cty. Ct. May 22, 2012) (biographical
questions including weight, eye color, and place of birth are routine booking questions and are
admissible even without Miranda warnings).
4
Rinaldo v. State, 787 So. 2d 208 (Fla. 4th DCA 2001).
5
California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971). See also Sylvester v. State,
557 So. 2d 180 (Fla. 3d DCA 1990), cause dismissed, 562 So. 2d 347 (Fla. 1990); Avila v. State, 545
So. 2d 450 (Fla. 3d DCA 1989) (holding that since the police questioning concerning the defendant’s
real name was not interrogation within the scope of Miranda, the defendant’s response to this
questioning that he was wanted for two murders was admissible, even though the defendant had not
been given Miranda warnings).
6
Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 124 S. Ct. 2451, 159
L. Ed. 2d 292 (2004).
7
State v. McAdams, 559 So. 2d 601 (Fla. 5th DCA 1990). See also J.M. v. State, 34 So. 3d 163 (Fla.
3d DCA 2010) (question as to juvenile’s date of birth did not require reading of Miranda rights even if
age was essential to prove the charge of possession of a firearm by a minor).
8
State v. McAdams, 559 So. 2d 601 (Fla. 5th DCA 1990).
9
St. George v. State, 564 So. 2d 152 (Fla. 5th DCA 1990) (holding that the trial court erred in
compelling a defendant to respond to questions involving his identity when the crimes the defendant was
charged with involved misrepresentation of his true identity in another county).
10
St. George v. State, 564 So. 2d 152 (Fla. 5th DCA 1990).
11
St. George v. State, 564 So. 2d 152 (Fla. 5th DCA 1990).
12
St. George v. State, 564 So. 2d 152 (Fla. 5th DCA 1990).
13
St. George v. State, 564 So. 2d 152 (Fla. 5th DCA 1990).
14
State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996).
15
State v. Gorman, 7 Fla. L. Weekly Supp. 351 (Fla. Palm Beach Cty. Ct. Feb. 29, 2000)State v. Gorman,
7 Fla. L. Weekly Supp. 351 (Fla. Palm Beach Cty. Ct. Feb. 29, 2000).
16
State v. Herlowski, 11 Fla. L. Weekly Supp. 912 (Fla. Volusia Cty. Ct. July 29, 2004)State v. Herlowski,

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§ 12:3.Biographical information, 11 Fla. Prac., DUI Handbook § 12:3 (2018-2019 ed.)

11 Fla. L. Weekly Supp. 912 (Fla. Volusia Cty. Ct. July 29, 2004).

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§ 12:4.Performance on field sobriety tests, 11 Fla. Prac., DUI Handbook § 12:4...

11 Fla. Prac., DUI Handbook § 12:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:4. Performance on field sobriety tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 421

Legal Encyclopedias
• C.J.S., Motor Vehicles § 1407

As previously recognized, field sobriety tests are generally not testimonial, but rather, they are designed to elicit
physical evidence.1 Accordingly, they do not require Miranda warnings nor is there any right to refuse to
complete the tests.2 But some field sobriety tests are not in this category.

In Muniz, officers asked the defendant whether he remembered the date when he turned six years old. The
defendant answered negatively. The U.S. Supreme Court ruled that this was testimonial and it was error to elicit
the response without first providing proper Miranda warnings. The Court said:

[His answer] was incriminating, not just because of his delivery, but also because of his answer’s
content; the trier of fact could infer from Muniz’s answer (that he did not know the proper date)
that his mental state was confused. . . . [T]hat the “fact” to be inferred might be said to concern the
physical status of Muniz’s brain merely describes the way in which the inference is incriminating.
The correct question for present purposes is whether the incriminating inference of mental
confusion is drawn from a testimonial act or from physical evidence. . . . In this case, the question
is not whether a suspect’s “impaired mental faculties” can fairly be characterized as an aspect of
his physiology, but rather whether Muniz’s response … that gave rise to the inference of such an
impairment was testimonial in nature. “[I]n order to be testimonial, an accused’s communication
must itself, explicitly or implicitly, relate a factual assertion or disclose information.”

****

Whenever a suspect is asked for a response requiring him to communicate an express or implied

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§ 12:4.Performance on field sobriety tests, 11 Fla. Prac., DUI Handbook § 12:4...

assertion of fact or belief, the suspect confronts the “trilemma” of truth, falsity, or silence, and
hence the response (whether based on truth or falsity) contains a testimonial component. . . . [T]he
sixth birthday question in this case required a testimonial response. When [the officer] asked
Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not
remember or calculate that date, he was confronted with the trilemma. . . . The content of his
truthful answer supported an inference that his mental faculties were impaired, because his
assertion (he did not know the date of his sixth birthday) was different from the assertion (he
knew the date was (correct date)) that the trier of fact might reasonably have expected a lucid
person to provide. Hence, the incriminating inference of impaired mental faculties stemmed, not
just from the fact that Muniz slurred his response, but also from a testimonial aspect of that
response.3

Thus, the Court concluded that the response should have been suppressed.

Ordinarily, such lengthy quotations of the Court’s analysis would be inappropriate; however, in this instance, it
is probably essential. Justice Brennan wrote the opinion, and he dealt with a very complicated concept in a very
complicated way. Brennan’s intent can only be adequately conveyed in his words, and every interested
practitioner should spend some time with the opinion.

Florida courts have applied Muniz to similar field sobriety issues. The leading Florida case on this point is
Allred v. State.4 In Allred, the Florida Supreme Court held that when a defendant is under arrest, police requests
for the defendant to recite numbers and the alphabet out of order are designed to elicit incriminating responses.
Thus, they constitute interrogation for Miranda purposes. The Court reached this conclusion because a failure to
accurately recite the numbers or alphabet, discloses information dealing with the content (incorrect recitation),
as opposed to merely the manner (slurring) of speech. The Court concluded that the “incriminating inference is
drawn from the testimonial act—answering the question incorrectly, not from physical evidence—slurred
speech.”5 Accordingly, the performance is inadmissible.

The results would be different if the recitation was done correctly because the content would not be
incriminating, and it would constitute only physical evidence. 6 Based on this reasoning, one court ruled that the
way the defendant counted on the one-leg stand test and the walk-the-line test was admissible because the
counting was accurate and the speech was slurred. 7 In that regard, in a case not involving driving, the court
reiterated the principle derived from Schmerber v. California8 and reconfirmed in Muniz that “compelling a
suspect to disclose the sound of his voice does not violate the Fifth Amendment protection against self-
incrimination.”9 Similarly, having a jail nurse testify that the defendant said he understood English and that he
appeared to understand her questions, without revealing the substance of the response, was admissible. 10

All of these authorities make the law on Miranda and field sobriety testing fairly clear where Miranda warnings
are not given. If the test is relevant only as physical evidence of the defendant’s condition, it is admissible. If it
is even partially relevant as communicative evidence of the defendant’s condition, and Miranda warnings are
otherwise required, the test is inadmissible.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990). See also Eichholz
v. Pepo Petroleum Co., Inc., 475 So. 2d 1244 (Fla. 1st DCA 1985), review denied, 476 So. 2d 673 (Fla.
1985) and 484 So. 2d 8 (Fla. 1986); State v. Edwards, 463 So. 2d 551, 554 (Fla. 5th DCA 1985), review
denied, 471 So. 2d 43 (Fla. 1985); State v. Horrell, 11 Fla. L. Weekly Supp. 87 (Fla. 9th Cir. Ct. Sept. 5,

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§ 12:4.Performance on field sobriety tests, 11 Fla. Prac., DUI Handbook § 12:4...

2003)State v. Horrell, 11 Fla. L. Weekly Supp. 87 (Fla. 9th Cir. Ct. Sept. 5, 2003) . It should be noted
that Eichholz and Edwards depart from Duval Motor Co. v. Woodward, 419 So. 2d 303 (Fla. 1982),
based on the ruling in Brackin v. Boles, 452 So. 2d 540 (Fla. 1984).
2
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).
3
Pennsylvania v. Muniz, 496 U.S. 582, 592–99, 110 S. Ct. 2638, 2645–49, 110 L. Ed. 2d 528 (1990).
4
Allred v. State, 622 So. 2d 984 (Fla. 1993). See also Alaniz v. State, 9 Fla. L. Weekly Supp. 521
(Fla. 11th Cir. Ct. May 28, 2002)Alaniz v. State, 9 Fla. L. Weekly Supp. 521 (Fla. 11th Cir. Ct. May 28,
2002) (two of three judge appellate panel ruled that results on counting exercise were inadmissible, but
one judge dissented because Miranda was not required).
5
Allred v. State, 622 So. 2d 984, 987 (Fla. 1993). See also State v. Burns, 661 So. 2d 842 (Fla. 5th
DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996); State v. Shepard, 658 So. 2d 611 (Fla. 2d
DCA 1995); State v. Bogdanoff, 19 Fla. L. Weekly Supp. 201 (Fla. Leon Cty. Ct. Oct. 20, 2011)State v.
Bogdanoff, 19 Fla. L. Weekly Supp. 201 (Fla. Leon Cty. Ct. Oct. 20, 2011); State v. Grady, 14 Fla. L.
Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3, 2007)State v. Grady, 14 Fla. L. Weekly Supp. 690
(Fla. Santa Rosa Cty. Ct. May 3, 2007); State v. Myers, 14 Fla. L. Weekly Supp. 482 (Fla. Volusia Cty.
Ct. ___ )State v. Myers, 14 Fla. L. Weekly Supp. 482 (Fla. Volusia Cty. Ct. ___ ); State v. Raulerson, 9
Fla. L. Weekly Supp. 198 (Fla. Palm Beach Cty. Ct. March 19, 2001)State v. Raulerson, 9 Fla. L.
Weekly Supp. 198 (Fla. Palm Beach Cty. Ct. March 19, 2001); State v. Wright, 44 Fla. Supp. 2d 55 (Fla.
Brevard Cty. Ct. 1990).
6
State v. Whelan, 728 So. 2d 807, 810 (Fla. 3d DCA 1999); State v. Burns, 661 So. 2d 842 (Fla.
5th DCA 1995), cause dismissed, 676 So. 2d 1366 (Fla. 1996); State v. Pekoe, 18 Fla. L. Weekly Supp.
1169 (Fla. Leon Cty. Ct. April 14, 2011); State v. Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla.
Broward Cty. Ct. April 12, 1999)State v. Ramsey, 6 Fla. L. Weekly Supp. 515, 516 (Fla. Broward Cty.
Ct. April 12, 1999); State v. Wright, 44 Fla. Supp. 2d 55 (Fla. Brevard Cty. Ct. 1990).
7
State v. Wright, 44 Fla. Supp. 2d 55 (Fla. Brevard Cty. Ct. 1990).
8
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
9
State v. Trottman, 701 So. 2d 581, 583 (Fla. 5th DCA 1997). See also State v. Pennett, 20 Fla. L.
Weekly Supp. 427 (Fla. Volusia Cty. Ct. Nov. 5, 2012)State v. Pennett, 20 Fla. L. Weekly Supp. 427
(Fla. Volusia Cty. Ct. Nov. 5, 2012) (defendant’s appearance and the sound of her voice during
questioning were not the product of interrogation and was admissible even though her statements were
not); State v. Amos, 19 Fla. L. Weekly Supp. 892 (Fla. Volusia Cty. Ct. May 22, 2012)State v. Amos, 19
Fla. L. Weekly Supp. 892 (Fla. Volusia Cty. Ct. May 22, 2012) (the video of defendant’s appearance
during interrogation without Miranda warnings was admissible).
10
Vo v. State, 6 Fla. L. Weekly Supp. 671 (Fla. 9th Cir. Ct. Aug. 10, 1999)Vo v. State, 6 Fla. L. Weekly
Supp. 671 (Fla. 9th Cir. Ct. Aug. 10, 1999).

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§ 12:5.Defendant’s comments during instruction on field..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook § 12:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:5. Defendant’s comments during instruction on field sobriety tests and chemical or physical tests

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 421
• West’s Key Number Digest, Criminal Law 412.2

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 898 to 900, 903 to 904, 914 to 927
• C.J.S., Motor Vehicles § 1407

Obviously, it is necessary for officers to interact with defendants in advising them on performance of field
sobriety tests and chemical or physical tests. The United States Supreme Court recognized this in Muniz.1 The
Court established some basic guidelines.

If the officer utilizes “carefully scripted instructions” 2 as to how the tests are to be performed, there is no
violation of Fifth Amendment rights. Such instructions are unlikely “to be perceived as calling for any verbal
response and therefore [are] not ‘words or actions’ constituting custodial interrogation.” 3 This conclusion
applies both to field sobriety tests and breathalyzer tests.

As to the latter, the officer used “a prepared script explaining how the test worked, the nature of [the] Implied
Consent Law, and the legal consequences that would ensue should he refuse.” 4 The officer then asked the
defendant if he understood the instructions and if he would take the test. The defendant responded with
questions concerning the legal consequences of his refusal, which the officer answered. The defendant then
made incriminating statements. These comments were not in response to interrogation as contemplated by
Miranda; therefore, Miranda warnings were not required. The Court found it important that the officer confined
the comments to “relevant information about the breathalyzer tests and the Implied Consent Law.” 5 Further, the
questions she put to the defendant “were necessarily ‘attendant to’ the legitimate police procedure.” 6

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§ 12:5.Defendant’s comments during instruction on field..., 11 Fla. Prac., DUI...

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).
2
Pennsylvania v. Muniz, 496 U.S. 582, 603, 110 S. Ct. 2638, 2651, 110 L. Ed. 2d 528 (1990).
3
Pennsylvania v. Muniz, 496 U.S. 582, 603, 110 S. Ct. 2638, 2651, 110 L. Ed. 2d 528 (1990) ; State v.
Sanchez-Hidalgo, 17 Fla. L. Weekly Supp. 436 (Fla. 17th Cir. Ct. Feb. 5, 2010)State v. Sanchez-
Hidalgo, 17 Fla. L. Weekly Supp. 436 (Fla. 17th Cir. Ct. Feb. 5, 2010) (officers handcuffed defendant at
the scene; therefore, he was probably in custody, but his incriminating responses to a request that he
submit to FSTS and a breath test were admissible even in the absence of Miranda rights, because those
requests did not constitute interrogation).
4
Pennsylvania v. Muniz, 496 U.S. 582, 604, 110 S. Ct. 2638, 2652, 110 L. Ed. 2d 528 (1990).
5
Pennsylvania v. Muniz, 496 U.S. 582, 604, 110 S. Ct. 2638, 2652, 110 L. Ed. 2d 528 (1990).
6
Pennsylvania v. Muniz, 496 U.S. 582, 604, 110 S. Ct. 2638, 2652, 110 L. Ed. 2d 528 (1990) . See
also State v. Peddie, 2 Fla. L. Weekly Supp. 170 (Fla. Bay Cty. Ct. Feb. 17, 1994) State v. Peddie, 2 Fla.
L. Weekly Supp. 170 (Fla. Bay Cty. Ct. Feb. 17, 1994). Traylor v. State, 596 So. 2d 957 (Fla.
1992) and Allred v. State, 622 So. 2d 984 (Fla. 1993) have not established a stricter standard than the
federal one as to when Miranda warnings are required. Questions attendant to the administration of
breath tests do not call for incriminating responses. They merely call for physical evidence. Thus,
Miranda warnings are not required. State v. Graham, 2 Fla. L. Weekly Supp. 171 (Fla. Bay Cty. Ct. Dec.
30, 1993)State v. Graham, 2 Fla. L. Weekly Supp. 171 (Fla. Bay Cty. Ct. Dec. 30, 1993).

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§ 12:6.Spontaneous or gratuitous statements, 11 Fla. Prac., DUI Handbook § 12:6...

11 Fla. Prac., DUI Handbook § 12:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:6. Spontaneous or gratuitous statements

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.1

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 892 to 901, 904, 908 to 913, 929 to 930

As previously mentioned, Miranda warnings are only required when information is provided in response to
interrogation.1 That can either consist of questioning or the functional equivalent of questioning, which means
comments or acts that are “reasonably likely to elicit an incriminating response.” 2 This determination is based
on what the officer knows or should know about the “special susceptibilities of the suspect.” 3 If the defendant
blurts out the information, it cannot be said to result from interrogation. Indeed, that is the basis for many of the
conclusions reached in Muniz.4

In Muniz, many of the statements found to be exempt from Miranda warnings were akin to spontaneous
statements. Such statements have been considered in various situations that relate to DUI cases. In one case, 5 the
defendant made several incriminating statements while the officer was transporting him to a blood alcohol
testing facility. The trial judge found that the statements were spontaneous, but excluded them because the
defendant was in custody. On appeal, the court reversed because the statements were not in response to any
questions, but rather were gratuitous. Similarly, the defendant’s statement during field sobriety tests that he had
been drinking was admissible because it was not in response to any questioning and was spontaneous and
voluntary.6 In another such case, the defendant’s statement that he consumed two beers was admissible because
it was not in response to any question or action.7

In a case from another state,8 the court followed the same approach. While being asked routine biographical
questions, the defendant said that he had been drinking that evening. The defendant did the same thing when the
officer told him that he could not drive home. The court held that these statements were spontaneous and
voluntary.

These principles have potential application at many points in a DUI case. As suggested in Muniz, the defendant
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§ 12:6.Spontaneous or gratuitous statements, 11 Fla. Prac., DUI Handbook § 12:6...

may make gratuitous or inappropriate comments at various times during the contact with the officers. These
comments may be made during the field sobriety tests, during transport, or as part of a refusal. Thus, these
standards are important. Immediately preceding or during field sobriety tests, the defendant may make protected
statements. For instance, potentially he or she may request counsel or refuse to take the tests until counsel
arrives. Despite the fact that there is no right to counsel prior to taking the tests, such statements are testimonial
and require Miranda warnings.9 They may also be subject to a relevance or unfair prejudice objection.10

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Taylor v. State, 630 So. 2d 1038 (Fla. 1993). See also State v. Busciglio, 976 So. 2d 15, 19 (Fla. 2d
DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008); Timmons v. State, 961 So. 2d 378 (Fla. 4th
DCA 2007); Lewis v. State, 754 So. 2d 897 (Fla. 1st DCA 2000) (officer was attempting to ascertain
identity and defendant made gratuitous comment—comment was admissible); Berbusse v. State, 9 Fla.
L. Weekly Supp. 522 (Fla. 15th Cir. Ct. June 25, 2002)Berbusse v. State, 9 Fla. L. Weekly Supp. 522
(Fla. 15th Cir. Ct. June 25, 2002) (three-judge panel ruled trial judge properly allowed introduction of
racial slurs as evidence of impairment); State v. Cornejo, 15 Fla. L. Weekly Supp. 1216 (Fla. Palm
Beach Cty. Ct. Sept. 29, 2009) (defendant’s statements, “ ‘do you know who I am,’ ” “ ‘you don’t know
who I am,’ ” and about knowing several officers were admissible as proof of impairment).
2
Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) . See also Senser v.
State, 243 So.3d 1003 (Fla. 4th DCA 2018) (a reasonable person who was chased by officers from crime
scene, ordered to ground at gun point and handcuffed would believe officer’s inquiry, “‘why were you
running’” was designed to lead to an incriminating response, but defendant’s statement, “‘it was just a
fight, I didn’t mean to kill him,’” overheard by an officer rendering assistance to the victim was a
spontaneous statement and was admissible); State v. Lantz, 237 So.3d 1168 (Fla. 1st DCA 2018) (after
arresting defendant, officer waited for technicians to arrive at scene and “simply responded to an
unsolicited question from Mr. Lantz regarding the sentence for murder, and did so in way that didn’t
invite Mr. Lantz’s incriminating response”; there were other similar incriminating questions defendant
asked officers who did not ask questions or take actions likely to elicit an incriminating response);
Cooper v. State, 27 So. 3d 715 (Fla. 4th DCA 2010) (inquiry as to whether the defendant wanted to
make a post-Miranda statement was the functional equivalent of interrogation and required Miranda);
State v. Busciglio, 976 So. 2d 15, 20 (Fla. 2d DCA 2008), review denied, 992 So. 2d 819 (Fla. 2008);
Timmons v. State, 961 So. 2d 378 (Fla. 4th DCA 2007); Origi v. State, 912 So. 2d 69, 72-73 (Fla.
4th DCA 2005) (Officer’s statement, “ ‘That’s a lot of drugs you had,’ ” directed to defendant while he
held on to defendant’s arm and escorted him to jail, was the functional equivalent of interrogation); State
v. Alexander, 810 So. 2d 552 (Fla. 5th DCA 2002); State v. Pennett, 20 Fla. L. Weekly Supp. 427 (Fla.
Volusia Cty. Ct. Nov. 5, 2012)State v. Pennett, 20 Fla. L. Weekly Supp. 427 (Fla. Volusia Cty. Ct. Nov.
5, 2012) (defendant was on video in the back of the police car and was in custody for purposes of
Miranda, but was not advised of her rights; statements that she made in the police car without prompting
were not the product of interrogation and were admissible, but the trooper’s expression of concern about
medication she was taking and comments about medication were the functional equivalent of
interrogation and prompted incriminating inadmissible responses); State v. Amos, 19 Fla. L. Weekly
Supp. 892 (Fla. Volusia Cty. Ct. May 22, 2012)State v. Amos, 19 Fla. L. Weekly Supp. 892 (Fla.
Volusia Cty. Ct. May 22, 2012) (after a valid traffic stop, the defendant was detained for two hours in
the back of a police car while the trooper filled out paperwork; during that time the trooper engaged in
conversation with the defendant, but never advised him of Miranda rights; trooper told defendant that he
“‘could have killed someone,’” showed him the video evidence, and told him that his statements would
not be used in deciding whether to arrest him; confronting him with evidence of guilt and trooper’s
provocative statement was the functional equivalent of interrogation and defendant’s statements were
inadmissible).

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§ 12:6.Spontaneous or gratuitous statements, 11 Fla. Prac., DUI Handbook § 12:6...

3
Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297 (1980). See also
Lowe v. State, 650 So. 2d 969 (Fla. 1994), cert. denied, 516 U.S. 887, 116 S. Ct. 230, 133 L. Ed. 2d
159 (1995).
4
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).
5
State v. Binion, 637 So. 2d 952 (Fla. 4th DCA 1994). See also State v. Milledge, 12 Fla. L. Weekly
Supp. 676 (Fla. Palm Beach Cty. Ct. March 1, 2005)State v. Milledge, 12 Fla. L. Weekly Supp. 676
(Fla. Palm Beach Cty. Ct. March 1, 2005); State v. Kopec, 7 Fla. L. Weekly Supp. 480 (Fla. Palm Beach
Cty. Ct. May 2, 2000)State v. Kopec, 7 Fla. L. Weekly Supp. 480 (Fla. Palm Beach Cty. Ct. May 2,
2000).
6
State v. Morgan, 9 Fla. L. Weekly Supp. 206 (Fla. 9th Cir. Ct. Nov. 21, 2001)State v. Morgan, 9 Fla. L.
Weekly Supp. 206 (Fla. 9th Cir. Ct. Nov. 21, 2001); State v. Wright, 44 Fla. Supp. 2d 55 (Fla. Brevard
Cty. Ct. 1990). See also State v. Sanchez-Hidalgo, 17 Fla. L. Weekly Supp. 436 (Fla. 17th Cir. Ct. Feb.
5, 2010)17 Fla. L. Weekly Supp. 436 (Fla. 17th Cir. Ct. Feb. 5, 2010) (incriminating statements made in
response to officer’s request to take FSTS and breathalyzer were admissible); State v. Grady, 14 Fla. L.
Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3, 2007)State v. Grady, 14 Fla. L. Weekly Supp. 690
(Fla. Santa Rosa Cty. Ct. May 3, 2007) (spontaneous statements made during field sobriety exercises are
admissible).
7
State v. Chorpenning, 6 Fla. L. Weekly Supp. 513, 514 (Fla. Broward Cty. Ct. April 9, 1999) State v.
Chorpenning, 6 Fla. L. Weekly Supp. 513, 514 (Fla. Broward Cty. Ct. April 9, 1999).
8
Com. v. Ramin, 390 Pa. Super. 591, 568 A.2d 1329 (1990).
9
State v. Wilkins, 6 Fla. L. Weekly Supp. 663, 665 (Fla. Brevard Cty. Ct. Feb. 1, 1999)State v. Wilkins, 6
Fla. L. Weekly Supp. 663, 665 (Fla. Brevard Cty. Ct. Feb. 1, 1999).
10
Gonzalez-Oliva v. State, 17 Fla. L. Weekly Supp. 615 (Fla. 11th Cir. Ct. April 19, 2010) Gonzalez-Oliva
v. State, 17 Fla. L. Weekly Supp. 615 (Fla. 11th Cir. Ct. April 19, 2010) (in cruiser, defendant said,
“‘You know, I can have you killed. You don’t know who you fuck with;’” and over a 403 objection, the
trial judge admitted statements because they showed impairment and no one would think of them as
serious; but the officer’s testimony made it clear he thought his life was in danger and State made
reference to statements that way; nevertheless, on appeal, the court found that the statements helped
establish a necessary element of DUI and any error from the State’s abuse was harmless); State v.
Wilkins, 6 Fla. L. Weekly Supp. 663, 665 (Fla. Brevard Cty. Ct. Feb. 1, 1999)State v. Wilkins, 6 Fla. L.
Weekly Supp. 663, 665 (Fla. Brevard Cty. Ct. Feb. 1, 1999).

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§ 12:7.Invocation of rights, 11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:7. Invocation of rights

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.1, 412.2

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 892 to 904, 908 to 927, 929 to 930

Many cases deal with the consequences of the invocation of rights and how they are invoked. Certainly, these
principles apply with full force to DUI cases. The most accurate and comprehensive statement of the governing
principles on the consequences of an invocation of rights is in Traylor v. State.1

In Traylor, the Court said:

[I]f the suspect indicates in any manner that he or she does not want to be interrogated,
interrogation must not begin, or if it has already begun, must immediately stop. If the suspect
indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin
until a lawyer has been appointed and is present or, if it has already begun, must immediately stop
until a lawyer is present. Once a suspect has requested the help of a lawyer, no state agent can
reinitiate interrogation on any offense throughout the period of custody unless the lawyer is
present, although the suspect is free to volunteer a statement to police on his or her own initiative
at any time on any subject in the absence of counsel.2

Any waiver of these rights must be “voluntary, knowing, and intelligent, and, where reasonably practical,
prudence suggests it should be in writing.”3

These rights are personal in nature and only the defendant can invoke them. 4 However, concealment by the
police that an attorney has been retained and is trying to advise the defendant, violates the defendant’s right to
due process as guaranteed by Art. I, § 9, Fla. Const.5 This is true even if the defendant has not invoked the right
to counsel.
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§ 12:7.Invocation of rights, 11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

In many cases, it is clear that the defendant has invoked his or her rights, but not always. 6 While the initial
waiver of rights must be clear and unequivocal, a suspect who has waived the rights may subsequently
equivocate in expressing the desire to invoke them. The person may simply be unclear. Previously, the rule was
that if a defendant equivocated in the invocation of the right to counsel, the officer had to stop all questioning
except for the purpose of clarifying the defendant’s intent.7 That is no longer the law.

Both the federal and state courts have changed the rule as to the responsibility of an officer where the defendant
makes a vague statement concerning his or her rights. In Davis v. United States,8 the Court ruled that once a
suspect knowingly and voluntarily waives constitutional rights, officers need not stop the questioning just
because the individual makes a vague request for counsel. In State v. Owen,9 the Florida Supreme Court
extended this principle to the invocation of any Miranda rights. Thus, “police in Florida need not ask clarifying
questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous
request to terminate an interrogation after having validly waived his or her Miranda rights.”10

The Owen decision was clarified in Almeida v. State.11 In that case, the officer, after advising the defendant of
his rights, said, “Do you wish to speak to me now without an attorney present?” The defendant said, “Well,
what good is an attorney going to do?” The officer ignored the question. The Supreme Court ruled that Owen12
did not permit such a procedure. The Court ruled that “if, at any point during custodial interrogation, a suspect
asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith
effort to give a simple and straight forward answer.” 13 Once the officer meets these standards, the officer may
resume the interview if the defendant does not invoke his or her rights. 14 The Court concluded that Owen and
Almeida establish these basic rules for custodial comments: 1) The “police must honor a clear statement
invoking a suspect’s rights.”15 2) The “police similarly must answer a clear question concerning a suspect’s
rights.”16 In Dooley v. State,17 the court concluded, based on Almeida, that the Owen decision only applies to
permit officers to continue interrogation after an equivocal statement concerning rights, where the defendant has
waived the rights earlier in the session. However, even if the defendant unequivocally invokes his rights,
Serrano v. State18 suggests that it does not violate the Fifth Amendment for an officer to ask a harmless question
merely to confirm that the defendant invokes his rights, followed by a nontestimonial response. But, this may
not, in fact, be the majority ruling in the case. 19 And, if that is the position of the First District, it conflicts with
the rule in the Fourth District.20

In a DUI case, the same rules apply to the invocation of rights that apply in any case. If the defendant is in
custody and is to be subjected to interrogation, the officer must advise the individual of his or her rights. That
includes a warning sufficient to make it clear that the defendant has the right to consult with an attorney and
have an attorney present during the interrogation. 21 If the person invokes these rights, the officer may not seek
any information that is protected by the privilege against self-incrimination. Once those rights are invoked, law
enforcement may not reinitiate interrogation on any matter even if it does not relate to the matter for which the
defendant is in custody.22 If, however, the defendant knowingly and voluntarily waives his or rights, questioning
may continue until the defendant clearly and unequivocally invokes those rights or asks a clear question
concerning his or her rights.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Traylor v. State, 596 So. 2d 957 (Fla. 1992).

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§ 12:7.Invocation of rights, 11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

denied, 134 S. Ct. 275, 187 L. Ed. 2d 199 (2013); Cuervo v. State, 967 So. 2d 155 (Fla. 2007);
Scotsman v. State, 238 So.3d 300 (Fla. 4th DCA 2018); Daniel v. State, 238 So.3d 1283 (Fla. 5th DCA
2018); Lowery v. State, 201 So. 3d 791 (Fla. 4th DCA 2016); Wheeler v. State, 116 So. 3d 608, 610
(Fla. 5th DCA 2013); State v. Hunt, 14 So. 3d 1035 (Fla. 2d DCA 2009) (court explains procedure when
defendant has invoked his rights and then initiates contact); State v. Soto, 954 So. 2d 686 (Fla. 4th DCA
2007). One trial court ruled that if the defendant is not in custody and is not involved in a critical stage
of the proceedings, an officer need not terminate questioning even if the defendant invokes his right to
counsel. State v. Smith, 7 Fla. L. Weekly Supp. 274 (Fla. 13th Cir. Ct. Dec. 22, 1999)State v. Smith, 7
Fla. L. Weekly Supp. 274 (Fla. 13th Cir. Ct. Dec. 22, 1999).
3
Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992).
4
Perez v. State, 673 So. 2d 160 (Fla. 4th DCA 1996). See also Smith v. State, 699 So. 2d 629 (Fla.
1997), cert denied, 523 U.S. 1008, 118 S. Ct. 1194, 140 L. Ed. 2d 323 (1998).
5
Perez v. State, 673 So. 2d 160 (Fla. 4th DCA 1996). See also Smith v. State, 699 So. 2d 629 (Fla.
1997), cert denied, 523 U.S. 1008, 118 S. Ct. 1194, 140 L. Ed. 2d 323 (1998).
6
See McCaa v. State, 562 So. 2d 382 (Fla. 2d DCA 1990) (holding that where the defendant was in an
emergency room, his statement to the officer to “just get the hell out,” when considered in the context of
that contact, was not intended to cut off questioning).
7
See e.g. Martinez v. State, 564 So. 2d 1071 (Fla. 1990).
8
Davis v. U.S., 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). See also Heyne v. State, 214
So. 3d 640 (Fla. 2017); Cuervo v. State, 967 So. 2d 155 (Fla. 2007).
9
State v. Owen, 696 So. 2d 715 (Fla. 1997), cert, denied, 522 U.S. 1002, 118 S. Ct. 574, 139 L. Ed. 2d
413 (1997).
10
State v. Owen, 696 So. 2d 715, 719 (Fla. 1997), cert, denied, 522 U.S. 1002, 118 S. Ct. 574, 139 L.
Ed. 2d 413 (1997). See also Deviney v. State, 112 So. 3d 57 (Fla. 2013), cert. denied, 134 S. Ct. 518,
187 L. Ed. 2d 394 (2013); Braddy v. State, 111 So. 3d 810, 830 (Fla. 2012), cert. denied, 134 S. Ct.
275, 187 L. Ed. 2d 199 (2013); Cuervo v. State, 967 So. 2d 155 (Fla. 2007); Jones v. State, 748
So. 2d 1012, 1020 (Fla. 1999), cert. denied, 530 U.S. 1232, 120 S. Ct. 2666, 147 L. Ed. 2d 279 (2000);
Washington v. State, 2018 WL 3637952 (Fla. 1st DCA Opinion Filed August 1, 2018); Scott v. State,
151 So. 3d 567 (Fla. 1st DCA 2014); Serrano v. State, 15 So. 3d 629 (Fla. 1st DCA 2009), review
denied, 26 So. 3d 582 (Fla. 2010), cert. denied, 130 S. Ct. 3391, 177 L. Ed. 2d 310 (2010); State v. Soto,
954 So. 2d 686 (Fla. 4th DCA 2007); Newman v. State, 937 So. 2d 1290 (Fla. 4th DCA 2006).
11
Almeida v. State, 737 So. 2d 520 (Fla. 1999), cert. denied, 528 U.S. 1182, 120 S. Ct. 1221, 145 L.
Ed. 2d 1121 (2000).
12
State v. Owen, 696 So. 2d 715 (Fla. 1997), cert. denied, 522 U.S. 1002, 118 S. Ct. 574, 139 L. Ed. 2d
413 (1997).

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§ 12:7.Invocation of rights, 11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

inquiry as to whether he wanted to talk about the matter and before any questioning, unequivocally
invoked the right to remain silent); Walker v. State, 957 So. 2d 560 (Fla. 2007) (statement, “‘I think I
might want to talk to an attorney.’” was not an unequivocal request for counsel and did not require
officers to terminate questioning); State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001); Washington v.
State, 2018 WL 3637952 (Fla. 1st DCA Opinion Filed August 1, 2018) (statements, “‘Do I need that?’”,
“‘Do I need him?’”, “‘Do I need to call my lawyer?’”, “‘Can I call my lawyer?’” in the context of the
situation, were not unequivocal requests for counsel); Madeus v. State, 244 So.3d 1095 (Fla. 4th DCA
2018) (defendant’s statement that he would answer questions, “‘about certain things’” was not equivocal
or ambiguous and was a selective waiver of Miranda rights); Daniel v. State, 238 So.3d 1283 (Fla. 5th
DCA 2018) (this was an unequivocal request for counsel: “‘Look, can I have a lawyer, man, “cause y’all
is tryin” to confuse me and I know what I think and I know what I see’”); Noh v. State, 230 So.3d 603
(Fla. 2d DCA 2017) (defendant’s statement that he couldn’t afford an attorney while the officer was still
going over Miranda rights required clarification); Rhodes v. State, 219 So. 3d 251 (Fla. 1st DCA 2017)
(statement, “‘I need to see a lawyer’” was a clear and unambiguous invocation of the right to counsel);
Tobiassen v. State, 213 So. 3d 1045 (Fla. 4th DCA 2017) (defendant’s statement that he needed to
see a lawyer was a clear and unambiguous request for counsel and required that interrogation stop);
Greenwich v. State, 207 So. 3d 258 (Fla. 5th DCA 2016) (statement, “ ‘please stop this, you’re giving
me a headache’ [was not] unambiguous” and officers were not required to stop questioning); Ferguson
v. State, 200 So. 3d 106 (Fla. 5th DCA 2016), review denied, 2016 WL 4247583 (Fla. Opinion Filed
August 11, 2016) (detectives were interviewing defendant in another state; defendant said: “‘[i]s this the
time I’m supposed to have a lawyer, of course, I’m not in Florida?’”—that was an unequivocal inquiry;
the response “‘Oh, um, I’ll kind of go over everything with you, okay,’ did not comply with Almeida’s
mandates”); State v. Carter, 172 So.3d 538 (Fla. 5th DCA 2015) (defendant’s “statement that he
‘should’ wait to talk to his attorney followed immediately by his assertion that he wanted to tell the
‘whole truth’ was not an unambiguous or unequivocal request for counsel.”); State v. Hineland, 159 So.
3d 293 (Fla. 1st DCA 2015) (officer gave a good faith response to the defendant’s inquiry while
defendant was being read Miranda asking whether he needed an attorney when the officer answered:
“‘[w]ell, we’ll discuss that here in just a second’” followed immediately by “‘That’s up to you. Do you
understand these rights?’” this was part of a “fluid conversation” in which the defendant confirmed that
he understood the rights and wanted to talk to the officer); Davis v. State, 153 So. 3d 360 (Fla. 5th DCA
2014) (“‘Well, could I—[c]ould I call my mother? I got a lawyer. Could I call them?’” was an
unequivocal invocation of the right to an attorney); Scott v. State, 151 So. 3d 567 (Fla. 1st DCA2014)
(defendant was in custody; his repeated statement that he wanted to return to his cell was an unequivocal
invocation of the right to remain silent); State v. Parker, 144 So. 3d 700, 704 (Fla. 1st DCA 2014),
review denied, 160 So.3d 897 (Fla. 2015) (detective gave a good faith response (“simple,
straightforward, and honest”) to defendant’s question, “‘[c]an you just tell me if I need to get a lawyer or
something?,’” when detective said “‘[l]isten, that’s your right. But what I’m interested in is the truth,
—’”; same conclusion where defendant said, “‘is there a lawyer in the building,’” and detective said
“‘[n]o, you would have to call one.’”); Calder v. State, 133 So. 3d 1025, 1030 (Fla. 4th DCA 2014)
(defendant’s statement that he would “‘feel comfortable going to a lawyer’” was an unequivocal
invocation of the right to counsel; detective’s continual effort to coax defendant into making a statement
was improper interrogation and reinitiation of communication with detective a few minutes after end of
first interrogation was involuntary); Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA 2013), review
denied, 139 So.3d 296 (Fla. 2014) (videotape of defendant saying, “‘Uh, basically I have a right to an
attorney, right?’” established that this was not an unequivocal question requiring an answer because the
causal and flat way the defendant said it, made it clear that the defendant “was assuring detectives that
he understood his rights and was not asking a question he expected to be answered.”); Hebron v. State,
85 So. 3d 530 (Fla. 4th DCA 2012) (when defendant asked what his options were and whether they
could get a lawyer there and stated that he did not know the law; officer’s response that there were no
lawyers on staff was insufficient and officer was required to properly answer the question); Womack v.
State, 42 So. 3d 878 (Fla. 4th DCA 2010) (trial court did not err in finding this statement in response to
Miranda and a request to explain the crime, equivocal: “‘I see, well I don’t want to incriminate myself,
you know I really don’t, cause I just don’t want to incriminate myself man. I was just in the van smoking
man and before he grab, I really don’t, I don’t know what I’m in here for. What I’m being charged with?
They tell me something about shooting.’”); Bailey v. State, 31 So. 3d 809 (Fla. 1st DCA 2009),
review denied, 36 So. 3d 83 (Fla. 2010) (holding words must be considered in context and trial court did
not err in finding that defendant did not unequivocally invoke the right to remain silent when he
said,“‘Man, I don’t really want to talk about that,’” but on the recording the words were mumbled and

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§ 12:7.Invocation of rights, 11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

were followed by some “additional, indecipherable language.”); Pierre v. State, 22 So. 3d 759 (Fla.
4th DCA 2009) (statement, “I’m not saying anymore,’” under the circumstances, was unequivocal and
officer failed to scrupulously honor the invocation of rights); Alvarez v. State, 15 So. 3d 738 (Fla.
4th DCA 2009), review denied, 26 So. 3d 581 (Fla. 2010) (no error in finding that defendant’s
statement,” ‘I really don’t have nothing to say,’ ” when considered in context, did not unambiguously
invoke the right to remain silent where defendant repeatedly denied any knowledge of the crimes in a
54-minute first interview; officer read Miranda again before voice stress test and in the second interview
defendant continued to deny knowledge; about two thirds through the second interview, the defendant
asked to go to the bathroom and the officer asked defendant to give him a second—was he sure he did
not what to talk with him; and defendant responded with the statement in question); Collins v. State, 4
So. 3d 1249 (Fla. 4th DCA 2009) (defendant said, “‘I still would feel more comfortable with a lawyer
present, but I don’t see what good it’s gonna do.’” Officer told defendant what he wanted cleared up,
and that at any time if he said he wanted a lawyer, they would stop. Defendant said: “I’d like to speak
with legal counsel before I say something that might incriminate me or something that I didn’t do.’”
Defendant kept talking and officer kept responding. Defendant unequivocally invoked rights); State v.
Soto, 954 So. 2d 686 (Fla. 4th DCA 2007) (Spanish speaking defendant who had difficulty
understanding at one point said, “‘I can need a lawyer for this situation.’” and officers did not respond;
later defendant said, “‘I can’t make a phone call or nothing, no?’” and officer told him he could make a
call down at jail after he was booked; trial judge properly suppressed statements after the question about
the phone call); Newman v. State, 937 So. 2d 1290 (Fla. 4th DCA 2006) (after defendant voluntarily
waived his Miranda rights and spoke with officers, his subsequent statement, “‘I don’t have the money
for an attorney. I can’t fight it in court. Can’t do nothing.’” did not constitute an unequivocal request for
an attorney, and the officers did not have to stop the interview); Chaney v. State, 903 So. 2d 951 (Fla. 3d
DCA 2005), review denied, 914 So.2d 952 (Fla. 2005) (where defendant asked officer whether he
thought defendant needed a lawyer, officer’s response, “‘Do you think you need one?’” was proper and
correctly informed defendant that it was up to him); Alvarez v. State, 890 So. 2d 389 (Fla. 1st DCA
2004) (the defendant “‘failed to articulate a desire to cut off questioning with sufficient clarity that a
reasonable police officer in the circumstances would have understood Alvarez’s statements to be an
assertion of a constitutional right,’” where defendant said that he was not supposed to talk because Mr.
Stanfield told him not to, but the detective did not know nor did the defendant indicate that Stanfield
was a lawyer); Louis v. State, 855 So. 2d 253, 255 (Fla. 4th DCA 2003), review denied, 868 So. 2d 523
(Fla. 2004); Cillo v. State, 849 So. 2d 353 (Fla. 2d DCA 2003); Isom v. State, 819 So. 2d 154
(Fla. 2d DCA 2002) (where defendant was stopped on highway because officer wanted to question him
about another matter, officer’s negative response without explanation to the question, “‘But I, I ain’t did,
I got, I need a lawyer cause I was hitch-hiking?’” was insufficient); Ford v. State, 801 So. 2d 318
(Fla. 1st DCA 2001), review denied, 821 So.2d 295 (Fla. 2002), cert. denied, 537 U.S. 1010, 123 S. Ct.
505, 154 L. Ed.2d 412 (2002) (after being advised of his rights and waiving them, defendant’s repeated
statement, “‘just take me to jail,’” was equivocal, and officers were not required to terminate
interrogation); State v. Contreras, 793 So. 2d 51 (Fla. 4th DCA 2001) (Officer’s response was
“‘consistent with the requirements of honesty and fair dealings’” where Defendant said, “‘Do I need an
attorney?’” and the officer replied, “‘Since you brought it up, let me read you your rights and you can
make your decision based on me reading you your rights?’”).
14
Almeida v. State, 737 So. 2d 520, 525 (Fla. 1999), cert. denied, 528 U.S. 1182, 120 S. Ct. 1221, 145
L. Ed. 2d 1121 (2000). In one case, the trial judge ruled that the officer had complied with Almeida,
when he responded to the defendant’s inquiry that he had no right to counsel prior to taking the breath
test, but that would come later. State v. Albanese, 7 Fla. L. Weekly Supp. 807 (Fla. Palm Beach Cty. Ct.
Aug. 14, 2000)State v. Albanese, 7 Fla. L. Weekly Supp. 807 (Fla. Palm Beach Cty. Ct. Aug. 14, 2000).
15
Almeida v. State, 737 So. 2d 520, 526 (Fla. 1999), cert. denied, 528 U.S. 1182, 120 S. Ct. 1221, 145
L. Ed. 2d 1121 (2000). See also State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001); Green v. State,
69 So. 3d 351 (Fla. 2d DCA 2011) (officer’s statement after defendant unequivocally invoked right to
counsel that there was a lot to talk about and counsel couldn’t be provided “‘right this minute’” and “‘it
doesn’t work that way’” were not harmless questions for the purpose of clarifying the request, but rather
were an attempt to get defendant to change his mind); Moss v. State, 60 So. 3d 540 (Fla. 4th DCA
2011) (where defendant clearly invoked right to counsel, officer improperly attempted to get defendant
to change his mind by referring to the lack of available attorneys, hinting that defendant had the choice

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§ 12:7.Invocation of rights, 11 Fla. Prac., DUI Handbook § 12:7 (2018-2019 ed.)

of speaking with him or going to jail, and minimizing the importance of an attorney; there may be no
further questions unless defendant initiates discussion and knowingly and intelligently waives right he
invoked); State v. Seguina, 26 Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017) State v.
Seguina, 26 Fla. L. Weekly Supp. 59 (Fla. Brevard Cty. Ct. March 7, 2017) (there was an unequivocal
response and a valid waiver where, during a DUI investigation, after reading Miranda, officer asked:
“‘With these rights in mind, do you wish to talk to us now’”; defendant paused and answered “‘to an
extent’”; defendant was told he did not have to speak and could stop the questioning at any time;
answered a series of questions while on side of the road; tone was conversational on both sides; there
was one officer and defendant was not handcuffed); State v. Centeno, 19 Fla. L. Weekly Supp. 49 (Fla.
Brevard Cty. Ct. Oct. 14, 2011)State v. Centeno, 19 Fla. L. Weekly Supp. 49 (Fla. Brevard Cty. Ct. Oct.
14, 2011) (after DUI arrest the officer read Implied Consent and defendant asked to speak to an attorney
before warnings were given; the officer told him he was not entitled and continued with processing; after
breath test, the officer read Miranda warnings, defendant signed waiver, and answered questions about
charge; trial judge suppressed all statements made after the unequivocal invocation of right to counsel).
16
Almeida v. State, 737 So. 2d 520, 526 (Fla. 1999), cert. denied, 528 U.S. 1182, 120 S. Ct. 1221, 145
L. Ed. 2d 1121 (2000).
17
Dooley v. State, 743 So. 2d 65, 69 (Fla. 4th DCA 1999). See also Cuervo v. State, 967 So. 2d 155
(Fla. 2007).
18
Serrano v. State, 15 So. 3d 629 (Fla. 1st DCA 2009), review denied, 26 So. 3d 582 (Fla. 2010) and
cert. denied, 560 U.S. 956, 130 S. Ct. 3391, 177 L. Ed. 2d 310 (2010) (after being advised of Miranda,
defendant said he just wanted to make a statement, but he did not want to answer any questions without
a lawyer; officer said, “‘So again, you don’t want me to ask no questions, right? That’s your official—
you don’t want me asking no clarification questions. You just want to make your statement, right?’”
Defendant, said “‘Well, go ahead, you can ask some questions.’”). Black v. State, 59 So. 3d 340 (Fla.
4th DCA 2011) (rejected the position that when a suspect asserts right to counsel, officer may ask a
follow-up question to verify that the suspect is actually invoking his right; there may be no further
questions unless defendant initiates discussion and knowingly and intelligently waives right he invoked).
19
In Black v. State, 59 So. 3d 340, 346 (Fla. 4th DCA 2011), the court acknowledges that this was how
the court ruled, but notes that there were actually three opinions, including a dissent and three different
reasons for the decisions, but none of them had majority support. The Florida Supreme Court decided
that there was no majority decision on the merits. See Serrano v. State, 26 So. 3d 582 (Fla. 2010).
However, in Green v. State, 69 So. 3d 351, 354 (Fla. 2d DCA 2011), the Court recognized that the
First District “stated that law enforcement officers may ask ‘harmless questions to clarify a suspect’s
assertion of the right to counsel.’”
20
Calder v. State, 133 So. 3d 1025, 1031 (Fla. 4th DCA 2014) (holding based on Black that Serrano’s
ruling violates the Miranda requirement that officers must stop all questioning when defendant
unequivocally asks for counsel during custodial interrogation).
21
Florida v. Powell, 559 U.S. 50, 130 S. Ct. 1195, 175 L. Ed. 2d 1009 (2010) (Court ruled that this
requirement was met by a warning that the accused had “‘the right to talk to a lawyer ‘before
questioning’ and the ‘right to use’ the right to consult a lawyer ‘at any time’ during questioning?’”).
22
State v. Thompson, 987 So. 2d 163 (Fla. 3d DCA 2008) (defendant was stopped as a robbery suspect,
arrested for DUI, and invoked his rights after refusing breath test; detectives improperly interrogated
him after he had been in custody for 12 hours).

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§ 12:8.Validity of waiver and voluntariness of statements, 11 Fla. Prac., DUI Handbook...

11 Fla. Prac., DUI Handbook § 12:8 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:8. Validity of waiver and voluntariness of statements

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.2(5)

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 898, 914 to 915, 922 to 927

If a waiver is invalid or a defendant’s statement is involuntary, it is inadmissible. The burden is always on the
State to prove proper reading of Miranda warnings,1 the validity of the waiver, and voluntariness of the
statements by a preponderance of the evidence. 2 The State need not meet this burden by showing an express
waiver.3 Instead, the court must consider the totality of the circumstances. 4 Defendants attempt to prevent the
state from meeting this burden by pointing to many factors that support a claim that the statements were
involuntary. Some of these may be significant in DUI cases. This section focuses primarily on those factors.

In Ross v. State,5 the Florida Supreme Court identifies the factors that the trial judge should consider. They
include: (1) attempts to secure a statement by improper and deliberate tactics delaying Miranda warnings; (2)
police minimization of the significance of Miranda rights once they are given; (3) circumstances surrounding
both warned and unwarned statements; 6 and (4) other circumstances such as age, experience, intelligence, and
language proficiency.7

Certainly, the potential for questioning injured drivers in a hospital emergency room is high in DUI cases. In
Torro v. State,8 the court affirmed the trial court’s ruling that the injured suspect’s statements were voluntary
despite the fact that he had been shot, was in the emergency room, had numerous tubes and catheters in him,
and could only respond by nodding. These factors would seem to affect the mental alertness of an individual;
nevertheless, the court ruled that the statements were admissible.

Factors that affect mental faculties are critical in cases involving alcohol use. However, mental weakness alone
is insufficient to find a statement involuntary. 9 The central questions are: (1) whether the defendant was aware
of his or her rights and the consequences of his or her waiver; 10 and (2) whether the police coerced the defendant
into making the statements.11
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§ 12:8.Validity of waiver and voluntariness of statements, 11 Fla. Prac., DUI Handbook...

On the first point, the obvious question in a DUI case is how can the court conclude that the defendant was
aware of constitutional rights and the consequences of a waiver, if he or she was impaired by alcohol or drugs.
DeConingh v. State12 is the leading case in Florida on the impact that drug and alcohol consumption has on the
admissibility of statements. In that case, the Florida Supreme Court ruled that the consumption of such
substances will justify the exclusion of a confession if the defendant reached the level of “mania or is unable to
understand the meaning of his statements.”13

The meaning of the ruling in DeConingh was considered in Burns v. State.14 In Burns, the court held that one
who is under the influence of alcohol or drugs is competent to waive his or her rights if that person:
is aware and able to comprehend in a general way what he (or she) is doing and to communicate
with coherence and rationality. By “rationality,” we mean whether the defendant’s responses or
communications have a contextual relationship, not whether it is objectively reasonable for a
person in the circumstance of the defendant to make the statement sought to be admitted. 15

A defendant who claims under these standards that his or her waiver of rights was invalid is caught in a catch-
22. The very factors that support the invalidity of a waiver, support the conclusion that the defendant is guilty.

The second factor, coercive police conduct, may be present in a DUI case. Such conduct is essential to a finding
that a waiver was involuntary.16 The coercion may be physical or mental.17 The courts have considered many
different types of police conduct in light of these standards. While a comprehensive list of these cases is beyond
the scope of this book, a few examples might be helpful.18

In Wright v. State,19 the court dealt with an unusual situation that might arise in a DUI case. The defendant was
charged with manslaughter and leaving the scene. She was required to attend a driving class. During the class
the defendant admitted elements of the crimes. The instructor was an assistant state attorney and the defendant
was urged to be candid and open during the class. The trial judge allowed the State to use the admissions. On
appeal, the court reversed stating that, “It is clear to us … that it is more than unfair to require a person to attend
a state-conducted school, elicit damning statements and then run to court and use the statements to get a
conviction.”20

In considering the admissibility of statements after Miranda warnings have been given, the parties should look
to the factors that indicate the waiver was not knowing and intelligent, or the statements were involuntary.
Unless the defendant was so intoxicated that he or she did not meet the rationality test described in Burns,21 then
the nature of police conduct will be determinative. Only statements that result from police coercion can properly
be ruled involuntary.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Mena, 17 Fla. L. Weekly Supp. 631 (Fla. 17th Cir. Ct. March 25, 2010)State v. Mena, 17 Fla. L.
Weekly Supp. 631 (Fla. 17th Cir. Ct. March 25, 2010) (court affirmed suppression where trooper
initially read Miranda warnings in english and Defendant said she did not understand because she spoke
spanish; trooper asked nurse to translate them, but trooper could not say what the nurse told defendant
and State did not call the nurse; thus, there was no evidence nurse read warnings accurately); State v.
Mazurak, 17 Fla. L. Weekly Supp. 825 (Fla. Orange Cty. Ct. June 1, 2010)State v. Mazurak, 17 Fla. L.
Weekly Supp. 825 (Fla. Orange Cty. Ct. June 1, 2010) (officer read “ ‘Miranda’ rights,” but since the
State did not show what specific rights were read, the State failed to show that post-Miranda statements
were free and voluntary and the court suppressed the statements). But see State v. Maciejewski, 17 Fla.

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§ 12:8.Validity of waiver and voluntariness of statements, 11 Fla. Prac., DUI Handbook...

L. Weekly Supp. 623 (Fla. 17th Cir. Ct. Feb. 16, 2010)State v. Maciejewski, 17 Fla. L. Weekly Supp.
623 (Fla. 17th Cir. Ct. Feb. 16, 2010) (court held that testimony that officer gave the defendant Miranda
warnings, but not describing them specifically, was sufficient where the motion did not raise any defect
in the warnings).
2
See e.g. Bevel v. State, 983 So. 2d 505, 515 (Fla. 2008); Cuervo v. State, 967 So. 2d 155 (Fla. 2007);
Globe v. State, 877 So. 2d 663, 669 (Fla. 2004); Sliney v. State, 699 So. 2d 662, 667 (Fla. 1997),
cert. denied, 522 U.S. 1129, 118 S. Ct. 1079, 140 L. Ed. 2d 137 (1988). See also McCloud v. State,
208 So. 3d 668, 678 (Fla. 2016); Kalisz v. State, 124 So. 3d 185 (Fla. 2013), cert. denied, 134 S. Ct.
1547, 188 L. Ed. 2d 565 (2014); Miller v. State, 42 So. 3d 204, 220 (Fla. 2010), cert. denied, 131 S. Ct.
935, 178 L. Ed. 2d 776 (2011); Wilson v. State, 242 So.3d 484, 498 (Fla. 2d DCA 2018); Pierce v. State,
221 So. 3d 1218 (Fla. 1st DCA 2017); State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007), review
denied, 985 So. 2d 1093 (Fla. 2008); State v. Pitts, 936 So. 2d 1111 (Fla. 2d DCA 2006); Grasle
v. State, 779 So. 2d 334 (Fla. 2d DCA 2000); Padmore v. State, 743 So. 2d 1203 (Fla. 4th DCA 1999);
State v. Mallory, 670 So. 2d 103 (Fla. 1st DCA 1996); State v. Santiago, 16 Fla. L. Weekly Supp. 134
(Fla. 9th Cir. Ct. Aug. 27, 2008)State v. Santiago, 16 Fla. L. Weekly Supp. 134 (Fla. 9th Cir. Ct. Aug.
27, 2008).
3
State v. Santiago, 16 Fla. L. Weekly Supp. 134 (Fla. 9th Cir. Ct. Aug. 27, 2008)State v. Santiago, 16 Fla.
L. Weekly Supp. 134 (Fla. 9th Cir. Ct. Aug. 27, 2008) (three-judge panel reversed suppression which
was based on lack of express waiver; after traffic accident, officer read Miranda rights; defendant
understood them and did not invoke his rights, but did not expressly waive them; no intimidation,
coercion, or deception was employed).
4
Ross v. State, 45 So. 3d 403 (Fla. 2010), as revised on denial of reh’g, (Sept. 8, 2010), cert. denied,
131 S. Ct. 925, 178 L. Ed. 2d 803 (2011); State v. Santiago, 16 Fla. L. Weekly Supp. 134 (Fla. 9th Cir.
Ct. Aug. 27, 2008)State v. Santiago, 16 Fla. L. Weekly Supp. 134 (Fla. 9th Cir. Ct. Aug. 27, 2008).
5
Ross v. State, 45 So. 3d 403 (Fla. 2010), as revised on denial of reh’g, (Sept. 8, 2010), cert. denied,
131 S. Ct. 925, 178 L. Ed. 2d 803 (2011). See also Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA
2013), review denied, 139 So.3d 296 (Fla. 2014).
6
Those circumstances include: “‘the completeness and detail of the questions and answers in the first
round of interrogation, the overlapping content of the two statements, the timing and setting of the first
and second [interrogations], the continuity of police personnel, and the degree to which the
interrogator’s questions treated the second round as continuous with the first.’”
7
Ross v. State, 45 So. 3d 403 (Fla. 2010), as revised on denial of reh’g, (Sept. 8, 2010).
8
Torro v. State, 553 So. 2d 1252 (Fla. 3d DCA 1989).
9
Ross v. State, 386 So. 2d 1191 (Fla. 1980).
10
Brookins v. State, 704 So. 2d 576, 577 (Fla. 1st DCA 1997), review denied, 717 So. 2d 528 (Fla. 1998).
See also Pierce v. State, 221 So. 3d 1218, 1218-19 (Fla. 1st DCA 2017); James v. State, 814 So. 2d 1155
(Fla. 5th DCA 2002); State v. Mallory, 670 So. 2d 103 (Fla. 1st DCA 1996).
11
Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); Globe v. State, 877
So. 2d 663, 669 (Fla. 2004); Chavez v. State, 832 So. 2d 730 (Fla. 2002), cert, denied, 539 U.S. 947,
123 S. Ct. 2617, 156 L. Ed. 2d 637 (2003). See also Pierce v. State, 221 So. 3d 1218 (Fla. 1st DCA
2017); Dermio v. State, 112 So. 3d 551, 557 (Fla. 2d DCA 2013), review denied, 137 So. 3d 1019 (Fla.
2014); Garcia v. State, 60 So. 3d 1097 (Fla. 4th DCA), review denied, 74 So. 3d 1083 (Fla. 2011); State
v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007), review denied, 985 So. 2d 1093 (Fla. 2008).
12
DeConingh v. State, 433 So. 2d 501 (Fla. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 995, 79 L.

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§ 12:8.Validity of waiver and voluntariness of statements, 11 Fla. Prac., DUI Handbook...

Ed. 2d 228 (1984).

13
DeConingh v. State, 433 So. 2d 501, 503 n.2 (Fla. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 995,
79 L. Ed. 2d 228 (1984). See also Lawson v. State, 884 So. 2d 540 (Fla. 4th DCA 2004), review
denied, 902 So. 2d 790 (Fla. 2005); Carter v. State, 801 So. 2d 113, 115 (Fla. 2d DCA 2001).
14
Burns v. State, 584 So. 2d 1073 (Fla. 4th DCA 1991). See also Wilson v. State, 573 So. 2d 77
(Fla. 2d DCA 1990).
15
Burns v. State, 584 So. 2d 1073, 1075–76 (Fla. 4th DCA 1991).
16
Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); Chavez v. State,
832 So. 2d 730 (Fla. 2002), cert, denied, 539 U.S. 947, 123 S. Ct. 2617, 156 L. Ed. 2d 637 (2003);
Garcia v. State, 60 So. 3d 1097 (Fla. 4th DCA 2011), review denied, 74 So. 3d 1083 (Fla. 2011);
Lorenzo v. State, 948 So. 2d 1012 (Fla. 3d DCA 2007); Ramsey v. State, 731 So. 2d 79, 81 (Fla. 3d
DCA 1999), review denied, 740 So. 2d 528 (Fla. 1999); State v. Mallory, 670 So. 2d 103 (Fla. 1st DCA
1996). See also State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007), review denied, 985 So. 2d
1093 (Fla. 2008).
17
Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).
18
State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007), review denied, 985 So. 2d 1093 (Fla. 2008)
(no coercion where officer told defendant he was just gathering information and was not there to arrest
her and she was not arrested for a year; officer told her that she was a suspect and he would turn over all
information to state attorney and an arrest might be necessary later); State v. Mallory, 670 So. 2d 103
(Fla. 1st DCA 1996) (holding that the officer’s indication that the defendant would benefit from
cooperation, misstatement of facts, withholding of information, tricks, fabricated incriminating
evidence, and a fake polygraph did not constitute police coercion). See also Bruno v. State, 574 So.
2d 76 (Fla. 1991), cert. denied, 502 U.S. 834, 112 S. Ct. 112, 116 L. Ed. 2d 81 (1991) (statement was
voluntary where detective told defendant if he gave statement exculpating his son, his son would not be
charged; police legitimately believed the son was involved, but recognized that if the defendant gave
such a statement, there would be no basis to charge the son; detective told defendant police would not
make any promises to either him or his son, and if he wanted to give a statement, it was of his own
accord); Squire v. State, 193 So.3d 105 (Fla. 4th DCA 2016) (repeated statements by detective that if the
defendant confessed, he would be charged with attempted robbery rather than attempted murder created
an implied promise of leniency and made the statement involuntary); Dermio v. State, 112 So. 3d 551,
557 (Fla. 2d DCA 2013), review denied, 137 So. 3d 1019 (Fla. 2014) (officer’s statement to defendant
that she would speak for him at sentencing and “‘do what she c[ould],’” but she couldn’t make any
promises, “was not an unlimited offer to help” but just an offer to make defendant’s cooperation known
to the court; it did not make a confession involuntary); State v. Carroll, 103 So. 3d 929 (Fla. 2d DCA
2012) (offer to “‘see what it is that we can do to help you out’” did not rise to the level of a promise of
leniency in return for confession); Garcia v. State, 60 So. 3d 1097 (Fla. 4th DCA 2011), review denied,
74 So. 3d 1083 (Fla. 2011) (the officer’s statement, “ ‘[a]ll I’m trying to tell you is … it’s your chance to
say you made a mistake. If you admit to things, you make mistakes, you made a bad choice; but if you
deny this, in my book, you are a criminal,’” was not a promise of leniency and did not result in an
involuntary confession); Day v. State, 29 So. 3d 1178 (Fla. 4th DCA 2010) (statement was
involuntary where it was a product of a “constant barrage of offers to help throughout the statement,
often tied to requests for more information,” combined with officer’s assertion that the State would rely
on what she said and she never told the defendant the limits of her authority); Ramirez v. State, 15
So. 3d 852 (Fla. 1st DCA 2009) (officer’s constant offer of unspecified help along with statement that
defendant would need to help police, implication that officer had some specific benefit in mind, and the
failure to explain limits of his authority when defendant expressed a belief that the officer could do
anything he wanted to with him, plus the fact that officer spoke defendant’s language, made defendant’s
statements involuntary); Chambers v. State, 965 So. 2d 376 (Fla. 4th DCA 2007) (telling defendant that
if he did not tell the truth he could be charged with a murder that had not even happened constituted
coercion, and confession given in response was inadmissible); Samuel v. State, 898 So. 2d 233 (Fla.

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§ 12:8.Validity of waiver and voluntariness of statements, 11 Fla. Prac., DUI Handbook...

4th DCA 2005) (admissions made after officer promised not to charge defendant with non-existent
crimes were inadmissible); Edwards v. State, 793 So. 2d 1044 (Fla. 4th DCA 2001) (officer’s
statement to defendant that “the truth shall set you free” did not make defendant’s statements
involuntary, but threats of increased charges did make the statements involuntary); Calvert v. State, 730
So. 2d 316 (Fla. 5th DCA 1999), review dismissed, 731 So. 2d 649 (Fla. 1999) (finding that a promise
of leniency does not make a statement involuntary unless there is express quid pro quo); Jesus v.
State, 565 So. 2d 1361 (Fla. 4th DCA 1990) (disapproved of on other grounds by, Glover v. State,
863 So. 2d 236 (Fla. 2003)) (stating that the defendant’s language difficulty did not invalidate
statements, but State’s burden was harder to meet); Bowen v. State, 565 So. 2d 384 (Fla. 5th DCA
1990), review dismissed, 570 So. 2d 1303 (Fla. 1990); State v. Brown, 558 So. 2d 1054 (Fla. 2d DCA
1990), review denied, 564 So. 2d 1085 (Fla. 1990) (misrepresentation as to arrest procedure did not
make statements involuntary).
19
Wright v. State, 478 So. 2d 825 (Fla. 5th DCA 1985), review denied, 486 So. 2d 598 (Fla. 1986).
20
Wright v. State, 478 So. 2d 825, 827 (Fla. 5th DCA 1985), review denied, 486 So. 2d 598 (Fla. 1986).
21
Burns v. State, 584 So. 2d 1073 (Fla. 4th DCA 1991).

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§ 12:9.Taint of unlawful arrest, 11 Fla. Prac., DUI Handbook § 12:9 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 12:9 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:9. Taint of unlawful arrest

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 412.1(3)

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 892, 929 to 930

In Brown v. Illinois,1 the United States Supreme Court ruled that an unlawful arrest taints any subsequent
statement. The state must show that any such statements were sufficiently attenuated from the unlawful arrest so
as to not be a product of the arrest. 2 The trial court should consider these three factors: 3 (1) how close in time
were the arrest and the statements; (2) were there any intervening circumstances; and (3) what was the purpose
and flagrancy of the police misconduct. Miranda warnings alone are not sufficient to eliminate the taint.4

It is clear, however, that the intervening circumstances are the most critical consideration. 5 Such things as
consultation with counsel or release from custody would be sufficient intervening circumstances. 6

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).
2
Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). See also New York v.
Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990).
3
Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). See also Utah v. Strieff,

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§ 12:9.Taint of unlawful arrest, 11 Fla. Prac., DUI Handbook § 12:9 (2018-2019 ed.)

136 S. Ct. 2056, 195 L.Ed.2d 400 (2016); State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006), cert.
denied, 549 U.S. 1082, 127 S. Ct. 734, 166 L. Ed. 2d 570 (2006) (court applied the three factors to the
location of evidence as a result of discovery of a valid arrest warrant, subsequent to an unlawful stop;
the court held that the discovery of the valid arrest warrant was an intervening circumstance); State v.
Barnes, 979 So. 2d 991 (Fla. 4th DCA 2008); Falls v. State, 953 So. 2d 627, 630 (Fla. 4th DCA 2007)
(same approach in part as in Frierson); State v. Stevens, 574 So. 2d 197 (Fla. 1st DCA 1991); State v.
Gifford, 558 So. 2d 444 (Fla. 4th DCA 1990).
4
Sanchez-Velasco v. State, 570 So. 2d 908 (Fla. 1990), cert. denied, 500 U.S. 929, 111 S. Ct. 2045,
114 L. Ed. 2d 129 (1991). See also Collado v. State, 208 So. 3d 802, 807 (Fla. 3d DCA 2016); State v.
Dickey, 203 So. 3d 958 (Fla. 1st DCA 2016); Reza v. State, 163 So. 3d 572 (Fla. 3d DCA 2015);
Bannister v. State, 132 So. 3d 267, 276 (Fla. 4th DCA 2014), review denied, 157 So. 3d 1040 (Fla.
2014); Garcia v. State, 88 So. 3d 394, 403 (Fla. 4th DCA 2012); Nelson v. State, 842 So. 2d 998
(Fla. 1st DCA 2003); Adams v. State, 830 So. 2d 911, 914 (Fla. 3d DCA 2002); Johnson v. State,
813 So. 2d 1027, 1029 (Fla. 3d DCA 2002); Ames v. State, 739 So. 2d 699, 703 (Fla. 1st DCA 1999).
5
Voorhees v. State, 699 So. 2d 602, 612 (Fla. 1997); Murphy v. State, 610 So. 2d 575 (Fla. 2d DCA
1992).
6
Libby v. State, 561 So. 2d 1253 (Fla. 2d DCA 1990).

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§ 12:10.Comment on exercise of right to remain silent, 11 Fla. Prac., DUI Handbook §...

11 Fla. Prac., DUI Handbook § 12:10 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:10. Comment on exercise of right to remain silent

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 407(1), 720(1)

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 887, 905, 1263, 1539

Once the defendant invokes the right to remain silent, it is improper for the state to comment on the exercise of
that right in any way. Any statements made before the jury that are “fairly susceptible” of being construed as
such a comment is improper.1 Any comment on the defendant’s request for an attorney, is also considered a
comment on the exercise of the right to remain silent 2 However, such errors may be harmless. 3 Furthermore,
such comments may be proper because they are invited. 4 However, the defense attorney’s comments in opening
statement do not invite the prosecutor’s subsequent improper comments.5

This prohibition also applies to the use of the defendant’s silence at the time of arrest, or thereafter, as
impeachment.6 The rule is different for silence that occurs before arrest and the administration of Miranda
rights. That silence is inadmissible as substantive evidence, but if the defendant chooses to testify, it is
admissible to impeach inconsistent testimony. 7 The State cannot use the accused’s pre-arrest, pre-Miranda
silence to argue consciousness of guilt. 8 But if the defendant did not invoke his right to remain silent, his
statements to the officer, including failure to tell the officer what the defendant told the jury, may be
introduced.9

The foregoing rule has been violated in several ways. In a vehicular manslaughter case, 10 an officer asked the
defendant how the accident happened. The officer testified that the defendant “‘carried on no dialogue and I got
no answer.’” This comment clearly violated the rule. Similarly, it was an impermissible comment on the
defendant’s exercise of his right to remain silent to allow an officer to testify that the defendant said nothing
prior to trial about certain matters that he raised at the trial. 11

Many times in a DUI case, videotapes will be played. This procedure is fraught with danger. The defendant may
have invoked his or her right to remain silent in several ways on the tape. Playing those portions of the tape is
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§ 12:10.Comment on exercise of right to remain silent, 11 Fla. Prac., DUI Handbook §...

improper.12 In fact, the DUI investigation invites such error in many ways, as illustrated by Smith v. State.13

In Smith, a trooper lawfully stopped the defendant and asked him to submit to sobriety tests. During the trial the
arresting officer testified that during videotaping at the breath testing facility, the defendant, “‘turned his back
on the video except for a few seconds and he refused to take the breath test that I requested and he was read his
Miranda warnings and he refused.’” The trial judge allowed this testimony. On appeal, the court found that this
was “fairly susceptible of being interpreted by the jury as a comment on the right of silence.” 14 The court ruled
that the error was not harmless and a new trial was required.

It is clear, however, that refusals to submit to such tests do not in themselves violate the right to remain silent.
The trouble begins when the State goes beyond the refusal. Thus, in Morris v. State,15 the court said:

[W]hen a law enforcement officer has probable cause to believe that an accused has committed a
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.16 (emphasis added)

However, in Morris the prosecutor went beyond simply suggesting to the jury that the refusal was proof of
consciousness of guilt. The prosecutor argued: “‘I haven’t been drinking, why are you arresting me? That
[innocent] man is thinking, yes, get me to that, get me to that instrument, let me take that breath test, let me
prove this officer wrong.’”17 The court ruled that this argument violated the defendant’s Fifth Amendment rights
and improperly shifted the burden to the defense. 18 Similarly, in Concha v. State,19 the court ruled that the state’s
inquiry on redirect of the arresting officer into the defendant’s failure to demand field sobriety tests and a breath
test, rather than merely the refusal to submit, was fairly susceptible of being interpreted as a comment on the
defendant’s exercise of his right to remain silent. It was not admissible as impeachment because the defendant
did not testify until after the redirect of the officer.20

Similarly, in Villa v. State,21 the court reversed defendant’s DUI conviction based in part on the officer’s
testimony on direct that defendant had given no medical or other reason for refusing to perform the field
exercises prior to his arrest. While the refusal was admissible as proof of consciousness of guilt, the reason for
refusal was not; and constituted comment on the exercise of the right to remain silent. 22 “The difference between
refusing to perform roadsides and failing to give a reason for not performing them is that the State shifts the
burden onto the Defendant to put on a defense.”23

In another DUI case, Shingledecker v. State,24 the defendant objected to having the video tape played because
the defendant’s request for an attorney was on the tape. The court found that this was a comment on the
defendant’s exercise of his right to remain silent. In this instance, however, the court found that the error was
harmless and invited. However, according to Grier v. State,25 it is not error at all to comment on the defendant’s
refusal to tape a statement, once the defendant freely and voluntarily waives his or her rights and makes a
statement off of the tape.

In another DUI case,26 the defendant claimed that another person was driving the car, but refused to identify that
person. At trial the officer was allowed to tell the jury about the refusal. On appeal, the court found that this
constituted an improper comment on the defendant’s invocation of his right to remain silent. Since the case
turned on the defendant’s credibility, the error was not harmless. In a similar case, 27 the defendant testified at
trial that someone else was driving the vehicle. The prosecutor said to the jury in closing, the defendant never
indicated to the officer that he was not driving. On appeal, the court found that the comment was “fairly
susceptible” to being viewed as a comment on the defendant’s exercise of his right to remain silent. 28

Even if the requested information is not protected by the privilege against self-incrimination, it may still be
improper to comment on the refusal to provide it. That was the situation in Thompson v. State.29 In that case, the
defendant refused to answer booking questions. On appeal, the court ruled that it was improper to comment on

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§ 12:10.Comment on exercise of right to remain silent, 11 Fla. Prac., DUI Handbook §...

the refusal to answer such questions. “It is not reasonable to assume that if a jury is told that a person refuses to
give his name and address, that the jury would not also infer that the person refused to give information
concerning the criminal incident.”30 Further, the court pointed out that the defendant might think that the
questions called for incriminating information.

Usually a refusal to answer is clear, but it is possible to confuse a refusal to answer with a decision to provide
an unsatisfactory answer. That was the case where the defendant was answering questions about why he was in
the involved vicinity, but reached a point where he could not give an answer. The court said that this was not a
refusal to answer, but rather an unsatisfactory answer. 31 And it was not improper for the officer to explain the
defendant’s inadequate answer to the jury.32

A suspect has a right to refuse to answer questions that might tend to incriminate him or her. As a matter of due
process, it is unfair and improper to use the exercise of that right against the accused.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Rodriguez v. State, 753 So. 2d 29 (Fla. 2000), cert. denied, 531 U.S. 859, 121 S. Ct. 145, 148 L.
Ed. 2d 96 (2000). See also Marston v. State, 136 So. 3d 563 (Fla. 2014); Poole v. State, 997 So. 2d
382 (Fla. 2008); Doorbal v. State, 837 So. 2d 940, 956 (Fla. 2003), cert. denied, 539 U.S. 962, 123 S.
Ct. 2647, 156 L. Ed. 2d 663 (2003); Manor v. State, 250 So.3d 174 (Fla. 4th DCA 2018); Moss v. State,
169 So. 3d 223 (Fla. 1st DCA 2015); Carlisle v. State, 164 So. 3d 69 (Fla. 2d DCA 2015); Parker v.
State, 124 So. 3d 1023 (Fla. 2d DCA 2013); Green v. State, 27 So. 3d 731 (Fla. 2d DCA 2010);
Diaz v. State, 958 So. 2d 377 (Fla. 3d DCA), review denied, 968 So. 2d 556 (Fla. 2007); Watts v.
State, 921 So. 2d 722 (Fla. 4th DCA 2006); Smith v. State, 843 So. 2d 1010 (Fla. 1st DCA 2003); Carr
v. State, 561 So. 2d 617 (Fla. 5th DCA 1990).
2
Grier v. State, 934 So. 2d 653 (Fla. 4th DCA 2006); See also Johnson v. State, 951 So. 2d 11 (Fla.
1st DCA 2007); Elisha v. State, 949 So. 2d 271, 274 (Fla. 4th DCA 2007); Kiner v. State, 824 So. 2d
271 (Fla. 4th DCA 2002); Shingledecker v. State, 734 So. 2d 483 (Fla. 4th DCA 1999).
3
See e.g. Heath v. State, 648 So. 2d 660 (Fla. 1994), cert. denied, 515 U.S. 1162, 115 S. Ct. 2618, 132
L. Ed. 2d 860 (1995). See also Robbins v. State, 891 So. 2d 1102 (Fla. 5th DCA 2004).
4
Caballero v. State, 851 So. 2d 655, 660 (Fla. 2003); Munroe v. State, 983 So. 2d 637 (Fla. 4th DCA
2008), receded from on other grounds, 85 So. 3d 532 (Fla. 4th DCA 2012) (officer found two bricks of
cocaine in defendant’s baggage, defendant testified she did not know cocaine was there and she was
stunned and too shocked to speak; on appeal, court ruled this was post-arrest silence and prosecutor
could inquire into the statement, but “exceeded the scope of invited response when he suggested … she
should have been shocked enough to affirmatively proclaim her innocence.”); Diaz v. State, 958 So.
2d 377, 381 (Fla. 3d DCA 2007), review denied, 968 So. 2d 556 (Fla. 2007) (where defendant explained
on direct why he did not tell officers that he was being forced to drive vehicle, State could ask about that
on cross); Brown v. State, 771 So. 2d 603 (Fla. 4th DCA 2000); Rich v. State, 756 So. 2d 1095 (Fla. 4th
DCA 2000).
5
Durrant v. State, 839 So. 2d 821, 824 (Fla. 4th DCA 2003).
6
State v. Hoggins, 718 So. 2d 761 (Fla. 1998). See also Khan v. State, 243 So.3d 506 (Fla. 2d DCA
2018); West v. State, 69 So. 3d 1075 (Fla. 1st DCA 2011); Mack v. State, 58 So. 3d 354, 356 (Fla. 1st
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§ 12:10.Comment on exercise of right to remain silent, 11 Fla. Prac., DUI Handbook §...

DCA 2011); Cowan v. State, 3 So. 3d 446, 449–450 (Fla. 4th DCA 2009); Chamblin v. State, 994 So. 2d
1165 (Fla. 1st DCA 2008); Diaz v. State, 958 So. 2d 377, 381 (Fla. 3d DCA 2007), review denied,
968 So. 2d 556 (Fla. 2007); Robbins v. State, 891 So. 2d 1102, 1106 (Fla. 5th DCA 2004); Leerdam
v. State, 891 So. 2d 1046 (Fla. 2d DCA 2004), review denied, 898 So. 2d 937 (Fla. 2005); Grady v.
State, 817 So. 2d 928 (Fla. 5th DCA 2002).
7
State v. Horowitz, 191 So.3d 429 (Fla. 2010). See also Brookins v. State, 228 So.3d 31 (Fla. 2017);
Ferrari v. State, 2018 WL 4212142 (Fla. 4th DCA Opinion Filed Sept. 5, 2018); Urbaniak v. State, 241
So.3d 963 (Fla. 2d DCA 2018); Villa v. State, 23 Fla. L. Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31,
2015)Villa v. State, 23 Fla. L. Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015) (discussed in detail
in this section).
8
State v. Horowitz, 191 So.3d 429 (Fla. 2010).
9
Miller v. State, 208 So. 3d 178 (Fla. 1st DCA 2016), review denied, 2017 WL 875867 (Fla. Opinion
Filed March 06, 2017).
10
Carr v. State, 561 So. 2d 617 (Fla. 5th DCA 1990).
11
State v. Smith, 573 So. 2d 306 (Fla. 1990). See also Carlisle v. State, 164 So. 3d 69 (Fla. 2d DCA
2015) (it was an improper comment on defendant’s invocation of his rights and burden shifting where
defendant testified he innocently purchased stolen property in a convenience store for prosecutor to say
in closing that the defendant never said anything like that on pretrial recordings); Henderson v. State, 69
So. 3d 1022 (Fla. 4th DCA 2011) (prosecutor’s comment in closing that no one took the stand to
contradict the state’s case was an improper comment on the exercise of Fifth Amendment rights);
Watts v. State, 921 So. 2d 722 (Fla. 4th DCA 2006) (where only defendant and the officer were present
when the alleged battery occurred and only the officer testified, the prosecutor’s rhetorical question in
closing, “‘Did you hear anybody else testify to dispute the officer’s story?’” was an improper comment
on defendant’s exercise of his right to remain silent); Smith v. State, 843 So. 2d 1010 (Fla. 1st DCA
2003) (prosecutor’s statement, “‘Nobody testified he wasn’t the guy,’” constituted an impermissible
comment on Defendant’s exercise of his right to remain silent); Durrant v. State, 839 So. 2d 821 (Fla.
4th DCA 2003) (prosecutor’s statement in a burglary case that there was no evidence or sworn testimony
supporting Defendant’s story, was an improper comment on the exercise of the right to remain silent);
Giorgetti v. State, 821 So. 2d 417, 422 (Fla. 4th DCA 2002), decision approved, 868 So. 2d 512
(Fla. 2004) (officer’s comment on redirect that the defendant did not respond when the officer advised
him that he was being arrested, was comment on the defendant’s exercise of his rights); Thomas v. State,
726 So. 2d 357 (Fla. 1st DCA 1999), review denied, 735 So. 2d 1288 (Fla. 1999) (officer’s testimony
that defendant refused to answer one question in middle of interview was not improper comment on the
exercise of the right to remain silent because the defendant waived his rights and agreed to interview);
Hazelwood v. State, 658 So. 2d 1241 (Fla. 4th DCA 1995) (finding that the detective’s testimony
that he “‘attempted to interview’” the defendant was improper); Lewis v. State, 654 So. 2d 617 (Fla. 4th
DCA 1995) (stating that the detective’s testimony that he stopped questioning the defendant once the
defendant said that he wanted to stop, was improper).
12
Bernier v. State, 547 So. 2d 306 (Fla. 4th DCA 1989).
13
Smith v. State, 681 So. 2d 894 (Fla. 4th DCA 1996).
14
Smith v. State, 681 So. 2d 894, 895 (Fla. 4th DCA 1996).
15
Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).
16
Morris v. State, 988 So. 2d 120, 122–123 (Fla. 5th DCA 2008). See also Concha v. State, 972 So. 2d
996, 998 (Fla. 4th DCA 2008).
17
Morris v. State, 988 So. 2d 120, 122 (Fla. 5th DCA 2008).
18
Morris v. State, 988 So. 2d 120, 123 (Fla. 5th DCA 2008). See also Latorre v. State, 25 Fla. L. Weekly

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§ 12:10.Comment on exercise of right to remain silent, 11 Fla. Prac., DUI Handbook §...

Supp. 218 (Fla. 11th Cir. Ct. May 3, 2017)Latorre v. State, 25 Fla. L. Weekly Supp. 218 (Fla. 11th Cir.
Ct. May 3, 2017) (On appeal, in a two to one decision the court ruled that the following statement
approached the line prohibiting comment on the exercise of the right to remain silent, but didn’t cross it:
“‘They made that promise [that the defendant wasn’t impaired], she had the opportunity at [sic] that
room to not lose her license, and to provide a breath sample.’” But the following statement did cross the
line and required a new trial: “‘Why does—why don’t we have the evidence to show you today?’” There
is a strong dissenting opinion.); Darling v. State, 19 Fla. L. Weekly Supp. 329 (Fla. 6th Cir. Ct. Jan. 30,
2012)Darling v. State, 19 Fla. L. Weekly Supp. 329 (Fla. 6th Cir. Ct. Jan. 30, 2012) (prosecutor argued:
“‘the defendant refused to cooperate. He refused to cooperate again by performing field sobriety
exercises. If he had nothing to hide …’”; the defense moved for mistrial; judge denied the motion, but
gave a curative instruction; on appeal, the court found State made an improper comment on defendant’s
right to remain silent and improperly attempted to shift the burden, but the judge acted properly by
sustaining the objection, and giving a curative instruction emphasizing the State’s burden and the
defense’s lack of burden); Sandez v. State, 10 Fla. L. Weekly Supp. 81 (Fla. 11th Cir. Ct. Dec. 3,
2002)Sandez v. State, 10 Fla. L. Weekly Supp. 81 (Fla. 11th Cir. Ct. Dec. 3, 2002) (a three-judge circuit
court appellate panel reversed conviction where defendant’s refusal was properly in evidence, but the
prosecutor said in closing, “that the defendant: ‘… had an opportunity to tell each and every one of you,
tell me, tell the judge, the court reporter, tell the whole world what his blood alcohol level was.’”
(emphasis by court)); Leech v. State, 9 Fla. L. Weekly Supp. 746 (Fla. 19th Cir. Ct. Oct. 10, 2001)Leech
v. State, 9 Fla. L. Weekly Supp. 746 (Fla. 19th Cir. Ct. Oct. 10, 2001) (this argument was improper: “
‘why would [the defendant] refuse to take the [breatholyzer](sic) test? If he truly had two martinis, why
wouldn’t he prove his innocence to the world?’ ”(emphasis by court)); State v. Pennett, 20 Fla. L.
Weekly Supp. 427 (Fla. Volusia Cty. Ct. Nov. 5, 2012)State v. Pennett, 20 Fla. L. Weekly Supp. 427
(Fla. Volusia Cty. Ct. Nov. 5, 2012) (comment that the defendant was being quiet since the camera was
turned on her was a comment on her right to remain silent). But see Kirby v. State, 9 Fla. L. Weekly
Supp. 530 (Fla. 17th Cir. Ct. May 29, 2002)Kirby v. State, 9 Fla. L. Weekly Supp. 530 (Fla. 17th Cir.
Ct. May 29, 2002) (This argument was proper: “‘Now, the defendant is given the opportunity to take a
breath test. Now, if her only problem is that she’s disabled and she can’t do these exercises only because
she’s disabled why not just blow into this breath machine, prove that you’re not under the influence of
alcohol, and you’re not impaired and go home?’”).
19
Concha v. State, 972 So. 2d 996, 998 (Fla. 4th DCA 2008).
20
Concha v. State, 972 So. 2d 996, 998 (Fla. 4th DCA 2008).
21
Villa v. State, 23 Fla. L. Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015) Villa v. State, 23 Fla. L.
Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015).
22
Villa v. State, 23 Fla. L. Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015) Villa v. State, 23 Fla. L.
Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015).
23
Villa v. State, 23 Fla. L. Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015) Villa v. State, 23 Fla. L.
Weekly Supp. 809 (Fla. 11th Cir. Ct. Dec. 31, 2015).
24
Shingledecker v. State, 734 So. 2d 483 (Fla. 4th DCA 1999). See also Miskanic v. State, 6 Fla. L.
Weekly Supp. 333 (Fla. 20th Cir. Ct. Jan. 7, 1999)Miskanic v. State, 6 Fla. L. Weekly Supp. 333 (Fla.
20th Cir. Ct. Jan. 7, 1999).
25
Grier v. State, 934 So. 2d 653 (Fla. 4th DCA 2006). See also State v. Brown, 77 So. 3d 693 (Fla. 3d
DCA 2011), review dismissed, 123 So. 3d 1145 (Fla. 2013); Brack v. State, 919 So. 2d 578, 580 (Fla.
4th DCA 2006).
26
Chabut v. State, 2 Fla. L. Weekly Supp. 247 (Fla. 17th Cir. Ct. April 6, 1994) Chabut v. State, 2 Fla. L.
Weekly Supp. 247 (Fla. 17th Cir. Ct. April 6, 1994).
27
Napoles v. State, 6 Fla. L. Weekly Supp. 250 (Fla. 11th Cir. Ct. Jan. 29, 1999)Napoles v. State, 6 Fla. L.
Weekly Supp. 250 (Fla. 11th Cir. Ct. Jan. 29, 1999).
28
Napoles v. State, 6 Fla. L. Weekly Supp. 250 (Fla. 11th Cir. Ct. Jan. 29, 1999)Napoles v. State, 6 Fla. L.
Weekly Supp. 250 (Fla. 11th Cir. Ct. Jan. 29, 1999).

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§ 12:10.Comment on exercise of right to remain silent, 11 Fla. Prac., DUI Handbook §...

29
Thompson v. State, 634 So. 2d 169 (Fla. 1st DCA 1994), cause dismissed, 640 So. 2d 1108 (Fla.
1994). See also Kiner v. State, 824 So. 2d 271, 273 (Fla. 4th DCA 2002). State v. Herlowski, 11 Fla. L.
Weekly Supp. 912 (Fla. Volusia Cty. Ct. July 29, 2004)State v. Herlowski, 11 Fla. L. Weekly Supp. 912
(Fla. Volusia Cty. Ct. July 29, 2004) (holding once defendant invokes his or her rights, even questions
eliciting biographical information should cease).
30
Thompson v. State, 634 So. 2d 169, 170 (Fla. 1st DCA 1994), cause dismissed, 640 So. 2d 1108
(Fla. 1994).
31
Perez v. State, 648 So. 2d 715 (Fla. 1995).
32
Perez v. State, 648 So. 2d 715 (Fla. 1995).

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:11. Accident report privilege1

West’s Key Number Digest

• West’s Key Number Digest, Witnesses 216(3)

Legal Encyclopedias
• C.J.S., Witnesses §§ 361 to 364, 368

In Florida, drivers who are involved in a crash resulting in injury, death, or damage to a driven vehicle or
attended property have a statutory duty to give their name, address, registration number, and license or permit to
various people involved in the crash and to police officers. 2 If the crash results in injury, death, or damage to
any vehicle or other property in the “apparent amount of at least $500,” drivers must give notice of the crash to
law enforcement.3 Drivers involved in crashes must also provide information required for filling out reports
mandated by the statute.4 To ensure that compliance with this requirement does not impinge upon constitutional
protections, the Legislature established the accident report privilege. 5

The purpose of the privilege is to avoid violation of Fifth Amendment rights. 6 Thus, it does not apply to blood
alcohol tests,7 breath alcohol tests,8 urine tests,9 nontestimonial field sobriety exercises,10 tangible evidence,11
testimony that opens the door,12 or refusals to submit to alcohol tests. 13 In State v. Cino,14 the court ruled that the
statutory privilege does not apply to the investigating officer’s observations of any aspect of the defendant or
the defendant’s behavior.

The privilege applies not only to the driver, but also to the owners and occupants of the vehicles who are
compelled to provide information pursuant to the statutes. 15 It does not apply to one who makes false statements
in a report.16

There has been some uncertainty as to whether the privilege applies to other witnesses. In Sottilaro v.
Figueroa,17 the court ruled in a civil case that the privilege does not bar the use of prior inconsistent statements
of eye witnesses for impeachment. One court ruled that the privilege does not apply to witnesses or persons who
volunteer information to the investigating officers at the scene of an accident. 18 Another court suggested that the
privilege does apply to eye witnesses who are involved in the accident. 19 In that case, the court relied on Wiggen
v. Bethel Apostolic Temple,20 where the court ruled that a civil litigant could assert the privilege as to statements
of an eye witness who was involved in the accident, and the statements could not be used even for
impeachment.

The recent case of Stewart v. Draleaus21 makes it clear that involvement in the accident being investigated is

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

critical in determination of whether the privilege applies. In that case, there were two accidents—a fender
bender and a motorcycle accident, which was the subject of a civil action. The fender bender came after the
motorcycle accident. While the two accidents “were, in some fashion, related, the accidents were separate.
Neither the minor accident witness nor the vehicle she struck collided with the plaintiffs, their motorcycles, or
any of the debris from their accident.” 22 It was clear that the two accidents were investigated separately.
Consequently, the minor accident driver’s Fifth Amendment rights did not protect any statements she made as a
witness to the motorcycle accident because she was not involved in that accident.

In State v. Cino,23 the court makes it clear that in criminal trials the focus is on Fifth Amendment privileges. In
Cino,24 the court ruled that the 1991 change in the statute limited its application. The Legislature added this
language: “ ‘However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial
may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege
against self-incrimination is not violated.’ ” 25 The court ruled this means that during a criminal trial the officer
may testify as to any statements made during the traffic investigation by anyone except the defendant. 26

The statutory privilege precludes the evidentiary use of communications compelled by a statutory duty. 27 Thus,
§ 316.062(3), Fla. Stat., provides: “The statutory duty of a person to make a report or give information to a
law enforcement officer making a written report relating to a crash shall not be construed as extending to
information which would violate the privilege of such person against self-incrimination.” Section 316.066,
Fla. Stat., provides:
Except as specified in this subsection, each crash report made by a person involved in a crash and
any statement made by such person to a law enforcement officer for the purpose of completing a
crash report required by this section shall be without prejudice to the individual so reporting. Such
report or statement may not be used as evidence in any trial, civil or criminal. However, subject to
the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any
statement made to the officer by the person involved in the crash if that person’s privilege against
self-incrimination is not violated.28

By the very language of the statute, it applies to trials. 29 Thus, in State v. Johnson,30 the court questioned whether
the privilege applies “to probable cause hearings as opposed to criminal trials.” One circuit judge, sitting in his
appellate capacity,31 and one trial judge32 concluded that the privilege does not apply to probable cause
determinations during motions to suppress. In State v. Cino,33 the court specifically eliminated any doubt about
its decision in Johnson34 and ruled that the statutory privilege applies to probable cause hearings and other
phases of prosecution.

The language relating to the privilege against self-incrimination was added to the statute in 1991. Before that
amendment, early cases said that in order to terminate the privilege, officers had to make the defendant aware
that the accident investigation had ended and a criminal investigation had begun. 35 In Brackin v. Boles,36 the
Court specifically departed from this distinction. The Court said that regardless of how the investigation is
characterized “the purpose of the statute is to clothe with statutory immunity only such statements and
communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his
or her statutory duty under Fla. Stat. § 316.066(1) and (2).”37 In other words, no matter how the investigation
was described, if the statute compelled the response, the privilege attached.

The district courts seemed to take different approaches as to the application of the privilege. One court
construed Brackin as eliminating the distinction between the accident investigation and the criminal
investigation for purposes of the accident report privilege. 38 However, another court ruled that even statements
given after Miranda warnings, were protected by the privilege until the officer advised the suspect about the
distinction between the accident investigation and the criminal investigation. 39 On the other hand, another court
found that the accident investigation phase continued until the officer read the Miranda warnings to the

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

accused.40

In State v. Norstrom,41 the Florida Supreme Court resolved the confusion, and ruled that the focus should be on
whether the accused’s Fifth Amendment rights would be violated in the absence of the accident report
privilege.42 The Court said:
The privilege granted under section 316.066 is applicable if no Miranda warnings are given.
Further, if a law enforcement officer gives any indication to a defendant that he or she must
respond to questions concerning the investigation of an accident, there must be an express
statement by the law enforcement official to the defendant that “this is now a criminal
investigation,” followed by Miranda warnings, before any statement by the defendant may be
admitted.43

In State v. Shepard,44 the court applied the ruling in Norstrom. The court excluded from evidence statements
made during the course of an accident investigation prior to the officer advising the individual of Miranda
warnings, but allowed into evidence statements made after the warnings. Based on Norstrom, the court
concluded:
statements made after a motorist has been given Miranda warnings are admissible. . . . Such
statements may be used if made in either the accident or the criminal stage of the investigation.
The operative event for the purposes of determining whether the statements are admissible is
informing the defendant of his or her constitutional rights.45

In State v. Marshall,46 the Court considered whether the 1991 amendment described earlier in this section, in
any way altered the ruling in Norstrom. The Court ruled that the change did not affect Norstrom and adopted the
district court’s decision.47 That means that the Third District Court of Appeal’s decision is in essence the
decision of the Florida Supreme Court.

By adopting that decision, the Florida Supreme Court thereby made or clarified several important points. First,
the focus of the accident report privilege is on protection of Fifth Amendment rights. 48 Accordingly, if the
defendant is given Miranda warnings, properly waives them, and makes statements, the accident report
privilege does not apply.49 “[T]here may be other circumstances where statements made during an accident
investigation are not protected by the privilege against self-incrimination.” 50 For example, a spontaneous
statement not made in response to any question may not be protected.51

That was precisely the situation in Perez v. State.52 In that case, the defendant exited the car and immediately
said to the officer, “I’m a deputy and I fucked up.” On appeal, the court found that the statement was
spontaneous and was not part of the accident report. There was no privilege because the statement was not
compelled.

A trial judge53 in a manslaughter case concluded that not just spontaneous statements are excluded from the
privilege, but any statements defendant was not required to give either by the specific terms of the statute 54 or by
the officer’s inquiry are also excluded. In another words, if the information does not fall with the statutory duty
or is not in response to interrogation by an officer during the course of the accident investigation, it is not
protected.55 Based on that reasoning, the judge concluded that the defendant’s admission he was driving was
privileged because it is specifically required by statute. 56 But the defendant’s unsolicited statement that he had
used marijuana, which the trial judge characterized as “nonspontaneous,” was not privileged because the
information was not mandated by the statute nor was it in response to the trooper’s questions. 57

The second principle that the Florida Supreme Court reminds us of by adoption of the Third District Court of
Appeal’s decision is that, once the criminal investigation begins, the accident report privilege no longer
applies.58 Nevertheless, because of the statutory duty to report, “it is necessary for there to be clear advice to the

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

reporting person at roadside that the criminal investigation has begun and that the reporting person now has a
right to remain silent.”59 This is required where there is an accident, even if Miranda warnings would not be
required pursuant to Berkemer v. McCarty.60

The third point the Florida Supreme Court made, is that the legislative intent in the 1991 amendment to the
statute was to cover situations like the one in Norstrom.61 The amendment “carries forward the accident report
privilege which remains fully operative, unless the statement made by the reporting person during the accident
investigation is made after a waiver of Miranda rights or is otherwise not protected by the privilege against self-
incrimination.”62

In Vedner v. State,63 the court summarized the rules arising from Norstrom,64 Marshall,65 and other cases:
(1) “[S]tatements made pursuant to the requirement to give information for a crash report required by
section 316.066 may not be used as evidence in civil [or] criminal … proceedings.”66
(2) “[I]f during the course of a vehicular accident investigation a law enforcement officer seeks to elicit
statements of a person who has been given ‘any indication’ that he or she is required to give accident
information, the officer must advise the person of his or her Miranda rights.”67
(3) “Under those circumstances only statements made after the advisement of rights may subsequently be
used in civil or criminal trials.”68
(4) “For other law enforcement encounters associated with vehicular accidents, however, the usual rules
and precepts associated with Miranda seem to apply.”69
The court applied these principles to the situation in that case, which involved several different statements made
after a crash. The first statements were made to officers at the initial interview, but the defendant had been
advised of his Miranda rights, and the statements were voluntary. Those statements were admissible.

The second statements were made in a subsequent interview. They were voluntary and they were made in a
non-custodial setting. While the interview was being done “at least in part, in connection with the accident
investigation,” there was nothing indicating that the defendant “was advised or believed that he was required to
provide the information sought by the law enforcement officers.” 70 Although the defendant was not readvised of
his Miranda rights, those statements were admissible.

The third statements were made during another interview. This time the defendant “specifically inquired about
the reasons for the additional questions, and he was told that it was for the accident investigation, not a criminal
investigation. Here, there was an ‘indication’ that he was required to answer the questions, and he should have
been advised under Miranda.”71 Accordingly, those statements were not admissible.

The identity of the driver has been treated differently pursuant to the accident report privilege. That is critical in
any case, but in DUI cases it may be tightly intertwined with the corpus delicti, as pointed out in the next
section. Prior to the 1991 amendment, the statute specifically exempted identity from the privilege where the
identity of the driver was unknown or denied. 72 The 1991 amendment eliminated any such exemption from the
privilege.

Despite the change in the statute, it can be argued that there is no accident report privilege that attaches to
identity. As previously pointed out, the focus is on the protection of drivers’ Fifth Amendment privileges
against self-incrimination. In California v. Byers,73 the Court ruled that the requirement that one stop at the
scene of an accident and report his or her name and address does not offend the privilege against self-
incrimination because this information is not, standing alone, testimonial or incriminating for Fifth Amendment
purposes. Similarly, in Hibel v. Sixth Judicial District Court of Nevada, Humboldt County,74 the Court held that
a state statute requiring that one disclose his or her name during a Terry stop, did not violate the Fifth
Amendment privilege to remain silent. This argument also comports with the routine booking questions
exception discussed previously in dealing with the types of statements that require Miranda warnings. This
argument is, however, purely academic because in State v. Evans75 the court said: “[c]ontrary to the state’s
contention, there is no longer an exception to the privilege for statements made if the identity of the driver is in
question.” Since there is no exception to the privilege for identity, the privilege applies to identity.

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

One older case, State v. Ferguson,76 creates a judicial exception to the accident report privilege, which should be
considered with great care. The court ruled that the statutory privilege is lost in its entirety where a driver leaves
the scene of the accident. Given the subsequent focus on the privilege against self-incrimination, this ruling may
be challenged. Nevertheless, a trial judge77 acknowledged this principle, but did not find a waiver. The evidence
showed that the defendant was a quarter of a mile from the scene of the accident, facing in the direction of the
accident, and visible from the accident scene. The defendant had been traveling at a high rate of speed before
the accident and had a blow out. He was also standing outside the vehicle when the trooper arrived. Under these
circumstances, the trial judge found that it was reasonable to conclude that the defendant did not leave the scene
and waive the accident report privilege. Another trial judge, 78 relied on Ferguson79 in support of his holding that
the accident report privilege did not apply to “a suspect for the crime of leaving the scene of an accident rather
than an accident participant who merely was performing his statutory duty of reporting.” 80 More importantly, the
Second District Court of Appeal held that the accident report privilege does not apply to a statement a person
made in his home after leaving the scene of an accident.81

While Cummings82 applied to an older version of the statute, the recent decision in Williams v. State83 applies the
same rule to the current statute. Based on the reasons set forth in Ferguson84 and Cummings,85 that court held
that the statutory privilege does not apply to “a person who abandons her duty to remain at the scene of any
automobile accident which results in death, and who chooses instead to leave the scene of an accident.” 86

This section would be incomplete without a brief comment on the use of privileged statements for
impeachment. It is well established that statements a defendant gives without being advised of Miranda rights
are admissible for impeachment, if the State shows by a preponderance of the evidence that the defendant made
the statements voluntarily.87 The same is true of statements obtained in violation of the right to counsel. 88 That is
not currently true, however, of statements protected by the accident report privilege. In Ippolito v. Brener,89 the
Court interpreted the accident report privilege under a predecessor statute as barring the use of such privileged
statement even for impeachment. The decision has not been overruled.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
In 1999, the Legislature amended the law so that the word “crash” was substituted for all references to
“accident,” and the term “crash report” was substituted for “accident report.” Chapter 99–248, Laws of
Florida. Nevertheless, many references in this book are primarily to “accident report privilege” rather
than “crash report privilege,” because many of the opinions use that term.
2
§ 316.062, Fla. Stat. Occasionally, a dispute may arise as to whether the event actually constitutes an
accident, or as the statute contemplates, a “crash.” See State v. Michelli, 15 Fla. L. Weekly Supp. 616
(Fla. Volusia Cty. Ct. March 20, 2008)State v. Michelli, 15 Fla. L. Weekly Supp. 616 (Fla. Volusia Cty.
Ct. March 20, 2008) (vehicle that had to be towed and was in a three-foot ditch with one to two feet of
water was in an accident) and § 4:12.
3
§ 316.065(1), Fla. Stat.
4
§ 316.066, Fla. Stat.
5
§ 316.066(4), Fla. Stat. See State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August
28, 2013)State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013) (when
uniformed deputy first arrived at accident scene in a marked police car with emergency lights on,
incriminating responses to questions directed to person involved in the accident without Miranda
warnings were covered by the privilege even through the deputy shortly turned the investigation over to
another officer); State v. Michelli, 15 Fla. L. Weekly Supp. 616 (Fla. Volusia Cty. Ct. March 20,
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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

2008)State v. Michelli, 15 Fla. L. Weekly Supp. 616 (Fla. Volusia Cty. Ct. March 20, 2008) (the fact
that the officer does not intend to make the required report does not eliminate the privilege).
6
Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984). See also Wetherington v. State, 135 So. 3d
584 (Fla. 1st DCA 2014); Sottilaro v. Figueroa, 86 So. 3d 505, 508 (Fla. 2d DCA 2012), review denied,
103 So. 3d 139 (Fla. 2012); State v. Cino, 931 So. 2d 164, 168 (Fla. 5th DCA 2006), review denied, 941
So. 2d 367 (Fla. 2006); Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003), review denied,
861 So. 2d 433 (Fla. 2003); State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May
3, 2007)State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3, 2007).
7
Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984); § 316.066(4), Fla. Stat.
8
§ 316.066(4), Fla. Stat.
9
§ 316.066(4), Fla. Stat.
10
State v. Horrell, 11 Fla. L. Weekly Supp. 87 (Fla. 9th Cir. Ct. Sept. 5, 2003)State v. Horrell, 11 Fla. L.
Weekly Supp. 87 (Fla. 9th Cir. Ct. Sept. 5, 2003); State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla.
Volusia Cty. Ct. August 28, 2013)State v. Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct.
August 28, 2013). There is an in depth discussion of this subject and many more authorities on it in §
7:2.
11
State v. Stoller, 14 Fla. L. Weekly Supp. 721 (Fla. 18th Cir. Ct. Oct. 24, 2006)State v. Stoller, 14 Fla. L.
Weekly Supp. 721 (Fla. 18th Cir. Ct. Oct. 24, 2006) (tangible evidence includes location of the accident
and the vehicles, skid marks, damage to vehicles, observations of defendant’s impairment such as odor
of alcohol, blood shot eyes, appearance of field sobriety tests, and results of physical tests); State v.
Walsh, 21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013)State v. Walsh, 21 Fla. L.
Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013) (information on registration produced at
officer’s requests was not privileged because it was not a statement or report).
12
Sanders v. State, 17 Fla. L. Weekly Supp. 4 (Fla. 6th Cir. Ct. Aug. 31, 2009)Sanders v. State, 17 Fla. L.
Weekly Supp. 4 (Fla. 6th Cir. Ct. Aug. 31, 2009) (when defense attorney asked questions of officer
conducting accident investigation about what defendant said concerning use of medications to create
impression that defendant’s conduct was lawful; defense opened the door to officer’s testimony as to
what medications defendant said she was on even though those statements were covered by the accident
report privilege).
13
Evans v. Hamilton, 885 So. 2d 950 (Fla. 4th DCA 2004). See also State v. Silva, 23 Fla. L. Weekly
Supp. 700 (Fla. 17th Cir. Ct. Oct. 2, 2015)State v. Silva, 23 Fla. L. Weekly Supp. 700 (Fla. 17th Cir. Ct.
Oct. 2, 2015) (privilege does not apply to refusals to submit to FSEs or breath tests; therefore, it doesn’t
matter whether or not defendant is made aware that a criminal DUI investigation has begun). Contra
State v. Ramsubhag, 23 Fla. L. Weekly Supp. 379 (Fla. Brevard Cty. Ct. June 22, 2015)State v.
Ramsubhag, 23 Fla. L. Weekly Supp. 379 (Fla. Brevard Cty. Ct. June 22, 2015) (refusal to submit to
FSEs was inadmissible because the officer was investigating an accident and did not advise the
defendant of Miranda rights before asking him to submit to FSEs).
14
State v. Cino, 931 So. 2d 164, 167 (Fla. 5th DCA 2006), review denied, 941 So. 2d 367 (Fla. 2006)
(“The statute in no way prohibits the State from using [the officer’s] observations of [the defendant’s]
physical appearance, general demeanor, slurred speech or breath scent. Furthermore, even though [the
defendant] was required by law to cooperate in the traffic investigation, the state’s use of [the officer’s]
observations regarding [the defendant’s physical traits or demeanor did not violate [the defendant’s]
privilege against self-incrimination.”) See also State v. Sunez-Morales, 15 Fla. L. Weekly Supp. 795
(Fla. 17th Cir. Ct. May 14, 2008)State v. Sunez-Morales, 15 Fla. L. Weekly Supp. 795 (Fla. 17th Cir. Ct.
May 14, 2008) (officer could testify to observations of defendant’s appearance, demeanor, slurred
speech or scent of breath); State v. Catapano, 15 Fla. L. Weekly Supp. 337 (Fla. 17th Cir. Ct. Jan. 9,
2008)State v. Catapano, 15 Fla. L. Weekly Supp. 337 (Fla. 17th Cir. Ct. Jan. 9, 2008) (same as Sunez-
Morales); State v. Walker, 15 Fla. L. Weekly Supp. 687 (Fla. 6th Cir. April 3, 2008)State v. Walker, 15
Fla. L. Weekly Supp. 687 (Fla. 6th Cir. April 3, 2008); Cram v. Dep’t of Highway Safety & Motor

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

Vehicles, 15 Fla. L. Weekly Supp. 304 (Fla. 6th Cir. Ct. Jan. 17, 2008)Cram v. Dep’t of Highway Safety
& Motor Vehicles, 15 Fla. L. Weekly Supp. 304 (Fla. 6th Cir. Ct. Jan. 17, 2008) (trooper could testify to
defendant’s appearance and behavior); State v. Stoller, 14 Fla. L. Weekly Supp. 721 (Fla. 18th Cir. Ct.
Oct. 24, 2006)State v. Stoller, 14 Fla. L. Weekly Supp. 721 (Fla. 18th Cir. Ct. Oct. 24, 2006) (officer
could testify to observations of defendant yelling, walking off balance, having watery eyes and a strong
odor of alcohol); State v. Lamoureux, 14 Fla. L. Weekly Supp. 538 (Fla. 9th Cir. Ct. March 15,
2007)State v. Lamoureux, 14 Fla. L. Weekly Supp. 538 (Fla. 9th Cir. Ct. March 15, 2007) (Based on
Cino, court reversed trial court’s ruling that the officer could not testify as to observations of the
defendant made during the accident investigation); State v. Mayer, 22 Fla. L. Weekly Supp. 941 (Fla.
Volusia Cty. Ct. March 5, 2015)State v. Mayer, 22 Fla. L. Weekly Supp. 941 (Fla. Volusia Cty. Ct.
March 5, 2015) (physical characteristics and performance on FSEs are not privileged); State v. Walsh,
21 Fla. L. Weekly Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013)State v. Walsh, 21 Fla. L. Weekly
Supp. 79 (Fla. Volusia Cty. Ct. August 28, 2013) (officers’ observations of how defendant spoke, odors
coming from defendant, his performance on FSEs and defendant’s confusion about what happened was
not privileged); State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3,
2007)State v. Grady, 14 Fla. L. Weekly Supp. 690 (Fla. Santa Rosa Cty. Ct. May 3, 2007) (court relied
on Cino in holding that the privilege does not apply to observations of defendant and the defendant’s
behavior; also noted that it does not apply to observations concerning the accident and the vehicle, such
as location of accident and vehicles, skid marks, and damage to vehicles).
15
Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984); Sottilaro v. Figueroa, 86 So. 3d 505 (Fla. 2d DCA
2012), review denied, 103 So. 3d 139 (Fla. 2012); White v. Consolidated Freightways Corp. of
Delaware, 766 So. 2d 1228 (Fla. 1st DCA 2000); Nelson v. State, Dept. of Highway Safety and
Motor Vehicles, 757 So. 2d 1264 (Fla. 3d DCA 2000); Kiesel v. Dep’t of Highway Safety & Motor
Vehicles, 11 Fla. L. Weekly Supp. 488 (Fla. 7th Cir. Ct. April 28, 2004) Kiesel v. Dep’t of Highway
Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 488 (Fla. 7th Cir. Ct. April 28, 2004); Chapman v.
Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 268 (Fla. 4th Cir. Ct. Dec.
2000)Chapman v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 268 (Fla. 4th Cir.
Ct. Dec. 2000); Emmonds v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 27
(Fla. 18th Cir. Ct. July 31, 2000)Emmonds v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L.
Weekly Supp. 27 (Fla. 18th Cir. Ct. July 31, 2000).
16
State v. Escobar, 11 Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. February 2004)State v. Escobar, 11
Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. February 2004) (court held that the right to remain silent is
protected by the U.S. Const. Amend. V, but false statements are not protected). See also State v. Santos,
19 Fla. L. Weekly Supp. 867 (Fla. Brevard Cty. Ct. July 8, 2012)State v. Santos, 19 Fla. L. Weekly
Supp. 867 (Fla. Brevard Cty. Ct. July 8, 2012) (officer stopped the defendant because defendant’s
muffler was dragging, sparks and smoke were coming from the vehicle and the officer thought he had
been involved in an accident; after the stop the officer noticed damage and the defendant said it was old;
this statement was admissible because it was not incriminating and it was a denial that any accident had
taken place).
17
Sottilaro v. Figueroa, 86 So. 3d 505 (Fla. 2d DCA 2012), review denied, 103 So. 3d 139 (Fla. 2012) (the
court ruled that the privilege applies only to drivers, owners, or occupants of vehicles because those are
the ones compelled pursuant to the statute to provide information).
18
Moore v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 5 (Fla. 7th Cir. Ct. July
31, 2000)Moore v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 5 (Fla. 7th Cir.
Ct. July 31, 2000). See also State v. Sunez-Morales, 15 Fla. L. Weekly Supp. 795 (Fla. 17th Cir. Ct.
May 14, 2008)State v. Sunez-Morales, 15 Fla. L. Weekly Supp. 795 (Fla. 17th Cir. Ct. May 14, 2008)
(privilege does not bar statements of anyone other than the defendant, including the bystander in this
case); State v. Walker, 15 Fla. L. Weekly Supp. 687 (Fla. 6th Cir. April 3, 2008)State v. Walker, 15 Fla.
L. Weekly Supp. 687 (Fla. 6th Cir. April 3, 2008) (privilege did not bar testimony of person who
witnessed behavior of defendant just after he hit her mailbox); Decker v. Dep’t of Highway Safety &
Motor Vehicles, 14 Fla. L. Weekly Supp. 1044 (Fla. 20th Cir. Ct. Aug 6, 2007) (privilege does not bar
consideration of statements of people not involved in the crash); State v. Foki, 24 Fla. L. Weekly Supp.
55 (Fla. Volusia Cty. Ct. April 11, 2016)State v. Foki, 24 Fla. L. Weekly Supp. 55 (Fla. Volusia Cty. Ct.
April 11, 2016) (privilege does not bar officer from testifying as to what witnesses other than the driver
said because that does not impinge on nondeclarant’s privilege against self incrimination).

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. February 2004) (but court did allow witness’s statement
made during accident investigation into evidence in a criminal prosecution involving false statements
against a police officer involved in an accident). See also State v. Kerrigan, 14 Fla. L. Weekly Supp. 103
(Fla. Broward Cty. Ct. Oct. 10, 2006)State v. Kerrigan, 14 Fla. L. Weekly Supp. 103 (Fla. Broward Cty.
Ct. Oct. 10, 2006) (court held that privilege applied to witness based on Hoctor By and Through Hoctor
v. Tucker, 432 So. 2d 1352, 1354 (Fla. 5th DCA 1983)).
20
Wiggen v. Bethel Apostolic Temple, 192 So. 2d 796 (Fla. 3d DCA 1966), decision quashed on other
grounds, 200 So. 2d 797 (Fla. 1967). See also Hoctor By and Through Hoctor v. Tucker, 432 So. 2d
1352, 1354 (Fla. 5th DCA 1983). But see Sottilaro v. Figueroa, 86 So. 3d 505, 508 (Fla. 2d DCA 2012),
review denied, 103 So. 3d 139 (Fla. 2012) (the court ruled that the privilege applies only to drivers,
owners, or occupants of vehicles because those are the ones compelled pursuant to the statute to provide
information).
21
Stewart v. Draleaus, 2017 WL 3169272 (Fla. 4th DCA Opinion Filed July 26, 2017).
22
Stewart v. Draleaus, 2017 WL 3169272 (Fla. 4th DCA Opinion Filed July 26, 2017).
23
State v. Cino, 931 So. 2d 164, 167 (Fla. 5th DCA 2006), review denied, 941 So.2d 367 (Fla. 2006).
24
State v. Cino, 931 So. 2d 164, 167 (Fla. 5th DCA 2006), review denied, 941 So. 2d 367 (Fla. 2006).
25
State v. Cino, 931 So. 2d 164, 167 (Fla. 5th DCA 2006), review denied, 941 So. 2d 367 (Fla. 2006).
26
State v. Cino, 931 So. 2d 164, 167 (Fla. 5th DCA 2006), review denied, 941 So. 2d 367 (Fla. 2006). See
also Johnson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 440 (Fla. 4th Cir.
Ct. Jan. 24, 2011)Johnson v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 440
(Fla. 4th Cir. Ct. Jan. 24, 2011) (privilege only applies to person who is on trial because statements
made by others would not violate their privilege against self-incrimination); Sanders v. State, 17 Fla. L.
Weekly Supp. 4 (Fla. 6th Cir. Ct. Aug. 31, 2009)Sanders v. State, 17 Fla. L. Weekly Supp. 4 (Fla. 6th
Cir. Ct. Aug. 31, 2009) (statements made by any witness other than the defendant are not protected by
the accident report privilege); Rio v. State, 16 Fla. L. Weekly Supp. 36 (Fla. 17th Cir. Aug. 15,
2008)Rio v. State, 16 Fla. L. Weekly Supp. 36 (Fla. 17th Cir. Aug. 15, 2008) (privilege only applies to
defendant’s statements and officer could rely on statements of other driver in developing probable
cause); State v. Sunez-Morales, 15 Fla. L. Weekly Supp. 795 (Fla. 17th Cir. Ct. May 14, 2008)State v.
Sunez-Morales, 15 Fla. L. Weekly Supp. 795 (Fla. 17th Cir. Ct. May 14, 2008) (privilege does not bar
statements of anyone other than the defendant, including the bystander in this case); State v. Walker, 15
Fla. L. Weekly Supp. 687 (Fla. 6th Cir. April 3, 2008)State v. Walker, 15 Fla. L. Weekly Supp. 687
(Fla. 6th Cir. April 3, 2008) (privilege did not bar testimony of person who witnessed behavior of
defendant just after he hit her mailbox); State v. Catapano, 15 Fla. L. Weekly Supp. 337 (Fla. 17th Cir.
Ct. Jan. 9, 2008)State v. Catapano, 15 Fla. L. Weekly Supp. 337 (Fla. 17th Cir. Ct. Jan. 9, 2008) (same
as Sunez-Morales) (statements of passenger were admissible); State v. Callaway, 15 Fla. L. Weekly
Supp. 111 (Fla. 9th Oct. 10, 2007)State v. Callaway, 15 Fla. L. Weekly Supp. 111 (Fla. 9th Oct. 10,
2007) (Based on Cino, driver of vehicle rear-ended by defendant could testify as to what happened
because her testimony did not violate the defendant’s right to remain silent); State v. Stoller, 14 Fla. L.
Weekly Supp. 721 (Fla. 18th Cir. Ct. Oct. 24, 2006)State v. Stoller, 14 Fla. L. Weekly Supp. 721 (Fla.
18th Cir. Ct. Oct. 24, 2006) (Cino permits officer to testify as to statements made by other driver,
including prior identifications); State v. Lamoureux, 14 Fla. L. Weekly Supp. 538 (Fla. 9th Cir. Ct.
March 15, 2007)State v. Lamoureux, 14 Fla. L. Weekly Supp. 538 (Fla. 9th Cir. Ct. March 15, 2007)
(Based on Cino, court reversed trial court’s ruling that officer could not testify as to observations of a
witness to the accident, and held that the officer could testify about statements made to him by anyone
other than the defendant considered in establishing probable cause).
27
State v. Ingoldsby, 17 Fla. L. Weekly Supp. 1108 (Fla. Volusia Cty. Ct. May 18, 2010) (during accident
investigation, trooper secured registration to the vehicles from the parties, which showed that the
defendant was the owner of one of the involved vehicles; court ruled the registration is not a statement
or a report; therefore, the privilege did not apply); State v. Lobel, 11 Fla. L. Weekly Supp. 145 (Fla.
Palm Beach Cty. Ct. Oct. 9, 2003)State v. Lobel, 11 Fla. L. Weekly Supp. 145 (Fla. Palm Beach Cty. Ct.
Oct. 9, 2003) (accident report privilege applies only to nontestimonial evidence; it does not apply to
identification of the defendant from a driver’s license). See also State v. Mayer, 22 Fla. L. Weekly Supp.

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941 (Fla. Volusia Cty. Ct. March 5, 2015)State v. Mayer, 22 Fla. L. Weekly Supp. 941 (Fla. Volusia
Cty. Ct. March 5, 2015) (giving officer registration or driver’s license is not covered by the privilege
because neither is a statement nor a report).
28
The courts repeatedly ruled that the privilege applies to administrative proceedings as well. Department
of Highway Safety and Motor Vehicles v. Perry, 702 So. 2d 294 (Fla. 5th DCA 1997). See also
Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003), review denied, 861 So.2d 433 (Fla. 2003).
But the Legislature changed the rule. § 322.2615(2), Fla. Stat. now provides: “Notwithstanding
Fla. Stat. § 316.066(7), the crash report shall be considered by the hearing officer.”[Ch. 2007-5, 45,
Laws of Florida (effective July 1, 2007).] While this means all of the cases holding that the privilege
applies to these administrative proceedings no longer support that proposition, they are still useful as to
other aspects of the accident report privilege. See cases recognizing legislative abrogation of accident
report privilege in administrative license proceedings: Smith v. Dep’t of Highway Safety & Motor
Vehicles, 23 Fla. L. Weekly Supp. 663 (Fla. 4th Cir. Ct. June 15, 2016)Smith v. Dep’t of Highway
Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 663 (Fla. 4th Cir. Ct. June 15, 2016) ; Rihan v. Dep’t
of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 214 (Fla. 12th Cir. Ct. July 27,
2015)Rihan v. Dep’t of Highway Safety & Motor Vehicles, 23 Fla. L. Weekly Supp. 214 (Fla. 12th Cir.
Ct. July 27, 2015); Varnes v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1135
(Fla. 13th Cir. Ct. May 13, 2013); Casias v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L.
Weekly Supp. 1027 (Fla. 4th Cir Ct. June 27, 2013); Johnson v. Dep’t of Highway Safety & Motor
Vehicles, 18 Fla. L. Weekly Supp. 440 (Fla. 4th Cir. Ct. Jan. 24, 2011)Johnson v. Dep’t of Highway
Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 440 (Fla. 4th Cir. Ct. Jan. 24, 2011); Kronen v. Dep’t
of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. Nov. 3, 2010)Kronen
v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 9 (Fla. 6th Cir. Ct. Nov. 3,
2010); Alford v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 995 (Fla. 14th
Cir. Ct. Feb 18, 2010)Alford v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp.
995 (Fla. 14th Cir. Ct. Feb 18, 2010); Moore v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L.
Weekly Supp. 1124 (Fla. 9th Cir. Ct. Oct. 23, 2009); Juettner v. Dep’t of Highway Safety & Motor
Vehicles, 15 Fla. L. Weekly Supp. 538 (Fla. 6th Cir. Ct. March 26, 2008)Juettner v. Dep’t of Highway
Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 538 (Fla. 6th Cir. Ct. March 26, 2008); Horne v.
Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 442 (Fla. 13th Cir. Ct. March 20,
2008)Horne v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 442 (Fla. 13th Cir.
Ct. March 20, 2008) (court observed that the Legislature only amended § 322.2615, Fla. Stat. dealing
with administrative proceedings, but failed to amend § 316.066(7), Fla. Stat., which establishes the
privilege in all civil or criminal trials; but the court explained notwithstanding the apparent conflict, the
amendment is sufficient to make the privilege inapplicable to administrative proceedings); Cram v.
Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 304 (Fla. 6th Cir. Ct. Jan. 17,
2008)Cram v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 304 (Fla. 6th Cir.
Ct. Jan. 17, 2008); McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp.
1084 (Fla. 10th Cir. Ct. Sept. 18, 2007); Lambo v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla.
L. Weekly Supp. 838 (Fla. 13th Cir. Ct. July 12, 2007)Lambo v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 838 (Fla. 13th Cir. Ct. July 12, 2007).
29
§ 316.066(4), Fla. Stat.
30
State v. Johnson, 695 So. 2d 771, 774 (Fla. 5th DCA 1997), review denied, 705 So. 2d 9 (Fla. 1997),
receded from on other grounds, Wheeler v. State, 87 So. 3d 5 (Fla. 5th DCA 2012).
31
State v. Lawson, 10 Fla. L. Weekly Supp. 400 (Fla. 17th Cir. Ct. April 6, 2003)State v. Lawson, 10 Fla.
L. Weekly Supp. 400 (Fla. 17th Cir. Ct. April 6, 2003). See also State v. Zachary, 11 Fla. L. Weekly
Supp. 709 (Fla. 17th Cir. Ct. April 27, 2004)State v. Zachary, 11 Fla. L. Weekly Supp. 709 (Fla. 17th
Cir. Ct. April 27, 2004).
32
State v. Ledegang, 6 Fla. L. Weekly Supp. 441 (Fla. Broward Cty. Ct. March 18, 1999) State v.
Ledegang, 6 Fla. L. Weekly Supp. 441 (Fla. Broward Cty. Ct. March 18, 1999).
33
State v. Cino, 931 So. 2d 164, 168 (Fla. 5th DCA 2006), review denied, 941 So. 2d 367 (Fla. 2006).

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34
State v. Johnson, 695 So. 2d 771 (Fla. 5th DCA 1997), review denied, 705 So. 2d 9 (Fla. 1997),
receded from on other grounds, Wheeler v. State, 87 So. 3d 5 (Fla. 5th DCA 2012).
35
State v. Mitchell, 245 So. 2d 618 (Fla. 1971); State v. Coffey, 212 So. 2d 632 (Fla. 1968).
36
Brackin v. Boles, 452 So. 2d 540 (Fla. 1984).
37
Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984) (It does not apply to physical evidence like
chemical tests.). See also § 316.066(7), Fla. Stat.
38
Kornegay v. State, 520 So. 2d 681 (Fla. 1st DCA 1988).
39
West v. State, 553 So. 2d 254, 256 (Fla. 4th DCA 1989) (disapproved of by, State v. Norstrom, 613
So. 2d 437 (Fla. 1993)).
40
Alley v. State, 553 So. 2d 354 (Fla. 4th DCA 1989), review denied, 563 So. 2d 634 (Fla. 1990).
41
State v. Norstrom, 613 So. 2d 437 (Fla. 1993).
42
State v. Norstrom, 613 So. 2d 437, 440 (Fla. 1993).
43
State v. Norstrom, 613 So. 2d 437, 440 (Fla. 1993). See also State v. Santiago, 16 Fla. L. Weekly Supp.
134 (Fla. 9th Cir. Ct. Aug. 27, 2008)State v. Santiago, 16 Fla. L. Weekly Supp. 134 (Fla. 9th Cir. Ct.
Aug. 27, 2008) (privilege did not apply because two different officers did each phase of the
investigation, defendant was never told he had to answer questions, and he was given his Miranda
rights); State v. Cruz, 15 Fla. L. Weekly Supp. 1065 (Fla. 17th Cir. Ct. Aug. 15, 2008) (privilege did not
apply where trooper advised defendant of Miranda rights as soon as defendant exited the vehicle;
defendant was not told he had to answer questions nor was he compelled in any way; trooper did not
have to tell defendant he was beginning a criminal investigation because he did not tell defendant he was
required to answer questions); State v. Alli, 23 Fla. L Weekly Supp. 1056 (Fla. Orange Cty. Ct. March 9,
2016) (defendant’s hospital statement that she was the driver of a car involved in a crash was covered by
the accident report privilege, which exists to protect the privilege against self-incrimination; the trooper
did not advise her that he was starting a criminal investigation; therefore, statement was inadmissible);
State v. Wise, 22 Fla. L. Weekly Supp. 705 (Fla. Leon Cty. Ct. Dec. 30, 2014) State v. Wise, 22 Fla. L.
Weekly Supp. 705 (Fla. Leon Cty. Ct. Dec. 30, 2014) (statements were inadmissible where officer
investigating accident told defendant he was completing his “traffic crash investigation and beginning a
criminal investigation,” but did not read Miranda); State v. Woods, 22 Fla. L. Weekly Supp. 459 (Fla.
Volusia Cty. Ct. Sept. 15, 2014)State v. Woods, 22 Fla. L. Weekly Supp. 459 (Fla. Volusia Cty. Ct.
Sept. 15, 2014) (statements were inadmissible where officer investigating accident told defendant at the
hospital “this is now a criminal investigation” but did not read Miranda); State v. Lymon, 19 Fla. L.
Weekly Supp. 953 (Fla. Palm Beach Cty. Ct. July 26, 2012)State v. Lymon, 19 Fla. L. Weekly Supp.
953 (Fla. Palm Beach Cty. Ct. July 26, 2012) (accident report privilege applied even though officer did
not tell the defendant they were doing an accident investigation; there had been a fatal accident, five to
six patrol vehicles were on scene, area was blocked off by other law enforcement, defendant was inside
patrol vehicle when questioned about how the accident occurred, officer asked defendant if he had been
drinking or taken any medications or drugs, and officer admitted he was doing an accident
investigation); State v. Hixenbaugh, 19 Fla. L. Weekly Supp. 498 (Fla. Brevard Cty. Ct. Feb. 15,
2012)State v. Hixenbaugh, 19 Fla. L. Weekly Supp. 498 (Fla. Brevard Cty. Ct. Feb. 15, 2012); State v.
Higgerson, 19 Fla. L. Weekly Supp. 146 (Fla. Duval Cty. Ct. Nov. 1, 2011)State v. Higgerson, 19 Fla.
L. Weekly Supp. 146 (Fla. Duval Cty. Ct. Nov. 1, 2011) (trooper was dispatched to accident scene;
before defendant was advised of Miranda rights, trooper had a conversation with defendant in which he
admitted being the driver; the statement was suppressed and the court found there was insufficient
evidence of APC); State v. Soffiantini, 18 Fla. L. Weekly Supp. 616 (Fla. Duval Cty. Ct. April 26,
2011)State v. Soffiantini, 18 Fla. L. Weekly Supp. 616 (Fla. Duval Cty. Ct. April 26, 2011) (statements
made in either the accident investigation or criminal investigation are admissible once the defendant has
been advised of his/her constitutional rights; where deputy testified that trooper advised the defendant of
his rights before performance of FSES, but trooper wasn’t certain, judge suppressed statements).

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

44
State v. Shepard, 658 So. 2d 611, 612 (Fla. 2d DCA 1995).
45
State v. Shepard, 658 So. 2d 611, 612 (Fla. 2d DCA 1995).
46
State v. Marshall, 695 So. 2d 686 (Fla. 1997).
47
State v. Marshall, 695 So. 2d 719 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686 (Fla.
1997).
48
State v. Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997).
49
State v. Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997). See also Alexander v. Penske Logistics, Inc., 867 So. 2d 418, 421 (Fla. 3d DCA 2003),
review denied, 880 So. 2d 1209 (Fla. 2004); State v. Maciejewski, 17 Fla. L. Weekly Supp. 623 (Fla.
17th Cir. Ct. Feb. 16, 2010)State v. Maciejewski, 17 Fla. L. Weekly Supp. 623 (Fla. 17th Cir. Ct. Feb.
16, 2010). Smith v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1127 (Fla. 4th
Cir. Ct. Sept 25, 2006); State v. Sanders, 10 Fla. L. Weekly Supp. 507 (Fla. 13th Cir. Ct. May 2,
2003)State v. Sanders, 10 Fla. L. Weekly Supp. 507 (Fla. 13th Cir. Ct. May 2, 2003).
50
State v. Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997).
51
State v. Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997). See also Edelstein v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp.
978 (Fla. 11th Cir. Ct. July 22, 2010)Edelstein v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L.
Weekly Supp. 978 (Fla. 11th Cir. Ct. July 22, 2010); Hessburg v. Dep’t of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 707 (Fla. 5th Cir. Ct. May 21, 2007) Hessburg v. Dep’t of Highway
Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 707 (Fla. 5th Cir. Ct. May 21, 2007).
52
Perez v. State, 630 So. 2d 1231 (Fla. 2d DCA 1994). See also Shea v. Dep’t of Highway Safety &
Motor Vehicles, 13 Fla. L. Weekly Supp. 558 (Fla. 15th Cir. Ct. March 28, 2006)Shea v. Dep’t of
Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 558 (Fla. 15th Cir. Ct. March 28, 2006)
(court recognized that spontaneous statements would not be protected by the statutory privilege, but
statements that are not responsive to the investigating officer’s questions are protected); State v. Walker,
11 Fla. L. Weekly Supp. 311 (Fla. 18th Cir. Ct. Feb. 2, 2004)State v. Walker, 11 Fla. L. Weekly Supp.
311 (Fla. 18th Cir. Ct. Feb. 2, 2004) (defendant’s spontaneous statement as officer approached crash
scene, “I had an accident,” was admissible); Sullivan v. Dep’t of Highway Safety & Motor Vehicles, 10
Fla. L. Weekly Supp. 148 (Fla. 4th Cir. Ct. Jan. 28, 2003)Sullivan v. Dep’t of Highway Safety & Motor
Vehicles, 10 Fla. L. Weekly Supp. 148 (Fla. 4th Cir. Ct. Jan. 28, 2003) (defendant’s statement that he
was driving vehicle involved in accident was admissible as spontaneous admission because it was made
before officer even began his investigation); Anderson v. Dep’t of Highway Safety & Motor Vehicles,
10 Fla. L. Weekly Supp. 467 (Fla. 2d Cir. Ct. May 21, 2003)Anderson v. Dep’t of Highway Safety &
Motor Vehicles, 10 Fla. L. Weekly Supp. 467 (Fla. 2d Cir. Ct. May 21, 2003) (defendant’s spontaneous
statement at the scene of a crash as officer initially approached vehicle and before officer asked any
questions or made any comments, was admissible); Oster v. Dep’t of Highway Safety & Motor
Vehicles, 7 Fla. L. Weekly Supp. 574 (Fla. 4th Cir. Ct. July 5, 2000)Oster v. Dep’t of Highway Safety &
Motor Vehicles, 7 Fla. L. Weekly Supp. 574 (Fla. 4th Cir. Ct. July 5, 2000) (statement of driver of one
car involved in an accident that the defendant was driving the other car was admissible to show probable
cause because it was spontaneously made to the investigating officer when he arrived at the scene).
Contra State v. Chase, 20 Fla. L. Weekly Supp. 475 (Fla. 17th Cir. Ct. Feb. 15, 2013)State v. Chase, 20
Fla. L. Weekly Supp. 475 (Fla. 17th Cir. Ct. Feb. 15, 2013) (when uniformed officer in a marked car
arrived to investigate a crash, defendant immediately came up to him and said she had been at a bar and
had only five drinks; the court ruled that these statements were made pursuant to the defendant’s duty to
report the accident and during the accident investigation stage; therefore, they were protected by the
privilege); State v. Bailey, 19 Fla. L. Weekly Supp. 881 (Fla. Leon Cty. Ct. June 22, 2012)State v.
Bailey, 19 Fla. L. Weekly Supp. 881 (Fla. Leon Cty. Ct. June 22, 2012) (state argued that defendant’s

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

statements were not covered by crash report privilege because they were spontaneous; trial judge
disagreed and ruled that the privilege applies to any statements made while speaking to the officer until
the “officer clearly announces that the accident investigation has concluded and the criminal
investigation has begun, as confirmed by announcing Miranda warnings.”); State v. Harding, 16 Fla. L.
Weekly Supp. 662 (Fla. Volusia Cty. Ct. May 11, 2009)State v. Harding, 16 Fla. L. Weekly Supp. 662
(Fla. Volusia Cty. Ct. May 11, 2009) (defendant’s spontaneous statement during accident investigation
was inadmissible where deputy advised him that he was conducting a criminal investigation before the
statement, but did not read Miranda rights).
53
State. v. Daszkal, 22 Fla. Law. Weekly Supp. 582 (Fla. 15th Cir. Ct. Jan. 7, 2015). See also State v.
Mayer, 22 Fla. L. Weekly Supp. 941 (Fla. Volusia Cty. Ct. March 5, 2015)Cir. Ct. Jan. 7, 2015). See
also State v. Mayer, 22 Fla. L. Weekly Supp. 941 (Fla. Volusia Cty. Ct. March 5, 2015) (where there
was a one car accident, statements made to officer who told defendant he was conducting a DUI
investigation were not covered by the statutory privilege because no officer talked to the defendant
before beginning the DUI investigation; all the information required by the statute was secured from
sources other than the defendant, which the trial judge concluded met the privilege never arose; the
judge also noted that volunteered statements not made in response to questioning are not privileged).
54
§ 316.066, Fla. Stat. requires that reports include this information: date, time, and location of crash;
description of vehicles; names and addresses of parties, including drivers and passengers and the
vehicles in which they were located; names and addresses of witnesses; name, badge number and agency
of investigating officer; insurance companies for parties.
55
State. v. Daszkal, 22 Fla. Law. Weekly Supp. 582 (Fla. 15th Cir. Ct. Jan. 7, 2015).
56
State. v. Daszkal, 22 Fla. Law. Weekly Supp. 582 (Fla. 15th Cir. Ct. Jan. 7, 2015).
57
State. v. Daszkal, 22 Fla. Law. Weekly Supp. 582 (Fla. 15th Cir. Ct. Jan. 7, 2015).
58
State v. Marshall, 695 So. 2d 719, 721 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997).
59
State v. Marshall, 695 So. 2d 719, 721 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997).
60
Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) . In State v.
Johnson, 695 So. 2d 771 (Fla. 5th DCA 1997), receded from on other grounds, Wheeler v. State, 87 So.
3d 5 (Fla. 5th DCA 2012), review denied, 92 So. 3d 215 (Fla. 2012), the Court ruled that the accident
report privilege did not apply because the defendant’s Fifth Amendment rights were not impacted when
the incriminating statement was made, since he was not in custody nor under arrest. This seems to
conflict with the Florida Supreme Court’s position in Marshall.
61
State v. Norstrom, 613 So. 2d 437 (Fla. 1993).
62
State v. Marshall, 695 So. 2d 719, 722 (Fla. 3d DCA 1996), decision approved, 695 So. 2d 686
(Fla. 1997). See also State, Dept. of Highway Safety and Motor Vehicles v. Bello, 813 So. 2d 1023 (Fla.
3d DCA 2002) (accident report privilege did not bar defendant’s statements concerning identity because
trooper made it clear to the defendant that the trooper was beginning a criminal investigation, and read
Miranda to the defendant).
63
Vedner v. State, 849 So. 2d 1207 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla. 2003).
64
State v. Norstrom, 613 So. 2d 437 (Fla. 1993).
65
State v. Marshall, 695 So. 2d 686 (Fla. 1997).
66
Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla.

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

2003).
67
Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla.
2003).
68
Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla.
2003).
69
Vedner v. State, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla.
2003).
70
Vedner v. State, 849 So. 2d 1207, 1213 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla.
2003).
71
Vedner v. State, 849 So. 2d 1207, 1214 (Fla. 5th DCA 2003), review denied, 861 So. 2d 433 (Fla.
2003). See also State v. Dukate, 11 Fla. L. Weekly Supp. 346 (Fla. Bay Cty. Ct. Jan. 29, 2004) State v.
Dukate, 11 Fla. L. Weekly Supp. 346 (Fla. Bay Cty. Ct. Jan. 29, 2004) (officer advising defendant
during accident investigation that the officer was investigating the defendant’s impairment, required that
the officer advise the defendant of his right to remain silent).
72
§ 316.066, Fla. Stat. (1989); Combs v. State, 436 So. 2d 93 (Fla. 1983); Sylvester v. State, 557 So.
2d 180 (Fla. 3d DCA 1990), cause dismissed, 562 So. 2d 347 (Fla. 1990).
73
California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971).
74
Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 124 S. Ct. 2451, 159
L. Ed. 2d 292 (2004).
75
State v. Evans, 692 So. 2d 305, 306 (Fla. 4th DCA 1997).
76
State v. Ferguson, 405 So. 2d 294 (Fla. 4th DCA 1981), disapproved of on other grounds by
Lopez v. State, 638 So. 2d 931 (Fla. 1994). See also State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA
1984).
77
State v. Wilkins, 6 Fla. L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999)State v. Wilkins, 6 Fla.
L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1, 1999).
78
State v. Knotts, 7 Fla. L. Weekly Supp. 479 (Fla. Palm Beach Cty. Ct. April 28, 2000) State v. Knotts, 7
Fla. L. Weekly Supp. 479 (Fla. Palm Beach Cty. Ct. April 28, 2000).
79
State v. Ferguson, 405 So. 2d 294 (Fla. 4th DCA 1981), disapproved of on other grounds by
Lopez v. State, 638 So. 2d 931 (Fla. 1994).
80
State v. Knotts, 7 Fla. L. Weekly Supp. 479, 480 (Fla. Palm Beach Cty. Ct. April 28, 2000)State v.
Knotts, 7 Fla. L. Weekly Supp. 479, 480 (Fla. Palm Beach Cty. Ct. April 28, 2000).
81
Cummings v. State, 780 So. 2d 149 (Fla. 2d DCA 2000), review denied, 796 So. 2d 536 (Fla. 2001). See
also McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 1084 (Fla.
10th Cir. Ct. Sept. 18, 2007); Tierney v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly
Supp. 1079 (Fla. 6th Cir. Ct. Oct. 1, 2007); Rodriguez v. Dep’t of Highway Safety & Motor Vehicles, 12
Fla. L. Weekly Supp. 639 (Fla. 17th Cir. Ct. April 15, 2005)Rodriguez v. Dep’t of Highway Safety &
Motor Vehicles, 12 Fla. L. Weekly Supp. 639 (Fla. 17th Cir. Ct. April 15, 2005); Sellers v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 523 (Fla. 9th Cir. Ct. Nov 17, 2004)Sellers
v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 523 (Fla. 9th Cir. Ct. Nov 17,
2004). But see State v. Kerrigan, 14 Fla. L. Weekly Supp. 103 (Fla. Broward Cty. Ct. Oct. 10, 2006)14

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§ 12:11.Accident report privilege, 11 Fla. Prac., DUI Handbook § 12:11 (2018-2019 ed.)

Fla. L. Weekly Supp. 103 (Fla. Broward Cty. Ct. Oct. 10, 2006) (where it was apparent that defendant
had left the scene of a recent accident when the officer saw her run a red light; nevertheless, the court
held the officer should have advised the defendant of her Miranda rights rather than just saying he was
doing a DUI investigation; defendant was not adequately advised accident investigation was over and
criminal investigation had begun).
82
Cummings v. State, 780 So. 2d 149 (Fla. 2d DCA 2000), review denied, 796 So.2d 536 (Fla. 2001).
83
Williams v. State, 208 So. 3d 196 (Fla. 3d DCA 2016), review denied, 2017 WL 1366132 (Fla.
Opinion Filed April 13, 2017).
84
State v. Ferguson, 405 So. 2d 294 (Fla. 4th DCA 1981), disapproved of on other grounds by
Lopez v. State, 638 So. 2d 931 (Fla. 1994).
85
Cummings v. State, 780 So. 2d 149 (Fla. 2d DCA 2000), review denied, 796 So. 2d 536 (Fla. 2001).
86
Williams v. State, 208 So. 3d 196, 197 (Fla. 3d DCA 2016), review denied, 2017 WL 1366132 (Fla.
Opinion Filed April 13, 2017).
87
Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); Rigterink, v. State, 193
So.3d 846, 870 (Fla. 2016); Willacy v. State, 640 So. 2d 1079, 1083 (Fla. 1994); Nowlin v. State,
346 So. 2d 1020, 1024 (Fla. 1977); Roundtree v. State, 217 So. 3d 1051, 1052 (Fla. 4th DCA 2017);
Bell v. State, 201 So. 3d 1267, 1275 (Fla. 2d DCA 2016); State v. Pitts, 936 So. 2d 1111, 1123 n.5
(Fla. 2d DCA 2006); Carlisi v. State, 831 So. 2d 813 (Fla. 4th DCA 2002); Melendez v. State, 747 So.
2d 1011 (Fla. 2d DCA 1999).
88
Michigan v. Harvey, 494 U.S. 344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990); State v. Boswell, 663
So. 2d 4 (Fla. 3d DCA 1995); Sheffield v. State, 580 So. 2d 790 (Fla. 1st DCA 1991).
89
Ippolito v. Brener, 89 So. 2d 650 (Fla. 1956). See also Tallahassee Memorial Regional Medical Center,
Inc. v. Meeks, 560 So. 2d 778, 781–82 (Fla. 1990).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 12. Admissibility of Statements

§ 12:12. Corpus delicti

West’s Key Number Digest

• West’s Key Number Digest, Criminal Law 409(7), 517.3(3)

Legal Encyclopedias
• C.J.S., Criminal Law §§ 877, 880, 942 to 945

The corpus delicti consists of proof that a crime has been committed and that someone is criminally
responsible.1 It must be established in all cases, except sexual abuse cases, 2 as a foundation for the introduction
of the accused’s statements.3

The burden is on the State, but the burden is not proof beyond a reasonable doubt. 4 “Substantial evidence” is
required.5 The evidence need only tend to show that a crime has been committed. 6 That means that the existence
of each element must be established, but it may be by circumstantial evidence. 7 It need not be uncontradicted or
overwhelming.8

In discussing the importance of the corpus delicti, there is a tendency to use the words “admissions,”
“statements,” and “confessions” interchangeably. Two district courts 9 saw a distinction between these words
and ruled that proof of the corpus delicti was only required as a foundation for confessions, but not admissions
against interest. That was resolved by the Florida Supreme Court in Burks v. State.10 There the Court held that
the State may not offer an admission against interest to establish one of the elements of the charged offense in
the absence of an independently established corpus delicti. The corpus delicti must be established before the
introduction of either an admission or a confession. 11 This requirement is to assure “that no person be convicted
out of derangement, mistake or official fabrication.” 12 In some DUI cases, this is a particularly critical matter
because the defendant’s admissions are the only direct evidence that the defendant was driving or in actual
physical control of the vehicle. And a trial court applied that doctrine to a motion to suppress the results of field
sobriety exercises and a refusal to submit to a breath test.13

There are many early cases on the corpus delicti in DUI cases. 14 The Attorney General said that the corpus
delicti for DUI is merely that someone was driving a vehicle and was under the influence of alcohol to the
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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

extent that his or her normal faculties were impaired. 15 The corpus delicti for reckless driving, a potentially
related charge, is: (1) the defendant drove a vehicle in Florida; and (2) the defendant did so with a willful and
wanton disregard for the safety of people and property.16

The Florida Supreme Court identified a good example of the corpus delicti in a DUI case in Burks.17 The corpus
delicti was established in Burks by this evidence: (1) at the scene, a tractor trailer truck was blocking both
northbound lanes; (2) the defendant was standing outside the truck; (3) the defendant’s speech was slurred, his
eyes were bloodshot, and he smelled strongly of alcohol; (4) there was a motorcycle and dead body on the road;
and (5) the defendant’s supervisor asked if the defendant could drive his vehicle away and continue on his run.

Similar circumstantial evidence led to a like result in State v. Allen,18 where one person in the vehicle died and
the defendant, who was also in the vehicle, survived. The evidence showed that the defendant: (1) owned the
car, (2) had been driving the car earlier in the day, (3) entered the car shortly before the accident, and (4) had his
feet on the driver’s side at the scene of the accident. Additionally, the evidence suggested that the decedent was
on the passenger’s side of the car. Also, since the defendant’s companion died, the evidence established the
corpus delicti for DUI Manslaughter, thereby allowing the defendant’s admission of driving into evidence. 19

Similarly, in State v. Kester,20 the court observed:

The officer’s testimony was that Kester’s green auto was the only car on the scene and a mangled
blue bike was on the ground nearby. Blue paint, the same color as on the bike, was on the side of
Kester’s car. Kester was the only person standing next to his car. There were no passengers. The
officer had observed Kester’s bloodshot eyes and the scent of alcohol on Kester’s breath. Through
this evidence, the state met its burden of tending to show Kester had committed the crime of
DUI.21

In Bribiesca-Tafolla v. State,22 the court observed that the corpus delicti for DUI causing serious bodily injury
consists of these three elements: (1) a person was driving or in actual physical control; (2) that person was under
the influence of alcoholic beverages to the extent that his/her normal faculties were impaired or he/she had a
breath or blood alcohol level of .08 or more; and (3) the person contributed to causing serious bodily injury to
another as a result of operating the vehicle.23

In Bribiesca-Tafolla v. State,24 the court found that the circumstantial evidence of corpus delicti was sufficient to
introduce defendant’s admission. These were the factors the court relied on: (1) the State proved through the
wife’s testimony that the defendant drove his truck away from his home four to five hours before the crash,
which was sufficient time for the defendant to carry out the plan he described to his wife; (2) the State proved
that the defendant’s route was consistent with his stated plan; and (3) the truck in which the defendant was
traveling was registered to his wife.25

It is important to note the common element in Burks,26 Allen,27 Kester,28 and Bribiesca-Tafolla.29 In each case, the
identity of the defendant was significant in establishing the corpus delicti. And in many DUI cases,
identification of the impaired driver is probably critical in establishing the corpus delicti because it is the only
way to show that the driver of the vehicle was, in fact, impaired. 30 But identity is not required to establish the
corpus delicti.31 Even though this principle is clear and well established, in some DUI cases there has been
confusion and uncertainty depending on the circumstances. Consideration of these different perspectives is
important.

In Esler v. State,32 the identity of the driver was at the heart of the corpus delicti. In that case, a car ran into a
man in a wheelchair in a parking lot and fled the scene. The impact caused serious injury, but there was no
evidence identifying the driver. She was apprehended and confessed, but in the absence of independent
evidence, the State could not establish the corpus delicti for DUI with serious bodily injury. The court said, “
‘A, if not the, critical element of the corpus delicti of the offense of driving while intoxicated is evidence that
the defendant was driving at the time she [or he] allegedly committed the offense.’ ” (quoting State v.

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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

Hepburn).33

The importance of identification of the defendant in proof of the corpus delicti in a DUI was stressed in Syverud
v. State.34 However, the court expressed some puzzlement as to why under certain circumstances, such as where
there are only two occupants in the vehicle and they are both impaired, it is necessary to identify the defendant
as the driver as part of the corpus. 35 A concurring opinion expressed frustration with the requirement. 36 The court
found that the State met the burden of producing substantial competent evidence that the defendant was driving
independent of his statements. The facts were: (1) the defendant was involved in a motor vehicle accident on the
only direct route to his home from the place where he had been seen earlier; (2) the accident happened nine
minutes after that place closed; (3) the defendant’s wife owned the vehicle involved in the accident; (4) the
defendant was observed at the accident scene just after the crash leaning against the involved vehicle and
staring at the victim; (5) the defendant was later seen walking away from the accident; and (6) there was no
evidence that there was more than one person in the involved vehicle.37

Similarly, identity was also important in finding sufficient circumstantial evidence of the corpus delicti in
Montanez v. State.38 There a truck was involved in an accident, the driver’s door was open, the air bag had
deployed and the powder from the bag was still floating around the truck, and a bottle of alcohol was on the
floorboard. The defendant “was stumbling down the sidewalk a half block away from the crash with car keys in
hand.”39 The defendant had an odor of alcohol and deployed air bag, and he was the only person around.

Inability to establish that the defendant was in fact the driver without the defendant’s admission was fatal to the
State’s case in State v. Colorado.40 In that case, the defendant and another person were in a one-car accident.
The other person died and the only evidence that the defendant was the driver was his admission. Both
individuals had blood alcohol levels over.08, and the parties stipulated that at the time of the fatal crash the car
was speeding. The State argued that the fact the vehicle was speeding and someone died established the corpus
delicti. The trial judge rejected this contention, and the appellate court agreed without comment. 41

Alternatively, in Colorado,42 the State argued that the evidence showed either that the defendant committed DUI
Manslaughter or the deceased person committed DUI with personal injury. The trial judge also found that the
State failed to establish the corpus delicti under this theory. On appeal, the court agreed for two reasons. First,
there was no evidence that the defendant was injured. Second, the State must produce evidence of the type of
harm contemplated by the charged crime, which was death on the DUI Manslaughter. The fact that both men
were impaired by alcohol may have established the element that the crime resulted from the criminal agency of
another, but it did not establish the element of death.43

As previously suggested, in some DUI cases, the circumstances are sufficient to establish the corpus delicti for
purposes of admitting statements without proof of the defendant’s identity. Thus, in Syverud,44 the court
recognized that it may be that the driving, the nature of the accident, and the odor and items inside the car are
sufficient. Anderson v. State45 effectively illustrates this point. In that case, a truck occupied by the defendant
and two other people ran a stop sign at high speed, causing the death of the driver of a car and of the two other
occupants of the truck. As to the death of the car’s driver, the corpus delicti for DUI Manslaughter was
established by the way the truck was driven combined with beer cans and a vodka bottle in and around the
truck. It showed that the death of the car’s driver was caused by the driver of the truck operating it while
intoxicated whoever that driver might have been. Once that point was reached, the defendant’s admission of
driving was admissible.46

Acoff v. State47 is another recent illustration of circumstances that established the corpus for DUI regardless of
who was driving. Witnesses saw the vehicle being driven erratically at a high rate of speed before the crash and
still speeding after the crash as it left the scene. It crossed the median and drove away on the wrong side of the
road. “This evidence is not overwhelming. But it did not need to be overwhelming or uncontradicted to show a
crime occurred and satisfy the corpus delicti rule.”48

In Anderson,49 the State charged the defendant not only with DUI Manslaughter for the death of the driver of the
car, but also for the death of his two companions. Proof of the corpus delicti for those two charges was more

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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

problematic because the State had to specifically prove that the defendant was driving, since the other occupants
of the truck were dead. The court ruled that the location of the decedents in front of the truck after the accident
and the defendant inside the truck, was sufficient circumstantial evidence that the defendant was in fact driving
and to establish the corpus delicti.50

In State v. Walton,51 the Second District rejected any interpretation of Colorado,52 Esler,53 Syverud,54 and
Hepburn,55 requiring proof of the identity of the driver as part of the corpus delicti as a condition for
introduction of defendant’s statements. The court recognized that in Colorado56 the identity of the driver was
necessary for proving impairment, an element of the corpus delicti. 57 “However, a fair reading of this court’s
holding in Colorado does not require that the State prove the driver’s identity in a DUI case to establish the
corpus delicti when the identity of the driver is not critical to showing that a crime occurred.” 58

In Walton,59 the court also observed that in Esler,60 Syverud,61 and Hepburn,62 the courts made unnecessarily
broad statements suggesting that the driver must always be identified to establish the DUI corpus, 63 and those
statements were incorrect.64 The court recognized that in those particular cases, the identity of the driver was
important. “Thus the Esler, Syverud, and Hepburn cases were correctly decided on their particular facts,
notwithstanding the incorrect generalizations that appear in the opinions.”65

Unlike the cases discussed previously, in Walton,66 the identification of the driver was not critical to establishing
the corpus delicti. The evidence there established that the defendant was one of three surviving occupants who
were impaired by alcohol and a controlled substance when the vehicle ran a red light causing an accident
involving serious bodily injury to an occupant of the other vehicle. No matter who was driving, that person
would have been committing the offense. Thus, the court concluded that “the exact identity of the driver of the
Escort was not necessary to establish that a DUI with serious bodily injury had occurred.” 67

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA 1984); Nelson v. State, 372 So. 2d 949 (Fla. 2d
DCA 1979), cert. denied, 396 So. 2d 1130 (Fla. 1981).
2
In 2000, § 92.565, Fla. Stat. established a separate test for such cases; however, it is unrelated to the
issues covered in this book.
3
Fridovich v. State, 489 So. 2d 143 (Fla. 4th DCA 1986), review denied, 496 So. 2d 142 (Fla. 1986). This
rule does not apply to administrative proceedings. Judy v. Dep’t of Highway Safety & Motor Vehicles,
14 Fla. L. Weekly Supp. 706 (Fla. 13th Cir. Ct. May 31, 2007)Judy v. Dep’t of Highway Safety &
Motor Vehicles, 14 Fla. L. Weekly Supp. 706 (Fla. 13th Cir. Ct. May 31, 2007).
4
State v. Allen, 335 So. 2d 823 (Fla. 1976). See also Buenoano v. State, 527 So. 2d 194 (Fla.
1988); Snell v. State, 939 So. 2d 1175 (Fla. 4th DCA 2006).
5
State v. Allen, 335 So. 2d 823 (Fla. 1976). See also A.P. v. State, 250 So.3d 799 (Fla. 2d DCA
2018); Acoff v. State, 180 So.3d 185 (Fla. 1st DCA 2015), review dismissed, 2016 WL 688295 (Fla.
Opinion Filed Feb. 19, 2016); State v. Walton, 42 So. 3d 902, 909 (Fla. 2d DCA 2010); Brose v.
State, 32 So. 3d 144, 146 (Fla. 4th DCA 2010); Modeste v. State, 28 So. 3d 179, 181 (Fla. 4th DCA
2010); Snell v. State, 939 So. 2d 1175, 1179 (Fla. 4th DCA 2006); State v. Dionne, 814 So. 2d 1087
(Fla. 5th DCA 2002), review dismissed, 865 So. 2d 1258 (Fla. 2004).
6
Farinas v. State, 569 So. 2d 425 (Fla. 1990); State v. Thomas, 508 So. 2d 1287 (Fla. 4th DCA 1987),

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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

decision approved, 531 So. 2d 708 (Fla. 1988).

7
Burks v. State, 613 So. 2d 441 (Fla. 1993). See also Acoff v. State, 180 So.3d 185 (Fla. 1st DCA
2015), review dismissed, 2016 WL 688295 (Fla. Opinion Filed Feb. 19, 2016); Montanez v. State, 1 So.
3d 1174 (Fla. 5th DCA 2009); Esler v. State, 915 So. 2d 637 (Fla. 2d DCA 2005).
8
Bribiesca-Tafolla v. State, 93 So. 3d 364 (Fla. 4th DCA 2012).
9
Burks v. State, 589 So. 2d 355 (Fla. 5th DCA 1991), decision approved, 613 So. 2d 441 (Fla. 1993);
Moore v. State, 530 So. 2d 61 (Fla. 1st DCA 1988).
10
Burks v. State, 613 So. 2d 441 (Fla. 1993). See also J.B. v. State, 705 So. 2d 1376, 1378 (Fla.
1998).
11
But in Dade County v. Pedigo, 181 So. 2d 720 (Fla. 3d DCA 1966), cert. denied, 188 So. 2d 817 (Fla.
1966), the court said that it is not necessary for the corpus delicti to be established in every detail when
the admissions are introduced, if it is ultimately established.
12
Burks v. State, 613 So. 2d 441, 443 (Fla. 1993) (quoting State v. Allen, 335 So. 2d at 825). See
also State v. Walton, 42 So. 3d 902, 909 (Fla. 2d DCA 2010); Brose v. State, 32 So. 3d 144, 146
(Fla. 4th DCA 2010); Modeste v. State, 28 So. 3d 179, 181 (Fla. 4th DCA 2010); Snell v. State, 939 So.
2d 1175, 1178-79 (Fla. 4th DCA 2006); Esler v. State, 915 So. 2d 637, 640–41 (Fla. 2d DCA 2005).
13
State v. Pagan, 19 Fla. L. Weekly Supp. 853 (Fla. Orange Cty. Ct. Aug. 26, 2011)State v. Pagan, 19 Fla.
L. Weekly Supp. 853 (Fla. Orange Cty. Ct. Aug. 26, 2011) (suppression granted because the State could
not establish the corpus delicti without the defendant’s statement; officer arrived at the scene of an
accident and defendant was one of a group of four people; the defendant and one other person was
intoxicated; another individual stood apart from the group; defendant admitted he was driving; court
ruled that “there … must be some evidence outside the Defendant’s admissions that the Defendant was
driving to establish any articulable suspicion or probable cause.”).
14
State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA 1984); Anderson v. State, 467 So. 2d 781 (Fla.
3d DCA 1985), review dismissed, 475 So. 2d 693 (Fla. 1985); Farley v. City of Tallahassee, 243 So.
2d 161 (Fla. 1st DCA 1971) (abrogated on other grounds by, J.B. v. State, 689 So. 2d 360 (Fla. 1st DCA
1997)); State v. Bird, 8 Fla. L. Weekly Supp. 411 (Fla. 5th Cir. Ct. April 24, 2001)State v. Bird, 8 Fla. L.
Weekly Supp. 411 (Fla. 5th Cir. Ct. April 24, 2001); Knight v. State, 16 Fla. Supp. 2d 121 (Fla. 7th Cir.
Ct. 1986).
15
A.G.O. 056–145 (1956).
16
Woodard v. State, 7 Fla. L. Weekly Supp. 312 (Fla. 9th Cir. Ct. 2000) Woodard v. State, 7 Fla. L.
Weekly Supp. 312 (Fla. 9th Cir. Ct. 2000) (court does a detailed analysis on application of corpus delicti
for reckless driving).
17
Burks v. State, 613 So. 2d 441, 441 (Fla. 1993).
18
State v. Allen, 335 So. 2d 823 (Fla. 1976).
19
State v. Allen, 335 So. 2d 823 (Fla. 1976).
20
State v. Kester, 612 So. 2d 584 (Fla. 3d DCA 1992). See also Trusilo v. State, 18 Fla. L. Weekly Supp.
1112 (Fla. 6th Cir. Ct. Sept. 19, 2011) (three-judge panel ruled that corpus for DUI was established
independent of defendant’s admission to using drugs; where deputy saw defendant driving 29 mph
above speed limit, making a right turn from middle lane and cutting off a vehicle, cutting in and out of
traffic causing some drivers to slow to avoid an accident; defendant had bloodshot watery eyes, slurred
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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

speech, slow and sluggish movement in retrieving documents; FSES showed signs of impairment;
defendant failed or refused breath test;); State v. Maciejewski, 17 Fla. L. Weekly Supp. 623 (Fla. 17th
Cir. Ct. Feb. 16, 2010)State v. Maciejewski, 17 Fla. L. Weekly Supp. 623 (Fla. 17th Cir. Ct. Feb. 16,
2010) (circumstantial evidence was sufficient to prove corpus delicti without accused’s admission of
driving where officer was dispatched to single car accident and saw defendant leaning into driver’s side
door fumbling through purse, no one else was around, vehicle was running, tag check showed defendant
owned vehicle; she had slurred speech, flushed face, red glassy eyes, and an odor of alcohol);
McCullough v. State, 15 Fla. L. Weekly Supp. 537 (Fla. 6th Cir. Ct. March 11, 2008)McCullough v.
State, 15 Fla. L. Weekly Supp. 537 (Fla. 6th Cir. Ct. March 11, 2008) (corpus delicti established where
officers received information that a green jeep driven by a male had hit an ambulance; officers quickly
found a recently damaged green jeep registered to defendant parked in his driveway; defendant was
standing about two feet from jeep and was the only one around; defendant had bloodshot eyes, odor of
alcohol, and appeared jittery; damage to jeep matched damage to ambulance); Clifford v. State, 15 Fla.
L. Weekly Supp. 206 (Fla. 6th Cir. Ct. Dec. 19, 2007)Clifford v. State, 15 Fla. L. Weekly Supp. 206
(Fla. 6th Cir. Ct. Dec. 19, 2007) (evidence of corpus delicti was sufficient where police discovered a
very recent one-car accident in which car ran over a road sign and blew out a tire; registered owner lived
one block from scene; deputy went to home and asked to see the owner, who appeared in pants that were
wet up to the knee; it had been raining and the grass at the scene was wet; defendant appeared impaired
by alcohol); State v. Wuteska, 14 Fla. L. Weekly Supp. 336 (Fla. 6th Cir. Ct. Sept. 25, 2006)State v.
Wuteska, 14 Fla. L. Weekly Supp. 336 (Fla. 6th Cir. Ct. Sept. 25, 2006) (court affirmed trial judge’s
finding that State failed to establish corpus delicti where deputy observed defendant sitting two to five
feet from truck and back of truck was in hedges; defendant was the only person around, but he was not
the owner of the truck; the result did not change because when deputy told defendant to get in the truck
to avoid the bad weather, defendant got into the driver’s side). State v. Rivera, 7 Fla. L. Weekly Supp.
415 (Fla. Broward Cty. Ct. March 7, 2000)State v. Rivera, 7 Fla. L. Weekly Supp. 415 (Fla. Broward
Cty. Ct. March 7, 2000) (court ruled corpus delicti established in situation like Kester except passenger
was asleep in back of car, no one saw defendant and passenger exchange seats, and defendant was the
only one standing by car).
21
State v. Kester, 612 So. 2d 584, 586 (Fla. 3d DCA 1992).
22
Bribiesca-Tafolla v. State, 93 So. 3d 364 (Fla. 4th DCA 2012).
23
Bribiesca-Tafolla v. State, 93 So. 3d 364 (Fla. 4th DCA 2012).
24
Bribiesca-Tafolla v. State, 93 So. 3d 364 (Fla. 4th DCA 2012).
25
Bribiesca-Tafolla v. State, 93 So. 3d 364 (Fla. 4th DCA 2012).
26
Burks v. State, 613 So. 2d 441 (Fla. 1993).
27
State v. Allen, 335 So. 2d 823 (Fla. 1976).
28
State v. Kester, 612 So. 2d 584 (Fla. 3d DCA 1992).
29
Bribiesca-Tafolla v. State, 93 So. 3d 364 (Fla. 4th DCA 2012).
30
State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA 1984); Pierson v. State, 11 Fla. L. Weekly Supp.
1047 (Fla. 17th Cir. Ct. Aug. 18, 2004) (there was insufficient evidence that the defendant was in actual
physical control of vehicle where only proof was a witness’s testimony that the defendant said he was
driving); Perez v. State, 6 Fla. L. Weekly Supp. 385, 386 (Fla. 11th Cir. Ct. March 12, 1999)Perez v.
State, 6 Fla. L. Weekly Supp. 385, 386 (Fla. 11th Cir. Ct. March 12, 1999) (court ruled that corpus
delicti was not established because there was no admissible independent evidence that the defendant was
the driver).
31
Burks v. State, 613 So. 2d 441, 443 (Fla. 1993); State v. Allen, 335 So. 2d 823, 825 (Fla. 1976).
See also State v. Walton, 42 So. 3d 902 (Fla. 2d DCA 2010); Brose v. State, 32 So. 3d 144, 146 (Fla.
4th DCA 2010); Snell v. State, 939 So. 2d 1175 (Fla. 4th DCA 2006).

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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

32
Esler v. State, 915 So. 2d 637, 640 (Fla. 2d DCA 2005).
33
State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA 1984).
34
Syverud v. State, 987 So. 2d 1250 (Fla. 5th DCA 2008).
35
Syverud v. State, 987 So. 2d 1250 (Fla. 5th DCA 2008).
36
Syverud v. State, 987 So. 2d 1250, 1254 (Fla. 5th DCA 2008) (Judge Lawson concurring).
37
Syverud v. State, 987 So. 2d 1250, 1252 (Fla. 5th DCA 2008).
38
Montanez v. State, 1 So. 3d 1174 (Fla. 5th DCA 2009). Compare, State v. Jaume, 25 Fla. L. Weekly
Supp. 140 (Fla. 17th Cir. Ct. June 24, 2016)State v. Jaume, 25 Fla. L. Weekly Supp. 140 (Fla. 17th Cir.
Ct. June 24, 2016) (three judge panel reversed dismissal where the corpus delicti was largely dependent
on identification of defendant as the driver of a car at the scene of an accident; even though no one was
able to identify defendant as the driver at a hearing, the court ruled that the evidence was sufficient
based on a citizen’s observation at the scene of one person exiting the vehicle and admitting driving, and
citizen made identification to officers of defendant as that person, including a description of his clothing;
the citizen was available to testify at trial regarding his “prior identification and the witness testifying at
trial was present for the identification.”).
39
Montanez v. State, 1 So. 3d 1174, 1175 (Fla. 5th DCA 2009).
40
State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004). See also State v. Baad, 14 Fla. L. Weekly
Supp. 793 (Fla. Sarasota Cty. Ct. June 20, 2007)State v. Baad, 14 Fla. L. Weekly Supp. 793 (Fla.
Sarasota Cty. Ct. June 20, 2007) (trial judge relied on Colorado to grant arrest of judgment in a BUI
case where the only evidence that defendant was operating the boat was the defendant’s admission).
41
State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004).
42
State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004).
43
State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004).
44
Syverud v. State, 987 So. 2d 1250 (Fla. 5th DCA 2008).
45
Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985), review dismissed, 475 So. 2d 693 (Fla.
1985).
46
Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985), review dismissed, 475 So. 2d 693 (Fla.
1985).
47
Acoff v. State, 180 So.3d 185 (Fla. 1st DCA 2015), review dismissed, 2016 WL 688295 (Fla. Opinion
Filed Feb. 19, 2016).
48
Acoff v. State, 180 So.3d 185, 188-89 (Fla. 1st DCA 2015), review dismissed, 2016 WL 688295 (Fla.
Opinion Filed Feb. 19, 2016) (court also identified a lot of circumstantial evidence that the defendant
was, in fact, driving under the influence of alcohol).
49
Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985), review dismissed, 475 So. 2d 693 (Fla.
1985).

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§ 12:12.Corpus delicti, 11 Fla. Prac., DUI Handbook § 12:12 (2018-2019 ed.)

50
Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985), review dismissed, 475 So. 2d 693 (Fla.
1985).
51
State v. Walton, 42 So. 3d 902 (Fla. 2d DCA 2010). See also Bribiesca-Tafolla v. State, 93 So. 3d 364
(Fla. 4th DCA 2012) (there was a driver and a passenger in the vehicle; court pointed out based on
Walton that the exact identity of the driver would be unnecessary if both of them were impaired or had a
breath or blood alcohol level of.08, but here the State had no evidence as to passenger’s condition;
therefore, State had to produce substantial evidence that defendant drove the truck at the time of the
crash before admission could be introduced).
52
State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004).
53
Esler v. State, 915 So. 2d 637 (Fla. 2d DCA 2005).
54
Syverud v. State, 987 So. 2d 1250 (Fla. 5th DCA 2008).
55
State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA 1984).
56
State v. Colorado, 890 So. 2d 468 (Fla. 2d DCA 2004).
57
State v. Walton, 42 So. 3d 902, 908 (Fla. 2d DCA 2010).
58
State v. Walton, 42 So. 3d 902, 909 (Fla. 2d DCA 2010).
59
State v. Walton, 42 So. 3d 902 (Fla. 2d DCA 2010).
60
Esler v. State, 915 So. 2d 637 (Fla. 2d DCA 2005).
61
Syverud v. State, 987 So. 2d 1250 (Fla. 5th DCA 2008).
62
State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA 1984).
63
State v. Walton, 42 So. 3d 902, 909 (Fla. 2d DCA 2010).
64
State v. Walton, 42 So. 3d 902, 909 (Fla. 2d DCA 2010).
65
State v. Walton, 42 So. 3d 902, 910 (Fla. 2d DCA 2010).
66
State v. Walton, 42 So. 3d 902 (Fla. 2d DCA 2010).
67
State v. Walton, 42 So. 3d 902, 909 (Fla. 2d DCA 2010).

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Works.

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Introduction, 11 Fla. Prac., DUI Handbook Ch. 13 Introduction (2018-2019 ed.)

11 Fla. Prac., DUI Handbook Ch. 13 Introduction (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

Introduction

INTRODUCTION
Chapter 2 dealt with enhancement issues. The purpose of this chapter is to explain the sentences for the various
levels and types of DUI offenses and the sentencing options.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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§ 13:1.Fines, fees, costs, and incarceration, 11 Fla. Prac., DUI Handbook § 13:1...

11 Fla. Prac., DUI Handbook § 13:1 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

§ 13:1. Fines, fees, costs, and incarceration

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 332, 359, 361

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336 to 1337, 1352, 1380, 1382 to 1394, 1414 to 1419, 1442, 1451 to
1452, 1484, 1486 to 1487, 1503, 1510, 1523, 1526, 1539, 1543 to 1544, 1546 to 1547, 1550

As suggested in §§ 2:1 et seq., there are many different DUI offenses. All of them carry fines and mandatory or
potential incarceration. This section covers those sanctions. It also includes comment on attorney’s fees for
appointed counsel and costs.

For the first such offense, fines range between $500 and $1,000 1 and imprisonment not exceeding six months. 2
If the offender had a blood or breath-alcohol level of 0.15 or higher or had a person less than 18 years of age in
the vehicle, the potential fine rises to between $1,000 and $2,000 3 and the potential imprisonment increases to
nine months.4

For the second DUI conviction, fines range between $1,000 and $2,000 5 and imprisonment not exceeding nine
months.6 If the offender had a blood or breath-alcohol level of 0.15 or higher or had a person less than 18 years
of age in the vehicle, the potential fine rises to between $2,000 and $4,000, 7 and the potential imprisonment
increases to 12 months.8 If the second conviction is for an offense that occurred within a period of five years
after the date of a prior conviction, there is a mandatory minimum jail term of 10 days. 9 At least 48 hours of this
term must be consecutive.10 The 10-day mandatory jail sentence applies if the offense (in contrast to the
conviction) occurred within five years of the prior conviction even if the second conviction is outside the five
years.11 The court may allow the defendant to serve all or part of this sentence in a residential alcoholism
treatment program or drug abuse treatment program, and the court must credit such time to the term of
imprisonment.12 However, community control,13 probation,14 house arrest,15 a work farm,16 or a parks program17
does not fulfill the requirement of mandatory incarceration.

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§ 13:1.Fines, fees, costs, and incarceration, 11 Fla. Prac., DUI Handbook § 13:1...

A third conviction for an offense that occurs within 10 years after a prior conviction for a violation of this
section is a third-degree felony, punishable as provided in Florida Statutes, §§ 775.082, 775.083, or
775.084.18 The statute does not directly specify a minimum fine in such cases. The maximum fine is $5000. 19
The maximum term of imprisonment is five years or whatever is permitted under the guidelines. 20 If the third or
subsequent conviction is for an offense that occurred within a period of 10 years after the date of a prior
conviction, there is a mandatory minimum jail term of 30 days. 21 At least 48 hours of this term must be
consecutive.22

For a third conviction for an offense that occurs more than 10 years after the date of a prior conviction for a
violation of this section, fines range between $2,000 and $5,000. 23 The maximum term of imprisonment for a
third conviction for an offense that occurs more than 10 years after the date of a prior conviction is 12 months. 24
For all third and subsequent convictions, if the offender has a blood or breath-alcohol level of 0.15 or higher, or
has a person under the age of 18 years of age in the vehicle, the minimum fine is $4,000.25

A conviction for a fourth or subsequent DUI is a third-degree felony, punishable as provided in Florida
Statutes, §§ 775.082, 775.083, or 775.084.26 The fine ranges from $2,00027 to $5,000,28 if the offense is
treated as a felony. The minimum jail term, if any, would depend on when the third DUI conviction occurred. It
could be 30 days29 or none at all. The maximum period of incarceration could be five years and would be
affected by the sentencing guidelines.30

The penalty for several types of DUI offenses is determined solely by the circumstances at the time of the
offense and is unaffected by the number of prior convictions. These offenses are all defined by subsection (3) of
Florida Statutes, § 316.193. The first such offense is DUI causing damage to another’s property or
nonserious bodily injury to another person. It is a misdemeanor of the first degree, punishable as provided in
Florida Statutes, §§ 775.082 and 775.083.31 Thus, the maximum fine is $1,00032 and the maximum jail sentence
is one year.33

The second such offense is DUI causing serious bodily injury to another, as defined in the statute. It is a felony
of the third degree, punishable as provided in Florida Statutes, §§ 775.082, 775.083, or 775.084.34 Thus,
the maximum fine is $5,000 35 and the maximum prison term is five years. 36 That sentence is also affected by the
sentencing guidelines and potential enhancement factors.

The third such offense is DUI causing the death of another person, or DUI Manslaughter. This offense requires
a mandatory minimum term of imprisonment of four years. 37 If the offender left the scene of a crash without
giving information and rendering aid as required by Florida Statutes, § 316.062, and the offender knew or
should have known that the crash occurred, the offense is a felony of the first degree. It is punishable as
provided in Florida Statutes, §§ 775.082, 775.083, or 775.084.38 Thus, the maximum fine is $10,000 39 and
the maximum prison term is 30 years. If these aggravating factors are not present, the offense is a felony of the
40

second degree, punishable as provided in the same statutes. 41 Thus, the maximum fine is also $10,000, 42 but the
maximum prison term is 15 years.43 These felony sentences are also affected by the guidelines and potential
enhancement factors.

The mandatory minimum sentences for those offenses defined in subsection (3) of the statute differ from DUIs
without any of the aggravating elements, which are the offenses defined in subsection (1) of the statute.
McGhee v. State44 makes it clear that there are no mandatory minimum fines for subsection (3) offenses. The
basis for that decision is that the subsections of the statute dealing with mandatory minimum fines specifically
refer to offenses defined by subsection (1) of the statute and not subsection (3). While McGhee did not address
the issue of mandatory minimum jail terms, the rationale for finding that there are no mandatory minimum fines
for subsection (3) offenses would logically suggest that there are no mandatory minimum jail terms for such
offenses, except as they might be required for DUI Manslaughter or by the felony sentencing guidelines.

The fines for all of the involved offenses are relatively high and beyond the means of many people. The statute
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§ 13:1.Fines, fees, costs, and incarceration, 11 Fla. Prac., DUI Handbook § 13:1...

provides some relief. If the court finds that the defendant is financially unable to pay all or part of the fine, the
court may order that the defendant provide additional public service or community work hours, instead of
paying the part of the fine that the defendant is unable to pay. 45 The court shall consider the unpaid portion of
the fine and the reasonable value of the additional service. 46 The court may not, however, allow credit against
the fine for less than the federal minimum hourly wage at the time of sentencing. 47

Additional fines for DUI may come in the form of forfeiture. If at the time of the offense the convicted driver
had a suspended, revoked, or cancelled license due to a prior DUI, the involved motor vehicle is subject to
forfeiture.48 The Second District ruled49 that if the car is of sufficient value, the forfeiture may constitute
punishment and is subject to the constitutional prohibition against excessive fines. The car involved there was
valued at about $17,000, resulting in an additional fine over 17 times greater than the fine that was actually
imposed and more than three times the statutory maximum. Thus, the trial judge ruled in favor of the defendant
on a motion for summary judgment. On appeal, the court agreed that this constituted punishment and was
subject to a proportionality analysis to determine if the forfeiture resulted in an excess fine. 50

In such cases, the court must determine whether the amount of the forfeiture would be grossly disproportionate
to the seriousness of the defendant’s conduct. There are three factors for measuring proportionality: (1) is the
defendant part of the class that the criminal statute primarily targeted; (2) other authorized penalties; and (3)
harm caused by the defendant. 51 Based on these factors, the court concluded that the amount of the forfeiture
was not excessive. Obviously, the defendant was in the targeted class. Authorized penalties besides the $5000
for the DUI, included up to $1000 for refusing to submit to testing and $500 for driving on a suspended or
revoked license. Most importantly, the court, observed: “we cannot ignore the public safety concerns posed by
[the defendant’s] offenses; he had committed three DUIs in four years.” 52 Based on these conclusions, the court
reversed the trial judge’s order rejecting forfeiture as a matter of law.

There are many different statutory costs that must or may be imposed in DUI cases. If the defense attorney is
also court appointed, there are attorney fee issues and liens that must be considered. While these matters seem
relatively simple, they have generated many appeals. Although comprehensive consideration of these subjects is
beyond the scope of this book, a brief note on the nature of the basic problems might be useful.

Costs, fines, restitution, and court-appointed attorney’s fees have caused confusion in several areas. Do they
have to be announced on the record? Does the court have to identify the statutory authority for each cost and
fine imposed? What is the appropriate amount? All of these questions are addressed in the thorough opinion in
Reyes v. State.53 One of the points made in Reyes is that the trial judge need not announce mandatory costs and
fines on the record, but the court must announce discretionary costs and fines and identify the statutory
authority for each item.54 Consequently, many appeals have dealt with the failure to specifically announce
discretionary costs, fines, and fees on the record.

The Florida Supreme held that such costs issues do not constitute fundamental error and must be raised before
the trial court.55 The Court took the same position on the imposition of a public defender’s lien. 56 This does not
mean that the trial court does not have to properly advise the defendant of costs and attorney fees. 57 However, if
the defendant fails to object or to raise the issue in an appropriate post-conviction proceeding, the defendant
waives the issue on appeal. There is a very detailed form in the criminal rules dealing with costs and it is
included as an appendix.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 316.193(2)(a) 1., Fla. Stat.

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§ 13:1.Fines, fees, costs, and incarceration, 11 Fla. Prac., DUI Handbook § 13:1...

2
§ 316.193(2)(a) 2., Fla. Stat.
3
§ 316.193(4)(a) 1., Fla. Stat.
4
§ 316.193(4)(b) 1., Fla. Stat.
5
§ 316.193(2)(a) 1., Fla. Stat.
6
§ 316.193(2)(a) 2., Fla. Stat.
7
§ 316.193(4)(a) 2., Fla. Stat.
8
§ 316.193(4)(b) 2., Fla. Stat.
9
§ 316.193(6)(b), Fla. Stat.
10
§ 316.193(6)(b), Fla. Stat.
11
State v. Daly, 15 Fla. L. Weekly Supp. 447 (Fla. 18th Cir. Ct. Feb. 4, 2008)State v. Daly, 15 Fla. L.
Weekly Supp. 447 (Fla. 18th Cir. Ct. Feb. 4, 2008); State v. Dubbs, 9 Fla. L. Weekly Supp. 285 (Fla.
17th Cir. Ct. Feb. 25, 2002)State v. Dubbs, 9 Fla. L. Weekly Supp. 285 (Fla. 17th Cir. Ct. Feb. 25,
2002).
12
§ 316.193(6)(m), Fla. Stat. According to State v. Sarantos, 16 Fla. L. Weekly Supp. 523 (Fla. 6th
Cir. April 17, 2009)According to State v. Sarantos, 16 Fla. L. Weekly Supp. 523 (Fla. 6th Cir. April 17,
2009), the trial judge may give credit against a jail term for time spent in a residential treatment facility
after the offense but prior to conviction.
13
State v. Row, 478 So. 2d 430 (Fla. 5th DCA 1985) (where mandatory minimum term of “imprisonment”
in a drug trafficking case was required, court was not authorized to permit the defendant to serve part of
that term on community control).
14
State v. Fulton, 878 So. 2d 485 (Fla. 1st DCA 2004) (where mandatory minimum term of
“imprisonment” in a drug trafficking case was required, court was not authorized to impose probation
instead of prison time).
15
State v. Strickland, 9 Fla. L. Weekly Supp. 654 (Fla. 4th Cir. Ct. Aug. 1, 2002)State v. Strickland, 9 Fla.
L. Weekly Supp. 654 (Fla. 4th Cir. Ct. Aug. 1, 2002) (mandatory DUI sentence did not permit house
arrest). See also Licata v. State, 788 So. 2d 1063 (Fla. 4th DCA 2001) (court could not give credit for
pretrial house arrest against incarceration); McCarthy v. State, 689 So. 2d 1095 (Fla. 5th DCA 1997), as
clarified on denial of reh’g, (Mar. 21, 1997) (same).
16
State v. Daly, 15 Fla. L. Weekly Supp. 447 (Fla. 18th Cir. Ct. Feb. 4, 2008)State v. Daly, 15 Fla. L.
Weekly Supp. 447 (Fla. 18th Cir. Ct. Feb. 4, 2008) (impermissible to order defendant to report eight
consecutive days to work farm as part of 10-day mandatory DUI sentence).
17
State v. Kliewer, 15 Fla. L. Weekly Supp. 413 (Fla. 6th Cir. Ct. July 5, 2007)State v. Kliewer, 15 Fla. L.
Weekly Supp. 413 (Fla. 6th Cir. Ct. July 5, 2007) (10-day mandatory DUI sentence did not permit a
sentence to a “day reporting, jail diversion program that allows certain offenders to perform community
service at various non-profit agencies” called the Parks Program).
18
§ 316.193(2)(b) 1., Fla. Stat.
19
§ 775.083(1)(c), Fla. Stat.

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§ 13:1.Fines, fees, costs, and incarceration, 11 Fla. Prac., DUI Handbook § 13:1...

20
§ 775.082(3)(e), Fla. Stat.
21
§ 316.193(6)(c), Fla. Stat.
22
§ 316.193(6)(c), Fla. Stat.
23
§ 316.193(2)(b) 2., Fla. Stat.
24
§ 316.193(2)(b) 2., Fla. Stat.
25
§ 316.193(4)(a) 3., Fla. Stat.
26
§ 316.193(2)(b) 3., Fla. Stat.
27
§ 316.193(2)(b) 3., Fla. Stat.
28
§ 775.083(1)(c), Fla. Stat.
29
§ 316.193(6)(c), Fla. Stat.
30
§ 775.082(3)(e), Fla. Stat.
31
§ 316.193(3)(c) 1., Fla. Stat.
32
§ 775.083(1)(d), Fla. Stat.
33
§ 775.082(4)(a), Fla. Stat.
34
§ 316.193(3)(c) 2., Fla. Stat.
35
§ 775.083(1)(c), Fla. Stat.
36
§ 775.082(3)(e), Fla. Stat.
37
§ 316.193(3)(c) 3., Fla. Stat.
38
§ 316.193(3)(c) 3., Fla. Stat.
39
§ 775.083(1)(b), Fla. Stat.
40
§ 775.082(3)(b), Fla. Stat.
41
§ 316.193(3)(c) 3., Fla. Stat.
42
§ 775.083(1)(b), Fla. Stat.
43
§ 775.082(3)(d), Fla. Stat.
44
McGhee v. State, 847 So. 2d 498 (Fla. 4th DCA 2003).
45
§ 316.193(6)(m), Fla. Stat.

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§ 13:1.Fines, fees, costs, and incarceration, 11 Fla. Prac., DUI Handbook § 13:1...

46
§ 316.193(6)(m), Fla. Stat.
47
§ 316.193(6)(m), Fla. Stat.
48
§ 322.34(9), Fla. Stat.
49
In re Forfeiture of 2006 Chrysler 4-Door, Identification No. 2C3KA53GX6H258059, 9 So. 3d 709 (Fla.
2d DCA 2009).
50
In re Forfeiture of 2006 Chrysler 4-Door, Identification No. 2C3KA53GX6H258059, 9 So. 3d 709 (Fla.
2d DCA 2009).
51
In re Forfeiture of 2006 Chrysler 4-Door, Identification No. 2C3KA53GX6H258059, 9 So. 3d 709 (Fla.
2d DCA 2009).
52
In re Forfeiture of 2006 Chrysler 4-Door, Identification No. 2C3KA53GX6H258059, 9 So. 3d 709 (Fla.
2d DCA 2009).
53
Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). In Cook v. State, 896 So. 2d 870, 873 (Fla.
2d DCA 2005), the court cautioned: “Although much of the discussion in Reyes is still useful, the
legislature has since created chapter 938 and has organized the majority of the various mandatory and
discretionary costs in that chapter. The requirement for some of these costs have changed.” See also
T.D.S. v. State, 45 So. 3d 18 (Fla. 2d DCA 2010); Waller v. State, 911 So. 2d 226 (Fla. 2d DCA 2005).
54
Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). See also Williams v. State, 198 So. 3d 778 (Fla.
2d DCA 2016); Ogden v. State, 117 So. 3d 479 (Fla. 1st DCA 2013), review dismissed, 139 So. 3d 299
(Fla. 2014); Giles v. State, 103 So. 3d 1058 (Fla. 1st DCA 2013), cert. denied, 133 S. Ct. 2777, 186 L.
Ed. 2d 219 (2013); Lamoreaux v. State, 88 So. 3d 379 (Fla. 1st DCA 2012); Nix v. State, 84 So. 3d 424
(Fla. 1st DCA 2012); Masengale v. State, 969 So. 2d 1218 (Fla. 2d DCA 2007); Dadds v. State, 946 So.
2d 1129 (Fla. 2d DCA 2006); Stewart v. State, 906 So. 2d 1128 (Fla. 2d DCA 2005); Huesca v.
State, 841 So. 2d 585, 586 (Fla. 2d DCA 2003); Cruz v. State, 830 So. 2d 892 (Fla. 2d DCA 2002).
55
See e.g. Maddox v. State, 760 So. 2d 89 (Fla. 2000); Tibbs v. State, 760 So. 2d 144 (Fla. 2000).
56
See e.g. State v. Dodson, 760 So. 2d 145 (Fla. 2000).
57
G.D. v. State, 42 So. 3d 327 (Fla. 2d DCA 2010) (court must give defendant notice and an
opportunity to be heard as to the amount of public defender fee lien). But see Mills v. State, 177 So.
3d 984 (Fla. 1st DCA 2015) (en banc) (“[W]e recede from any and all decisions holding that sections
938.29(1) and 27.52, Florida Statutes, as amended effective July 1, 2008, require notice and hearing
before imposition of a minimum public defender’s lien, i.e., $150 in felony cases or $100 in
misdemeanor cases.”).

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§ 13:2.Driver license or privilege penalties, 11 Fla. Prac., DUI Handbook § 13:2...

11 Fla. Prac., DUI Handbook § 13:2 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

§ 13:2. Driver license or privilege penalties

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 144.1(1.11), 144.2(8), 144.3, 332

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 290 to 296, 328 to 338, 341 to 346, 361 to 366, 392 to 394, 396, 399, 401
to 408, 1382 to 1394

Although it may come as a surprise to the offender, the revocation of his or her driver license or driving
privilege is not part of the sentence 1 and a mandatory revocation cannot be negotiated away as part of a plea. 2 If
the court fails to impose a revocation at the time of sentencing or within 30 days, the Department will impose
the maximum revocation for a first time DUI and the minimum revocation for convictions with prior
convictions.3 The mandatory revocation upon conviction applies to bicyclists as well as motorists. 4

According to Starr v. Dep’t of Highway Safety & Motor Vehicles,5 neither laches nor estoppel apply to these
license revocations, and the department may revoke the license several years after the conviction. However,
within 30 days after the revocation, the offender may request a hearing on the period of revocation, and the
court may reopen the matter and consider the appropriate period of revocation.6

The statute prescribes the periods of revocation. For a first DUI conviction not resulting in death, the period of
revocation is 180 days to one year. 7 For a second DUI conviction for an offense occurring within five years
from the date of a prior conviction, the period of revocation is at least five years. 8 For a third conviction for an
offense occurring within 10 years after the date of the second of three convictions, the period of revocation is at
least 10 years.9 It seems clear that if one has a DUI conviction with prior convictions falling outside these time
parameters, the court may impose a revocation without regard for the prior conviction and may consider the
priors in exercising its discretion.

If the accused’s bail bond is forfeited for failure to appear and the forfeiture is not vacated within 20 days or a
motion to vacate is not filed within the 20-day period, the Department shall treat that as a conviction for

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§ 13:2.Driver license or privilege penalties, 11 Fla. Prac., DUI Handbook § 13:2...

purposes of revocation.10 The Department will impose the maximum revocation for a first time DUI and the
minimum revocation for convictions with prior convictions. 11 If the defendant is subsequently convicted and
suffers a revocation, he or she will receive credit for the portion of the revocation that has actually elapsed. 12

The court may issue an order of reinstatement to enable the defendant to secure a temporary business or
employment purposes only license as determined by the Department. 13 The “business purposes only” permit
allows the offender to drive to get food, including food served at fast food restaurants. 14 The Department shall
not issue such a permit if the defendant has been previously convicted or the person’s driving privilege has been
previously suspended for refusal to submit to a lawful blood, breath, or urine test. 15 These provisions will not
prevent reinstatement of a license or driving privilege that was suspended for refusal or unlawful blood or
breath alcohol level, if that suspension arose out of the incident that was the subject of the involved DUI
prosecution.16

A fourth DUI conviction has dramatic consequences on the privilege to drive, if one of three prior offenses
came after July 1, 1982.17 The court must permanently revoke the offender’s driver license or driving privilege. 18
The same is true for a conviction for DUI Manslaughter 19 or murder resulting from the operation of a motor
vehicle.20 If the court fails to permanently revoke the offender’s driving privilege for the fourth DUI conviction
or for DUI Manslaughter, the Department shall do so within 30 days of imposition of sentence. 21

There may be circumstances where offenders permanently lose their driving privileges when they only have one
or two prior DUI convictions, but the district courts split on this issue. According to Stoletz v. State,22 where the
“totality of the circumstances merits a suspension or revocation,” the court may permanently revoke the
offender’s driving privilege pursuant to Florida Statutes, section 316.655(2), for any offense in chapter 316,
which includes DUI. Additionally, in this case the offender was convicted of her second DUI within five years
of a prior DUI conviction, and Florida Statutes, § 322.28(2)(a)(2), provides for revocation under these
circumstances for “not less than five years.”23 Thus, the court held that both provisions permit permanent
revocation.

The decision in Stoletz conflicted with the ruling in Whipple v. State.24 In Whipple, the court ruled that the
revocation could not exceed five years, because the DUI statute was more specific than Florida Statutes, §
316.655(2), and the specific prevails over the general.

In Stoletz v. State,25 the Supreme Court resolved the conflict. The Court ruled: (1) the DUI statute applies
because it is more specific; (2) that statute 26 imposes a mandatory minimum revocation, but not a mandatory
maximum revocation; therefore, it allows for a permanent revocation of driving privileges; (3) in this case, the
defendant was also convicted of felony driving on a suspended license; therefore, her driving privilege could
also be permanently revoked under the more general statute, 27 which applies to all chapter 316 offenses and
violations of laws regulating motor vehicles.

A conviction for DUI involving serious bodily injury, manslaughter (apparently not involving DUI), or
vehicular homicide, requires the court to revoke the defendant’s driver’s license or driving privilege for a
minimum of three years.28 If, however, the DUI involving serious bodily injury is subject to a greater period of
revocation because it involves a multiple DUI conviction, the greater revocation period shall apply. 29 If the court
does not impose the required revocation within 30 days after imposing sentence, the Department shall impose
the minimum revocation.30

While the focus here is on the court’s authority to revoke driving privileges, as discussed in an earlier chapter,
an officer may suspend driving privileges at the time of arrest for refusing to submit to a test or for having an
alcohol level exceeding the legal limit.31 The trial judge may be inclined for one reason or another to make the
revocation imposed for the conviction to run nunc pro tunc from the time of such arrests. In Dep’t Of Highway
Safety & Motor Vehicles v. Brandenburg,32 the court considered the authority of the court to grant such relief. In
that case, the defendant’s license was suspended at the time of arrest for an unlawful breath alcohol level, and
the trial judge made the revocation for conviction run nunc pro tunc to the date of the suspension imposed at the

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§ 13:2.Driver license or privilege penalties, 11 Fla. Prac., DUI Handbook § 13:2...

time of arrest. The Department ignored the court order and imposed the suspension as of the date of the
conviction.33 On appeal, the court held that the suspension at the time of arrest and the revocation at the time of
conviction have two different purposes, and the trial judge has no authority to make the revocation at the time of
conviction run nunc pro tunc from the time of arrest.34

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 322.28(2)(a), Fla. Stat. This statute requires that the court impose revocation “along with imposing
sentence,” rather than as part of sentencing. Chapter 3 of this book, dealing with double jeopardy, makes
it clear that such license actions are not considered punishment. See also Lescher v. Florida Dept. of
Highway Safety and Motor Vehicles, 985 So. 2d 1078 (Fla. 2008) (finding that amendment eliminating
hardship license did not create a criminal sanction).
2
Department of Highway Safety and Motor Vehicles v. Crane, 10 So. 3d 182 (Fla. 1st DCA 2009) (a plea
bargain including a term that a foreign DUI conviction is not substantially similar to the Florida
conviction, shall not be used for enhancement, and should not be considered a prior conviction by the
Department for revocation purposes is not binding on the Department); State Dept. of Highway Safety &
Motor Vehicles v. Gordon, 860 So. 2d 469 (Fla. 1st DCA 2003), review denied, 872 So. 2d 899 (Fla.
2004) (fact that defendant entered a plea based on the agreement that his prior DUI did not require a
five-year revocation, did not bar the Department from imposing such a suspension when it became
apparent that it was required). See also Tagner v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L.
Weekly Supp. 561 (Fla. 15th Cir. Ct. March 20, 2006)Tagner v. Dep’t of Highway Safety & Motor
Vehicles, 13 Fla. L. Weekly Supp. 561 (Fla. 15th Cir. Ct. March 20, 2006); Starr v. Dep’t of Highway
Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 608 (Fla. 6th Cir. Ct. March 2, 2005)Starr v. Dep’t of
Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 608 (Fla. 6th Cir. Ct. March 2, 2005).
3
§ 322.28(2)(b), Fla. Stat.
4
Decamp v. State, 19 Fla. L. Weekly Supp. 970 (Fla. 11th Cir. Ct. Aug. 3, 2012)Decamp v. State, 19 Fla.
L. Weekly Supp. 970 (Fla. 11th Cir. Ct. Aug. 3, 2012).
5
Starr v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 608 (Fla. 6th Cir. Ct.
March 2, 2005)Starr v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 608 (Fla.
6th Cir. Ct. March 2, 2005).
6
§ 322.28(2)(b), Fla. Stat.
7
§ 322.28(2)(a), Fla. Stat.
8
§ 322.28(2)(a), Fla. Stat.
9
§ 322.28(2)(a), Fla. Stat.
10
§ 322.28(2)(c), Fla. Stat.
11
§ 322.28(2)(c), Fla. Stat.
12
§ 322.28(2)(c), Fla. Stat.
13
§ 322.282, Fla. Stat.
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§ 13:2.Driver license or privilege penalties, 11 Fla. Prac., DUI Handbook § 13:2...

14
Vilches v. State, 12 Fla. L. Weekly Supp. 530 (Fla. 11th Cir. Ct. March 29, 2005)Vilches v. State, 12
Fla. L. Weekly Supp. 530 (Fla. 11th Cir. Ct. March 29, 2005) (trip to pay overdue residential electric bill
permissible); Allart v. State, 9 Fla. L. Weekly Supp. 499 (Fla. 6th Cir. Ct. June 27, 2001)Allart v. State,
9 Fla. L. Weekly Supp. 499 (Fla. 6th Cir. Ct. June 27, 2001) (trip to McDonald’s permissible); State v.
Quiroli, 9 Fla. L. Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002) State v. Quiroli, 9 Fla. L.
Weekly Supp. 780 (Fla. Palm Beach Cty. Ct. Sept. 12, 2002) (trip to Burger King permissible).
15
§ 322.282(2)(a), Fla. Stat.
16
§ 322.282(2)(a), Fla. Stat.
17
§ 322.28(2)(d), Fla. Stat. See also Palella v. State, 10 Fla. L. Weekly Supp. 289 (Fla. 10th Cir. Ct.
Jan. 29, 2003)Palella v. State, 10 Fla. L. Weekly Supp. 289 (Fla. 10th Cir. Ct. Jan. 29, 2003) (the fact
that defendant’s last DUI was more that 10 years prior to his fourth DUI did not change the requirement
that his license be permanently revoked, if at least one of the three priors was after July 1, 1982).
18
§ 322.28(2)(d), Fla. Stat. While the Supreme Court invalidated a change to the statute providing for
permanent revocation because it violated the single subject rule, Perkins v. State, 14 Fla. L. Weekly
414 (Fla. 17th Cir. Ct. Feb. 26, 2007), that issue has been resolved, and permanent revocation is still
required. See Hayward v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 380
(Fla. 2d Cir. Ct. March 11, 2004)Hayward v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L.
Weekly Supp. 380 (Fla. 2d Cir. Ct. March 11, 2004).
19
§ 322.28(2)(d), Fla. Stat.
20
§ 322.28(3), Fla. Stat.
21
§ 322.28(2)(d), Fla. Stat.
22
Stoletz v. State, 842 So. 2d 866 (Fla. 2d DCA 2003), decision approved, 875 So. 2d 572 (Fla. 2004).
23
This was recently changed to read “at least five years.” Ch. 2013-160, § 61, Laws of Florida.
24
Whipple v. State, 789 So. 2d 1132 (Fla. 4th DCA 2001), abrogated by, Stoletz v. State, 875 So. 2d
572 (Fla. 2004) and disapproved of by, Bolware v. State, 995 So. 2d 268 (Fla. 2008).
25
Stoletz v. State, 875 So. 2d 572 (Fla. 2004). See also Houle v. State, 33 So. 3d 822 (Fla. 4th DCA
2010) (even though section 322.28(4)(a) provides for a minimum revocation of three years for DUI
with serious bodily injury, the court may permanently revoke the license; despite the fact that the trial
court erroneously revoked the driving privileges pursuant to section 316.655(2), not section
322.28(4)(a), the appellate court upheld the revocation); Arrieta-Gimenez v. Arrieta-Negron, 551 So.
2d 1184 (Fla. 1989) (defendant’s license could be permanently revoked on third DUI because statute
required “not less than 10 years,” but it did not bar a longer revocation); Calabrese v. State, 21 Fla. L.
Weekly Supp. 1006 (Fla. 17th Cir. Ct. May 1, 2014) (based on Supreme Court decision in Stoletz, court
upheld lifetime revocation for third DUI).
26
§ 322.28(2)(a) 2., Fla. Stat.
27
§ 316.655(2), Fla. Stat.
28
§ 322.28(4)(a), Fla. Stat.
29
§ 322.28(4)(a), Fla. Stat.
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§ 13:2.Driver license or privilege penalties, 11 Fla. Prac., DUI Handbook § 13:2...

30
§ 322.28(4)(b), Fla. Stat.
31
§ 322.2615, Fla. Stat.
32
Department Of Highway Safety And Motor Vehicles v. Brandenburg, 891 So. 2d 1071 (Fla. 5th DCA
2004).
33
The Department did this without leave of court. The trial judge issued an order to show cause why the
Department should not be held in contempt. The court ordered that the Department conform with the
court’s order or be held in contempt, and the Department agreed to do so and took this appeal. On
appeal, the court held that the Department was wrong to ignore the court’s order and instead should have
filed a motion to intervene to correct the court’s order. But in State, Dept. of Highway Safety and Motor
Vehicles v. Vogt, 489 So. 2d 1168 (Fla. 2d DCA 1986), the court held that a county judge has no
authority to hold the Department in contempt for failing to remove a revocation for multiple convictions
where he or she has concluded that the prior convictions were invalid and imposed a lesser revocation.
See also Department of Highway Safety and Motor Vehicles v. Crane, 10 So. 3d 182 (Fla. 1st DCA
2009) (a plea bargain including a term that a foreign DUI conviction is not substantially similar to the
Florida conviction, shall not be used for enhancement, and should not be considered a prior conviction
by the Department for revocation purposes is not binding on the Department).
34
Department Of Highway Safety And Motor Vehicles v. Brandenburg, 891 So. 2d 1071 (Fla. 5th DCA
2004).

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§ 13:3.Probation, treatment, and educational provisions, 11 Fla. Prac., DUI Handbook...

11 Fla. Prac., DUI Handbook § 13:3 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

§ 13:3. Probation, treatment, and educational provisions

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 1336, 1352, 1380, 1414 to 1419, 1442, 1451 to 1452, 1484, 1486 to 1487,
1503, 1510, 1523, 1526, 1539, 1543 to 1544, 1546 to 1547, 1550

The court must place all offenders on monthly reporting probation. 1 The term of probation cannot exceed one
year for the first conviction for misdemeanor DUI. 2 The statute also limits the total period of probation and
imprisonment to one year.3

The court must impose certain mandatory conditions for all DUI offenses. Those are the conditions set forth in
subsection (5) of § 316.193, Fla. Stat.4 Those conditions are: (1) “completion of a substance abuse course
conducted by a DUI program licensed by the department under § 322.292, which must include a psychosocial
evaluation of the offender;”5 (2) “the completion of all … education, evaluation, and treatment” resulting from a
referral for treatment;6 (3) assumption of “reasonable costs for such education, evaluation, and treatment.” 7
There are other mandatory conditions set forth in subsection (6) of the statute that apply only to subsection (1)
offenses.8 Those include impoundment in accord with the requirements set forth hereafter. 9

There are other mandatory conditions concerning public service that apply only to subsection (1) offenses. 10 For
the first DUI, the court shall make it a condition of probation that the defendant perform 50 hours of public
service or community work hours.11 The court may, however, order as an alternative to these hours that the
defendant pay an additional fine of $10 for each hour of public service or community work. 12 In deciding
whether to permit that alternative, the court must consider the residence or location of the defendant at the time
the work is to be done. The court may allow the monetary alternative “only if the court finds that the residence
or location of the defendant at the time public service or community work is required or the defendant’s
employment obligations would create an undue hardship for the defendant.”13

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§ 13:3.Probation, treatment, and educational provisions, 11 Fla. Prac., DUI Handbook...

If treatment is recommended as a result of a psychosocial evaluation, it shall not be waived without a supporting
independent psychosocial evaluation conducted by an authorized substance abuse treatment provider appointed
by the court.14 The treatment provider shall have access to the DUI program’s psychosocial evaluation before
conducting its independent psychosocial evaluation. 15 The court must consider both evaluations before deciding
whether to grant a waiver.16 The offender shall pay the cost of this procedure. 17 “Substance abuse” includes
abuse of both alcohol and scheduled drugs.18

If the offender does not report for or complete recommended treatment or the DUI program substance abuse
course and evaluation, the program shall notify the court and the Department. 19 The Department shall cancel the
offender’s driving privilege.20 If the offender participates in the treatment and completes the DUI education
course and evaluation, the Department may temporarily reinstate the driving privilege on a restricted basis upon
receiving verification from the DUI program of these facts. 21 If the Department receives notice of a second
failure to complete treatment, the Department shall again cancel the offender’s driving privilege, but shall not
reinstate them until after receiving notice of completion of treatment from the DUI program. 22

The statutory scheme includes an attempt to avoid a possible conflict. Thus, the substance abuse education and
evaluation may not be provided by the same organization that conducts the required substance abuse treatment,
unless the Department has granted that organization a waiver. 23 The Department can grant that waiver only if it
determines that the evaluating organization is the most appropriate service provider and is properly licensed or
exempt from licensing requirements.24

The court may make it a condition of probation that the offender participate in the Youthful Drunk Driver
Visitation Program.25 If the participating facilities in the jurisdiction are unable to take all the eligible
probationers who have consented to participate, the court shall give preference to those who are under 18 years
of age.26

There is a very detailed procedure for imposing this as a condition of probation. The statute requires that the
court consult with the offender, his or her attorney, and any proposed visitation supervisor. 27 It also permits the
court to consult with anyone else whose input the court might find valuable, including, but not limited to,
parents or other family members. 28 The objective of these consultations is to ascertain “that the probationer is
suitable for the program, that the visitation will be educational and meaningful to the probationer, and that there
are no physical, emotional, or mental reasons to believe the program is not appropriate for the probationer or
would cause any injury to the probationer.”29

The court may order visitation at several different kinds of facilities, if they are available and have sufficient
personnel. They include “[a] trauma center, as defined in § 395.4001, or a hospital as defined in § 395.002,
which regularly receives victims of vehicle accidents, between the hours of 10 p.m. and 2 a.m. on a Friday or
Saturday night, in order to observe appropriate victims of vehicle accidents involving drinking drivers.” 30 This
must be under the supervision of a registered nurse trained in providing emergency trauma care or prehospital
advanced life support, an emergency room physician, or an emergency medical technician. 31

The court may also order visitation with a licensed service provider, as defined in § 397.311, Fla. Stat., who
offers substance abuse impairment services.32 The purpose of this visitation would be “to observe persons in the
terminal stages of substance abuse impairment, under the supervision of appropriately licensed medical
personnel.”33 This is only permissible if the patients or their legal representatives give their express consent. 34

The court may also impose even potentially more disturbing visitation, if the county coroner agrees. In that
case, the probationer may be required to go to the coroner’s office or the morgue “to observe appropriate
victims of vehicle accidents involving drinking drivers, under the supervision of the coroner or a deputy
coroner.”35

The statute recognizes the concerns and importance of the victims in this process. It requires as a condition to
the observation that the victims or their legal representatives, including the next of kin, expressly consent. 36
Additionally, only victims “whose condition is determined by the visitation supervisor to demonstrate the
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§ 13:3.Probation, treatment, and educational provisions, 11 Fla. Prac., DUI Handbook...

results of accidents involving drinking drivers without being excessively gruesome or traumatic to the
probationer,” may be involved.37

There is clearly a statutory recognition of the possibility of a negative impact on the probationer. In that regard,
the statute requires that before any of the ordered observation take place, the visitation supervisor shall conduct
a comprehensive counseling session “at which the supervisor shall explain and discuss the experiences which
may be encountered during the visitation in order to ascertain whether the visitation is appropriate for the
probationer.”38 Further, the statute authorizes the visitation supervisor to terminate the probationer’s
involvement in the program before or during the visitation, if the visitation supervisor “determines that the
visitation may be or is traumatic or otherwise inappropriate for the probationer, or the supervisor is uncertain
whether the visitation may be traumatic or inappropriate. …”39

It may be difficult to secure the personnel to coordinate such programs. The statute provides little guidance in
that regard, but it does specifically provide that “[i]f persons trained in counseling or substance abuse are made
available to the court, the court may coordinate the visitation program or the visitations at any of the appropriate
facilities through those persons.”40

The statute also recognizes the importance of follow up. Thus, it provides that the program may include a
personal postvisitation conference.41 Those present at such a conference may include the sentencing judge, or his
or her representative, or program coordinator, the probationer, his or her lawyer, and, if available, the
probationer’s parents.42 The purpose of the conference is “to discuss the experiences of the visitation and how
those experiences may affect the probationer’s future conduct.” 43 If such a conference cannot be done, the
probationer shall submit to the court a written report or letter “discussing the experiences and their effect on the
probationer.”44

There is obviously a risk of harm to the probationer and others, no matter what precautions are taken; therefore,
the statute provides for immunity. It says:
The county, a court, any facility visited pursuant to the program, an agent, employee, or
independent contractor of the court, county, or facility visited pursuant to the program, or any
person supervising a probationer during the visitation, is not liable for any civil damages resulting
from injury to the probationer, or civil damages caused by the probationer, during or from any
activities relating to, the visitation, except for willful or grossly negligent acts intended to, or
reasonably expected to, result in injury or damage.45

In addition to the foregoing conditions of probation and others mentioned in the next section relating
specifically to DUI, there are a variety of other general and special conditions that the court may impose. The
general conditions are included in the judgment form in the criminal rules attached as an appendix.
Furthermore, there are many conditions listed in §§ 948.001 et seq., Fla. Stat. The court may also impose any
other special condition relating to the crime of conviction, other criminal conduct, or behavior that is reasonably
related to future criminal behavior. 46 Examples of such special conditions are that the defendant purchase a
newspaper ad consisting of his mug shot and name with a caption, “DUI–Convicted,” 47 or place a bumper-
sticker on his or her car proclaiming the DUI conviction. 48 While conditions authorized by statute need not be
announced at the time of sentencing, such special conditions must be announced or considered pursuant to Rule
3.800(b).49

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 13:3.Probation, treatment, and educational provisions, 11 Fla. Prac., DUI Handbook...

1
§ 316.193(5), Fla. Stat. See also McGhee v. State, 847 So. 2d 498, 501 (Fla. 4th DCA 2003).
2
§ 316.193(6)(a), Fla. Stat. See also McGhee v. State, 847 So. 2d 498, 502 (Fla. 4th DCA 2003).
3
§ 316.193(6)(a), Fla. Stat.
4
McGhee v. State, 847 So. 2d 498, 501 (Fla. 4th DCA 2003).
5
§ 316.193(5), Fla. Stat. On a related matter see: Dep’t of Highway Safety & Motor Vehicles v.
Myles, 14 Fla. L. Weekly Supp. 1088 (Fla. 11th Cir. Ct. Sept 13, 2007) (§ 322.291, Fla. Stat. requires
that a person whose license was suspended for refusing test, “shall demonstrate proof of enrollment in a
DUI or driver improvement course before his driving privilege may be reinstated,” and a county judge
did not have the discretion to waive this requirement where the defendant passed a breath test but
refused a urine test).
6
§ 316.193(5), Fla. Stat.
7
§ 316.193(5), Fla. Stat.
8
McGhee v. State, 847 So. 2d 498, 502 (Fla. 4th DCA 2003).
9
§ 316.193(6)(a), (b), (c), Fla. Stat.
10
McGhee v. State, 847 So. 2d 498, 502 (Fla. 4th DCA 2003).
11
§ 316.193(6)(a), Fla. Stat. Failure to impose community service hours on the first offense constitutes
an illegal sentence. See State v. Vescera, 9 Fla. L. Weekly Supp. 522 (Fla. 15th Cir. Ct. June 25,
2002)State v. Vescera, 9 Fla. L. Weekly Supp. 522 (Fla. 15th Cir. Ct. June 25, 2002) ; State v. George, 9
Fla. L. Weekly Supp. 526 (Fla. 15th Cir. Ct. June 25, 2002)State v. George, 9 Fla. L. Weekly Supp. 526
(Fla. 15th Cir. Ct. June 25, 2002).
12
§ 316.193(6)(a), Fla. Stat.
13
§ 316.193(6)(a), Fla. Stat.
14
§ 316.193(5), Fla. Stat.
15
§ 316.193(5), Fla. Stat.
16
§ 316.193(5), Fla. Stat.
17
§ 316.193(5), Fla. Stat.
18
§ 316.193(5), Fla. Stat.
19
§ 316.193(5), Fla. Stat.
20
§ 316.193(5), Fla. Stat.
21
§ 316.193(5), Fla. Stat.
22
§ 316.193(5), Fla. Stat.

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§ 13:3.Probation, treatment, and educational provisions, 11 Fla. Prac., DUI Handbook...

23
§ 316.193(5), Fla. Stat.
24
§ 316.193(5), Fla. Stat.
25
§ 322.0602, Fla. Stat.
26
§ 322.0602(2)(b), Fla. Stat.
27
§ 322.0602(3), Fla. Stat.
28
§ 322.0602(3), Fla. Stat.
29
§ 322.0602(3), Fla. Stat.
30
§ 322.0602(4)(a), Fla. Stat.
31
§ 322.0602(4)(a), Fla. Stat.
32
§ 322.0602(4)(a), Fla. Stat.
33
§ 322.0602(4)(a), Fla. Stat.
34
§ 322.0602(4)(a), Fla. Stat.
35
§ 322.0602(4)(a), Fla. Stat.
36
§ 322.0602(4)(b), Fla. Stat.
37
§ 322.0602(4)(b), Fla. Stat.
38
§ 322.0602(4)(d), Fla. Stat.
39
§ 322.0602(4)(e), Fla. Stat.
40
§ 322.0602(4)(c), Fla. Stat.
41
§ 322.0602(5)(a), Fla. Stat.
42
§ 322.0602(5)(a), Fla. Stat.
43
§ 322.0602(5)(a), Fla. Stat.
44
§ 322.0602(5)(b), Fla. Stat.
45
§ 322.0602(6), Fla. Stat.
46
Biller v. State, 618 So. 2d 734 (Fla. 1993) (holding that a special condition is invalid if it is unrelated
to the crime of which the defendant was convicted, relates to noncriminal conduct, and regulates
conduct that is not reasonably related to future criminal behavior). See also Williams v. State, 182 So.3d

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§ 13:3.Probation, treatment, and educational provisions, 11 Fla. Prac., DUI Handbook...

912 (Fla. 2d DCA 2016); Austin v. State, 67 So. 3d 403 (Fla. 1st DCA 2011).
47
Lindsay v. State, 606 So. 2d 652.(Fla. 4th DCA 1992), review denied, 618 So. 2d 209 (Fla. 1993).
48
Goldschmitt v. State, 490 So. 2d 123 (Fla. 2d DCA 1986), review denied, 496 So. 2d 142 (Fla. 1986).
49
See e.g. Maddox v. State, 760 So. 2d 89 (Fla. 2000).

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§ 13:4.Ignition interlock devices, 11 Fla. Prac., DUI Handbook § 13:4 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 13:4 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

§ 13:4. Ignition interlock devices

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 144.2(8), 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 290 to 296, 336 to 338, 341 to 346, 361 to 366, 392 to 394, 396, 399, 401,
1336, 1352, 1380, 1414 to 1419, 1442, 1451 to 1452, 1484, 1486 to 1487, 1503, 1510, 1523, 1526,
1539, 1543 to 1544, 1546 to 1547, 1550

Before the legislative session of 2002, the use of an ignition interlock device was statutorily described strictly in
terms of a condition of probation. While the Legislature changed that, 1 there is no reason why the use of these
devices cannot be imposed as a condition of probation. In fact, the statute still provides: “Any person whose
driving privilege is restricted under a condition of probation requiring an ignition interlock device shall notify
any other person who leases or loans a motor vehicle to him or her of such driving restriction.” 2

This comprehensive statute3 sets forth all the details concerning the ignition interlock, but the whole area is
heavily regulated by the Department of Highway Safety and Motor Vehicles. 4 The statute requires that a great
deal of information be provided to the Department and that the offender report periodically to the Department to
verify operation of the device.5 The Department was also required to formulate rules for the devices 6 and to
regulate and control usage of the devices.7 Those rules have been approved and are now in effect. 8 The
Department also provides a great deal of information on ignition interlock devices on-line at
www.hsmv.state.fl.us/ddl/IID.html.

In all DUI cases, “the court may require that any person who is convicted … shall not operate a motor vehicle
unless that vehicle is equipped with a functioning ignition interlock device certified by the department as
provided in § 316.1938, and installed in such a manner that the vehicle will not start if the operator’s blood
alcohol level is in excess of 0.025 percent or as otherwise specified by the court.” 9 The court may impose this
requirement for “at least 6 continuous months” for those who are permitted to operate a motor vehicle,
regardless of whether their privilege is restricted, as determined by the court. 10

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§ 13:4.Ignition interlock devices, 11 Fla. Prac., DUI Handbook § 13:4 (2018-2019 ed.)

In many cases, however, the use of the device is mandated. 11 While the court did not address this issue in
McGhee v. State,12 the rationale in that case suggests that the mandatory ignition interlock requirements apply
only to subsection (1) offenses and not subsection (3) offenses. Those requirements are discussed in more detail
later in this section.

If the court imposes this condition, it must do the following things: (1) state the requirement that the defendant
use a certified ignition interlock device and the period of the requirement on the record; 13 (2) order that the
Department’s records reflect this requirement;14 (3) order that the device be installed on any vehicle owned or
operated by the offender to the extent that the court finds it necessary; 15 (4) if the defendant claims that he or she
is unable to pay for the device, determine the ability to pay, and if the court finds that the defendant is unable to
pay, order that a portion of the fine be allocated to payment for the device; 16 (5) “[r]equire proof of installation
of the device and periodic reporting to the department for verification of the operation of the device in the
offender’s vehicle.”17

The statute provides for remedies upon noncompliance. If “the court imposes the use of an ignition interlock
device on a person whose driving privilege is not suspended or revoked, the court shall require the person to
provide proof of compliance to the department within 30 days.” 18 If the person does not comply within that
period, the court will notify the Department unless the person shows good cause. 19 If, however, the person’s
driving privilege has been suspended or revoked for less than three years, the Department shall require proof of
compliance with the ignition interlock order before reinstatement of the person’s driving privilege. 20

It is anticipated that offenders or their family or friends might attempt to get around the court’s order. The
statute also provides a remedy for such conduct. The following conduct constitutes “a noncriminal traffic
infraction, punishable as a nonmoving violation as provided in chapter 318”: 21 (1) tampering with or
circumventing the operation of the device; 22 (2) asking another person to blow into the device or starting “a
motor vehicle equipped with the device for the purpose of providing” the offender with an operable motor
vehicle;23 (3) blowing into the device or starting “a motor vehicle equipped with the device for the purpose of
providing” the offender with an operable motor vehicle; 24 (4) knowingly leasing or lending a motor vehicle to
the offender “unless the vehicle is equipped with a functioning, certified ignition interlock device.” 25 The
offender also has a duty to notify anyone that leases or lends him or her a motor vehicle of the ignition interlock
requirement.26

In addition to the possible penalty for a civil infraction, violation of the statute includes more serious sanctions.
The Department must revoke the driving privilege of any person who is convicted of any of these violations for
a period of one year from the date of the conviction. 27 If the offender is convicted of violating these provisions
while he or she is supposed to be using the interlock device, the Department must revoke the offender’s driving
privilege for five years from the date of conviction. 28 If the person who is convicted of violating these provisions
does not have a driver’s license, he or she must pay a fine of not less than $250 or more than $500 for each
violation, in addition to any other penalty. 29 If that person cannot pay the fine, it shall be a lien against the
vehicle used in committing the violation. 30 The lien is enforceable pursuant to § 316.3025(5), Fla. Stat.31 That
statute provides that the state may foreclose the lien in a civil action in any court of this state. In such actions,
there is a presumption that “the owner of the motor vehicle is liable for the sum, and the vehicle may be
detained or impounded until the penalty is paid.”32

An offender who is required to comply with an interlock requirement is exempt if he or she must “operate a
motor vehicle in the course and scope of his or her employment and if the vehicle is owned or leased by the
employer.”33 However, the offender must notify the employer of such driving privilege restriction, and put proof
of that notification in the vehicle that he or she is operating on behalf of the employer. 34 This exemption does
not apply if the business that owns the vehicle “is owned or controlled by the person whose driving privilege
has been restricted.”35

All of the foregoing rules and regulations are extremely significant because the Legislature has mandated the
use of an ignition interlock device approved by the Department, in many DUI cases solely at the offender’s
expense.36 The device must be installed on “all vehicles that are individually or jointly leased or owned and

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§ 13:4.Ignition interlock devices, 11 Fla. Prac., DUI Handbook § 13:4 (2018-2019 ed.)

routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted
license.”37 For a second conviction, the device must be used for at least one year. 38 For a third conviction, the
device must be used for at least two years. 39 If an offender is issued a license after a conviction for a fourth or
subsequent DUI, the ignition interlock device must be installed for not less than five years. 40 For a conviction
including a blood-alcohol level or breath-alcohol level of 0.15 or higher, or the presence of a person under the
age of 18 years, the device must be used “for not less than 6 continuous months for the first offense and for not
less than 2 continuous years for a second offense.”41

While the statute clearly contemplates that the court must impose interlock device usage under the
circumstances mentioned above,42 the courts took the position that if the trial judge failed to comply, the
Department could not impose the requirement as it could with mandatory license revocations. 43 As of July 1,
2005, the Legislature mandated that, if the trial judge fails to impose required ignition interlock usage within 30
days of sentencing, the Department shall do so. 44 This provision applies to driving privilege reinstatement after
revocation, suspension, or cancellation based upon a “conviction for the offense of driving under the influence
which occurs on or after July 1, 2005.”45

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
Ch. 2002–263, § 1, Laws of Florida.
2
§ 316.1937(6)(d), Fla. Stat.
3
§ 316.1937, Fla. Stat.
4
§ 316.1937, Fla. Stat.
5
§ 316.1937(2)(e), Fla. Stat.
6
§ 316.193(11), Fla. Stat.
7
§ 316.1938, Fla. Stat.
8
Chapter 15A-9, Breath Alcohol Ignition Interlock Devices, F.A.C. The rules can be found on West Law
under regulations or at www.flrules.org.
9
§ 316.1937(1), Fla. Stat.
10
§ 316.1937(1), Fla. Stat.
11
§ 316.193(2), Fla. Stat. The defendant is not required to own or lease a vehicle to get a license
reinstatement. Mascari v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 535
(Fla. 11th Cir. Ct. March 15, 2005)Mascari v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L.
Weekly Supp. 535 (Fla. 11th Cir. Ct. March 15, 2005). And the court is not required to impose this
requirement if the defendant was driving someone else’s vehicle at the time of the stop and does not own
or lease a vehicle. State v. Gaj, 11 Fla. L. Weekly Supp. 892 (Fla. 17th Cir. July 13, 2004) State v. Gaj,
11 Fla. L. Weekly Supp. 892 (Fla. 17th Cir. July 13, 2004).
12
McGhee v. State, 847 So. 2d 498, 502 (Fla. 4th DCA 2003). Subsection (3) offenses include DUI
causing property damage or nonserious injury to another person, DUI causing serious bodily injury to

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§ 13:4.Ignition interlock devices, 11 Fla. Prac., DUI Handbook § 13:4 (2018-2019 ed.)

another, and DUI manslaughter.

13
§ 316.1937(2), Fla. Stat.
14
§ 316.1937(2), Fla. Stat.
15
§ 316.1937(2), Fla. Stat.
16
§ 316.1937(2), Fla. Stat.
17
§ 316.1937(2), Fla. Stat.
18
§ 316.1937(3), Fla. Stat.
19
§ 316.1937(3), Fla. Stat.
20
§ 316.1937(4), Fla. Stat.
21
§ 316.1937(8), Fla. Stat.
22
§ 316.1937(6), Fla. Stat.
23
§ 316.1937(6), Fla. Stat.
24
§ 316.1937(6), Fla. Stat.
25
§ 316.1937(6), Fla. Stat.
26
§ 316.1937(6), Fla. Stat.
27
§ 316.1937(5), Fla. Stat.
28
§ 316.1937(5), Fla. Stat.
29
§ 316.1937(5), Fla. Stat.
30
§ 316.1937(5), Fla. Stat.
31
§ 316.1937(5), Fla. Stat.
32
§ 316.3025(5), Fla. Stat.
33
§ 316.1937(7), Fla. Stat.
34
§ 316.1937(7), Fla. Stat.
35
§ 316.1937(7), Fla. Stat.
36
§§ 316.193(2) and 322.2715(3), Fla. Stat. (dealing with when ignition interlock device is required for
issuance of a permanent or restricted driver’s license after DUI conviction).

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§ 13:4.Ignition interlock devices, 11 Fla. Prac., DUI Handbook § 13:4 (2018-2019 ed.)

37
§ 316.193(2)(a) 3., Fla. Stat.
38
§§ 316.193(2)(a) 3. and 322.2715(3)(c), Fla. Stat. (requires that time be continuous). State v.
Aquilar, 10 Fla. L. Weekly Supp. 688 (Fla. 17th Cir. Ct. July 14, 2003)State v. Aquilar, 10 Fla. L.
Weekly Supp. 688 (Fla. 17th Cir. Ct. July 14, 2003) (applies to second conviction outside of five years).
39
§§ 316.193(2)(b) 1. and 322.2715(3)(d)(e), Fla. Stat. (requires that time be continuous).
40
§ 322.2715(3)(f), Fla. Stat.
41
§§ 316.193(4)(c) and 322.2715(3)(b), Fla. Stat.
42
State v. Wilson, 13 Fla. L. Weekly Supp. 453 (Fla. 17th Cir. Ct. Feb. 1, 2006)State v. Wilson, 13 Fla. L.
Weekly Supp. 453 (Fla. 17th Cir. Ct. Feb. 1, 2006); State v. Anderson, 12 Fla. L. Weekly Supp. 722
(Fla. 17th Cir. Ct. May 17, 2005)State v. Anderson, 12 Fla. L. Weekly Supp. 722 (Fla. 17th Cir. Ct. May
17, 2005) (interlock was mandatory where defendant charged with DUI with a bal of .20 or more and
court was required to impose it as part of the minimum sentence); State v. Morales, 11 Fla. L. Weekly
Supp. 975 (Fla. 17th Cir. Ct. Aug. 9, 2004)State v. Morales, 11 Fla. L. Weekly Supp. 975 (Fla. 17th Cir.
Ct. Aug. 9, 2004) (court required to impose interlock even though defendant’s vehicle was sold and
license suspended for 10 years).
43
See e.g. Doyon v. Dep’t of Highway Safety & Motor Vehicles, 902 So. 2d 842 (Fla. 4th DCA 2005).
44
§ 322.2715(4), Fla. Stat. (The department may give consideration to those who have a documented
medical condition that prevents the device from functioning.).
45
§ 322.2715(4), Fla. Stat.

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Works.

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§ 13:5.Impoundment and immobilization, 11 Fla. Prac., DUI Handbook § 13:5...

11 Fla. Prac., DUI Handbook § 13:5 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

§ 13:5. Impoundment and immobilization

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 144.2(8), 359

Legal Encyclopedias
• C.J.S., Motor Vehicles §§ 290 to 296, 336 to 338, 341 to 346, 361 to 366, 392 to 394, 396, 399, 401,
1336, 1352, 1380, 1414 to 1419, 1442, 1451 to 1452, 1484, 1486 to 1487, 1503, 1510, 1523, 1526,
1539, 1543 to 1544, 1546 to 1547, 1550

As indicated above, the court must make it a condition of probation that the vehicle the defendant was
operating, in actual physical control of, or any single vehicle that is registered in the defendant’s name at the
time of the imposition of sentence, be impounded or immobilized. 1 “Impoundment” and “immobilization” have
specific legal meanings and are defined in the statute. 2 As previously pointed out, this sanction only applies to
subsection (1) offenses, and not to subsection (3) offenses. 3 The impoundment or immobilization cannot run
concurrent with any jail term. 4 It must, however, run concurrent with the period of license revocation, if the
revocation is for a mandatory five year period on a second DUI or a mandatory 10-year period for a third DUI. 5

The court must issue the order of impoundment or immobilization at the time of sentencing. 6 If circuit court
personnel or the sheriff do not immobilize vehicles, only agencies meeting conditions set forth in the statute
may carry out that function.7 And the order must include the names and telephone numbers of all of those
agencies meeting the statutory conditions. 8 Within seven business days after the court issues the order, the clerk
of the court must send notice by certified mail, return receipt requested, to the registered owner of the vehicle if
it is someone other than the defendant and to each record lienholder. 9 The costs and fees for impoundment or
immobilization must be paid directly to the person providing the service.10

The periods of impoundment or immobilization are as follows: (1) first conviction: “10 days or for the
unexpired term of any lease or rental agreement that expires within 10 days;” 11 (2) second conviction for an
offense that occurs within five years after the date of a prior conviction: “30 days or for the unexpired term of
any lease or rental agreement that expires within 30 days;” 12 (3) third or subsequent conviction for an offense
that occurs within a period of 10 years after the date of a prior conviction: “90 days or for the unexpired term of

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§ 13:5.Impoundment and immobilization, 11 Fla. Prac., DUI Handbook § 13:5...

any lease or rental agreement that expires within 90 days.”13

Owners who were not operating the vehicle at the time of the offense have statutory remedies. They may
provide a police report to the court indicating that the vehicle was stolen at the time of the offense. 14 They may
also submit documentation showing that they purchased the vehicle after the offense from “an entity other than
the defendant or the defendant’s agent.” 15 Based on such report or documentation, the court may find “that the
vehicle was stolen or that the sale was not made to circumvent the order and allow the defendant continued
access to the vehicle”16 Upon such a finding, the court’s order of impoundment or immobilization “must be
dismissed and the owner of the vehicle will incur no costs.” 17 The owner may request an evidentiary hearing if
the court refuses to dismiss the order.18

An owner who was not operating the vehicle at the time of the offense and whose vehicle was stolen, may
request such a hearing. Even an owner who purchased directly from the defendant or the defendant’s agent may
request such a hearing.19 “If the court finds that either the vehicle was stolen or the purchase was made without
knowledge of the offense, that the purchaser had no relationship to the defendant other than through the
transaction, and that such purchase would not circumvent the order and allow the defendant continued access to
the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs.” 20

An owner or record lienholder who does not pursue the review described above may, within 10 days after
learning where the vehicle is located, “file a complaint in the county in which the owner resides to determine
whether the vehicle was wrongfully taken or withheld from the owner or lienholder.” 21 When such a complaint
is filed, the owner or lienholder may secure release of the vehicle by posting a bond or other security with the
court “equal to the amount of the costs and fees for impoundment or immobilization, including towing or
storage, to ensure the payment of such costs and fees if the owner or lienholder does not prevail.” 22 When the
bond is posted and the fee is paid to the clerk in accord with § 28.24, Fla. Stat., the clerk of the court shall issue
a certificate releasing the vehicle.23 “At the time of release, after reasonable inspection, the owner or lienholder
must give a receipt to the towing or storage company indicating any loss or damage to the vehicle or to the
contents of the vehicle.”24

A recent change provides relief from impoundment or immobilization to ignition interlock users. Upon proof
that these devices have been installed “upon all vehicles that are individually or jointly leased or owned and
routinely operated by the convicted person” the court may dismiss the impoundment or immobilization. 25

The statute also contains a major escape clause for offenders who have families. The court shall dismiss the
order of impoundment or immobilization of the vehicle, if it finds “that the family of the owner of the vehicle
has no other private means of transportation.”26

If the court does not dismiss the order of impoundment or immobilization, the owner, lessor or renter must pay
all costs and fees incurred in the process, including the costs of notification. 27 All provisions of § 713.78, Fla.
Stat. shall apply.28

The courts have considered numerous attacks on the validity of the impoundment procedures. While attacks on
the statute before the circuit courts29 and the county courts30 have met with some success, that has not been the
case before the district courts and the Supreme Court. Those courts have upheld the statute against a variety of
constitutional attacks.31

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

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§ 13:5.Impoundment and immobilization, 11 Fla. Prac., DUI Handbook § 13:5...

1
§ 316.193(6), Fla. Stat.
2
§ 316.193(14), Fla. Stat.
3
McGhee v. State, 847 So. 2d 498, 502 (Fla. 4th DCA 2003) (Subsection (3) offenses include DUI
causing property damage or nonserious injury to another person, DUI causing serious bodily injury to
another, and DUI manslaughter).
4
§ 316.193(6), Fla. Stat.
5
§ 316.193(6)(b) and (c), Fla. Stat.
6
§ 316.193(6)(d), Fla. Stat.
7
§ 316.193(13), Fla. Stat.
8
§ 316.193(6)(d), Fla. Stat.
9
§ 316.193(6)(d), Fla. Stat.
10
§ 316.193(6)(k), Fla. Stat.
11
§ 316.193(6)(a), Fla. Stat.
12
§ 316.193(6)(b), Fla. Stat.
13
§ 316.193(6)(c), Fla. Stat.
14
§ 316.193(6)(e), Fla. Stat.
15
§ 316.193(6)(e), Fla. Stat.
16
§ 316.193(6)(e), Fla. Stat.
17
§ 316.193(6)(e), Fla. Stat.
18
§ 316.193(6)(e), Fla. Stat.
19
§ 316.193(6)(f), Fla. Stat.
20
§ 316.193(6)(f), Fla. Stat.
21
§ 316.193(6)(l), Fla. Stat.
22
§ 316.193(6)(l), Fla. Stat.
23
§ 316.193(6)(l), Fla. Stat.
24
§ 316.193(6)(l), Fla. Stat.

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§ 13:5.Impoundment and immobilization, 11 Fla. Prac., DUI Handbook § 13:5...

25
§ 316.193(6)(i), Fla. Stat. This same recent change provides an additional option for dealing with
multiple offenders who are interlock users. The court may order participation “in a qualified sobriety
and drug monitoring program” as explained in the statute. See § 316.193(6)(j), Fla. Stat. (Laws of
Florida 2014, Ch. 2014-216, § 8).
26
§ 316.193(6)(g), Fla. Stat.
27
§ 316.193(6)(k), Fla. Stat.
28
§ 316.193(6)(k), Fla. Stat.
29
State v. Washington, 2 Fla. L. Weekly Supp. 314 (Fla. 17th Cir. Ct. June 1, 1994)State v. Washington, 2
Fla. L. Weekly Supp. 314 (Fla. 17th Cir. Ct. June 1, 1994).
30
State v. Haskett, 2 Fla. L. Weekly Supp. 223 (Fla. Hillsborough Cty. Ct. March 11, 1994) State v.
Haskett, 2 Fla. L. Weekly Supp. 223 (Fla. Hillsborough Cty. Ct. March 11, 1994).
31
See State v. Muller, 693 So. 2d 976 (Fla. 1997) (statute is not unconstitutionally vague nor does it
violate the equal protection clause); State v. Ginn, 660 So. 2d 1118 (Fla. 4th DCA 1995), review denied,
669 So. 2d 251 (Fla. 1996) (statute does not deny due process nor does it deny equal protection). See
also State v. Wichmann, 726 So. 2d 380 (Fla. 2d DCA 1999); State v. McKnight, 710 So. 2d 1029
(Fla. 4th DCA 1998).

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§ 13:6.Minors, 11 Fla. Prac., DUI Handbook § 13:6 (2018-2019 ed.)

11 Fla. Prac., DUI Handbook § 13:6 (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Chapter 13. Sentencing

§ 13:6. Minors

West’s Key Number Digest

• West’s Key Number Digest, Automobiles 144.1(1.11), 359
• West’s Key Number Digest, Infants 69(3.1)

Legal Encyclopedias
• C.J.S., Infants §§ 198, 207 to 209
• C.J.S., Motor Vehicles §§ 290 to 296, 328 to 335, 1336, 1352, 1380, 1414 to 1419, 1442, 1451 to
1452, 1484, 1486 to 1487, 1503, 1510, 1523, 1526, 1539, 1543 to 1544, 1546 to 1547, 1550

The visitation program described above is not exclusively for the benefit of minors, but that is clearly the
emphasis.1 There is another statutory provision,2 however, that focuses exclusively on underage offenders. 3 It
provides a series of additional actions that may be taken where the offender is a juvenile.

These additional actions are: (a) “reprimand or counsel the minor and his or her parents or guardian;” 4 (b)
“require the minor to attend, for a reasonable period, a traffic school conducted by a public authority;” 5 (c)
“order the minor to remit to the general fund of the local governmental body a sum not exceeding the maximum
fine applicable to an adult for a like offense;” 6 (d) “order the minor to participate in public service or a
community work project for a minimum number of hours;” 7 (e) “impose a curfew or other restriction on the
liberty of the minor for a period not to exceed 6 months;” 8 (f) “require the minor and his or her parents or
guardians to participate in a registered youthful driver monitoring service as described in s. 318.1435.”9 The
monitoring service establishes a way for parents or guardians to keep track of their minor child’s driving
performance.10 The statute provides the details for the program.11

With proper notice and an opportunity to be heard, the court may enforce the sanctions on a juvenile offender
by contempt.12 The first contempt is punishable by “up to five days in a staff-secure shelter as defined in chapter
984 or, if space in a staff-secure shelter is unavailable, in a secure juvenile detention center.” 13 Subsequent
offenses, are punishable by “up to 15 days in a staff-secure shelter or, if space in a staff-secure shelter is
unavailable, in a secure juvenile detention center.”14

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§ 13:6.Minors, 11 Fla. Prac., DUI Handbook § 13:6 (2018-2019 ed.)

Minors cannot be incarcerated in adult detention facilities, except for a violation of Florida Statutes, §
316.027 (leaving the scene of an accident involving serious injury or death). 15 Any minor jailed in an adult
facility cannot be placed in the same cell with an adult, but minors can be placed together. 16 The receiving
facility must have adequate staff to supervise and monitor the minor’s activities at all times.

On the first DUI offense, the court may order the Department of Highway Safety and Motor Vehicles to revoke
the offender’s license until the offender reaches the age of 18 years. 17 On subsequent DUI offenses, the court
may order the Department of Highway Safety and Motor Vehicles to revoke the offender’s license until the
offender reaches 21 years of age.18

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.
1
§ 322.0602, Fla. Stat.
2
§ 318.143(1), Fla. Stat.
3
Pursuant to § 316.635, Fla. Stat., county courts have jurisdiction over non-felony DUI charges
committed by minors and recent changes to the juvenile code have not altered that jurisdiction.
N.J.G. v. State, 987 So. 2d 101 (Fla. 5th DCA 2008). But if the traffic incident involves a felony and a
related misdemeanor DUI, jurisdiction is with the circuit court. State v. W.W., 16 So. 3d 305 (Fla. 5th
DCA 2009).
4
§ 318.143(1), Fla. Stat.
5
§ 318.143(1), Fla. Stat.
6
§ 318.143(1), Fla. Stat.
7
§ 318.143(1), Fla. Stat.
8
§ 318.143(1), Fla. Stat.
9
§ 318.143(1), Fla. Stat.
10
§ 318.1435, Fla. Stat.
11
§ 318.1435, Fla. Stat.
12
§ 318.143(2), Fla. Stat.
13
§ 318.143(2), Fla. Stat.
14
§ 318.143(2), Fla. Stat.
15
§ 318.143(3), Fla. Stat.
16
§ 318.143(3), Fla. Stat.
17
§ 318.143(4), Fla. Stat.
18
§ 318.143(4), Fla. Stat.

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§ 13:6.Minors, 11 Fla. Prac., DUI Handbook § 13:6 (2018-2019 ed.)

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix A (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix A. Fla. Stat. ch. 316 State Uniform Traffic Control (Selected Sections)

316.193. Driving under the influence; penalties

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided
in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s.
877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s
normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
(2)
(a) Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a
violation of subsection (1) shall be punished:
1. By a fine of:
a. Not less than $500 or more than $1,000 for a first conviction.
b. Not less than $1,000 or more than $2,000 for a second conviction; and
2. By imprisonment for:
a. Not more than 6 months for a first conviction.
b. Not more than 9 months for a second conviction.
3. For a second conviction, by mandatory placement for a period of at least 1 year, at the convicted
person’s sole expense, of an ignition interlock device approved by the department in accordance with s.
316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the
convicted person, when the convicted person qualifies for a permanent or restricted license. The
installation of such device may not occur before July 1, 2003.
(b)
1. Any person who is convicted of a third violation of this section for an offense that occurs within 10
years after a prior conviction for a violation of this section commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, the court shall order
the mandatory placement for a period of not less than 2 years, at the convicted person’s sole expense, of
an ignition interlock device approved by the department in accordance with s. 316.1938 upon all
vehicles that are individually or jointly leased or owned and routinely operated by the convicted person,
when the convicted person qualifies for a permanent or restricted license. The installation of such device
may not occur before July 1, 2003.
2. Any person who is convicted of a third violation of this section for an offense that occurs more than
10 years after the date of a prior conviction for a violation of this section shall be punished by a fine of
not less than $2,000 or more than $5,000 and by imprisonment for not more than 12 months. In addition,
the court shall order the mandatory placement for a period of at least 2 years, at the convicted person’s
sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938

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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted
person, when the convicted person qualifies for a permanent or restricted license. The installation of
such device may not occur before July 1, 2003.
3. Any person who is convicted of a fourth or subsequent violation of this section, regardless of when
any prior conviction for a violation of this section occurred, commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine imposed for
such fourth or subsequent violation may be not less than $2,000.
(c) In addition to the penalties in paragraph (a), the court may order placement, at the convicted person’s
sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938
for at least 6 continuous months upon all vehicles that are individually or jointly leased or owned and
routinely operated by the convicted person if, at the time of the offense, the person had a blood-alcohol
level or breath-alcohol level of.08 or higher.
(3) Any person:
(a) Who is in violation of subsection (1);
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes or contributes to causing:
1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable
as provided in s. 775.082 or s. 775.083.
2. Serious bodily injury to another, as defined in s. 316.1933, commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. The death of any human being or unborn child commits DUI manslaughter, and commits:
a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
b. A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
if:
(I) At the time of the crash, the person knew, or should have known, that the crash occurred; and
(II) The person failed to give information and render aid as required by s. 316.062.
For purposes of this subsection, the term “unborn child” has the same meaning as provided in s.
775.021(5). A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum
term of imprisonment of 4 years.
(4) Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-
alcohol level of 0.15 or higher, or any person who is convicted of a violation of subsection (1) and who at the
time of the offense was accompanied in the vehicle by a person under the age of 18 years, shall be punished:
(a) By a fine of:
1. Not less than $1,000 or more than $2,000 for a first conviction.
2. Not less than $2,000 or more than $4,000 for a second conviction.
3. Not less than $4,000 for a third or subsequent conviction.
(b) By imprisonment for:
1. Not more than 9 months for a first conviction.
2. Not more than 12 months for a second conviction.
For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1)
by a person who has a blood-alcohol level or breath-alcohol level of 0.15 or higher.
(c) In addition to the penalties in paragraphs (a) and (b), the court shall order the mandatory placement, at
the convicted person’s sole expense, of an ignition interlock device approved by the department in
accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely
operated by the convicted person for not less than 6 continuous months for the first offense and for not less
than 2 continuous years for a second offense, when the convicted person qualifies for a permanent or
restricted license.
(5) The court shall place all offenders convicted of violating this section on monthly reporting probation and
shall require completion of a substance abuse course conducted by a DUI program licensed by the department
under s. 322.292, which must include a psychosocial evaluation of the offender. If the DUI program refers
the offender to an authorized substance abuse treatment provider for substance abuse treatment, in addition to
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any sentence or fine imposed under this section, completion of all such education, evaluation, and treatment
is a condition of reporting probation. The offender shall assume reasonable costs for such education,
evaluation, and treatment. The referral to treatment resulting from a psychosocial evaluation shall not be
waived without a supporting independent psychosocial evaluation conducted by an authorized substance
abuse treatment provider appointed by the court, which shall have access to the DUI program’s psychosocial
evaluation before the independent psychosocial evaluation is conducted. The court shall review the results
and recommendations of both evaluations before determining the request for waiver. The offender shall bear
the full cost of this procedure. The term “substance abuse” means the abuse of alcohol or any substance
named or described in Schedules I through V of s. 893.03. If an offender referred to treatment under this
subsection fails to report for or complete such treatment or fails to complete the DUI program substance
abuse education course and evaluation, the DUI program shall notify the court and the department of the
failure. Upon receipt of the notice, the department shall cancel the offender’s driving privilege,
notwithstanding the terms of the court order or any suspension or revocation of the driving privilege. The
department may temporarily reinstate the driving privilege on a restricted basis upon verification from the
DUI program that the offender is currently participating in treatment and the DUI education course and
evaluation requirement has been completed. If the DUI program notifies the department of the second failure
to complete treatment, the department shall reinstate the driving privilege only after notice of completion of
treatment from the DUI program. The organization that conducts the substance abuse education and
evaluation may not provide required substance abuse treatment unless a waiver has been granted to that
organization by the department. A waiver may be granted only if the department determines, in accordance
with its rules, that the service provider that conducts the substance abuse education and evaluation is the most
appropriate service provider and is licensed under chapter 397 or is exempt from such licensure. A statistical
referral report shall be submitted quarterly to the department by each organization authorized to provide
services under this section.
(6) With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed
pursuant to subsection (2), subsection (3), or subsection (4):
(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed 1
year and, as a condition of such probation, shall order the defendant to participate in public service or a
community work project for a minimum of 50 hours. The court may order a defendant to pay a fine of $10
for each hour of public service or community work otherwise required only if the court finds that the
residence or location of the defendant at the time public service or community work is required or the
defendant’s employment obligations would create an undue hardship for the defendant. However, the total
period of probation and incarceration may not exceed 1 year. The court must also, as a condition of
probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual
control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment
or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that
expires within 10 days. The impoundment or immobilization must not occur concurrently with the
incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance
with paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
(b) For the second conviction for an offense that occurs within a period of 5 years after the date of a prior
conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The
court must also, as a condition of probation, order the impoundment or immobilization of all vehicles
owned by the defendant at the time of impoundment or immobilization, for a period of 30 days or for the
unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or
immobilization must not occur concurrently with the incarceration of the defendant and must occur
concurrently with the driver’s license revocation imposed under s. 322.28(2)(a) 2. The impoundment or
immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or
paragraph (h). At least 48 hours of confinement must be consecutive.
(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the
date of a prior conviction for violation of this section, the court shall order imprisonment for not less than
30 days. The court must also, as a condition of probation, order the impoundment or immobilization of all
vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 90 days or
for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or

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immobilization must not occur concurrently with the incarceration of the defendant and must occur
concurrently with the driver’s license revocation imposed under s. 322.28(2)(a) 3. The impoundment or
immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or
paragraph (h). At least 48 hours of confinement must be consecutive.
(d) The court must at the time of sentencing the defendant issue an order for the impoundment or
immobilization of a vehicle. The order of impoundment or immobilization must include the name and
telephone numbers of all immobilization agencies meeting all of the conditions of subsection 13. Within 7
business days after the date that the court issues the order of impoundment or immobilization, the clerk of
the court must send notice by certified mail, return receipt requested, to the registered owner of each
vehicle, if the registered owner is a person other than the defendant, and to each person of record claiming
a lien against the vehicle.
(e) A person who owns but was not operating the vehicle when the offense occurred may submit to the
court a police report indicating that the vehicle was stolen at the time of the offense or documentation of
having purchased the vehicle after the offense was committed from an entity other than the defendant or
the defendant’s agent. If the court finds that the vehicle was stolen or that the sale was not made to
circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed
and the owner of the vehicle will incur no costs. If the court denies the request to dismiss the order of
impoundment or immobilization, the petitioner may request an evidentiary hearing.
(f) A person who owns but was not operating the vehicle when the offense occurred, and whose vehicle
was stolen or who purchased the vehicle after the offense was committed directly from the defendant or the
defendant’s agent, may request an evidentiary hearing to determine whether the impoundment or
immobilization should occur. If the court finds that either the vehicle was stolen or the purchase was made
without knowledge of the offense, that the purchaser had no relationship to the defendant other than
through the transaction, and that such purchase would not circumvent the order and allow the defendant
continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no
costs.
(g) The court shall also dismiss the order of impoundment or immobilization of the vehicle if the court
finds that the family of the owner of the vehicle has no other private or public means of transportation.
(h) The court may also dismiss the order of impoundment or immobilization of any vehicles that are owned
by the defendant but that are operated solely by the employees of the defendant or any business owned by
the defendant.
(i) The court may also dismiss the order of impoundment or immobilization if the defendant provides proof
to the satisfaction of the court that a functioning, certified ignition interlock device has been installed upon
all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person.
(j)
1. Notwithstanding the provisions of this section, s. 316.1937, and s. 322.2715 relating to ignition
interlock devices required for second or subsequent offenders, in order to strengthen the pretrial and
posttrial options available to prosecutors and judges, the court may order, if deemed appropriate, that a
person participate in a qualified sobriety and drug monitoring program, as defined in subparagraph 2., in
addition to the ignition interlock device requirement. Participation shall be at the person’s sole expense.
2. As used in this paragraph, the term qualified sobriety and drug monitoring program means an
evidence-based program, approved by the department, in which participants are regularly tested for
alcohol and drug use. As the court deems appropriate, the program may monitor alcohol or drugs
through one or more of the following modalities: breath testing twice a day; continuous transdermal
alcohol monitoring in cases of hardship; or random blood, breath, urine, or oral fluid testing. Testing
modalities that provide the best ability to sanction a violation as close in time as reasonably feasible to
the occurrence of the violation should be given preference. This paragraph does not preclude a court
from ordering an ignition interlock device as a testing modality.
3. For purposes of this paragraph, the term evidence-based program means a program that satisfies the
requirements of at least two of the following:
a. The program is included in the federal registry of evidence-based programs and practices.
b. The program has been reported in a peer-reviewed journal as having positive effects on the primary
targeted outcome.

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c. The program has been documented as effective by informed experts and other sources.
(k) All costs and fees for the impoundment or immobilization, including the cost of notification, must be
paid by the owner of the vehicle or, if the vehicle is leased or rented, by the person leasing or renting the
vehicle, unless the impoundment or immobilization order is dismissed. All provisions of s. 713.78 shall
apply. The costs and fees for the impoundment or immobilization must be paid directly to the person
impounding or immobilizing the vehicle.
(l) The person who owns a vehicle that is impounded or immobilized under this paragraph, or a person
who has a lien of record against such a vehicle and who has not requested a review of the impoundment
pursuant to paragraph (e), paragraph (f), or paragraph (g), may, within 10 days after the date that person
has knowledge of the location of the vehicle, file a complaint in the county in which the owner resides to
determine whether the vehicle was wrongfully taken or withheld from the owner or lienholder. Upon the
filing of a complaint, the owner or lienholder may have the vehicle released by posting with the court a
bond or other adequate security equal to the amount of the costs and fees for impoundment or
immobilization, including towing or storage, to ensure the payment of such costs and fees if the owner or
lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of
the court shall issue a certificate releasing the vehicle. At the time of release, after reasonable inspection,
the owner or lienholder must give a receipt to the towing or storage company indicating any loss or
damage to the vehicle or to the contents of the vehicle.
(m) A defendant, in the court’s discretion, may be required to serve all or any portion of a term of
imprisonment to which the defendant has been sentenced pursuant to this section in a residential
alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a
program must be credited by the court toward the term of imprisonment.
For the purposes of this section, any conviction for a violation of s. 327.35; a previous conviction for the
violation of former s. 316.1931, former s. 860.01, or former s. 316.028; or a previous conviction outside this
state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level,
driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic
offense, is also considered a previous conviction for violation of this section. However, in satisfaction of the
fine imposed pursuant to this section, the court may, upon a finding that the defendant is financially unable to
pay either all or part of the fine, order that the defendant participate for a specified additional period of time
in public service or a community work project in lieu of payment of that portion of the fine which the court
determines the defendant is unable to pay. In determining such additional sentence, the court shall consider
the amount of the unpaid portion of the fine and the reasonable value of the services to be ordered; however,
the court may not compute the reasonable value of services at a rate less than the federal minimum wage at
the time of sentencing.
(7) A conviction under this section does not bar any civil suit for damages against the person so convicted.
(8) At the arraignment, or in conjunction with any notice of arraignment provided by the clerk of the court,
the clerk shall provide any person charged with a violation of this section with notice that upon conviction the
court shall suspend or revoke the offender’s driver’s license and that the offender should make arrangements
for transportation at any proceeding in which the court may take such action. Failure to provide such notice
does not affect the court’s suspension or revocation of the offender’s driver’s license.
(9) A person who is arrested for a violation of this section may not be released from custody:
(a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance set
forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her
normal faculties are impaired;
(b) Until the person’s blood-alcohol level or breath-alcohol level is less than 0.05; or
(c) Until 8 hours have elapsed from the time the person was arrested.
(10) The rulings of the Department of Highway Safety and Motor Vehicles under s. 322.2615 shall not be
considered in any trial for a violation of this section. Testimony or evidence from the administrative
proceedings or any written statement submitted by a person in his or her request for administrative review is
inadmissible into evidence or for any other purpose in any criminal proceeding, unless timely disclosed in
criminal discovery pursuant to Rule 3.220, Florida Rules of Criminal Procedure.
(11) The Department of Highway Safety and Motor Vehicles is directed to adopt rules providing for the
implementation of the use of ignition interlock devices.
(12) If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has
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been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to
establish that prior conviction for driving under the influence. However, such evidence may be contradicted
or rebutted by other evidence. This presumption may be considered along with any other evidence presented
in deciding whether the defendant has been previously convicted of the offense of driving under the
influence.
(13) If personnel of the circuit court or the sheriff do not immobilize vehicles, only immobilization agencies
that meet the conditions of this subsection shall immobilize vehicles in that judicial circuit.
(a) The immobilization agency responsible for immobilizing vehicles in that judicial circuit shall be subject
to strict compliance with all of the following conditions and restrictions:
1. Any immobilization agency engaged in the business of immobilizing vehicles shall provide to the
clerk of the court a signed affidavit attesting that the agency:
a. Has verifiable experience in immobilizing vehicles;
b. Maintains accurate and complete records of all payments for the immobilization, copies of all
documents pertaining to the court’s order of impoundment or immobilization, and any other
documents relevant to each immobilization. Such records must be maintained by the immobilization
agency for at least 3 years; and
c. Employs and assigns persons to immobilize vehicles that meet the requirements established in
subparagraph 2.
2. The person who immobilizes a vehicle must:
a. Not have been adjudicated incapacitated under s. 744.331, or a similar statute in another state,
unless his or her capacity has been judicially restored; involuntarily placed in a treatment facility for
the mentally ill under chapter 394, or a similar law in any other state, unless his or her competency
has been judicially restored; or diagnosed as having an incapacitating mental illness unless a
psychologist or psychiatrist licensed in this state certifies that he or she does not currently suffer from
the mental illness.
b. Not be a chronic and habitual user of alcoholic beverages to the extent that his or her normal
faculties are impaired; not have been committed under chapter 397, former chapter 396, or a similar
law in any other state; not have been found to be a habitual offender under s. 856.011(3), or a similar
law in any other state; or not have had any convictions under this section, or a similar law in any other
state, within 2 years before the affidavit is submitted.
c. Not have been committed for controlled substance abuse or have been found guilty of a crime under
chapter 893, or a similar law in any other state, relating to controlled substances in any other state.
d. Not have been found guilty of or entered a plea of guilty or nolo contendere to, regardless of
adjudication, or been convicted of a felony, unless his or her civil rights have been restored.
e. Be a citizen or legal resident alien of the United States or have been granted authorization to seek
employment in this country by the United States Bureau of Citizenship and Immigration Services.
(b) The immobilization agency shall conduct a state criminal history check through the Florida Department
of Law Enforcement to ensure that the person hired to immobilize a vehicle meets the requirements in sub-
subparagraph (a)2.d.
(c) A person who violates paragraph (a) commits a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083.
(14) As used in this chapter, the term:
(a) “Immobilization,” “immobilizing,” or “immobilize” means the act of installing a vehicle antitheft
device on the steering wheel of a vehicle, the act of placing a tire lock or wheel clamp on a vehicle, or a
governmental agency’s act of taking physical possession of the license tag and vehicle registration
rendering a vehicle legally inoperable to prevent any person from operating the vehicle pursuant to an
order of impoundment or immobilization under subsection (6).
(b) “Immobilization agency” or “immobilization agencies” means any person, firm, company, agency,
organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever
that meets all of the conditions of subsection (13).
(c) “Impoundment,” “impounding,” or “impound” means the act of storing a vehicle at a storage facility
pursuant to an order of impoundment or immobilization under subsection (6) where the person impounding
the vehicle exercises control, supervision, and responsibility over the vehicle.
(d) “Person” means any individual, firm, company, agency, organization, partnership, corporation,
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association, trust, or other business entity of any kind whatsoever.

316.1932. Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal
(1)
1.
a. Any person who accepts the privilege extended by the laws of this state of operating a motor
vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to
submit to an approved chemical test or physical test including, but not limited to, an infrared light test
of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if
the person is lawfully arrested for any offense allegedly committed while the person was driving or
was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.
The chemical or physical breath test must be incidental to a lawful arrest and administered at the
request of a law enforcement officer who has reasonable cause to believe such person was driving or
was in actual physical control of the motor vehicle within this state while under the influence of
alcoholic beverages. The administration of a breath test does not preclude the administration of
another type of test. The person shall be told that his or her failure to submit to any lawful test of his
or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a
period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person
has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also
be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving
privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her
breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The
refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as
provided in this section is admissible into evidence in any criminal proceeding.
b. Any person who accepts the privilege extended by the laws of this state of operating a motor
vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to
submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in s.
877.111 or controlled substances if the person is lawfully arrested for any offense allegedly
committed while the person was driving or was in actual physical control of a motor vehicle while
under the influence of chemical substances or controlled substances. The urine test must be incidental
to a lawful arrest and administered at a detention facility or any other facility, mobile or otherwise,
which is equipped to administer such tests at the request of a law enforcement officer who has
reasonable cause to believe such person was driving or was in actual physical control of a motor
vehicle within this state while under the influence of chemical substances or controlled substances.
The urine test shall be administered at a detention facility or any other facility, mobile or otherwise,
which is equipped to administer such test in a reasonable manner that will ensure the accuracy of the
specimen and maintain the privacy of the individual involved. The administration of a urine test does
not preclude the administration of another type of test. The person shall be told that his or her failure
to submit to any lawful test of his or her urine will result in the suspension of the person’s privilege to
operate a motor vehicle for a period of 1 year for the first refusal, or for a period of 18 months if the
driving privilege of such person has been previously suspended as a result of a refusal to submit to
such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or
her urine and his or her driving privilege has been previously suspended for a prior refusal to submit
to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to
any other penalties. The refusal to submit to a urine test upon the request of a law enforcement officer
as provided in this section is admissible into evidence in any criminal proceeding.
2. The Alcohol Testing Program within the Department of Law Enforcement is responsible for the
regulation of the operation, inspection, and registration of breath test instruments utilized under the
driving and boating under the influence provisions and related provisions located in this chapter and
chapters 322 and 327. The program is responsible for the regulation of the individuals who operate,
inspect, and instruct on the breath test instruments utilized in the driving and boating under the influence
provisions and related provisions located in this chapter and chapters 322 and 327. The program is
further responsible for the regulation of blood analysts who conduct blood testing to be utilized under
the driving and boating under the influence provisions and related provisions located in this chapter and

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chapters 322 and 327. The program shall:

a. Establish uniform criteria for the issuance of permits to breath test operators, agency inspectors,
instructors, blood analysts, and instruments.
b. Have the authority to permit breath test operators, agency inspectors, instructors, blood analysts,
and instruments.
c. Have the authority to discipline and suspend, revoke, or renew the permits of breath test operators,
agency inspectors, instructors, blood analysts, and instruments.
d. Establish uniform requirements for instruction and curricula for the operation and inspection of
approved instruments.
e. Have the authority to specify one approved curriculum for the operation and inspection of approved
instruments.
f. Establish a procedure for the approval of breath test operator and agency inspector classes.
g. Have the authority to approve or disapprove breath test instruments and accompanying
paraphernalia for use pursuant to the driving and boating under the influence provisions and related
provisions located in this chapter and chapters 322 and 327.
h. With the approval of the executive director of the Department of Law Enforcement, make and enter
into contracts and agreements with other agencies, organizations, associations, corporations,
individuals, or federal agencies as are necessary, expedient, or incidental to the performance of duties.
i. Issue final orders which include findings of fact and conclusions of law and which constitute final
agency action for the purpose of chapter 120.
j. Enforce compliance with the provisions of this section through civil or administrative proceedings.
k. Make recommendations concerning any matter within the purview of this section, this chapter,
chapter 322, or chapter 327.
l. Promulgate rules for the administration and implementation of this section, including definitions of
terms.
m. Consult and cooperate with other entities for the purpose of implementing the mandates of this
section.
n. Have the authority to approve the type of blood test utilized under the driving and boating under the
influence provisions and related provisions located in this chapter and chapters 322 and 327.
o. Have the authority to specify techniques and methods for breath alcohol testing and blood testing
utilized under the driving and boating under the influence provisions and related provisions located in
this chapter and chapters 322 and 327.
p. Have the authority to approve repair facilities for the approved breath test instruments, including
the authority to set criteria for approval.
Nothing in this section shall be construed to supersede provisions in this chapter and chapters 322 and 327.
The specifications in this section are derived from the power and authority previously and currently
possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of
chapter 99–379, Laws of Florida.
(b)
1. The blood-alcohol level must be based upon grams of alcohol per 100 milliliters of blood. The breath-
alcohol level must be based upon grams of alcohol per 210 liters of breath.
2. An analysis of a person’s breath, in order to be considered valid under this section, must have been
performed substantially according to methods approved by the Department of Law Enforcement. For
this purpose, the department may approve satisfactory techniques or methods. Any insubstantial
differences between approved techniques and actual testing procedures in any individual case do not
render the test or test results invalid.
(c) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle
within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an
approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the
purpose of determining the presence of chemical substances or controlled substances as provided in this
section if there is reasonable cause to believe the person was driving or in actual physical control of a
motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and
the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a
breath or urine test is impractical or impossible. As used in this paragraph, the term “other medical

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facility” includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a
reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental
or physical condition is deemed not to have withdrawn his or her consent to such test. A blood test may be
administered whether or not the person is told that his or her failure to submit to such a blood test will
result in the suspension of the person’s privilege to operate a motor vehicle upon the public highways of
this state and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has
been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood, is a
misdemeanor. Any person who is capable of refusal shall be told that his or her failure to submit to such a
blood test will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1
year for a first refusal, or for a period of 18 months if the driving privilege of the person has been
suspended previously as a result of a refusal to submit to such a test or tests, and that a refusal to submit to
a lawful test of his or her blood, if his or her driving privilege has been previously suspended for a prior
refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. The refusal to
submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any
criminal proceeding.
(d) If the arresting officer does not request a chemical or physical breath test of the person arrested for any
offense allegedly committed while the person was driving or was in actual physical control of a motor
vehicle while under the influence of alcoholic beverages or controlled substances, such person may request
the arresting officer to have a chemical or physical test made of the arrested person’s breath or a test of the
urine or blood for the purpose of determining the alcoholic content of the person’s blood or breath or the
presence of chemical substances or controlled substances; and, if so requested, the arresting officer shall
have the test performed.
(e)
1. By applying for a driver’s license and by accepting and using a driver’s license, the person holding
the driver’s license is deemed to have expressed his or her consent to the provisions of this section.
2. A nonresident or any other person driving in a status exempt from the requirements of the driver’s
license law, by his or her act of driving in such exempt status, is deemed to have expressed his or her
consent to the provisions of this section.
3. A warning of the consent provision of this section shall be printed on each new or renewed driver’s
license.
1. The tests determining the weight of alcohol in the defendant’s blood or breath shall be administered at
the request of a law enforcement officer substantially in accordance with rules of the Department of Law
Enforcement. Such rules must specify precisely the test or tests that are approved by the Department of
Law Enforcement for reliability of result and ease of administration, and must provide an approved
method of administration which must be followed in all such tests given under this section. However,
the failure of a law enforcement officer to request the withdrawal of blood does not affect the
admissibility of a test of blood withdrawn for medical purposes.
2.
a. Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel
authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor,
technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for
the purpose of determining its alcoholic content or the presence of chemical substances or controlled
substances therein. However, the failure of a law enforcement officer to request the withdrawal of
blood does not affect the admissibility of a test of blood withdrawn for medical purposes.
b. Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other
medical records, if a health care provider, who is providing medical care in a health care facility to a
person injured in a motor vehicle crash, becomes aware, as a result of any blood test performed in the
course of that medical treatment, that the person’s blood-alcohol level meets or exceeds the blood-
alcohol level specified in s. 316.193(1)(b), the health care provider may notify any law
enforcement officer or law enforcement agency. Any such notice must be given within a reasonable
time after the health care provider receives the test result. Any such notice shall be used only for the
purpose of providing the law enforcement officer with reasonable cause to request the withdrawal of a
blood sample pursuant to this section.
c. The notice shall consist only of the name of the person being treated, the name of the person who
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drew the blood, the blood-alcohol level indicated by the test, and the date and time of the
administration of the test.
d. Nothing contained in s. 395.3025(4), s. 456.057, or any applicable practice act affects the
authority to provide notice under this section, and the health care provider is not considered to have
breached any duty owed to the person under s. 395.3025(4), s. 456.057, or any applicable
practice act by providing notice or failing to provide notice. It shall not be a breach of any ethical,
moral, or legal duty for a health care provider to provide notice or fail to provide notice.
e. A civil, criminal, or administrative action may not be brought against any person or health care
provider participating in good faith in the provision of notice or failure to provide notice as provided
in this section. Any person or health care provider participating in the provision of notice or failure to
provide notice as provided in this section shall be immune from any civil or criminal liability and
from any professional disciplinary action with respect to the provision of notice or failure to provide
notice under this section. Any such participant has the same immunity with respect to participating in
any judicial proceedings resulting from the notice or failure to provide notice.
3. The person tested may, at his or her own expense, have a physician, registered nurse, other personnel
authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor,
technologist, or technician, or other person of his or her own choosing administer an independent test in
addition to the test administered at the direction of the law enforcement officer for the purpose of
determining the amount of alcohol in the person’s blood or breath or the presence of chemical
substances or controlled substances at the time alleged, as shown by chemical analysis of his or her
blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an
independent test by a person does not preclude the admissibility in evidence of the test taken at the
direction of the law enforcement officer. The law enforcement officer shall not interfere with the
person’s opportunity to obtain the independent test and shall provide the person with timely telephone
access to secure the test, but the burden is on the person to arrange and secure the test at the person’s
own expense.
4. Upon the request of the person tested, full information concerning the results of the test taken at the
direction of the law enforcement officer shall be made available to the person or his or her attorney. Full
information is limited to the following:
a. The type of test administered and the procedures followed.
b. The time of the collection of the blood or breath sample analyzed.
c. The numerical results of the test indicating the alcohol content of the blood and breath.
d. The type and status of any permit issued by the Department of Law Enforcement which was held
by the person who performed the test.
e. If the test was administered by means of a breath testing instrument, the date of performance of the
most recent required inspection of such instrument.
Full information does not include manuals, schematics, or software of the instrument used to test the
person or any other material that is not in the actual possession of the state. Additionally, full information
does not include information in the possession of the manufacturer of the test instrument.
5. A hospital, clinical laboratory, medical clinic, or similar medical institution or physician, certified
paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw
blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other
person assisting a law enforcement officer does not incur any civil or criminal liability as a result of the
withdrawal or analysis of a blood or urine specimen, or the chemical or physical test of a person’s breath
pursuant to accepted medical standards when requested by a law enforcement officer, regardless of
whether or not the subject resisted administration of the test.
(2) The results of any test administered pursuant to this section for the purpose of detecting the presence of
any controlled substance shall not be admissible as evidence in a criminal prosecution for the possession of a
controlled substance.
(3) Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical
records, information relating to the alcoholic content of the blood or breath or the presence of chemical
substances or controlled substances in the blood obtained pursuant to this section shall be released to a court,
prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of

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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

s. 316.193 upon request for such information.

316.1933. Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use
reasonable force
(1)
(a) If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the
actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or
any controlled substances has caused the death or serious bodily injury of a human being, a law
enforcement officer shall require the person driving or in actual physical control of the motor vehicle to
submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the
presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893.
The law enforcement officer may use reasonable force if necessary to require such person to submit to the
administration of the blood test. The blood test shall be performed in a reasonable manner.
Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful
arrest of the person.
(b) The term “serious bodily injury” means an injury to any person, including the driver, which consists of
a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.
(2)
(a) Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel
authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor,
technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for the
purpose of determining the alcoholic content thereof or the presence of chemical substances or controlled
substances therein. However, the failure of a law enforcement officer to request the withdrawal of blood
shall not affect the admissibility of a test of blood withdrawn for medical purposes.
1. Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other
medical records, if a health care provider, who is providing medical care in a health care facility to a
person injured in a motor vehicle crash, becomes aware, as a result of any blood test performed in the
course of that medical treatment, that the person’s blood-alcohol level meets or exceeds the blood-
alcohol level specified in s. 316.193(1)(b), the health care provider may notify any law enforcement
officer or law enforcement agency. Any such notice must be given within a reasonable time after the
health care provider receives the test result. Any such notice shall be used only for the purpose of
providing the law enforcement officer with reasonable cause to request the withdrawal of a blood
sample pursuant to this section.
2. The notice shall consist only of the name of the person being treated, the name of the person who
drew the blood, the blood-alcohol level indicated by the test, and the date and time of the administration
of the test.
3. Nothing contained in s. 395.3025(4), s. 456.057, or any applicable practice act affects the
authority to provide notice under this section, and the health care provider is not considered to have
breached any duty owed to the person under s. 395.3025(4), s. 456.057, or any applicable practice
act by providing notice or failing to provide notice. It shall not be a breach of any ethical, moral, or legal
duty for a health care provider to provide notice or fail to provide notice.
4. A civil, criminal, or administrative action may not be brought against any person or health care
provider participating in good faith in the provision of notice or failure to provide notice as provided in
this section. Any person or health care provider participating in the provision of notice or failure to
provide notice as provided in this section shall be immune from any civil or criminal liability and from
any professional disciplinary action with respect to the provision of notice or failure to provide notice
under this section. Any such participant has the same immunity with respect to participating in any
judicial proceedings resulting from the notice or failure to provide notice.
(b) A chemical analysis of the person’s blood to determine the alcoholic content thereof must have been
performed substantially in accordance with methods approved by the Department of Law Enforcement and
by an individual possessing a valid permit issued by the department for this purpose. The Department of
Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and
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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

competence of individuals to conduct such analyses, and issue permits that are subject to termination or
revocation at the discretion of the department. Any insubstantial differences between approved methods or
techniques and actual testing procedures, or any insubstantial defects concerning the permit issued by the
department, in any individual case, shall not render the test or test results invalid.
(c) No hospital, clinical laboratory, medical clinic, or similar medical institution or physician, certified
paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw
blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person
assisting a law enforcement officer shall incur any civil or criminal liability as a result of the withdrawal or
analysis of a blood specimen pursuant to accepted medical standards when requested by a law enforcement
officer, regardless of whether or not the subject resisted administration of the test.
(3)
(a) Any criminal charge resulting from the incident giving rise to the officer’s demand for testing shall be
tried concurrently with a charge of any violation arising out of the same incident, unless, in the discretion
of the court, such charges should be tried separately. If such charges are tried separately, the fact that such
person refused, resisted, obstructed, or opposed testing shall be admissible at the trial of the criminal
offense which gave rise to the demand for testing.
(b) The results of any test administered pursuant to this section for the purpose of detecting the presence of
any controlled substance shall not be admissible as evidence in a criminal prosecution for the possession of
a controlled substance.
(4) Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical
records, information relating to the alcoholic content of the blood or the presence of chemical substances or
controlled substances in the blood obtained pursuant to this section shall be released to a court, prosecuting
attorney, defense attorney, or law enforcement officer in connection with an alleged violation of s.
316.193 upon request for such information.

316.1934. Presumption of impairment; testing methods

(1) It is unlawful and punishable as provided in chapter 322 and in s. 316.193 for any person who is under
the influence of alcoholic beverages or controlled substances, when affected to the extent that the person’s
normal faculties are impaired or to the extent that the person is deprived of full possession of normal
faculties, to drive or be in actual physical control of any motor vehicle within this state. Such normal faculties
include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make
judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily
life.
(2) At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been
committed by any person while driving, or in actual physical control of, a vehicle while under the influence
of alcoholic beverages or controlled substances, when affected to the extent that the person’s normal faculties
were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the
results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section are
admissible into evidence when otherwise admissible, and the amount of alcohol in the person’s blood or
breath at the time alleged, as shown by chemical analysis of the person’s blood, or by chemical or physical
test of the person’s breath, gives rise to the following presumptions:
(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that
the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties
were impaired.
(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than
0.08, that fact does not give rise to any presumption that the person was or was not under the influence of
alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with
other competent evidence in determining whether the person was under the influence of alcoholic
beverages to the extent that his or her normal faculties were impaired.
(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is
prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or
her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-
alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle,

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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

with an unlawful blood-alcohol level or breath-alcohol level.

The presumptions provided in this subsection do not limit the introduction of any other competent evidence
bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent
that his or her normal faculties were impaired.
(3) A chemical analysis of a person’s blood to determine alcoholic content or a chemical or physical test of a
person’s breath, in order to be considered valid under this section, must have been performed substantially in
accordance with methods approved by the Department of Law Enforcement and by an individual possessing
a valid permit issued by the department for this purpose. Any insubstantial differences between approved
techniques and actual testing procedures or any insubstantial defects concerning the permit issued by the
department, in any individual case do not render the test or test results invalid. The Department of Law
Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of
individuals to conduct such analyses, and issue permits that are subject to termination or revocation in
accordance with rules adopted by the department.
(4) Any person charged with a violation of s. 316.193, whether in a municipality or not, is entitled to trial
by jury according to the Florida Rules of Criminal Procedure.
(5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol
content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to
the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further
authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the
blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the
person who performed the test; and
(e) If the test was administered by means of a breath testing instrument, the date of performance of the
most recent required maintenance on such instrument.
The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit
does not abrogate the right of the person tested to subpoena the person who administered the test for
examination as an adverse witness at a civil or criminal trial or other proceeding.
(6) Nothing in this section prohibits the prosecution of a person under s. 322.62. The provisions of subsection
(2) do not apply to such prosecution and the presumptions made pursuant to that subsection may not be
introduced into evidence during such prosecution.

316.1936. Possession of open containers of alcoholic beverages in vehicles prohibited; penalties

(1) As used in this section, the term:
(a) “Open container” means any container of alcoholic beverage which is immediately capable of being
consumed from, or the seal of which has been broken.
(b) “Road” means a way open to travel by the public, including, but not limited to, a street, highway, or
alley. The term includes associated sidewalks, the roadbed, the right-of-way, and all culverts, drains,
sluices, ditches, water storage areas, embankments, slopes, retaining walls, bridges, tunnels, and viaducts
necessary for the maintenance of travel and all ferries used in connection therewith.
(2)
(a) It is unlawful and punishable as provided in this section for any person to possess an open container of
an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a
passenger in or on a vehicle being operated in the state.
(b) It is unlawful and punishable as provided in this section for any person to possess an open container of
an alcoholic beverage or consume an alcoholic beverage while seated in or on a motor vehicle that is
parked or stopped within a road as defined in this section. Notwithstanding the prohibition contained in
this section, passengers in vehicles designed, maintained, and used primarily for the transportation of
persons for compensation and in motor homes are exempt.
(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container
is not in the possession of a passenger and is not located in a locked glove compartment, locked trunk, or

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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

other locked nonpassenger area of the vehicle.

(4) An open container shall be considered to be in the possession of a passenger of a vehicle if the container
is in the physical control of the passenger.
(5) This section shall not apply to:
(a) A passenger of a vehicle in which the driver is operating the vehicle pursuant to a contract to provide
transportation for passengers and such driver holds a valid commercial driver’s license with a passenger
endorsement issued in accordance with the requirements of chapter 322;
(b) A passenger of a bus in which the driver holds a valid commercial driver’s license with a passenger
endorsement issued in accordance with the requirements of chapter 322; or
(c) A passenger of a self-contained motor home which is in excess of 21 feet in length.
(6) Any operator of a vehicle who violates this section is guilty of a noncriminal moving traffic violation,
punishable as provided in chapter 318. A passenger of a vehicle who violates this section is guilty of a
nonmoving traffic violation, punishable as provided in chapter 318.
(7) A county or municipality may adopt an ordinance which imposes more stringent restrictions on the
possession of alcoholic beverages in vehicles than those imposed by this section.
(8) Nothing in this section prohibits the enforcement of s. 316.302.
(9) A bottle of wine that has been resealed and is transported pursuant to s. 564.09 is not an open container
under the provisions of this section.

316.1937. Ignition interlock devices, requiring; unlawful acts

(1) In addition to any other authorized penalties, the court may require that any person who is convicted of
driving under the influence in violation of s. 316.193 shall not operate a motor vehicle unless that vehicle
is equipped with a functioning ignition interlock device certified by the department as provided in s.
316.1938, and installed in such a manner that the vehicle will not start if the operator’s blood alcohol level is
in excess of 0.025 percent or as otherwise specified by the court. The court may require the use of an
approved ignition interlock device for a period of at least 6 continuous months, if the person is permitted to
operate a motor vehicle, whether or not the privilege to operate a motor vehicle is restricted, as determined by
the court. The court, however, shall order placement of an ignition interlock device in those circumstances
required by s. 316.193.
(2) If the court imposes the use of an ignition interlock device, the court shall:
(a) Stipulate on the record the requirement for, and the period of, the use of a certified ignition interlock
device.
(b) Order that the records of the department reflect such requirement.
(c) Order that an ignition interlock device be installed, as the court may determine necessary, on any
vehicle owned or operated by the person.
(d) Determine the person’s ability to pay for installation of the device if the person claims inability to pay.
If the court determines that the person is unable to pay for installation of the device, the court may order
that any portion of a fine paid by the person for a violation of s. 316.193 shall be allocated to defray the
costs of installing the device.
(e) Require proof of installation of the device and periodic reporting to the department for verification of
the operation of the device in the person’s vehicle.
(3) If the court imposes the use of an ignition interlock device on a person whose driving privilege is not
suspended or revoked, the court shall require the person to provide proof of compliance to the department
within 30 days. If the person fails to provide proof of installation within that period, absent a finding by the
court of good cause for that failure which is entered in the court record, the court shall notify the department.
(4) If the court imposes the use of an ignition interlock device on a person whose driving privilege is
suspended or revoked for a period of less than 3 years, the department shall require proof of compliance
before reinstatement of the person’s driving privilege.
(5)
(a) In addition to any other provision of law, upon conviction of a violation of this section the department
shall revoke the person’s driving privilege for 1 year from the date of conviction. Upon conviction of a
separate violation of this section during the same period of required use of an ignition interlock device, the
department shall revoke the person’s driving privilege for 5 years from the date of conviction.
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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

(b) Any person convicted of a violation of subsection (6) who does not have a driver’s license shall, in
addition to any other penalty provided by law, pay a fine of not less than $250 or more than $500 per each
such violation. In the event that the person is unable to pay any such fine, the fine shall become a lien
against the motor vehicle used in violation of subsection (6) and payment shall be made pursuant to s.
316.3025(4).
(6)
(a) It is unlawful to tamper with, or to circumvent the operation of, a court-ordered ignition interlock
device.
(b) It is unlawful for any person whose driving privilege is restricted pursuant to this section to request or
solicit any other person to blow into an ignition interlock device or to start a motor vehicle equipped with
the device for the purpose of providing the person so restricted with an operable motor vehicle.
(c) It is unlawful to blow into an ignition interlock device or to start a motor vehicle equipped with the
device for the purpose of providing an operable motor vehicle to a person whose driving privilege is
restricted pursuant to this section.
(d) It is unlawful to knowingly lease or lend a motor vehicle to a person who has had his or her driving
privilege restricted as provided in this section, unless the vehicle is equipped with a functioning, certified
ignition interlock device. Any person whose driving privilege is restricted under a condition of probation
requiring an ignition interlock device shall notify any other person who leases or loans a motor vehicle to
him or her of such driving restriction.
(7) Notwithstanding the provisions of this section, if a person is required to operate a motor vehicle in the
course and scope of his or her employment and if the vehicle is owned or leased by the employer, the person
may operate that vehicle without installation of an approved ignition interlock device if the employer has
been notified of such driving privilege restriction. Proof of that notification must be with the vehicle. This
employment exemption does not apply, however, if the business entity which owns the vehicle is owned or
controlled by the person whose driving privilege has been restricted.
(8) In addition to the penalties provided in this section, a violation of this section is a noncriminal traffic
infraction, punishable as a nonmoving violation as provided in chapter 318.

316.1938. Ignition interlock devices, certification; warning label

(1) The department shall certify or cause to be certified the accuracy and precision of the breath-testing
component of the ignition interlock devices as required by s. 316.1937, and shall publish a list of approved
devices, together with rules governing the accuracy and precision of the testing component of such devices as
adopted by rule in compliance with s. 316.1937. The cost of certification shall be borne by the
manufacturers of ignition interlock devices.
(2) No model of ignition interlock device shall be certified unless it meets or exceeds current National
Highway Traffic Safety Administration standards.
(3) Providers of ignition interlock devices and services whose devices have been certified must contract with
the department to become a service provider in the state. The department shall contract with any provider
whose devices have been certified and who has made a request to be a provider in the state.
(4) The contract between the department and an ignition interlock device service provider must include the
following:
(a) Provisions for the effective and efficient installation and removal of the ignition interlock device.
(b) Requirements for the provision of services, inspection, and monitoring of the ignition interlock device.
(c) A requirement for the provider to electronically transmit reports to the department regarding driver
activity, bypass approval, compliance, client violations, and other reports in a format determined by the
department.
(d) Requirements for a detailed implementation plan that outlines the steps and the timeframe necessary for
the ignition interlock device provider to be fully operational.
(e) Provisions for the collection and remittance of all state revenues.
(f) Provisions for corrective action to be taken if the ignition interlock device provider is out of
compliance, including penalty provisions and liquidated damages.
(g) Requirements for security protection for ignition interlock devices, including, but not limited to, each
device being capable of recording each event and providing visual evidence of any actual or attempted
tampering, alteration, bypass, or circumvention.
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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

(h) A provision to ensure processing and continuous monitoring are achieved for all ignition interlock
device clients who require transition of services.
(i) Provisions for training for service center technicians, clients, toll-free help line staff, the department,
and DUI programs.
(j) A requirement for the ignition interlock device provider to maintain a readily accessible service center
in each judicial circuit. The service center must be adequately staffed and equipped to provide all ignition
interlock device support services.
(k) Requirements for a transition plan for the ignition interlock device provider before the provider leaves
the state to ensure that continuous monitoring is achieved.
(l) A requirement for the ignition interlock device provider to have and maintain a surety bond or
irrevocable letter of credit in the amount of $200,000 executed by the applicant.
(m) A requirement that, before beginning work, the ignition interlock device provider have and maintain
insurance as approved by the department, including workers’ compensation insurance, vendor’s public
liability and property damage insurance, and subcontractors’ public liability and property damage
insurance.
(n) Requirements for the ignition interlock device provider to maintain client information and financial
records, including requirements for electronic storage media formats. Such records must be maintained in
accordance with generally accepted accounting procedures and practices that sufficiently and properly
reflect all revenues and expenditures of funds. Such records are subject to inspection, review, or audit by
state personnel authorized by the department. Upon termination or expiration of the contract, all such client
records shall be submitted to the department at no cost to the department.
(o) A requirement for a warning label to be affixed to each ignition interlock device upon installation. The
label must contain a warning that any person who tampers with, circumvents, or otherwise misuses the
device commits a violation of law and may be subject to civil liability.
(p) A provision requiring the provider to replace defective ignition interlock devices at no cost to the client.
(5) An ignition interlock device provider must maintain the confidentiality of all personal information
received under its duties as an ignition interlock device provider in accordance with chapter 119 and the
federal Driver’s Privacy Protection Act of 1994, 18 U.S.C. ss. 2721 et seq.
(6) Notwithstanding any other provision of law, the contract shall be governed by chapter 287, except for the
requirements of s. 287.057.

316.1939. Refusal to submit to testing; penalties

(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine,
as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to
submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual
physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical
substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested
pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a
motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal,
for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or
her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or
her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a
law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to
punishment as provided in s. 775.082 or s. 775.083.
(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving
privilege does not affect a criminal action under this section.
(3) The disposition of a criminal action under this section does not affect any administrative proceeding that
relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s
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Appendix A. Fla. Stat. ch. 316 State Uniform Traffic..., 11 Fla. Prac., DUI...

license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine,
or blood shall be admissible and shall create a rebuttable presumption of such suspension.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix B. Fla. Stat. ch. 322 Drivers’ Licenses (Selected..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix B (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix B. Fla. Stat. ch. 322 Drivers’ Licenses (Selected Sections)

322.26. Mandatory revocation of license by department

The department shall forthwith revoke the license or driving privilege of any person upon receiving a record
of such person’s conviction of any of the following offenses:
(1)
(a) Murder resulting from the operation of a motor vehicle, DUI manslaughter where the conviction
represents a subsequent DUI-related conviction, or a fourth violation of s. 316.193 or former s.
316.1931. For such cases, the revocation of the driver’s license or driving privilege shall be permanent.
(b) Manslaughter resulting from the operation of a motor vehicle.
(2) Driving a motor vehicle or being in actual physical control thereof, or entering a plea of nolo contendere,
said plea being accepted by the court and said court entering a fine or sentence to a charge of driving, while
under the influence of alcoholic beverages or a substance controlled under chapter 893, or being in actual
physical control of a motor vehicle while under the influence of alcoholic beverages or a substance controlled
under chapter 893. In any case where DUI manslaughter occurs and the person has no prior convictions for
DUI-related offenses, the revocation of the license or driving privilege shall be permanent, except as
provided for in s. 322.271(4).
(3) Any felony in the commission of which a motor vehicle is used.
(4) Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle crash
resulting in the death or personal injury of another.
(5) Perjury or the making of a false affidavit or statement under oath to the department under this law, or
under any other law relating to the ownership or operation of motor vehicles.
(6) Conviction, or forfeiture of bail not vacated, upon three charges of reckless driving committed within a
period of 12 months.
(7) Any violation of the law against lewdness, assignation, and prostitution where such violation has been
effected through the use of a motor vehicle.
(8) Conviction in any court having jurisdiction over offenses committed under this chapter or any other law
of this state regulating the operation of a motor vehicle on the highways, upon direction of the court, when
the court feels that the seriousness of the offense and the circumstances surrounding the conviction warrant
the revocation of the licensee’s driving privilege.

322.2615. Suspension of license; right to review

(1)
(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving
privilege of a person who is driving or in actual physical control of a motor vehicle and who has an
unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who has refused to
submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level. The officer shall take the
person’s driver license and issue the person a 10–day temporary permit if the person is otherwise eligible
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Appendix B. Fla. Stat. ch. 322 Drivers’ Licenses (Selected..., 11 Fla. Prac., DUI...

for the driving privilege and shall issue the person a notice of suspension. If a blood test has been
administered, the officer or the agency employing the officer shall transmit such results to the department
within 5 days after receipt of the results. If the department then determines that the person had a blood-
alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver
license pursuant to subsection (3).
(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the
driver of, the following:
1.
a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege
is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving
privilege has been previously suspended as a result of a refusal to submit to such a test; or
b. The driver was driving or in actual physical control of a motor vehicle and had an unlawful blood-
alcohol level or breath-alcohol level of 0.08 or higher and his or her driving privilege is suspended for
a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been
previously suspended under this section.
2. The suspension period shall commence on the date of issuance of the notice of suspension.
3. The driver may request a formal or informal review of the suspension by the department within 10
days after the date of issuance of the notice of suspension or may request a review of eligibility for a
restricted driving privilege under s. 322.271(7).
4. The temporary permit issued at the time of suspension expires at midnight of the 10th day following
the date of issuance of the notice of suspension.
5. The driver may submit to the department any materials relevant to the suspension.
(2)
(a) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department,
within 5 days after issuing the notice of suspension, the driver license; an affidavit stating the officer’s
grounds for belief that the person was driving or in actual physical control of a motor vehicle while under
the influence of alcoholic beverages or chemical or controlled substances; the results of any breath or
blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement
officer or correctional officer and that the person refused to submit; the officer’s description of the person’s
field sobriety test, if any; and the notice of suspension. The failure of the officer to submit materials within
the 5–day period specified in this subsection and in subsection (1) does not affect the department’s ability
to consider any evidence submitted at or prior to the hearing. (b) The officer may also submit a copy of the
crash report and a copy of a video recording videotape of the field sobriety test or the attempt to administer
such test. Materials submitted to the department by a law enforcement agency or correctional agency shall
be considered self-authenticating and shall be in the record for consideration by the hearing officer.
Notwithstanding s. 316.066(4), the crash report shall be considered by the hearing officer.
(3) If the department determines that the license should be suspended pursuant to this section and if the notice
of suspension has not already been served upon the person by a law enforcement officer or correctional
officer as provided in subsection (1), the department shall issue a notice of suspension and, unless the notice
is mailed pursuant to s. 322.251, a temporary permit that expires 10 days after the date of issuance if the
driver is otherwise eligible.
(4) If the person whose license was suspended requests an informal review pursuant to subparagraph (1)(b)3.,
the department shall conduct the informal review by a hearing officer designated by the department. Such
informal review hearing shall consist solely of an examination by the department of the materials submitted
by a law enforcement officer or correctional officer and by the person whose license was suspended, and the
presence of an officer or witness is not required.
(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or
invalidating the suspension of the driver license of the person whose license was suspended must be provided
to such person. Such notice must be mailed to the person at the last known address shown on the
department’s records, or to the address provided in the law enforcement officer’s report if such address
differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant
to subsection (1) or subsection (3).
(6)

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(a) If the person whose license was suspended requests a formal review, the department must schedule a
hearing within 30 days after such request is received by the department and must notify the person of the
date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the
hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive
relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under
paragraph (2)(a), regulate the course and conduct of the hearing, question witnesses, and make a ruling on
the suspension. The hearing officer may conduct hearings using communications technology. The party
requesting the presence of a witness shall be responsible for the payment of any witness fees and for
notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If
the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to
be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.
(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate
the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph
(b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing
to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case
resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension
under this section. A failure to comply with an order of the court shall result in a finding of contempt of
court. However, a person is not in contempt while a subpoena is being challenged.
(d) The department must, within 7 working days after a formal review hearing, send notice to the person of
the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the
suspension.
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the
hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain,
amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of
0.08 or higher:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was
suspended was driving or in actual physical control of a motor vehicle in this state while under the
influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-
alcohol level of 0.08 or higher as provided in s. 316.193.
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was
suspended was driving or in actual physical control of a motor vehicle in this state while under the
influence of alcoholic beverages or chemical substances or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being
requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such
test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the
case of a second or subsequent refusal, for a period of 18 months.
(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings
under subsection (4) and formal hearings under subsection (6), the department shall:
(a) Sustain the suspension of the person’s driving privilege for a period of 1 year for a first refusal, or for a
period of 18 months if the driving privilege of such person has been previously suspended as a result of a
refusal to submit to such tests, if the person refused to submit to a lawful breath, blood, or urine test. The
suspension period commences on the date of issuance of the notice of suspension.
(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for a blood-alcohol
level or breath-alcohol level of 0.08 or higher, or for a period of 1 year if the driving privilege of such
person has been previously suspended under this section as a result of driving with an unlawful alcohol
level. The suspension period commences on the date of issuance of the notice of suspension.
(9) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the
person’s driver license. If the department fails to schedule the formal review hearing within 30 days after
receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is
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continued at the department’s initiative or the driver enforces the subpoena as provided in subsection (6), the
department shall issue a temporary driving permit that shall be valid until the hearing is conducted if the
person is otherwise eligible for the driving privilege. Such permit may not be issued to a person who sought
and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for
business or employment use only.
(10) A person whose driver license is suspended under subsection (1) or subsection (3) may apply for
issuance of a license for business or employment purposes only if the person is otherwise eligible for the
driving privilege pursuant to s. 322.271.
(a) If the suspension of the driver license of the person for failure to submit to a breath, urine, or blood test
is sustained, the person is not eligible to receive a license for business or employment purposes only,
pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit
issued. If the driver is not issued a 10–day permit pursuant to this section or s. 322.64 because he or she is
ineligible for the permit and the suspension for failure to submit to a breath, urine, or blood test is not
invalidated by the department, the driver is not eligible to receive a business or employment license
pursuant to s. 322.271 until 90 days have elapsed from the date of the suspension.
(b) If the suspension of the driver license of the person, relating to unlawful blood-alcohol level or breath-
alcohol level of 0.08 or higher is sustained, the person is not eligible to receive a license for business or
employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the
last temporary permit issued. If the driver is not issued a 10–day permit pursuant to this section or s.
322.64 because he or she is ineligible for the permit and the suspension, relating to unlawful blood-alcohol
level or breath-alcohol level of 0.08 or higher is not invalidated by the department, the driver is not eligible
to receive a business or employment license pursuant to s. 322.271 until 30 days have elapsed from the
date of the suspension.
(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer
or a correctional officer, including documents relating to the administration of a breath test or blood test or
the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the
driver may subpoena the officer or any person who administered or analyzed a breath or blood test. If the
arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6),
the department shall invalidate the suspension.
(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter
120. The department may adopt rules for the conduct of reviews under this section.
(13) A person may appeal any decision of the department sustaining a suspension of his or her driver license
by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a
formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the
suspension. A law enforcement agency may appeal any decision of the department invalidating a suspension
by a petition for writ of certiorari to the circuit court in the county wherein a formal or informal review was
conducted. This subsection shall not be construed to provide for a de novo review.
(14)
(a) The decision of the department under this section or any circuit court review thereof may not be
considered in any trial for a violation of s. 316.193, and a written statement submitted by a person in his
or her request for departmental review under this section may not be admitted into evidence against him or
her in any such trial.
(b) The disposition of any related criminal proceedings does not affect a suspension for refusal to submit to
a blood, breath, or urine test imposed under this section.
(15) If the department suspends a person’s license under s. 322.2616, it may not also suspend the person’s
license under this section for the same episode that was the basis for the suspension under s. 322.2616.
(16) The department shall invalidate a suspension for driving with an unlawful blood-alcohol level or breath-
alcohol level imposed under this section if the suspended person is found not guilty at trial of an underlying
violation of s. 316.193.

322.2616. Suspension of license; persons under 21 years of age; right to review

(1)

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(a) Notwithstanding s. 316.193, it is unlawful for a person under the age of 21 who has a blood-alcohol
or breath-alcohol level of 0.02 or higher to drive or be in actual physical control of a motor vehicle.
(b) A law enforcement officer who has probable cause to believe that a motor vehicle is being driven by or
is in the actual physical control of a person who is under the age of 21 while under the influence of
alcoholic beverages or who has any blood-alcohol or breath-alcohol level may lawfully detain such a
person and may request that person to submit to a test to determine his or her blood-alcohol or breath-
alcohol level.
(2)
(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving
privilege of such person if the person has a blood-alcohol or breath-alcohol level of 0.02 or higher. The
officer shall also suspend, on behalf of the department, the driving privilege of a person who has refused to
submit to a test as provided by paragraph (b). The officer shall take the person’s driver license and issue
the person a 10–day temporary driving permit if the person is otherwise eligible for the driving privilege
and shall issue the person a notice of suspension.
(b) The suspension under paragraph (a) must be pursuant to, and the notice of suspension must inform the
driver of, the following:
1.
a. The driver refused to submit to a lawful breath test and his or her driving privilege is suspended for
a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has
been previously suspended as provided in this section as a result of a refusal to submit to a test; or
b. The driver was under the age of 21 and was driving or in actual physical control of a motor vehicle
while having a blood-alcohol or breath-alcohol level of 0.02 or higher; and the person’s driving
privilege is suspended for a period of 6 months for a first violation, or for a period of 1 year if his or
her driving privilege has been previously suspended as provided in this section for driving or being in
actual physical control of a motor vehicle with a blood-alcohol or breath-alcohol level of 0.02 or
higher.
2. The suspension period commences on the date of issuance of the notice of suspension.
3. The driver may request a formal or informal review of the suspension by the department within 10
days after the issuance of the notice of suspension.
4. A temporary permit issued at the time of the issuance of the notice of suspension shall not become
effective until after 12 hours have elapsed and will expire at midnight of the 10th day following the date
of issuance.
5. The driver may submit to the department any materials relevant to the suspension of his or her license.
(c) When a driver subject to this section has a blood-alcohol or breath-alcohol level of 0.05 or higher, the
suspension shall remain in effect until such time as the driver has completed a substance abuse course
offered by a DUI program licensed by the department. The driver shall assume the reasonable costs for the
substance abuse course. As part of the substance abuse course, the program shall conduct a substance
abuse evaluation of the driver, and notify the parents or legal guardians of drivers under the age of 19 years
of the results of the evaluation. The term “substance abuse” means the abuse of alcohol or any substance
named or described in Schedules I through V of s. 893.03. If a driver fails to complete the substance
abuse education course and evaluation, the driver license shall not be reinstated by the department.
(d) A minor under the age of 18 years proven to be driving with a blood-alcohol or breath-alcohol level of
0.02 or higher may be taken by a law enforcement officer to the addictions receiving facility in the county
in which the minor is found to be so driving, if the county makes the addictions receiving facility available
for such purpose.
(3) The law enforcement officer shall forward to the department, within 5 days after the date of the issuance
of the notice of suspension, a copy of the notice of suspension, the driver license of the person receiving the
notice of suspension, and an affidavit stating the officer’s grounds for belief that the person was under the age
of 21 and was driving or in actual physical control of a motor vehicle with any blood-alcohol or breath-
alcohol level, and the results of any blood or breath test or an affidavit stating that a breath test was requested
by a law enforcement officer or correctional officer and that the person refused to submit to such test. The
failure of the officer to submit materials within the 5–day period specified in this subsection does not bar the
department from considering any materials submitted at or before the hearing.

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Appendix B. Fla. Stat. ch. 322 Drivers’ Licenses (Selected..., 11 Fla. Prac., DUI...

(4) If the department finds that the license of the person should be suspended under this section and if the
notice of suspension has not already been served upon the person by a law enforcement officer or
correctional officer as provided in subsection (2), the department shall issue a notice of suspension and,
unless the notice is mailed under s. 322.251, a temporary driving permit that expires 10 days after the date
of issuance if the driver is otherwise eligible.
(5) If the person whose license is suspended requests an informal review under subparagraph (2)(b)3., the
department shall conduct the informal review by a hearing officer designated by the department within 30
days after the request is received by the department and shall issue such person a temporary driving permit
for business purposes only to expire on the date that such review is scheduled to be conducted if the person is
otherwise eligible. The informal review hearing must consist solely of an examination by the department of
the materials submitted by a law enforcement officer or correctional officer and by the person whose license
is suspended, and the presence of an officer or witness is not required.
(6) After completion of the informal review, notice of the department’s decision sustaining, amending, or
invalidating the suspension of the driver license must be provided to the person. The notice must be mailed to
the person at the last known address shown on the department’s records, or to the address provided in the law
enforcement officer’s report if such address differs from the address of record, within 7 days after completing
the review.
(7)
(a) If the person whose license is suspended requests a formal review, the department must schedule a
hearing to be held within 30 days after the request is received by the department and must notify the person
of the date, time, and place of the hearing and shall issue such person a temporary driving permit for
business purposes only to expire on the date that such review is scheduled to be conducted if the person is
otherwise eligible.
(b) The formal review hearing must be held before a hearing officer designated by the department, and the
hearing officer may administer oaths, examine witnesses and take testimony, receive relevant evidence,
issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. The
hearing officer may conduct hearings using communications technology. The department and the person
whose license was suspended may subpoena witnesses, and the party requesting the presence of a witness
is responsible for paying any witness fees and for notifying in writing the state attorney’s office in the
appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails
to appear and the hearing officer finds the failure to be without just cause, the right to a formal hearing is
waived and the suspension is sustained.
(c) The failure of a subpoenaed witness to appear at the formal review hearing shall not be grounds to
invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under
paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the
person failing to comply with the subpoena resides. A failure to comply with an order of the court
constitutes contempt of court. However, a person may not be held in contempt while a subpoena is being
challenged.
(d) The department must, within 7 working days after a formal review hearing, send notice to the person of
the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the
suspension.
(8) In a formal review hearing under subsection (7) or an informal review hearing under subsection (5), the
hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain,
amend, or invalidate the suspension. The scope of the review is limited to the following issues:
(a) If the license was suspended because the individual, then under the age of 21, drove with a blood-
alcohol or breath-alcohol level of 0.02 or higher:
1. Whether the law enforcement officer had probable cause to believe that the person was under the age
of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-
alcohol or breath-alcohol level or while under the influence of alcoholic beverages.
2. Whether the person was under the age of 21.
3. Whether the person had a blood-alcohol or breath-alcohol level of 0.02 or higher.
(b) If the license was suspended because of the individual’s refusal to submit to a breath test:
1. Whether the law enforcement officer had probable cause to believe that the person was under the age
of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-
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alcohol or breath-alcohol level or while under the influence of alcoholic beverages.

2. Whether the person was under the age of 21.
3. Whether the person refused to submit to a breath test after being requested to do so by a law
enforcement officer or correctional officer.
4. Whether the person was told that if he or she refused to submit to a breath test his or her privilege to
operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or
subsequent refusal, for a period of 18 months.
(9) Based on the determination of the hearing officer under subsection (8) for both informal hearings under
subsection (5) and formal hearings under subsection (7), the department shall:
(a) Sustain the suspension of the person’s driving privilege for a period of 1 year for a first refusal, or for a
period of 18 months if the driving privilege of the person has been previously suspended, as provided in
this section, as a result of a refusal to submit to a test. The suspension period commences on the date of the
issuance of the notice of suspension.
(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for driving or being in
actual physical control of a motor vehicle while under the age of 21 with a blood-alcohol or breath-alcohol
level of 0.02 or higher, or for a period of 1 year if the driving privilege of such person has been previously
suspended under this section. The suspension period commences on the date of the issuance of the notice
of suspension.
(10) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the
person’s driver license. If the department fails to schedule the formal review hearing within 30 days after
receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is
continued at the department’s initiative or the driver enforces the subpoena as provided in subsection (7), the
department shall issue a temporary driving permit that is valid until the hearing is conducted if the person is
otherwise eligible for the driving privilege. The permit shall not be issued to a person who requested a
continuance of the hearing. The permit issued under this subsection authorizes driving for business or
employment use only.
(11) A person whose driver license is suspended under subsection (2) or subsection (4) may apply for
issuance of a license for business or employment purposes only, pursuant to s. 322.271, if the person is
otherwise eligible for the driving privilege. However, such a license may not be issued until 30 days have
elapsed after the expiration of the last temporary driving permit issued under this section.
(12) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer
or correctional officer, including documents relating to the administration of a breath test or the refusal to
take a test. However, as provided in subsection (7), the driver may subpoena the officer or any person who
administered a breath or blood test. If the officer who suspended the driving privilege fails to appear pursuant
to a subpoena as provided in subsection (7), the department shall invalidate the suspension.
(13) The formal review hearing and the informal review hearing are exempt from chapter 120. The
department may adopt rules for conducting reviews under this section.
(14) A person may appeal any decision of the department sustaining a suspension of his or her driver license
by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a
formal or informal review was conducted under s. 322.31. However, an appeal does not stay the suspension.
This subsection does not provide for a de novo review.
(15) The decision of the department under this section shall not be considered in any trial for a violation of
s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental
review under this section be admissible into evidence against him or her in any such trial. The disposition of
any related criminal proceedings shall not affect a suspension imposed under this section.
(16) By applying for and accepting and using a driver license, a person under the age of 21 years who holds
the driver license is deemed to have expressed his or her consent to the provisions of this section.
(17) A breath test to determine breath-alcohol level pursuant to this section may be conducted as authorized
by s. 316.1932 or by a breath-alcohol test device listed in the United States Department of
Transportation’s conforming-product list of evidential breath-measurement devices. The reading from such a
device is presumed accurate and is admissible in evidence in any administrative hearing conducted under this
section.
(18) The result of a blood test obtained during an investigation conducted under s. 316.1932 or s.

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316.1933 may be used to suspend the driving privilege of a person under this section.
(19) A violation of this section is neither a traffic infraction nor a criminal offense, nor does being detained
pursuant to this section constitute an arrest. A violation of this section is subject to the administrative action
provisions of this section, which are administered by the department through its administrative processes.
Administrative actions taken pursuant to this section shall be recorded in the motor vehicle records
maintained by the department. This section does not bar prosecution under s. 316.193. However, if the
department suspends a person’s license under s. 322.2615 for a violation of s. 316.193, it may not also
suspend the person’s license under this section for the same episode that was the basis for the suspension
under s. 322.2615.

322.271. Authority to modify revocation, cancellation, or suspension order

(1)
(a) Upon the suspension, cancellation, or revocation of the driver’s license of any person as authorized or
required in this chapter, except a person whose license is revoked as a habitual traffic offender under s.
322.27(5) or a person who is ineligible to be granted the privilege of driving on a limited or restricted basis
under subsection (2), the department shall immediately notify the licensee and, upon his or her request,
shall afford him or her an opportunity for a hearing pursuant to chapter 120, as early as practicable within
not more than 30 days after receipt of such request, in the county wherein the licensee resides, unless the
department and the licensee agree that such hearing may be held in some other county.
(b) A person whose driving privilege has been revoked under s. 322.27(5) may, upon expiration of 12
months from the date of such revocation, petition the department for reinstatement of his or her driving
privilege. Upon such petition and after investigation of the person’s qualification, fitness, and need to
drive, the department shall hold a hearing pursuant to chapter 120 to determine whether the driving
privilege shall be reinstated on a restricted basis solely for business or employment purposes.
(c) For the purposes of this section, the term:
1. “A driving privilege restricted to business purposes only” means a driving privilege that is limited to
any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job
driving, driving for educational purposes, and driving for church and for medical purposes.
2. “A driving privilege restricted to employment purposes only” means a driving privilege that is limited
to driving to and from work and any necessary on-the-job driving required by an employer or
occupation.
Driving for any purpose other than as provided by this paragraph is not permitted by a person whose
driving privilege has been restricted to employment or business purposes. In addition, a person whose
driving privilege is restricted to employment or business purposes remains subject to any restriction that
applied to the type of license which the person held at the time of the order of suspension, cancellation, or
revocation.
(2) At such hearing, the person whose license has been suspended, canceled, or revoked may show that such
suspension, cancellation, or revocation causes a serious hardship and precludes the person from carrying out
his or her normal business occupation, trade, or employment and that the use of the person’s license in the
normal course of his or her business is necessary to the proper support of the person or his or her family.
(a) Except as otherwise provided in this subsection, the department shall require proof of the successful
completion of the applicable department-approved driver training course operating pursuant to s. 318.1451
or DUI program substance abuse education course and evaluation as provided in s. 316.193(5). Letters
of recommendation from respected business persons in the community, law enforcement officers, or
judicial officers may also be required to determine whether the person should be permitted to operate a
motor vehicle on a restricted basis for business or employment use only and in determining whether such
person can be trusted to so operate a motor vehicle. If a driver’s license has been suspended under the point
system or under s. 322.2615, the department shall require proof of enrollment in the applicable department-
approved driver training course or licensed DUI program substance abuse education course, including
evaluation and treatment, if referred, and may require letters of recommendation described in this
paragraph to determine if the driver should be reinstated on a restricted basis. If the person fails to
complete the approved course within 90 days after reinstatement or subsequently fails to complete
treatment, the department shall cancel his or her driver’s license until the course and treatment, if
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applicable, is successfully completed, notwithstanding the terms of the court order or any suspension or
revocation of the driving privilege. The department may temporarily reinstate the driving privilege on a
restricted basis upon verification from the DUI program that the offender has reentered and is currently
participating in treatment and has completed the DUI education course and evaluation requirement. If the
DUI program notifies the department of the second failure to complete treatment, the department shall
reinstate the driving privilege only after notice of completion of treatment from the DUI program. The
privilege of driving on a limited or restricted basis for business or employment use may not be granted to a
person who has been convicted of a violation of s. 316.193 until completion of the DUI program
substance abuse education course and evaluations as provided in s. 316.193(5). Except as provided in
paragraph (c), the privilege of driving on a limited or restricted basis for business or employment use may
not be granted to a person whose license is revoked pursuant to s. 322.28 or suspended pursuant to s.
322.2615 and who has been convicted of a violation of s. 316.193 two or more times or whose license
has been suspended two or more times for refusal to submit to a test pursuant to s. 322.2615 or former s.
322.261.
(b) The department may waive the hearing process for suspensions and revocations upon request by the
driver if the driver has enrolled or completed the applicable driver training course approved under s.
318.1451 or the DUI program substance abuse education course and evaluation provided in s.
316.193(5). However, the department may not waive the hearing for suspensions or revocations that
involve death or serious bodily injury, multiple convictions for violations of s. 316.193 pursuant to s.
322.27(5), or a second or subsequent suspension or revocation pursuant to the same provision of this
chapter. This paragraph does not preclude the department from requiring a hearing for any suspension or
revocation that it determines is warranted based on the severity of the offense.
(c) A person whose license has been revoked for a period of 5 years or less pursuant to s. 322.28(2)(a)
may, 12 months after the date the revocation was imposed, petition the department for reinstatement of his
or her driving privilege on a restricted basis. A person whose license has been revoked for more than 5
years under s. 322.28(2)(a) may 24 months after the date the revocation was imposed, petition the
department for reinstatement of his or her driving privilege on a restricted basis. Reinstatement under this
subsection is restricted to business or employment purposes only. In addition, the department shall require
such persons upon reinstatement to have not driven and to have been drug free for at least 12 months
immediately before the reinstatement, to be supervised by a DUI program licensed by the department, and
to report to the program at least three times a year as required by the program for the duration of the
revocation period for supervision. Such supervision includes evaluation, education, referral into treatment,
and other activities required by the department. Such persons shall assume reasonable costs of supervision.
If the person fails to comply with the required supervision, the program shall report the failure to the
department, and the department shall cancel the person’s driving privilege. This paragraph does not apply
to any person whose driving privilege has been permanently revoked.
(d) For the purpose of this section, a previous conviction of driving under the influence, driving while
intoxicated, driving with an unlawful blood-alcohol level, or any other similar alcohol-related or drug-
related offense outside this state or a previous conviction of former s. 316.1931, former s. 316.028, or
former s. 860.01 is considered a previous conviction for violation of s. 316.193.
(e) The department, based upon review of the licensee’s application for reinstatement, may require use of
an ignition interlock device pursuant to s. 322.2715.
(3) Upon such hearing, the department shall either suspend, affirm, or modify its order and may restore to the
licensee the privilege of driving on a limited or restricted basis for business or employment use only.
(4) Notwithstanding the provisions of s. 322.28(2)(d), a person whose driving privilege has been
permanently revoked because he or she has been convicted of DUI manslaughter in violation of s. 316.193
and has no prior convictions for DUI-related offenses may, upon the expiration of 5 years after the date of
such revocation or the expiration of 5 years after the termination of any term of incarceration under s.
316.193 or former s. 316.1931, whichever date is later, petition the department for reinstatement of his or her
driving privilege.
(a) Within 30 days after the receipt of such a petition, the department shall afford the petitioner an
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opportunity for a hearing. At the hearing, the petitioner must demonstrate to the department that he or she:
1. Has not been arrested for a drug-related offense during the 5 years preceding the filing of the petition;
2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;
3. Has been drug-free for at least 5 years prior to the hearing; and
4. Has completed a DUI program licensed by the department.
(b) At such hearing, the department shall determine the petitioner’s qualification, fitness, and need to drive.
Upon such determination, the department may, in its discretion, reinstate the driver license of the
petitioner. Such reinstatement must be made subject to the following qualifications:
1. The license must be restricted for employment purposes for at least 1 year; and
2. Such person must be supervised by a DUI program licensed by the department and report to the
program for such supervision and education at least four times a year or additionally as required by the
program for the remainder of the revocation period. Such supervision shall include evaluation,
education, referral into treatment, and other activities required by the department.
(c) Such person must assume the reasonable costs of supervision. If such person fails to comply with the
required supervision, the program shall report the failure to the department, and the department shall
cancel such person’s driving privilege.
(d) If, after reinstatement, such person is convicted of an offense for which mandatory revocation of his or
her license is required, the department shall revoke his or her driving privilege.
(e) The department shall adopt rules regulating the providing of services by DUI programs pursuant to this
section.
(5) Notwithstanding the provisions of s. 322.28(2)(d), a person whose driving privilege has been
permanently revoked because he or she has been convicted four or more times of violating s. 316.193 or
former s. 316.1931 may, upon the expiration of 5 years after the date of the last conviction or the expiration
of 5 years after the termination of any incarceration under s. 316.193 or former s. 316.1931, whichever is
later, petition the department for reinstatement of his or her driving privilege.
(a) Within 30 days after receipt of a petition, the department shall provide for a hearing, at which the
petitioner must demonstrate that he or she:
1. Has not been arrested for a drug-related offense for at least 5 years prior to filing the petition;
2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;
3. Has been drug-free for at least 5 years prior to the hearing; and
4. Has completed a DUI program licensed by the department.
(b) At the hearing, the department shall determine the petitioner’s qualification, fitness, and need to drive,
and may, after such determination, reinstate the petitioner’s driver license. The reinstatement shall be
subject to the following qualifications:
1. The petitioner’s license must be restricted for employment purposes for at least 1 year; and
2. The petitioner must be supervised by a DUI program licensed by the department and must report to
the program for supervision and education at least four times a year or more, as required by the program,
for the remainder of the revocation period. The supervision shall include evaluation, education, referral
into treatment, and other activities required by the department.
(c) The petitioner must assume the reasonable costs of supervision. If the petitioner does not comply with
the required supervision, the program shall report the failure to the department, and the department shall
cancel such person’s driving privilege.
(d) If, after reinstatement, the petitioner is convicted of an offense for which mandatory license revocation
is required, the department shall revoke his or her driving privilege.
(e) The department shall adopt rules regulating the services provided by DUI programs pursuant to this
section.
(6) A person may not be issued a commercial driver’s license during a period in which such person is
disqualified from operating commercial motor vehicles or in which the driving privilege of such person is
suspended, revoked, or canceled.
(7) Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a
driver license suspended under s. 322.2615, has never been disqualified under section s. 322.64, has never
been convicted of a violation of s. 316.193, and whose driving privilege is now suspended under section s.
322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).

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(a) For purposes of this subsection, a previous conviction outside of this state for driving under the
influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-
related or drug-related traffic offense similar to the offense of driving under the influence as provided in
s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction
for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a
violation of s. 316.193.
(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the
duration of the suspension imposed under s. 322.2615.
(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the
right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any
other proceeding.

322.2715. Ignition interlock device

(1) Before issuing a permanent or restricted driver license under this chapter, the department shall require the
placement of a department-approved ignition interlock device for any person convicted of committing an
offense of driving under the influence as specified in subsection (3), except that consideration may be given
to those individuals having a documented medical condition that would prohibit the device from functioning
normally. If a medical waiver has been granted for a convicted person seeking a restricted license, the
convicted person shall not be entitled to a restricted license until the required ignition interlock device
installation period under subsection (3) expires, in addition to the time requirements under s. 322.271. If a
medical waiver has been approved for a convicted person seeking permanent reinstatement of the driver
license, the convicted person must be restricted to an employment-purposes-only license and be supervised
by a licensed DUI program until the required ignition interlock device installation period under subsection (3)
expires. An interlock device shall be placed on all vehicles that are individually or jointly leased or owned
and routinely operated by the convicted person.
(2) For purposes of this section, any conviction for a violation of s. 316.193, a previous conviction for a
violation of former s. 316.1931, or a conviction outside this state for driving under the influence, driving
while intoxicated, driving with an unlawful blood alcohol level, or any other similar alcohol-related or drug-
related traffic offense is a conviction of driving under the influence.
(3) If the person is convicted of:
(a) A first offense of driving under the influence under s. 316.193 and has an unlawful blood-alcohol
level or breath-alcohol level as specified in s. 316.193(1), the ignition interlock device may be installed
for at least 6 continuous months.
(b) A first offense of driving under the influence under s. 316.193 and has an unlawful blood alcohol
level or breath alcohol level as specified in s. 316.193(4), or if a person is convicted of a violation of
s. 316.193 and was at the time of the offense accompanied in the vehicle by a person younger than 18
years of age, the person shall have the ignition interlock device installed for at least 6 continuous months
for the first offense and for at least 2 continuous years for a second offense.
(c) A second offense of driving under the influence, the ignition interlock device shall be installed for a
period of at least 1 continuous year.
(d) A third offense of driving under the influence which occurs within 10 years after a prior conviction for
a violation of s. 316.193, the ignition interlock device shall be installed for a period of at least 2
continuous years.
(e) A third offense of driving under the influence which occurs more than 10 years after the date of a prior
conviction, the ignition interlock device shall be installed for a period of at least 2 continuous years.
(f) A fourth or subsequent offense of driving under the influence, the ignition interlock device shall be
installed for a period of at least 5 years.
(4) If the court fails to order the mandatory placement of the ignition interlock device or fails to order for the
applicable period the mandatory placement of an ignition interlock device under s. 316.193 or s.
316.1937 at the time of imposing sentence or within 30 days thereafter, the department shall immediately
require that the ignition interlock device be installed as provided in this section, except that consideration

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may be given to those individuals having a documented medical condition that would prohibit the device
from functioning normally. This subsection applies to the reinstatement of the driving privilege following a
revocation, suspension, or cancellation that is based upon a conviction for the offense of driving under the
influence which occurs on or after July 1, 2005.
(5) In addition to any fees authorized by rule for the installation and maintenance of the ignition interlock
device, the authorized installer of the device shall collect and remit $12 for each installation to the
department, which shall be deposited into the Highway Safety Operating Trust Fund to be used for the
operation of the Ignition Interlock Device Program.

322.272. Supersedeas
The filing of a petition for certiorari to the circuit court does not itself stay the enforcement of the suspension,
revocation, or cancellation of license. The department may order a stay of enforcement upon appropriate
terms and conditions.

322.273. Penalty
The penalty for violation of the terms or conditions of a license so restricted by the department shall be the
same as the penalty for driving while such license is revoked, canceled or suspended.

322.28. Period of suspension or revocation

(1) Unless otherwise provided by this section, the department shall not suspend a license for a period of more
than 1 year and, upon revoking a license, in any case except in a prosecution for the offense of driving a
motor vehicle while under the influence of alcoholic beverages, chemical substances as set forth in s.
877.111, or controlled substances, shall not in any event grant a new license until the expiration of 1 year
after such revocation.
(2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply:
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver license
or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the
period of such revocation in accordance with the following provisions:
1. Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting
in death, the driver license or driving privilege shall be revoked for at least 180 days but not more than 1
year.
2. Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior
conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of
such sections, the driver license or driving privilege shall be revoked for at least 5 years.
3. Upon a third conviction for an offense that occurs within a period of 10 years after the date of a prior
conviction for the violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of
such sections, the driver license or driving privilege shall be revoked for at least 10 years.
For the purposes of this paragraph, a previous conviction outside this state for driving under the influence,
driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or
drug-related traffic offense similar to the offense of driving under the influence as proscribed by s.
316.193 will be considered a previous conviction for violation of s. 316.193, and a conviction for
violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for
violation of s. 316.193.
(b) If the period of revocation was not specified by the court at the time of imposing sentence or within 30
days thereafter, and is not otherwise specified by law, the department shall forthwith revoke the driver
license or driving privilege for the maximum period applicable under paragraph (a) for a first conviction
and for the minimum period applicable under paragraph (a) for any subsequent convictions. The driver
may, within 30 days after such revocation by the department, petition the court for further hearing on the
period of revocation, and the court may reopen the case and determine the period of revocation within the
limits specified in paragraph (a).
(c) The forfeiture of bail bond, not vacated within 20 days, in any prosecution for the offense of driving
while under the influence of alcoholic beverages, chemical substances, or controlled substances to the

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extent of depriving the defendant of his or her normal faculties shall be deemed equivalent to a conviction
for the purposes of this paragraph, and the department shall forthwith revoke the defendant’s driver license
or driving privilege for the maximum period applicable under paragraph (a) for a first conviction and for
the minimum period applicable under paragraph (a) for a second or subsequent conviction; however, if the
defendant is later convicted of the charge, the period of revocation imposed by the department for such
conviction shall not exceed the difference between the applicable maximum for a first conviction or
minimum for a second or subsequent conviction and the revocation period under this subsection that has
actually elapsed; upon conviction of such charge, the court may impose revocation for a period of time as
specified in paragraph (a). This paragraph does not apply if an appropriate motion contesting the forfeiture
is filed within the 20–day period.
(d) The court shall permanently revoke the driver license or driving privilege of a person who has been
convicted four times for violation of s. 316.193 or former s. 316.1931 or a combination of such
sections. The court shall permanently revoke the driver license or driving privilege of any person who has
been convicted of DUI manslaughter in violation of s. 316.193. If the court has not permanently
revoked such driver license or driving privilege within 30 days after imposing sentence, the department
shall permanently revoke the driver license or driving privilege pursuant to this paragraph. No driver
license or driving privilege may be issued or granted to any such person. This paragraph applies only if at
least one of the convictions for violation of s. 316.193 or former s. 316.1931 was for a violation that
occurred after July 1, 1982. For the purposes of this paragraph, a conviction for violation of former s.
316.028, former s. 316.1931, or former s. 860.01 is also considered a conviction for violation of s.
316.193. Also, a conviction of driving under the influence, driving while intoxicated, driving with an
unlawful blood-alcohol level, or any other similar alcohol-related or drug-related traffic offense outside
this state is considered a conviction for the purposes of this paragraph.
(e) Convictions that occur on the same date resulting from separate offense dates shall be treated as
separate convictions, and the offense that occurred earlier will be deemed a prior conviction for the
purposes of this section.
(3) The court shall permanently revoke the driver license or driving privilege of a person who has been
convicted of murder resulting from the operation of a motor vehicle. No driver license or driving privilege
may be issued or granted to any such person.
(4)
(a) Upon a conviction for a violation of s. 316.193(3)(c) 2., involving serious bodily injury, a conviction
of manslaughter resulting from the operation of a motor vehicle, or a conviction of vehicular homicide, the
court shall revoke the driver license of the person convicted for a minimum period of 3 years. If a
conviction under s. 316.193(3)(c) 2., involving serious bodily injury, is also a subsequent conviction as
described under paragraph (2)(a), the court shall revoke the driver license or driving privilege of the person
convicted for the period applicable as provided in paragraph (2)(a) or paragraph (2)(d).
(b) Upon a conviction for a violation of s. 316.027(2)(a), s. 316.027(2)(b), or s. 316.027(2)(c)
involving injury, serious bodily injury, or death, the court shall revoke the driver license of the person
convicted for a minimum period of 3 years.
(c) If the period of revocation was not specified by the court at the time of imposing sentence or within 30
days thereafter, the department shall revoke the driver license for the minimum period applicable under
paragraph (a) or paragraph (b) or, for a subsequent conviction, for the minimum period applicable under
paragraph (2)(a) or paragraph (2)(d).
(5) A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s. 322.2616
during judicial review of the departmental order that resulted in such suspension, and a suspension or
revocation of a driving privilege may not be stayed upon an appeal of the conviction or order that resulted in
the suspension or revocation.
(6) In a prosecution for a violation of s. 316.172(1), and upon a showing of the department’s records that
the licensee has received a second conviction within 5 years following the date of a prior conviction of s.
316.172(1), the department shall, upon direction of the court, suspend the driver license of the person
convicted for a period of at least 90 days but not more than 6 months.

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(7) Following a second or subsequent violation of s. 796.07(2)(f) which involves a motor vehicle and
which results in any judicial disposition other than acquittal or dismissal, in addition to any other sentence
imposed, the court shall revoke the person’s driver license or driving privilege, effective upon the date of the
disposition, for a period of at least 1 year. A person sentenced under this subsection may request a hearing
under s. 322.271.

322.282. Procedure when court revokes or suspends license or driving privilege and orders reinstatement
When a court suspends or revokes a person’s license or driving privilege and, in its discretion, orders
reinstatement:
(1) The court shall pick up all revoked or suspended driver licenses from the person and immediately forward
them to the department, together with a record of such conviction. The clerk of such court shall also maintain
a list of all revocations or suspensions by the court.
(2)
(a) The court shall issue an order of reinstatement, on a form to be furnished by the department, which the
person may take to any driver license examining office. The department shall issue a temporary driver
permit to a licensee who presents the court’s order of reinstatement, proof of completion of a department-
approved driver training or substance abuse education course, and a written request for a hearing under
s. 322.271. The permit shall not be issued if a record check by the department shows that the person has
previously been convicted for a violation of s. 316.193, former s. 316.1931, former s. 316.028, former s.
860.01, or a previous conviction outside this state for driving under the influence, driving while
intoxicated, driving with an unlawful blood-alcohol level, or any similar alcohol-related or drug-related
traffic offense; that the person’s driving privilege has been previously suspended for refusal to submit to a
lawful test of breath, blood, or urine; or that the person is otherwise not entitled to issuance of a driver
license. This paragraph shall not be construed to prevent the reinstatement of a license or driving privilege
that is presently suspended for driving with an unlawful blood-alcohol level or a refusal to submit to a
breath, urine, or blood test and is also revoked for a conviction for a violation of s. 316.193 or former s.
316.1931, if the suspension and revocation arise out of the same incident.
(b) The temporary driver permit shall be restricted to either business or employment purposes described in
s. 322.271, as determined by the department, and shall not be used for pleasure, recreational, or
nonessential driving.
(c) If the department determines at a later date from its records that the applicant has previously been
convicted of an offense referred to in paragraph (a) which would render him or her ineligible for
reinstatement, the department shall cancel the temporary driver permit and shall issue a revocation or
suspension order for the minimum period applicable. A temporary permit issued pursuant to this section
shall be valid for 45 days or until canceled as provided in this paragraph.
(d) The period of time for which a temporary permit issued in accordance with paragraph (a) is valid shall
be deemed to be part of the period of revocation imposed by the court.

322.283. Commencement of period of suspension or revocation for incarcerated offenders

(1) When the court in a criminal traffic case orders the defendant to serve a term of incarceration or
imprisonment and also suspends or revokes the defendant’s driver’s license as a result of the offense, the
period of suspension or revocation shall commence upon the defendant’s release from incarceration. For
purposes of calculating the defendant’s eligibility for reinstatement of his or her driver’s license or driving
privilege under this section, the date of the defendant’s release from incarceration shall be deemed the date
the suspension or revocation period was imposed.
(2) For defendants convicted of a criminal traffic offense and sentenced to imprisonment with the Department
of Corrections, the Department of Corrections shall notify the Department of Highway Safety and Motor
Vehicles of the date of the defendant’s release from prison or other state correctional facility. For defendants
convicted of a criminal traffic offense and sentenced to incarceration within the jurisdictional county jail or
other correctional facility operated by the jurisdictional county, the sheriff of the jurisdictional county
wherein the defendant is incarcerated shall notify the Department of Highway Safety and Motor Vehicles of
the date of the defendant’s release from the county jail or other correctional facility. The notification of a
defendant’s release from incarceration shall be on a form approved by the Department of Highway Safety and
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Motor Vehicles. This subsection applies only to those defendants who have had their driver’s license or
driving privilege suspended or revoked as a result of the offense for which they are incarcerated or
imprisoned.

322.29. Surrender and return of license

(1) The department, upon suspending or revoking a license, shall require that such license be surrendered to
the department. At the end of the period of suspension, such license so surrendered shall be returned, or a
duplicate license issued, to the licensee after the applicant has successfully passed the vision, sign, and traffic
law examinations. In addition, pursuant to s. 322.221, the department may require the licensee to successfully
complete a driving examination. The department is prohibited from requiring the surrender of a license
except as authorized by this chapter.
(2) Notwithstanding subsection (1) an examination is not required for the return of a license suspended under
s. 318.15 or s. 322.245 unless an examination is otherwise required by this chapter. A person applying
for the return of a license suspended under s. 318.15 or s. 322.245 must present to the department
certification from the court that he or she has complied with all obligations and penalties imposed pursuant to
s. 318.15 or, in the case of a suspension pursuant to s. 322.245, that he or she has complied with all
directives of the court and the requirements of s. 322.245 and shall pay to the department a nonrefundable
service fee of $60, of which $37.50 shall be deposited into the General Revenue Fund and $22.50 shall be
deposited into the Highway Safety Operating Trust Fund. If reinstated by the clerk of the court or tax
collector, $37.50 shall be retained and $22.50 shall be remitted to the Department of Revenue for deposit into
the Highway Safety Operating Trust Fund. However, the service fee is not required if the person is required
to pay a $45 fee or $75 fee under s. 322.21(8).

322.291. Driver improvement schools or DUI programs; required in certain suspension and revocation
cases
Except as provided in s. 322.03(2), any person:
(1) Whose driving privilege has been revoked:
(a) Upon conviction for:
1. Driving, or being in actual physical control of, any vehicle while under the influence of alcoholic
beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter
893, in violation of s. 316.193;
2. Driving with an unlawful blood-or breath-alcohol level;
3. Manslaughter resulting from the operation of a motor vehicle;
4. Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle
crash resulting in the death or personal injury of another;
5. Reckless driving; or
(b) As a habitual offender;
(c) Upon direction of the court, if the court feels that the seriousness of the offense and the circumstances
surrounding the conviction warrant the revocation of the licensee’s driving privilege; or
(2) Whose license was suspended under the point system, was suspended for driving with an unlawful blood-
alcohol level of 0.10 percent or higher before January 1, 1994, was suspended for driving with an unlawful
blood-alcohol level of 0.08 percent or higher after December 31, 1993, was suspended for a violation of s.
316.193(1), or was suspended for refusing to submit to a lawful breath, blood, or urine test as provided in s.
322.2615 shall, before the driving privilege may be reinstated, present to the department proof of enrollment
in a department-approved advanced driver improvement course operating pursuant to s. 318.1451 or a
substance abuse education course conducted by a DUI program licensed pursuant to s. 322.292, which shall
include a psychosocial evaluation and treatment, if referred. Additionally, for a third or subsequent violation
of requirements for installation of an ignition interlock device, a person must complete treatment as
determined by a licensed treatment agency following a referral by a DUI program and have the duration of
the ignition interlock device requirement extended by at least 1 month up to the time period required to
complete treatment. If the person fails to complete such course or evaluation within 90 days after
reinstatement, or subsequently fails to complete treatment, if referred, the DUI program shall notify the

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department of the failure. Upon receipt of the notice, the department shall cancel the offender’s driving
privilege, notwithstanding the expiration of the suspension or revocation of the driving privilege. The
department may temporarily reinstate the driving privilege upon verification from the DUI program that the
offender has completed the education course and evaluation requirement and has reentered and is currently
participating in treatment. If the DUI program notifies the department of the second failure to complete
treatment, the department shall reinstate the driving privilege only after notice of completion of treatment
from the DUI program.

322.30. No operation under foreign license during suspension, revocation, or disqualification in this state
(1) Any resident or nonresident whose driver’s license or right or privilege to operate a motor vehicle in this
state has been suspended, revoked, or disqualified as provided in this chapter, shall not operate a motor
vehicle in this state under a license, permit, or registration certificate issued by any other jurisdiction or
otherwise during such suspension, revocation, or disqualification until a new license is obtained.
(2) Notwithstanding subsection (1), any commercial motor vehicle operator whose privilege to operate such
vehicle is disqualified may operate a motor vehicle in this state as a Class E licensee, if authorized by this
chapter.

322.62. Driving under the influence; commercial motor vehicle operators

(1) A person who has any alcohol in his or her body may not drive or be in actual physical control of a
commercial motor vehicle in this state. Any person who violates this section is guilty of a moving violation,
punishable as provided in s. 318.18.
(2)
(a) In addition to the penalty provided in subsection (1), a person who violates this section shall be placed
out-of-service immediately for a period of 24 hours.
(b) In addition to the penalty provided in subsection (1), a person who violates this section and who has a
blood-alcohol level of 0.04 or more grams of alcohol per 100 milliliters of blood, or a breath-alcohol level
of 0.04 or more grams of alcohol per 210 liters of breath is subject to the penalty provided in s. 322.61.
(3) This section does not supersede s. 316.193. Nothing in this section prohibits the prosecution of a
person who drives a commercial motor vehicle for driving under the influence of alcohol or controlled
substances whether or not such person is also prosecuted for a violation of this section.

322.63. Alcohol or drug testing; commercial motor vehicle operators

(1) A person who accepts the privilege extended by the laws of this state of operating a commercial motor
vehicle within this state shall, by so operating such commercial motor vehicle, be deemed to have given his
or her consent to submit to an approved chemical or physical test of his or her blood or breath for the purpose
of determining his or her alcohol concentration, and to a urine test for the purpose of detecting the presence
of chemical substances as set forth in s. 877.111 or of controlled substances.
(a) By applying for a commercial driver’s license and by accepting and using a commercial driver’s
license, the person holding the commercial driver’s license is deemed to have expressed his or her consent
to the provisions of this section.
(b) Any person who drives a commercial motor vehicle within this state and who is not required to obtain a
commercial driver’s license in this state is, by his or her act of driving a commercial motor vehicle within
this state, deemed to have expressed his or her consent to the provisions of this section.
(c) A notification of the consent provision of this section shall be printed on each new or renewed
commercial driver’s license issued.
(2) The chemical and physical tests authorized by this section shall only be required if a law enforcement
officer has reasonable cause to believe that a person driving a commercial motor vehicle has any alcohol,
chemical substance, or controlled substance in his or her body.
(a) The breath test shall be administered at the request of a law enforcement officer who has reasonable
cause to believe that a person was driving a commercial motor vehicle with any alcohol in his or her blood.
(b) The urine test shall be administered at the request of a law enforcement officer who has reasonable
cause to believe that a person was driving a commercial motor vehicle with any chemical substance or
controlled substance in his or her body. The test shall be administered at a facility, mobile or otherwise,
that is equipped to administer such tests in a reasonable manner so as to ensure the accuracy of the
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specimen and maintain the privacy of the individual involved.

(c) The blood test shall be administered at the request of a law enforcement officer who has reasonable
cause to believe that a person was driving a commercial motor vehicle with any alcohol, chemical
substance, or controlled substance in his or her body. The blood test shall be performed in a reasonable
manner by qualified medical personnel. Any person who appears for treatment at a medical facility as a
result of his or her involvement as a commercial motor vehicle driver in a crash and who is incapable, by
reason of a mental or physical condition, of refusing a blood test shall be deemed to have consented to such
test.
(d) The administration of one test under paragraph (a), paragraph (b), or paragraph (c) shall not preclude
the administration of a different test under paragraph (a), paragraph (b), or paragraph (c). However, a urine
test may not be used to determine alcohol concentration and a breath test may not be used to determine the
presence of controlled substances or chemical substances in a person’s body. Notwithstanding the
provisions of this paragraph, in the event a Florida licensee has been convicted in another state for an
offense substantially similar to s. 316.193 or to s. 322.62, which conviction was based upon evidence of
test results prohibited by this paragraph, that out-of-state conviction shall constitute a conviction for the
purposes of this chapter.
(3)
(a) The breath and blood tests authorized in this section shall be administered substantially in accordance
with rules adopted by the Department of Law Enforcement.
(b) The Alcohol Testing Program within the Department of Law Enforcement is responsible for the
regulation of the operation, inspection, and registration of breath test instruments utilized under the driving
and boating under the influence provisions and related provisions located in this chapter and chapters 316
and 327. The program is responsible for the regulation of the individuals who operate, inspect, and instruct
on the breath test instruments utilized in the driving and boating under the influence provisions and related
provisions located in this chapter and chapters 316 and 327. The program is further responsible for the
regulation of blood analysts who conduct blood testing to be utilized under the driving and boating under
the influence provisions and related provisions located in this chapter and chapters 316 and 327. The
program shall:
1. Establish uniform criteria for the issuance of permits to breath test operators, agency inspectors,
instructors, blood analysts, and instruments.
2. Have the authority to permit breath test operators, agency inspectors, instructors, blood analysts, and
instruments.
3. Have the authority to discipline and suspend, revoke, or renew the permits of breath test operators,
agency inspectors, instructors, blood analysts, and instruments.
4. Establish uniform requirements for instruction and curricula for the operation and inspection of
approved instruments.
5. Have the authority to specify one approved curriculum for the operation and inspection of approved
instruments.
6. Establish a procedure for the approval of breath test operator and agency inspector classes.
7. Have the authority to approve or disapprove breath test instruments and accompanying paraphernalia
for use pursuant to the driving and boating under the influence provisions and related provisions located
in this chapter and chapters 316 and 327.
8. With the approval of the executive director of the Department of Law Enforcement, make and enter
into contracts and agreements with other agencies, organizations, associations, corporations, individuals,
or federal agencies as are necessary, expedient, or incidental to the performance of duties.
9. Issue final orders which include findings of fact and conclusions of law and which constitute final
agency action for the purpose of chapter 120.
10. Enforce compliance with the provisions of this section through civil or administrative proceedings.
11. Make recommendations concerning any matter within the purview of this section, this chapter,
chapter 316, or chapter 327.
12. Promulgate rules for the administration and implementation of this section, including definitions of
terms.
13. Consult and cooperate with other entities for the purpose of implementing the mandates of this
section.
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14. Have the authority to approve the type of blood test utilized under the driving and boating under the
influence provisions and related provisions located in this chapter and chapters 316 and 327.
15. Have the authority to specify techniques and methods for breath alcohol testing and blood testing
utilized under the driving and boating under the influence provisions and related provisions located in
this chapter and chapters 316 and 327.
16. Have the authority to approve repair facilities for the approved breath test instruments, including the
authority to set criteria for approval.
Nothing in this section shall be construed to supersede provisions in this chapter and chapters 316 and 327.
The specifications in this section are derived from the power and authority previously and currently
possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of
chapter 99–379, Laws of Florida.
(c) Any insubstantial differences between approved techniques and actual testing procedures in any
individual case does not render the test or tests results invalid.
(d) Notwithstanding any other provision of this section, the failure of a law enforcement officer to request
the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical
purposes.
(4)
(a) Except as provided in paragraph (b), a person shall be told that his or her failure to submit to a physical
or chemical test authorized by this section shall result in the disqualification of his or her privilege to
operate a commercial motor vehicle for a period of 1 year for a first refusal, and shall result in the
permanent disqualification of such privilege for a second refusal, arising from separate incidents.
(b) Any person who is incapable of refusal by reason of unconsciousness or other mental or physical
condition shall be deemed to have consented to a blood test.
(c) The refusal of a person to submit to a physical or chemical test authorized by this section shall be
admissible in evidence in any criminal proceeding.
(5) The results of any test administered pursuant to this section shall not be admissible in a criminal
prosecution for possession of a controlled substance.
(6) Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical
records, information relating to the alcohol content of a person’s blood or the presence of chemical
substances or controlled substances in a person’s blood obtained pursuant to this section shall be released to a
court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged
violation of s. 316.193 or s. 322.62 upon request for such information.

322.64. Holder of commercial driver license; persons operating a commercial motor vehicle; driving with
unlawful blood-alcohol level; refusal to submit to breath, urine, or blood test
(1)
(a) A law enforcement officer or correctional officer shall, on behalf of the department, disqualify from
operating any commercial motor vehicle a person who while operating or in actual physical control of a
commercial motor vehicle is arrested for a violation of s. 316.193, relating to unlawful blood-alcohol
level or breath-alcohol level, or a person who has refused to submit to a breath, urine, or blood test
authorized by s. 322.63 or s. 316.1932 arising out of the operation or actual physical control of a
commercial motor vehicle. A law enforcement officer or correctional officer shall, on behalf of the
department, disqualify the holder of a commercial driver license from operating any commercial motor
vehicle if the licenseholder, while operating or in actual physical control of a motor vehicle, is arrested for
a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or refused to
submit to a breath, urine, or blood test authorized by s. 322.63 or s. 316.1932. Upon disqualification of
the person, the officer shall take the person’s driver license and issue the person a 10-day temporary permit
for the operation of noncommercial vehicles only if the person is otherwise eligible for the driving
privilege and shall issue the person a notice of disqualification. If the person has been given a blood,
breath, or urine test, the results of which are not available to the officer at the time of the arrest, the agency
employing the officer shall transmit such results to the department within 5 days after receipt of the results.
If the department then determines that the person had a blood-alcohol level or breath-alcohol level of 0.08
or higher, the department shall disqualify the person from operating a commercial motor vehicle pursuant
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to subsection (3).
(b) For purposes of determining the period of disqualification described in 49 C.F.R. s. 383.51, a
disqualification under paragraph (a) shall be considered a conviction.
(c) The disqualification under paragraph (a) shall be pursuant to, and the notice of disqualification shall
inform the driver of, the following:
1.
a. The driver refused to submit to a lawful breath, blood, or urine test and he or she is disqualified
from operating a commercial motor vehicle for the time period specified in 49 C.F.R. s. 383.51.
b. The driver had an unlawful blood-alcohol level of 0.08 or higher while driving or in actual physical
control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver
license, and his or her driving privilege is disqualified for the time period specified in 49 C.F.R. s.
383.51.
2. The disqualification period for operating commercial vehicles shall commence on the date of issuance
of the notice of disqualification.
3. The driver may request a formal or informal review of the disqualification by the department within
10 days after the date of issuance of the notice of disqualification.
4. The temporary permit issued at the time of disqualification expires at midnight of the 10th day
following the date of disqualification.
5. The driver may submit to the department any materials relevant to the disqualification.
(2)
(a) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department,
within 5 days after the date of the issuance of the notice of disqualification, a copy of the notice of
disqualification, the driver license of the person disqualified, and an affidavit stating the officer’s grounds
for belief that the person disqualified was operating or in actual physical control of a commercial motor
vehicle, or holds a commercial driver license, and had an unlawful blood-alcohol or breath-alcohol level;
the results of any breath or blood or urine test or an affidavit stating that a breath, blood, or urine test was
requested by a law enforcement officer or correctional officer and that the person arrested refused to
submit; a copy of the notice of disqualification issued to the person; and the officer’s description of the
person’s field sobriety test, if any. The failure of the officer to submit materials within the 5-day period
specified in this subsection or subsection (1) does not affect the department’s ability to consider any
evidence submitted at or prior to the hearing.
(b) The officer may also submit a copy of a video recording videotape of the field sobriety test or the
attempt to administer such test and a copy of the crash report, if any. Notwithstanding s. 316.066, the
crash report shall be considered by the hearing officer.
(3) If the department determines that the person arrested should be disqualified from operating a commercial
motor vehicle pursuant to this section and if the notice of disqualification has not already been served upon
the person by a law enforcement officer or correctional officer as provided in subsection (1), the department
shall issue a notice of disqualification and, unless the notice is mailed pursuant to s. 322.251, a temporary
permit which expires 10 days after the date of issuance if the driver is otherwise eligible.
(4) If the person disqualified requests an informal review pursuant to subparagraph (1)(c)3., the department
shall conduct the informal review by a hearing officer designated by the department. Such informal review
hearing shall consist solely of an examination by the department of the materials submitted by a law
enforcement officer or correctional officer and by the person disqualified, and the presence of an officer or
witness is not required.
(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or
invalidating the disqualification must be provided to the person. Such notice must be mailed to the person at
the last known address shown on the department’s records, and to the address provided in the law
enforcement officer’s report if such address differs from the address of record, within 21 days after the
expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).
(6)
(a) If the person disqualified requests a formal review, the department must schedule a hearing to be held
within 30 days after such request is received by the department and must notify the person of the date,
time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the
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hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive
relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under
paragraph (2)(a) regulate the course and conduct of the hearing, and make a ruling on the disqualification.
The hearing officer may conduct hearings using communications technology. The department and the
person disqualified may subpoena witnesses, and the party requesting the presence of a witness shall be
responsible for the payment of any witness fees. If the person who requests a formal review hearing fails to
appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is
waived.
(c) The failure of a subpoenaed witness to appear at the formal review hearing shall not be grounds to
invalidate the disqualification. If a witness fails to appear, a party may seek enforcement of a subpoena
under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which
the person failing to comply with the subpoena resides or by filing a motion for enforcement in any
criminal court case resulting from the driving or actual physical control of a motor vehicle or commercial
motor vehicle that gave rise to the disqualification under this section. A failure to comply with an order of
the court shall result in a finding of contempt of court. However, a person shall not be in contempt while a
subpoena is being challenged.
(d) The department must, within 7 working days after a formal review hearing, send notice to the person of
the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the
disqualification.
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the
hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain,
amend, or invalidate the disqualification. The scope of the review shall be limited to the following issues:
(a) If the person was disqualified from operating a commercial motor vehicle for driving with an unlawful
blood-alcohol level:
1. Whether the law enforcement officer had probable cause to believe that the person was driving or in
actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a
commercial driver license, in this state while he or she had any alcohol, chemical substances, or
controlled substances in his or her body.
2. Whether the person had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher.
(b) If the person was disqualified from operating a commercial motor vehicle for refusal to submit to a
breath, blood, or urine test:
1. Whether the law enforcement officer had probable cause to believe that the person was driving or in
actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a
commercial driver license, in this state while he or she had any alcohol, chemical substances, or
controlled substances in his or her body.
2. Whether the person refused to submit to the test after being requested to do so by a law enforcement
officer or correctional officer.
3. Whether the person was told that if he or she refused to submit to such test he or she would be
disqualified from operating a commercial motor vehicle for a period of 1 year or, if previously
disqualified under this section, permanently.
(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings
under subsection (4) and formal hearings under subsection (6), the department shall sustain the
disqualification for the time period specified in 49 C.F.R. s. 383.51. The disqualification period commences
on the date of the issuance of the notice of disqualification.
(9) A request for a formal review hearing or an informal review hearing shall not stay the disqualification. If
the department fails to schedule the formal review hearing to be held within 30 days after receipt of the
request therefor, the department shall invalidate the disqualification. If the scheduled hearing is continued at
the department’s initiative, or the driver enforces the subpoena as provided in subsection (6), the department
shall issue a temporary driving permit limited to noncommercial vehicles which is valid until the hearing is
conducted if the person is otherwise eligible for the driving privilege. Such permit shall not be issued to a
person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall
authorize driving for business purposes only.
(10) A person who is disqualified from operating a commercial motor vehicle under subsection (1) or
subsection (3) is eligible for issuance of a license for business or employment purposes only under s.
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322.271 if the person is otherwise eligible for the driving privilege. However, such business or employment
purposes license shall not authorize the driver to operate a commercial motor vehicle.
(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer
or a correctional officer, including documents relating to the administration of a breath test or blood test or
the refusal to take either test. However, as provided in subsection (6), the driver may subpoena the officer or
any person who administered or analyzed a breath or blood test. If the arresting officer or the breath
technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall
invalidate the disqualification.
(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter
120. The department may adopt rules for the conduct of reviews under this section.
(13) A person may appeal any decision of the department sustaining the disqualification from operating a
commercial motor vehicle by a petition for writ of certiorari to the circuit court in the county wherein such
person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an
appeal shall not stay the disqualification. This subsection shall not be construed to provide for a de novo
review.
(14) The decision of the department under this section shall not be considered in any trial for a violation of
s. 316.193, s. 322.61, or s. 322.62, nor shall any written statement submitted by a person in his or her
request for departmental review under this section be admissible into evidence against him or her in any such
trial. The disposition of any related criminal proceedings shall not affect a disqualification imposed pursuant
to this section.
(15) This section does not preclude the suspension of the driving privilege pursuant to s. 322.2615. The
driving privilege of a person who has been disqualified from operating a commercial motor vehicle also may
be suspended for a violation of s. 316.193.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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Appendix C. Fla. Admin. Code ch. 11D–8 Implied Consent..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix C (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix C. Fla. Admin. Code ch. 11D–8 Implied Consent Program

§ 11D-8.002. Definitions.
(1) Acceptable Range—the results of alcohol reference solutions and dry gas standard analyses which fall
within the following ranges at each alcohol vapor concentration: 0.05 g/210L range is 0.045 to 0.055 g/210L;
0.08 g/210L range is 0.075 to 0.085 g/210L; 0.20 g/210L range is 0.190 to 0.210 g/210L; or the Alcohol
Reference Solution gas chromatographic results which fall within the following ranges: 0.0605 g/100mL
range is 0.0586 to 0.0623 g/100mL; 0.0968 g/100 mL range is 0.0938 to 0.0997 g/100mL; 0.2420 g/100mL
range is 0.2347 to 0.2492 g/100mL.
(2) Accuracy—the nearness of a measurement to a known concentration.
(3) Acetone Stock Solution—a mixture of acetone and distilled or deionized water provided by the
Department.
(4) Agency—a law enforcement agency other than the Department, or an entity which conducts breath tests
or submits blood samples for alcohol testing pursuant to these rules, or a civilian entity performing such
duties on behalf of a law enforcement agency.
(5) Agency Inspection—the periodic testing of the calibration and operation of a breath test instrument,
including all required preventive maintenance, in accordance with Rule 11D-8.006, F.A.C., and performed by
a person authorized by the Department.
(6) Agency Inspector—a person who has been issued an Agency Inspector permit by the Department.
(7) Alcohol—ethyl alcohol, also known as ethanol.
(8) Alcohol Free Test—a result of 0.000 g/210L when using distilled or deionized water.
(9) Alcohol Reference Solution—a standard used to verify the calibration of a breath test instrument
consisting of a mixture of alcohol and distilled or deionized water that will produce a known alcohol vapor
concentration at a specific temperature.
(10) Analyst—a person who has been issued a permit by the Department to conduct blood alcohol analyses.
(11) Approved Blood Alcohol Test—the analyses of two separate portions of the same blood sample using a
Department-approved blood alcohol test method and a Department-approved procedure, with results within
0.010 grams of alcohol per 100 milliliters of blood (g/100mL), and reported as the blood alcohol level.
(12) Approved Breath Alcohol Test—a minimum of two samples of breath collected within fifteen minutes
of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L,
and reported as the breath alcohol level, on a single Form 38 affidavit. If the results of the first and second
samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the
required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the
foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath
alcohol level.
(13) Authorized Repair Facility—the breath test instrument manufacturer or an entity authorized by the
breath test instrument manufacturer to service and repair such breath test instrument.
(14) Blood—human whole blood.

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Appendix C. Fla. Admin. Code ch. 11D–8 Implied Consent..., 11 Fla. Prac., DUI...

(15) Blood Alcohol Level—the alcohol concentration by weight in a person’s blood based upon grams of
alcohol per 100 milliliters of blood (g/100mL).
(16) Breath Alcohol Level—the alcohol concentration by weight in a person’s breath based upon grams of
alcohol per 210 liters of breath (g/210L).
(17) Breath Test Instructor—a person who has been issued a Breath Test Instructor Certification by the
Criminal Justice Standards and Training Commission.
(18) Breath Test Operator—a person who has been issued a Breath Test Operator permit by the Department.
(19) Department—the Florida Department of Law Enforcement.
(20) Dry Gas Standard—a National Institute of Standards and Technology or international equivalent
traceable standard consisting of a mixture of alcohol and gas which produces a known alcohol vapor
concentration used to verify the accuracy of a breath test instrument.
(21) Evidentiary Breath Test Instrument—a breath test instrument approved by the Department under Rule
11D-8.003, F.A.C., and used primarily to conduct alcohol breath tests pursuant to Florida law.
(22) Instrument Registration—when issued by the Department, certifies that the specified breath test
instrument meets the requirements of Rules 11D-8.003 and 11D-8.004, F.A.C, and is authorized to be placed
into evidentiary use. A breath test instrument registration remains valid until relinquished by the agency or
suspended or revoked by the Department.
(23) Methods—types of alcohol analyses approved by the Department to conduct chemical or physical tests
of blood or breath.
(24) Mouth Alcohol Solution—a mixture of alcohol and distilled or deionized water provided by the
Department.
(25) Permit—when issued by the Department, certifies that the holder has met all necessary qualifications,
remains in full compliance with these rules and is authorized to perform all related duties. A permit is issued
only to a qualified applicant and remains valid and in full effect until determined otherwise by the
Department.
(26) Permit Cycle—the 4-year period in which continuing education requirements shall be satisfied. The
initial cycle due date is June 30th of the fourth year following the initial permit date. Subsequent cycles will
run for 4-year periods from the initial cycle due date.

EXAMPLE:
Initial Permit Date November 21, 2012
4-year Anniversary Date November 21, 2016
Continuing Education Due Date/Initial Cycle Due Date June 30, 2017
(27) Reference Sample Device—a device, also known as a simulator, that produces a known vapor
concentration by the passage of air through a liquid.
(28) Target Concentration—a gas chromatographic result equivalent to the following known alcohol vapor
concentrations of alcohol reference solution: for 0.05 g/210L the target concentration is 0.0605 g/100mL; for
0.08 g/210L the target concentration is 0.0968 g/100mL; for 0.20 g/210L the target concentration is 0.2420
g/100mL.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 6, 1999, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004, Mar.
27, 2006. Amended July 29, 2015.
Authority: 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS. Law
Implemented 316.1932(1)(b)2., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2),
327.354(3) FS.

§ 11D-8.003. Approval of Breath Test Methods and Instruments.

(1) The approved breath test method for evidentiary breath testing is Infrared Spectroscopy, also known as
Infrared Light Absorption.
(2) The Department approves breath test methods and new instrumentation to ensure the accuracy and
reliability of breath test results. The approved breath test instrument make and model is the CMI, Inc.
Intoxilyzer 8000 using software evaluated by the Department in accordance with Instrument Evaluation
Procedures FDLE/ATP Form 34, revised March 2004, effective date July 2015, hereby incorporated by

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Appendix C. Fla. Admin. Code ch. 11D–8 Implied Consent..., 11 Fla. Prac., DUI...

reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-05645. This form may be obtained by

contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489,
Tallahassee, Florida 32302.
(3) A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval,
accuracy and reliability of an evidentiary breath test instrument.
(4) The Department shall conduct evaluations for approval of new instrumentation under subsection (2) in
accordance with Instrument Evaluation Procedures FDLE/ATP Form 34—Rev. March 2004.
(5) The availability or approval of new instruments, evaluation of software, options or modifications does not
negate the approval status of previously approved instruments, or evaluated software, options or
modifications. An approved make and model of a breath test instrument remains approved until disapproved
by the Department.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004. Amended July 29,
2015.
Authority: 316.1932(1)(a)2., (f)1., 322.63(3)(a), (b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b)2.,
316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS.

§ 11D-8.0035. Approval of Alcohol Reference Solution and Sources.

(1) The Department shall approve a source of alcohol reference solution for use by agencies in the State of
Florida. The source approved by the Department shall be an entity that manufactures alcohol reference
solutions and meets the following requirements:
(a) The source must prepare alcohol reference solution, and be capable of producing a minimum batch
volume of 800 bottles, each containing at least 500 milliliters, to produce the following vapor alcohol
concentrations: 0.05 g/210L, 0.08 g/210L, and 0.20g/210L;
(b) The source must have performed and documented tests that demonstrate that the alcohol reference
solutions are reliable for at least two years from the date of manufacture.
(2) The Department shall approve each lot of alcohol reference solution prior to distribution for use in
Florida.
(a) The Department shall determine the alcohol concentration in a minimum of ten (10) sample bottles of
each lot of alcohol reference solution using gas chromatography or other scientifically accepted method at
the time such lots are submitted for approval. Duplicate analyses will be performed on each sample bottle
of alcohol reference solution. If any result falls outside the alcohol reference solution acceptable range, a
second set of analyses will be performed. If the second set of results are within the alcohol reference
solution acceptable range, the alcohol reference solution shall be approved. If any of the results fall outside
the alcohol reference solution acceptable range a second time, the alcohol reference solution shall be
disapproved.
(b) The Department shall notify the source that the approved lots may be distributed for use in Florida, and
shall issue a Certificate of Assurance, FDLE/ATP Form 32 revised March 2001, effective date July 2015,
hereby incorporated by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-05643 This
form may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing
Program, P. O. Box 1489, Tallahassee, Florida 32302.
(3) Alcohol reference solution lots approved by the Department shall be used in agency or Department
inspections within two (2) years of the date of manufacture.

CREDIT(S)
Adopted July 6, 1999; Amended July 29, 2001, Dec. 9, 2004. Amended July 29, 2015. Amended September 4,
2016.
Authority: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented 316.1932(1)(b)2.,
316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS.

§ 11D-8.0036. Approval of Dry Gas Standards Source.

(1) The Department shall approve a source of dry gas standards for use by agencies in the State of Florida.
The source approved by the Department shall be an entity that manufactures dry gas standards and meets the

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following requirements:
(a) The source must produce dry gas standards which are traceable to the National Institute of Standards
and Technology.
(b) Each dry gas standard lot produced by the source must be certified by the source as to its contents and
alcohol vapor concentration.
(c) The source must be capable of producing a minimum of 300 cylinders of dry gas standard during a
thirty day period at an alcohol vapor concentration of 0.08 g/210L.
(d) The source must have performed and documented tests that demonstrate that the source’s dry gas
standards are reliable for at least two years from the date of manufacture.
(2) Dry gas standard cylinders produced by the approved source must not be used beyond the expiration date.

CREDIT(S)
Adopted Nov. 5, 2002; Amended Dec. 9, 2004.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), (b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)
(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS.

§ 11D-8.004. Department Inspection and Registration of Breath Test Instruments.

(1) The Department shall register and inspect each individual breath test instrument for accuracy and
reliability prior to such instrument being initially placed into evidentiary use by an agency. The inspection
validates that instrument’s approval for evidentiary use, and the registration completes that instrument’s
approval pursuant to these rules. The registration shall reflect the registration date, the owner of the
instrument, the instrument serial number, the manufacturer, and the model designation.
(2) Registered breath test instruments shall be inspected by the Department at least once each calendar year to
ensure accuracy and reliability, and must be accessible to the Department for inspection. A department
inspection must be conducted subsequent to repair and prior to being placed in evidentiary use.
(3) Department inspections shall be conducted in accordance with Department Inspection Procedures
FDLE/ATP Form 36, revised August 2005, effective date July 2015, hereby incorporated by reference,
https://www.flrules.org/Gateway/reference.asp?No=Ref-05654, Department Inspection Report—Intoxilyzer
8000, FDLE/ATP Form 41, revised August 2005, effective date July 2015, hereby incorporated by reference,
https://www.flrules.org/Gateway/reference.asp?No=Ref-05647. These forms may be obtained by contacting
the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida
32302.
(4) Department Inspectors shall be employed by the Department to register evidentiary breath test
instruments, to conduct inspections and maintenance of breath test instruments and related equipment and
facilities, to conduct and monitor training classes, and to otherwise ensure compliance with Chapter 11D-8,
F.A.C.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004, Mar. 27, 2006.
Amended July 29, 2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)
(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS.

§ 11D-8.006. Agency Inspection of Breath Test Instruments.

(1) Evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar
month. The agency inspection shall be conducted in accordance with the Agency Inspection Procedures—
Intoxilyzer 8000 FDLE/ATP Form 39, revised August 2005, effective date July 2015, hereby incorporated by
reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-05652 and the results on Agency
Inspection Report—Intoxilyzer 8000 FSLE/ATP Form 40, created March 2004, effective date July 2015,
hereby incorporated by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-056653 These
forms may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program,
P. O. Box 1489, Tallahassee, Florida 32302. Agencies will be provided blank forms upon request and without
cost for their alcohol testing program use.
(2) Whenever an instrument is taken out of evidentiary use, the agency shall conduct an agency inspection.

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The agency shall also conduct an agency inspection prior to returning an instrument to evidentiary use.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004, Mar. 27, 2006.
Amended July 29, 2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)
(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS.

§ 11D-8.007. Approved Breath Test Instruments — Access, Facility Requirements, Observation Period,
and Operational Procedures.
(1) Evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the
Department and to persons authorized by a permit holder. This section does not prohibit agencies from
sending an instrument out of evidentiary use to an authorized repair facility or the Department via common
carrier transport. Only authorized repair facilities or the Department are authorized to remove the top cover of
an Intoxilyzer 8000 evidentiary breath test instrument.
(2) The instrument will be located in a secured environment which limits access to authorized persons
described in subsection (1), and will be kept clean and dry. All breath test facilities, equipment and supplies
are subject to inspection by the Department.
(3) The breath test operator, agency inspector, arresting officer, or person designated by the permit holder
shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least
twenty (20) minutes before administering the test. This provision shall not be construed to otherwise require
an additional twenty (20) minute observation period before the administering of a subsequent sample.
(4) When operating an Intoxilyzer 8000 instrument, a breath test operator shall conduct a breath test in
accordance with Operational Procedures—Intoxilyzer 8000 FDLE/ATP Form 37, revised August 2005,
effective date July 2015, hereby incorporated by reference, https://www.flrules.org/Gateway/reference.asp?
No=Ref-05648, and the results of the test shall be recorded on the Breath Alcohol Test Affidavit—Intoxilyzer
8000 FDLE/ATP Form 38, created March 2004, effective date July 2015, hereby incorporated by reference,
https://www.flrules.org/Gateway/reference.asp?No=Ref-05649. Forms FDLE/ATP 37 and FDLE/ATP 38
may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O.
Box 1489, Tallahassee, Florida 32302. Agencies will be provided blank forms upon request and without cost
for their alcohol testing program use.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004, Mar. 27, 2006.
Amended July 29, 2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)
(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS.

§ 11D-8.0075. Agency Retention of Records.

(1) Each agency shall maintain the following records for at least three years from the last entry date: agency
inspection reports and breath test instrument repair records. The breath test instrument registration shall be
retained by an agency for at least three years after the instrument is removed from evidentiary use. Dry gas
standard certificates of analysis shall be retained by an agency for at least three years after receipt. These
records shall be accessible to the Department upon request.
(2) At least once each calendar month each agency shall electronically transmit to the Department all breath
tests conducted on that agency’s Intoxilyzer 8000 evidentiary breath test instruments.
(3) The purpose of this section is solely for regulatory and administrative use, and any violation of this
section shall not affect the admissibility, validity or reliability of breath test results.

CREDIT(S)
Adopted July 29, 2001; Amended Nov. 5, 2002, Dec. 9, 2004. Amended July 29, 2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 322.63(3),
327.354(3) FS.

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§ 11D-8.008. Breath Test Operator and Agency Inspector.

(1) Qualifications for Breath Test Operator Permit—An applicant for a breath test operator permit must meet
the following qualifications:
(a) Eighteen (18) years of age or older;
(b) High school diploma or its equivalent;
(c) Present employment by an agency, or the Department;
(d) Successful completion of the basic Breath Test Operator Course approved by the Criminal Justice
Standards and Training Commission. Successful completion shall require obtaining a passing score of at
least 80% on a written examination, and demonstrating proficiency by:
1. Properly operating an approved breath test instrument in accordance with the applicable procedures
for such instrument;
2. Properly completing the required forms.
(e) Submit to the Department a complete written application, Breath Test Permit Application, FDLE/ATP
Form 8, revised October 2007, effective date July 2015, hereby incorporated by reference,
https://www.flrules.org/Gateway/reference.asp?No=Ref-05642, upon successful completion of the breath
test operator course, but no later than 90 days after completion. This form may be obtained by contacting
the Florida Department of Law Enforcement, P. O. Box 1489, Tallahassee, Florida 32302. Agencies will
be provided blank forms upon request and without cost for their alcohol testing program use.
(2) Qualifications for Agency Inspector Permit—An applicant for an agency inspector permit must meet the
following qualifications:
(a) Has been issued a breath test operator permit by the Department valid at the time that the application is
submitted;
(b) Successfully completes the basic Agency Inspector Course approved by the Criminal Justice Standards
and Training Commission. Successful completion shall require a passing score of at least 80% on a written
examination and a demonstration of proficiency by:
1. Proper inspection of an approved breath test instrument in accordance with the procedures for such
instrument;
2. Proper completion of all required forms.
(c) Submits to the Department a complete written application, Breath Test Permit Application, FDLE/ATP
Form 8, upon successful completion of the agency inspector course, but no later than 90 days after
completion.
(d) Present employment by an agency or the Department.
(3) Breath Test Operators and Agency Inspectors must satisfy continuing education requirements in order to
maintain valid permits. Continuing education requires successful completion of the applicable Commission-
approved Renewal Course by June 30 following the fourth permit anniversary date, and at least once during
each subsequent 4-year cycle. Successful completion of the Commission-approved Agency Inspector Course
or Agency Inspector Renewal Course also satisfies an Agency Inspector’s breath test operator continuing
education requirements.
(4) Any Breath Test Operator or Agency Inspector who fails to satisfy the continuing education requirements
shall not perform any duties authorized by the permit until successful completion of the applicable renewal
course.
(5) Permits to conduct breath tests and inspect breath test instruments issued pursuant to this rule section shall
remain valid until such permits expire on December 31st following the mandatory continuing education due
date without completion of such training.
(6) Agency Inspectors are responsible for compliance with Chapter 11D-8, F.A.C., rules governing agency
custody, care, and inspection of breath test instruments and related records.
(7) Any breath test operator or agency inspector whose permit has expired pursuant to subsection (5) of this
rule section or who fails to successfully complete the Commission-approved renewal course shall not perform
any duties authorized by the permit until successful completion of the Commission-approved basic course.
(8) Members of the Department’s Alcohol Testing Program who instruct Commission-approved breath test
courses may use such course instruction to satisfy their continuing education requirements under this section.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004, Mar. 27, 2006.

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Amended July 29, 2015.

AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1934(3),
322.63(3)(b), 327.354(3) FS.

§ 11D-8.010. Qualifications for Instructors.

(1) Persons who conduct breath test training courses must have a valid Breath Test Instructor certification
issued by the Criminal Justice Standards and Training Commission, and such persons shall be deemed
permitted by the Department to conduct breath test training courses.
(2) Unless exempted by the Commission, each breath test instructor must successfully complete the
Commission-approved breath test instructor certification renewal course pursuant with Rule 11B-20.0017,
F.A.C., to remain qualified for a breath test instructor certification. Successful completion of the
Commission-approved breath test instructor certification course or breath test instructor certification renewal
course satisfies that person’s agency inspector and breath test operator continuing education requirements.
Each breath test instructor must also successfully complete all Department breath test instructor update
courses.
(3) Breath test instructors must adhere to and comply with the approved curricula and related forms when
teaching Commission or Department approved courses and processing related documentation.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004. Amended July 29,
2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1934(3),
322.63(3)(b), 327.354(3) FS.

§ 11D-8.011. Approval of Blood Alcohol Test Methods.

The Department approves the following test methods for determining blood alcohol level:
Gas Chromatography.

CREDIT(S)
Adopted Oct. 31, 1993. Amended July 29, 2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., FS. Law Implemented 316.1933(2)
(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS.

§ 11D-8.012. Blood Samples—Labeling and Collection.

(1) Before collecting a sample of blood, the skin puncture area must be cleansed with an antiseptic that does
not contain alcohol.
(2) Blood samples must be collected in a glass evacuation tube that contains a preservative such as sodium
fluoride and an anticoagulant such as potassium oxalate or EDTA (ethylenediaminetetraacetic acid).
Compliance with this section can be established by the stopper or label on the collection tube, documentation
from the manufacturer or distributor, or other evidence.
(3) Immediately after collection, the tube must be inverted several times to mix the blood with the
preservative and anticoagulant.
(4) Blood collection tubes must be labeled with the following information: name of person tested, date and
time sample was collected, and initials of the person who collected the sample.
(5) Blood samples need not be refrigerated if submitted for analysis within seven (7) days of collection, or
during transportation, examination or analysis. Blood samples must be otherwise refrigerated, except that
refrigeration is not required subsequent to the initial analysis.
(6) Blood samples must be hand-delivered or mailed for initial analysis within thirty days of collection, and
must be initially analyzed within sixty days of receipt by the facility conducting the analysis. Blood samples
which are not hand-delivered must be sent by priority mail, overnight delivery service, or other equivalent
delivery service.
(7) Notwithstanding any requirements in Chapter 11D-8, F.A.C., any blood analysis results obtained, if
proved to be reliable, shall be acceptable as a valid blood alcohol level.

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CREDIT(S)
Adopted Oct. 31, 1993; Amended July 29, 2001.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented
316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS.

§ 11D-8.013. Blood Alcohol Permit—Analyst.

(1) The application for a permit to determine the alcohol level of a blood sample shall be made on the
Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4, revised December 2014,
effective date July 2015, hereby incorporated by reference, https://www.flrules.org/Gateway/reference.asp?
No=Ref-05640, provided by the Department and shall include the following information:
(a) Name and address of applicant;
(b) A copy of state license if licensed, or college transcript;
(c) Name and address of employer and laboratory facility where applicant performs analyses;
(d) Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316,
322 and 327, F.S.; and,
(e) A complete description of proposed analytical procedure(s) to be used in determining blood alcohol
level.
(2) Qualifications for blood analyst permit—To qualify, the applicant must meet all of the following
requirements:
(a) Department approval of analytical procedure(s). All proposed analytical procedures will be reviewed
and a determination of approval will be made by the Department;
(b) Satisfactory determination of blood alcohol level in five proficiency samples provided by the
Department using the proposed analytical procedure. Satisfactory determination shall be made by reporting
results for blood alcohol proficiency samples within the acceptable range for the samples. For blood
alcohol testing, acceptable ranges shall mean the calculated proficiency sample mean + or—3 standard
deviations iterated twice. The mean and standard deviations will be calculated using the results reported by
the analysts and reference laboratories;
(c) Identify at least one Agency for which blood analyses are to be performed pursuant to Chapters 316,
322 and 327, F.S.; and,
(d) Meet one of the following:
1. Possess a clinical laboratory license in clinical chemistry as a technologist, supervisor or director,
under Chapter 483, F.S.; or
2. Be a licensed physician pursuant to Chapter 458, F.S.; or
3. Complete a minimum of 60 semester credit hours or equivalent of college, at least 15 semester hours
of which must be in college chemistry.
(3) The department shall approve gas chromatographic analytical procedures which meet the following
requirements:
(a) Includes the approved method used and a description of the method, and the equipment, reagents,
standards, and controls used;
(b) Uses commercially-prepared standards and controls certified by the manufacturer, or laboratory-
prepared standards and controls verified using gas chromatography against certified standards. For
commercially-prepared standards and controls, the manufacturer, lot number and expiration date must be
documented for each sample or group of samples being analyzed. For laboratory-prepared standards and
controls, date, person preparing the solution, method of preparation and verification must be documented;
(c) A statement of the concentration range over which the procedure is calibrated. The calibration curve
must be linear over the stated range;
(d) Uses a new or existing calibration curve. The new calibration curve must be generated using at least
three (3) standards: one at 0.05 g/100mL or less, one between 0.05 and 0.20 g/100mL (inclusive) and one
at 0.20 g/100mL or higher, and must be verified using a minimum of two (2) controls, one at 0.05
g/100mL or less and one at 0.20g/100mL or higher. The existing calibration curve must be verified using a
minimum of two (2) controls, one at 0.05 g/100mL or less and one at 0.20g/100mL or higher;
(e) Includes the analysis of an alcohol-free control, and the analysis of a whole blood or serum control. The
whole blood or serum control may be used to satisfy the control requirement(s) in paragraph (d);
(f) A gas chromatographic analytical procedure must discriminate between methanol, ethanol, acetone and
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isopropanol and employ an internal standard technique;

(4) The permit shall be issued by the Department for a specific method and procedure. Any substantial
change to the method or analytical procedure must receive prior approval by the Department before being
used to determine the blood alcohol level of a sample submitted by an agency. The Department shall
determine what constitutes a substantial change.
(5) An analyst shall only use a Department-approved procedure to determine the blood alcohol level of
samples submitted by an agency. Approval of blood alcohol analysis methods and procedures shall be based
on rule requirements in effect at the time they were submitted for approval.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Apr. 1, 1994, Feb. 1, 1995, Jan. 1, 1997, Nov. 5, 2002, Dec. 9, 2004.
Amended July 29, 2015.
AUTHORITY: 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b)3. FS. Law
Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b), (e),
327.353(2), 327.354(3) FS.

§ 11D-8.014. Blood Alcohol Permit—Analyst: Renewal.

(1) Permits to conduct blood alcohol analyses shall remain valid until otherwise suspended or revoked by the
Department. In order to remain qualified for such permit, an analyst must satisfactorily determine the blood
alcohol level of at least 2 proficiency samples provided by the Department semiannually. Satisfactory
determination shall be made by reporting results for blood alcohol proficiency samples within the acceptable
range for the samples. For blood alcohol testing acceptable ranges shall mean the calculated proficiency
sample mean + or—3 standard deviations iterated twice. The mean and standard deviations will be calculated
using the results reported by the analysts and reference laboratories.
(2) Upon notification by the Department that an analyst has failed to satisfactorily determine the blood
alcohol level on any set of proficiency samples, the analyst shall be required to satisfactorily determine the
blood alcohol level of a second set of five proficiency samples provided by the Department.
(3) Upon notification by the Department that an analyst has failed to satisfactorily determine the blood
alcohol level on a second set of proficiency samples, the analyst shall not perform any duties authorized by
the analyst’s permit until the analyst satisfactorily determines the blood alcohol level of a subsequent set of
proficiency samples provided by the Department. This section shall not preclude the Department from taking
further action in accordance with Rule 11D-8.015, F.A.C.
(4) Failure to satisfactorily determine the blood alcohol level of any 4 sets of proficiency samples provided
by the Department within a 12-month period shall result in revocation of the blood analyst permit.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, Nov. 5, 2002, May 29, 2014.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)
(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS.

§ 11D-8.015. Denial, Revocation, and Suspension of Permits.

(1) Notwithstanding an applicant’s qualifications, the Department shall deny an application for an original
permit where the applicant:
(a) Fails to meet the permit qualifications under these rules.
(b) Has been convicted of any of the following offenses in any federal or state court:
1. Any felony;
2. Any misdemeanor involving perjury, false statements or falsification of records;
3. Criminal conviction for any violation of Chapter 893, F.S.;
4. Driving under the influence of alcoholic beverages or drugs during the five years prior to submitting
the application;
5. Leaving the scene of a crash involving death or serious bodily injury.
(c) Knowingly performing the duties of a breath test operator, agency inspector, breath test instructor, or
analyst without a valid applicable permit.
(d) Had the permit previously revoked under subsection (3) below.
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Appendix C. Fla. Admin. Code ch. 11D–8 Implied Consent..., 11 Fla. Prac., DUI...

(2) The Department is authorized to suspend any permit for any of the following reasons:
(a) Failure to prepare and maintain breath or blood testing records as required by these rules.
(b) Failure to continue to meet the qualifications for such permit.
(c) Any violation of these rules, or aiding and abetting any violation of these rules.
(3) The Department is authorized to revoke any permit for any of the following reasons:
(a) Knowingly making a false statement or providing false information on any agency document or on any
document required by these rules.
(b) Knowingly making a false statement or providing false information on any application for permit
submitted to the Department.
(c) Being convicted after issuance of the permit of any of the following offenses in any federal or state
court:
1. Any felony;
2. Any misdemeanor involving perjury, false statements or falsification of records;
3. Driving under the influence of alcoholic beverages or drugs;
4. Leaving the scene of a crash involving death or serious bodily injury;
5. Any criminal violation of Chapter 893, F.S.
(d) Performing the duties of a breath test operator, agency inspector, or analyst with knowledge that the
applicable permit is suspended or in violation of continuing education requirements.
(e) Having had the permit previously suspended for any violation of these rules.
(4) The Department is authorized to require a breath test operator, agency inspector, breath test instructor, or
analyst who violates any of these rules to attend additional training or education related to their certification
or permit.
(5) The Department is authorized to invalidate the registration of any evidential instrument for a violation of
any rule relating to the use, custody and care of such instrument.
(6) All permits and registrations which have been suspended, revoked or invalidated must be surrendered to
the Department upon demand.

CREDIT(S)
Adopted Oct. 31, 1993; Amended Jan. 1, 1997, July 29, 2001, Nov. 5, 2002, Dec. 9, 2004, Mar. 27, 2006.
AUTHORITY: 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1933(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS.
Law Implemented 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.353(2), 327.354(3) FS.

§ 11D-8.016. Administrative Hearings.

All proceedings concerning the revocation, suspension, or denial of permits shall be conducted in accordance
with Chapter 120, F.S., and the Florida Administrative Code.

CREDIT(S)
Adopted Oct. 31, 1993; Amended July 29, 2001.
AUTHORITY: 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented
316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.353(2), 327.354(3) FS.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix D (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix D. Florida Department of Law Enforcement Alcohol Testing Program—Forms

Image 1 within document in PDF format.

CERTIFICATE OF ASSURANCE

The Florida Department of Law Enforcement Alcohol Testing Program approves alcohol reference solution lots
used to test the accuracy and precision of evidentiary breath test instruments. Alcohol reference solution lots are
prepared by the Department or by a source approved by the Department, and their analysis is important to
establish the reliability of alcohol breath test results.

Lot Number:
Simulated Breath Alcohol Concentration (g/210L):
Date of Approval:
Source:
Date of Manufacture:
For Use Through:
Number of Bottles Manufactured:
This certifies that 10 sample bottles from the above lot were subjected to duplicate gas chromatographic
analyses of their alcohol concentrations, that all the results were within the acceptable range, and that this lot of
alcohol reference solution is in compliance with the requirements of Chapter 11D-8, F.A.C. and is approved for
distribution and use in the State of Florida.

...................................................................................................................................................................................

Signature Title

...................................................................................................................................................................................

Name (Printed or Typed) Date

INSTRUMENT EVALUATION PROCEDURES

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Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

The following procedures will be used to evaluate breath test instrumentation for approval for use in Florida.
The results of an evaluation shall note any deviation or change in the evaluation procedures and the reasons for
such deviation or change.

1. Only breath test instruments listed on the US Department of Transportation Conforming Products List of
Evidential Breath Measurement Devices will be evaluated.

2. Results of all evaluations shall record:

a. The purpose for and subject of the evaluation.

b. The evaluation location and personnel involved.

c. The make, model and serial numbers of instruments.

d. The make, model and serial numbers, and the operating conditions of any external equipment and
instrumentation (such as simulators) used.

e. A conclusion based on evaluation results, including any need for additional information, and the reasons
for such conclusion.

3. Each instrument evaluated must be calibrated by the manufacturer or an authorized repair facility prior to
evaluation.

4. Each instrument will be evaluated for accuracy and precision by analyzing at least 25 repetitions at each of
the following alcohol concentrations: 0.00 g/210L, 0.05 g/210L, 0.08 g/210L, and 0.20 g/210L.

a. The 0.00 g/210L test will be conducted by analyzing a reference sample device (simulator) containing 500
mL of distilled or deionized water. The results of the 0.00 g/210L must all be 0.000 g/210L;

b. The 0.05 g/210L test will be conducted by analyzing a simulator containing a 0.05 g/210L alcohol
reference solution. The results of the 0.05 g/210L test must fall within the acceptable range: 0.045 to 0.055
g/210L;

c. The 0.08 g/210L test will be conducted by analyzing a simulator containing a 0.08 g/210L alcohol
reference solution. The results of the 0.08 g/210L test must fall within the acceptable range: 0.075 to 0.085
g/210L;

d. The 0.20 g/210L test will be conducted by analyzing a simulator containing a 0.20 g/210L alcohol
reference solution. The results of the 0.20 g/210L test must fall within the acceptable range: 0.190 to 0.210
g/210L; and

e. The 0.08 g/210L dry gas standard test will be conducted by analyzing a 0.08 g/210L dry gas standard. The
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

results of the 0.08 g/210L dry gas standard test must fall within acceptable range: 0.075 to 0.085 g/210L.

f. In order to establish the precision of an evaluated instrument, the average standard deviation for the 0.05,
0.08 and 0.20 g/210L results will be calculated and must not exceed the manufacturer’s specifications for
precision.

5. Each instrument will be evaluated for its capability to detect the presence of an interferent and mouth
alcohol. Each instrument evaluated will be subjected to at least 25 repetitions of an acetone interference test
and at least 25 repetitions of a mouth alcohol test.

a. The interferent test will be conducted by analyzing simulator containing 500 mL deionized or distilled
water with 3 mL of acetone stock solution added. The results must be 0.000 g/210L and the acetone detected
by the correct instrument response(s) prescribed by the manufacturer to denote the interferent.

b. The mouth alcohol test will be conducted by analyzing a breath sample after the mouth has been rinsed
with mouth alcohol solution. The breath sample must be detected by the correct instrument response(s)
prescribed by the manufacturer to denote mouth alcohol.

6. Each lot of alcohol reference solution and each cylinder of dry gas standard used in the evaluation process
shall meet the requirements of Chapter 11D-8, FAC.

7. The Department will determine whether to conduct additional tests or studies necessary to evaluate
previously approved instrumentation, and whether to conduct additional evaluations for quality assurance or
research purposes. The procedures used and the results obtained will be recorded.

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Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

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Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

Image 8 within document in PDF format.

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Appendix D. Florida Department of Law Enforcement..., 11 Fla. Prac., DUI...

Image 10 within document in PDF format.

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Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix E. Discovery Order for Intoxilyzer Inspection, 11 Fla. Prac., DUI Handbook...

11 Fla. Prac., DUI Handbook Appendix E (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix E. Discovery Order for Intoxilyzer Inspection

8 Fla. L. Weekly Supp. 390

Criminal law—Driving under influence—Discovery—Request to inspect Intoxilyzer 5000 which was used
to administer alcohol breath tests on defendant granted with certain conditions and limitations—
Defendant may visually inspect and/or photograph machine as needed; may inspect intoxilyzer’s
computer software and obtain copies of any such documentation not protected by any copyright and
disclosure limitations; and may temporarily disconnect any electrical and/or mechanical parts which are
part of Intoxilyzer and which are designed to be temporarily disconnected—Defendant, her attorney and
expert may be present for re-certification of intoxilyzer

STATE OF FLORIDA, Plaintiff, vs. CHRISTY R. BARCOL, Defendant. County Court, 9th Judicial Circuit in
and for Orange County. Case No. TW–00–20821. March 15, 2001. Carolyn B. Freeman, Judge. Counsel: S.
Blaine McChesney, for Plaintiff. Steven G. Mason, Steven G. Mason, P.A., Orlando, for Defendant.

ORDER ON BARCOL’S MOTION TO EXAMINE/INSPECT INTOXILYZER 5000, SERIAL NUMBER

66–005067
This matter came before the Court for hearing on Defendant’s Motion to Examine/Inspect Intoxilyzer 5000,
Serial Number 66–005067.
Christy Barcol was arrested and charged with driving under the influence. Subsequent to her arrest, Ms. Barcol
was administered an alcohol-breath test with results of .204 and .195. The test was administered on an
Intoxilyzer 5000, serial number 66–005067, which is under the control of the Orange County Sheriff’s Office.
Ms. Barcol challenges and disputes the results.
A hearing was held on Ms. Barcol’s motion to inspect and examine the referenced intoxilyzer. At that time Ms.
Barcol presented the testimony of her expert, Wayne Morris, who outlined and explained the particular
inspection requested. The inspection is aimed at determining the reliability of the Intoxilyzer 5000 used in Ms.
Barcol’s case. At a subsequent hearing the State presented the testimony of Bob Mooney with FDLE.
After hearing arguments of counsel and being otherwise fully advised in the premises, it is
ORDERED and ADJUDGED as follows:
1. That the Defendant’s request to inspect Intoxilyzer 5000, Serial 66–005067 is GRANTED under the
following conditions and limitations:
A. Prior to any inspection, Defendant will deposit with the Clerk of the Court all costs associated with and
necessary to re-certifying the Intoxilyzer, including both labor and supplies, which amount will be agreed to by
the parties, in writing, and filed with the Court.
B. Prior to any inspection, Defendant will deposit with the Clerk of the Court a bond in the amount of $1,500.00
to offset any potential damage to the Intoxilyzer.
C. Prior to any inspection, Defendant will file with the Court a notarized statement stating that Defendant and/or
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Appendix E. Discovery Order for Intoxilyzer Inspection, 11 Fla. Prac., DUI Handbook...

counsel of record will be financially responsible for all damage to the Intoxilyzer resulting from the authorized
inspection.
D. The Defendant will be responsible for arranging with the State, a representative of the Florida Department of
Law Enforcement and a representative of the Orange County Sheriff’s Office for a mutually convenient time
and date for the inspection. These arrangements shall also include sufficient personnel to complete the re-
certification process, which shall occur immediately following the inspection.
E. Representatives of the State Florida Department of Law Enforcement and Orange County Sheriff’s Office,
the State’s expert and Defendant’s expert, DUI Technician, Defendant and counsel for the parties may be
present during the inspections.
F. All bond and cost deposits required herein will be released only upon order of the Court and at a time
following the conclusion of the inspections, sufficient to ensure that all damage, if any, to the machine has been
determined.
G. All documentation associated with the inspection is the property of the Defendant subject to the applicable
disclosure.
H. The defense expert may prepare solutions containing distilled water solutions as required under FDLE Rule
11D–8.003(7) in accordance with FDLE/ATP Form 16, January, 1997, for the monthly simulator testing of the
machine at the various levels. Tests with these solutions can be done in any order, so that the State does not
have knowledge of the actual amount of distilled water, acetone or alcohol.
I. All documentation associated with the inspection including the intoxilylzer test tickets and results, are the
property of the Defendant and subject to applicable disclosure.
J. Defendant may not introduce into the machine any substance not contained on FDLE Form 16, January,
1997, nor any substance in solutions resulting in higher or lower concentration levels than those contained in
FDLE Form 16, January, 1997.
K. In the presence of the defense expert, the instrument will be turned on and the self-diagnostic test will run.
L. The entire agency inspection procedure will be performed by the same agency inspector(s) represented as
having performed the last agency inspection of this machine prior to the breath test in this matter and the next
agency inspection following the breath test in this matter. If possible, bottles of alcohol referenced solution
(ARS) from the same lot numbers as were used in the agency inspections immediately prior to and immediately
after the breath testing in this case will be used for this procedure. A copy of each document generated by this
procedure, either generated by the agency inspector or by the Intoxilyzer 5000, will be given to the defense
expert.
M. Upon the completion of the agency inspection using each ARS, the ARS will be replaced into its original
bottle and capped. Each bottle of ARS used in the agency inspection procedure will be turned over to the
defense expert for additional testing at his laboratory.
N. Additional bottles of ARS solutions provided by the agency or of alcohol-water solutions prepared by the
defense expert will be used in conjunction with the simulator in order to perform additional testing under the
direction of the defense expert. Such testing will include:
1. Allowing the defense expert to give a breath sample by blowing into the mouthpiece attached to the breath
tube.
2. Allowing at least duplicate runs of the above procedures.
3. Allowing similar procedures during which the defense expert will give partial blows (puffing).
2. That the Defendant may visually inspect and/or photograph the machine as needed; may inspect the
Intoxilyzer’s computer software and obtain copies of any such documentation not protected by any copyright or
disclosure limitations; and may temporarily disconnect any electrical and/or mechanical parts which are part of
the Intoxilyzer and which are designed to be temporarily disconnected. Any disagreement as to this paragraph
will be resolved by the Court.
3. That at the end of the inspection, running another agency inspection or department inspection to show that the
intoxilyzer is operating correctly. Defendant, her attorney and expert may be present for the re-certification of
the intoxilyzer.

***

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Appendix E. Discovery Order for Intoxilyzer Inspection, 11 Fla. Prac., DUI Handbook...

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix F. Excerpts From Fla. Stat. ch. 948, 11 Fla. Prac., DUI Handbook Appendix...

11 Fla. Prac., DUI Handbook Appendix F (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix F. Excerpts From Fla. Stat. ch. 948

948.03. Terms and conditions of probation

(1) The court shall determine the terms and conditions of probation. Conditions specified in this section do
not require oral pronouncement at the time of sentencing and may be considered standard conditions of
probation. These conditions may include among them the following, that the probationer or offender in
community control shall:
(a) Report to the probation officer as directed.
(b) Permit the probation officer to visit him or her at his or her home or elsewhere.
(c) Work faithfully at suitable employment insofar as may be possible.
(d) Remain within a specified place.
(e) Live without violating any law. A conviction in a court of law is not necessary for such a violation of
law to constitute a violation of probation, community control, or any other form of court-ordered
supervision.
(f) Make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense
in an amount to be determined by the court. The court shall make such reparation or restitution a condition
of probation, unless it determines that clear and compelling reasons exist to the contrary. If the court does
not order restitution, or orders restitution of only a portion of the damages, as provided in s. 775.089, it
shall state on the record in detail the reasons therefor.
(g) Effective July 1, 1994, and applicable for offenses committed on or after that date, make payment of
the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care,
treatment, hospitalization, or transportation received by the felony probationer while in that detention
facility. The court, in determining whether to order such repayment and the amount of repayment, shall
consider the amount of the debt, whether there was any fault of the institution for the medical expenses
incurred, the financial resources of the felony probationer, the present and potential future financial needs
and earning ability of the probationer, and dependents, and other appropriate factors.
(h) Support his or her legal dependents to the best of his or her ability.
(i) Make payment of the debt due and owing to the state under s. 960.17, subject to modification based on
change of circumstances.
(j) Pay any application fee assessed under s. 27.52(1)(b) and attorney’s fees and costs assessed under s.
938.29, subject to modification based on change of circumstances.
(k) Not associate with persons engaged in criminal activities.
(l)
1. Submit to random testing as directed by the probation officer or the professional staff of the treatment
center where he or she is receiving treatment to determine the presence or use of alcohol or controlled
substances.
2. If the offense was a controlled substance violation and the period of probation immediately follows a
period of incarceration in the state correctional system, the conditions must include a requirement that

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Appendix F. Excerpts From Fla. Stat. ch. 948, 11 Fla. Prac., DUI Handbook Appendix...

the offender submit to random substance abuse testing intermittently throughout the term of supervision,
upon the direction of the correctional probation officer as defined in s. 943.10(3).
(m) Be prohibited from possessing, carrying, or owning any:
1. Firearm.
2. Weapon without first procuring the consent of the correctional probation officer.
(n) Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed
by a physician, an advanced registered nurse practitioner, or a physician assistant. The probationer or
community controllee may not knowingly visit places where intoxicants, drugs, or other dangerous
substances are unlawfully sold, dispensed, or used.
(o) Submit to the drawing of blood or other biological specimens as prescribed in ss. 943.325 and
948.014, and reimburse the appropriate agency for the costs of drawing and transmitting the blood or other
biological specimens to the Department of Law Enforcement.
(p) Submit to the taking of a digitized photograph by the department as a part of the offender’s records.
This photograph may be displayed on the department’s public website while the offender is under court-
ordered supervision. However, the department may not display the photograph on the website if the
offender is only on pretrial intervention supervision or if the offender’s identity is exempt from disclosure
due to an exemption from the requirements of s. 119.07.
(2) The enumeration of specific kinds of terms and conditions does not prevent the court from adding thereto
such other or others as it considers proper. However, the sentencing court may only impose a condition of
supervision allowing an offender convicted of s. 794.011, s. 800.04, s. 827.071, s. 847.0135(5) or s.
847.0145, to reside in another state, if the order stipulates that it is contingent upon the approval of the
receiving state interstate compact authority. The court may rescind or modify at any time the terms and
conditions theretofore imposed by it upon the probationer. However, if the court withholds adjudication of
guilt or imposes a period of incarceration as a condition of probation, the period may not exceed 364 days,
and incarceration shall be restricted to either a county facility, a probation and restitution center under the
jurisdiction of the Department of Corrections.

948.031. Condition of probation or community control; service

(1) Any person who is convicted of a felony or misdemeanor and who is placed on probation or into
community control may be required as a condition of supervision to perform some type of community service
for a tax-supported or tax-exempt entity, with the consent of such entity. Such community service shall be
performed at a time other than during such person’s regular hours of employment.
(2) Upon the request of the chief judge of the circuit, the Department of Corrections shall establish a
community service program for a county, which program may include, but is not limited to, any of the
following types of community service:
(a) Maintenance work on any property or building owned or leased by any state, county, or municipality or
any nonprofit organization or agency.
(b) Maintenance work on any state-owned, county-owned, or municipally owned road or highway.
(c) Landscaping or maintenance work in any state, county, or municipal park or recreation area.
(d) Work in any state, county, or municipal hospital or any developmental services institution or other
nonprofit organization or agency.

948.032. Condition of probation; restitution

If a defendant is placed on probation, any restitution ordered under s. 775.089 shall be a condition of the
probation. The court may revoke probation if the defendant fails to comply with the order. In determining
whether to revoke probation, the court shall consider the defendant’s employment status, earning ability, and
financial resources; the willfulness of the defendant’s failure to pay; and any other special circumstances that
may have a bearing on the defendant’s ability to pay.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix F. Excerpts From Fla. Stat. ch. 948, 11 Fla. Prac., DUI Handbook Appendix...

a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix G (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix G. Judgment and Sentence Forms, Including Costs

Rule 3.986. Forms Related to Judgment and Sentence

(a) Sufficiency of Forms. The forms as set forth below, or computer generated formats that duplicate these
forms, shall be used by all courts. Variations from these forms do not void a judgment, sentence, order, or
fingerprints that are otherwise sufficient.

(b) Form for Judgment.

_____ Probation Violator
_____ Community Control Violator
_____ Retrial
_____ Resentence
In the Circuit Court, _____ Judicial Circuit, in and for _____ County, Florida

Division _____

Case Number _____

State of Florida
v.
Defendant
JUDGMENT

The defendant, _____, being personally before this court represented by _____, the attorney of record, and the
state represented by _____, and having

___ been tried and found guilty by jury/by court of the following crime(s)

___ entered a plea of guilty to the following crime(s)

___ entered a plea of nolo contendere to the following crime(s)

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

Offense

Statute Degree Case OBTS

Count Crime Number(s) of Crime Number Number

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

..........................................................................................................................................................................................................................................

___ and no cause being shown why the defendant should not be adjudicated guilty, IT IS ORDERED THAT
the defendant is hereby ADJUDICATED GUILTY of the above crime(s).

___ and being a qualified offender pursuant to s. 943.325, the defendant shall be required to submit DNA
samples as required by law.

___ and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD.

DONE AND ORDERED in open court in _____ County, Florida, on _____ (date)
Judge
State of Florida
v.
Defendant
Case Number ___________
FINGERPRINTS OF DEFENDANT

R. Thumb R. Index R. Middle R. Ring R. Little

L. Thumb L. Index L. Middle L. Ring L. Little

Fingerprints taken by: ............................................................................................................

Name Title

I HEREBY CERTIFY that the above and foregoing fingerprints on this judgment are the fingerprints of the
defendant, _____, and that they were placed thereon by the defendant in my presence in open court this date.
Judge

(c) Form for Charges, Costs, and Fees.

In the Circuit Court, _____ Judicial Circuit, in and for _____ County, Florida

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

Division _____
Case Number _____
State of Florida
v.
Defendant
CHARGES/COSTS/FEES

The defendant is hereby ordered to pay the following sums:

[Insert list of mandatory fines, discretional fines, and restitution, if any]

DONE AND ORDERED in open court in _____ County, Florida, on _____ (date).
Judge
(d) Form for Sentencing.
Defendant _____ Case Number _____ OBTS Number _____
SENTENCE

(As to Count _____)

The defendant, being personally before this court, accompanied by the defendant’s attorney of record, _____,
and having been adjudicated guilty herein, and the court having given the defendant an opportunity to be heard
and to offer matters in mitigation of sentence, and to show cause why the defendant should not be sentenced as
provided by law, and no cause being shown,
(Check one if applicable)

___ and the court having on _____ date _____ deferred imposition of sentence until this date

___ and the court having previously entered a judgment in this case on _____ date _____ now resentences the
defendant

___ and the court having placed the defendant on probation/community control and having subsequently
revoked the defendant’s probation/community control

It Is The Sentence Of The Court That:

___ The defendant pay a fine of $_____, pursuant to section 775.083, Florida Statutes, plus $_____ as the 5%
surcharge required by section 938.04, Florida Statutes.

___ The defendant is hereby committed to the custody of the Department of Corrections.

___ The defendant is hereby committed to the custody of the Sheriff of _____ County, Florida.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

___ The defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.
To Be Imprisoned (check one; unmarked sections are inapplicable):

___ For a term of natural life.

___ For a term of _____.

___ Said SENTENCE SUSPENDED for a period of _____ subject to conditions set forth in this order.

If “split” sentence complete the appropriate paragraph

___ Followed by a period of _____ on probation/community control under the supervision of the Department
of Corrections according to the terms and conditions of supervision set forth in a separate order entered herein.

___ However, after serving a period of _____ imprisonment in _____ the balance of the sentence shall be
suspended and the defendant shall be placed on probation/community control for a period of _____ under
supervision of the Department of Corrections according to the terms and conditions of probation/community
control set forth in a separate order entered herein.

In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be
satisfied before the defendant begins service of the supervision terms.

SPECIAL PROVISIONS

(As to Count _____)

Retention of Jurisdiction
___ The court retains jurisdiction over the defendant pursuant to section 947.16(4), Florida Statutes (1983).
Jail Credit

___ It is further ordered that the defendant shall be allowed a total of _____ days as credit for time incarcerated
before imposition of this sentence.

CREDIT FOR TIME SERVED IN RESENTENCING AFTER VIOLATION OF PROBATION OR

COMMUNITY CONTROL

___ It is further ordered that the defendant be allowed _____ days time served between date of arrest as a
violator following release from prison to the date of resentencing. The Department of Corrections shall apply
original jail time credit and shall compute and apply credit for time served and unforfeited gain time previously
awarded on case/count _____. (Offenses committed before October 1, 1989)

___ It is further ordered that the defendant be allowed _____ days time served between date of arrest as a
violator following release from prison to the date of resentencing. The Department of Corrections shall apply
original jail time credit and shall compute and apply credit for time served on case/count _____. (Offenses
committed between October 1, 1989, and December 31, 1993)

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

___ The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under
section 948.06(7).

___ The Court allows unforfeited gain time previously awarded on the above case/count. (Gain time may be
subject to forfeiture by the Department of Corrections under section 944.28(1)).

___ _____ It is further ordered that the defendant be allowed _____ days time served between date of arrest as a
violator following release from prison to the date of resentencing. The Department of Corrections shall apply
original jail time credit and shall compute and apply credit for time served only pursuant to section 921.0017,
Florida Statutes, on case/count _____. (Offenses committed on or after January 1, 1994)

Consecutive/Concurrent as to Other Counts

It is further ordered that the sentence imposed for this count shall run (check one) _____ consecutive to _____
concurrent with the sentence set forth in count _____ of this case.

Consecutive/Concurrent as to Other Convictions

It is further ordered that the composite term of all sentences imposed for the counts specified in this order shall
run (check one) _____ consecutive to _____ concurrent with (check one) the following:

___ any active sentence being served.

___ specific sentences: ........................................................................................................

___ ........................................................................................................

___ ........................................................................................................

In the event the above sentence is to the Department of Corrections, the Sheriff of _____ County, Florida, is
hereby ordered and directed to deliver the defendant to the Department of Corrections at the facility designated
by the department together with a copy of this judgment and sentence and any other documents specified by
Florida Statute.

The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal
within 30 days from this date with the clerk of this court and the defendant’s right to the assistance of counsel in
taking the appeal at the expense of the state on showing of indigency.

In imposing the above sentence, the court further recommends

________
________
________
DONE AND ORDERED in open court at _____ County, Florida, on _____ (date).
Judge
(e) Form for Order of Probation.

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

In the _____ Court of _____ County, Florida

Case Number _____

State of Florida
v.
Defendant
ORDER OF PROBATION

This cause coming on this day to be heard before me, and you, the defendant, _____, being now present before
me, and you having (check one)

___ entered a plea of guilty to

___ entered a plea of nolo contendere to

___ been found guilty by jury verdict of

___ been found guilty by the court trying the case without a jury of the offense(s) of _____ _____ _____

SECTION 1: Judgment Of Guilt

___ The Court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby withheld and that you be
placed on probation for a period of _____ under the supervision of the Department of Corrections, subject to
Florida law.

SECTION 2: Order Withholding Adjudication

___ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be
placed on probation for a period of _____ under the supervision of the Department of Corrections, subject to
Florida law.

SECTION 3: Probation During Portion of Sentence

It is hereby ordered and adjudged that you be

___ committed to the Department of Corrections

___ confined in the County Jail

for a term of _____ with credit for _____ jail time. After you have served _____ of the term you shall be placed
on probation for a period of _____ under the supervision of the Department of Corrections, subject to Florida
law.

___ confined in the County Jail

© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

for a term of _____ with credit for _____ jail time, as a special condition of probation.

It is further ordered that you shall comply with the following conditions of probation during the probationary
period:

GENERAL CONDITIONS: [List the general conditions of probation pursuant to section 948.03 Florida
Statutes.]

SPECIAL CONDITIONS: [List the special conditions of probation as orally pronounced and authorized by
law.]

___
Other ________ ________....................................................................................................................................................................

(Use the space below for additional conditions as necessary.)

The court may rescind or modify at any time the terms and conditions imposed by it upon the probationer.

It is further ordered that when you have been instructed as to the conditions of probation, you shall be released
from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged
from liability.

It is further ordered that the clerk of this court file this order in the clerk’s office and provide certified copies of
same to the officer for use in compliance with the requirements of law.
DONE AND ORDERED, on _____ (date).
Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to
abide by them.
Date _____ Probationer _____
Instructed by _____
Original: Clerk of the Court Certified Copies: Probationer Florida Department of Corrections, Probation and
Parole Services

(f) Form for Community Control.

In the _____ Court of _____ County, Florida

Case Number _____

State of Florida
v.
Defendant
ORDER OF COMMUNITY CONTROL

This cause coming on this day to be heard before me, and you, the defendant, _____, being now present before

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

me, and you having

___ entered a plea of guilty to

___ entered a plea of nolo contendere to

___ been found guilty by jury verdict of

___ been found guilty by the court trying the case without a jury of the offense(s) of _____

SECTION 1: Judgment of Guilt

___ The court hereby adjudges you to be guilty of the above offense(s).

Now, therefore it is ordered and adjudged that you be placed on community control for a period of _____ under
the supervision of the Department of Corrections, subject to Florida law.

SECTION 2: Order Withholding Adjudication

___ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be
placed on Community Control for a period of _____ under the supervision of the Department of Corrections,
subject to Florida law.

SECTION 3: Community Control During Portion of Sentence

It is hereby ordered and adjudged that you be

___ committed to the Department of Corrections

___ confined in the County Jail

for a term of _____ with credit for _____ jail time. After you have served _____ of the term, you shall be placed
on community control for a period of _____ under the supervision of the Department of Corrections, subject to
Florida law.

___ confined in the County Jail

for a term of _____ with credit for _____ jail time, as a special condition of community control.

It is further ordered that you shall comply with the following conditions of community control during the
community control period:

GENERAL CONDITIONS: [List the general conditions of community control pursuant to section 948.101
Florida Statutes.]

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

SPECIAL CONDITIONS: [List the special conditions of community control as orally pronounced and
authorized by law.]

It is further ordered that when you have reported to your officer and have been instructed as to the conditions of
community control, you shall be released from custody if you are in custody, and if you are at liberty on bond,
the sureties thereon shall stand discharged from liability.

It is further ordered that the clerk of this court file this order in the clerk’s office, and forthwith provide certified
copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on _____ (date).

Judge
I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to
abide by them.
Date _____ Community controller _____
Instructed by _____
Original: Clerk of the Court Certified Copies: Community Controllee Florida Department of Corrections,
Probation and Parole Services

(g) Form for Restitution Order.

In the Circuit Court, _____ Judicial Circuit in and for _____ County, Florida

Division _____
Case Number _____
State of Florida
v.
Defendant
RESTITUTION ORDER

By appropriate notation, the following provisions apply to the sentence imposed in this section:

___ Restitution is not ordered as it is not applicable.

___ Restitution is not ordered due to the financial resources of the defendant.

___ _____ Restitution is not ordered due to _____.

___ Due to the financial resources of the defendant, restitution of a portion of the damages is ordered as
prescribed below.

___ Restitution is ordered as prescribed below.

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Appendix G. Judgment and Sentence Forms, Including Costs, 11 Fla. Prac., DUI...

___ Restitution is ordered for the following victim. (Victim refers to the aggrieved party, aggrieved party’s
estate, or aggrieved party’s next of kin if the aggrieved party is deceased as a result of the offense. In lieu of the
victim’s address and phone number, the address and phone number of the prosecuting attorney, victim’s
attorney, or victim advocate may be used.)
Name of victim
Name of attorney or advocate if applicable

Address .................................................................................................................................................................................................
City, State, and Zip Code .....................................................................................................................................................................
Phone Number (of prosecuting attorney, victim’s attorney, or victim advocate) ................................................................................
[Include all restitution and findings, as authorized by law and pronounced at sentencing.]

DONE AND ORDERED at _____ County, Florida, on _____ (date).

Judge
Original: Clerk of the Court
Certified Copy: Victim

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix H (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix H. Relevant Standard Jury Instructions in Criminal Cases

28.1 DRIVING UNDER THE INFLUENCE § 316.193(1), Fla. Stat.

To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a
reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent
that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood][210 liters
of breath].

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving under the Influence, you must also determine whether the State has
proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control
of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the Driving
under the Influence.

Definitions. Give as applicable.

§ 316.003(75), Fla. Stat.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a
highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an
automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

Give if applicable.

The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the
capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any
presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence
in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired.

3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the
defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to
establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that
[his] [her] normal faculties were impaired.

[Author’s note: the bold language has been stricken by the Supreme Court for the reason expressed below. It
has been left in the instruction in anticipation of future developments, but it is no longer part of the standard
instructions.]

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if
the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases,
if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

moot. Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving under the Influence if at the time of the alleged offense, the vehicle was
inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle
became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable
at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that
the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the
other elements of the charge have been proved beyond a reasonable doubt.

Lesser Included Offenses

DRIVING UNDER THE INFLUENCE-316.193(1)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Comment
A misdemeanor instruction was adopted in 1981 as part of Standard Jury Instructions In Misdemeanor Cases. In
1992, a similar instruction was adopted for Florida Standard Jury Instructions In Criminal Cases. That
instruction was amended in 1995 and 1998; both instructions were merged into a revised instruction in 2000,
which was amended in 2009 [6 So.3d 574] and 2016 [192 So.3d 1190].

28.1(a) DRIVING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY §

316.193(3)(a)(b)(c) 1, Fla. Stat.
To prove the crime of Driving under the Influence Causing [Property Damage] [Injury], the State must prove
the following three elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent
that [his][her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters
of breath].

3. As a result of operating the vehicle, (defendant) caused or contributed to causing [damage to the property of
(victim)] [injury to the person of (victim)].

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving under the Influence Causing [Property Damage] [Injury], you must

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control
of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the Driving
under the Influence.

Definitions. Give as applicable.

§ 316.003(75), Fla. Stat.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a
highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an
automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

Give if applicable.

The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the
capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the
influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating that the defendant was under the influence of
alcoholic beverages to the extent that [his][her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any
presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence
in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his][her]
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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

normal faculties were impaired.

3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the
defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to
establish that the defendant was under the influence of alcoholic beverages to the extent that [his][her]
normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that
[his][her] normal faculties were impaired.

[Author’s note: the bold language has been stricken by the Supreme Court for the reason expressed below. It
has been left in the instruction in anticipation of future developments, but it is no longer part of the standard
instructions.]

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if
the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases,
if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes
moot. Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving under the Influence Causing [Property Damage] [Injury] if at the time of
the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under
the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable
doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty.
However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should
find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.

Lesser Included Offenses

DRIVING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY-316.193(1)(a)

(b)(c)1
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

DUI 316.193(1) 28.1

Attempt 777.04(1) 5.1

Comment
This instruction was adopted in 2009; In re Standard Jury Instructions in Criminal Cases-Report No. 2008-08, 6
So.3d 574 (Fla. 2009), and amended in 2009 [6 So.3d 574 and 18 So.3d 523] and 2016 [192 So.3d 1190].

28.2 FELONY DRIVING UNDER THE INFLUENCE [THIRD OFFENSE WITHIN 10 YEARS OF A
PRIOR CONVICTION] [FOURTH OFFENSE] § 316.193(2)(b) 1 or § 316.193(2)(b) 3, Fla. Stat.
To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a
reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent
that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood][210 liters
of breath].

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving under the Influence, you must also determine whether the State has
proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control
of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the Driving
under the Influence.

Definitions. Give as applicable.

§ 316.003(75), Fla. Stat.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a
highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an
automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

Give if applicable.

The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the
capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any
presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence
in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired.

3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the
defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to
establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that
[his] [her] normal faculties were impaired.

[Author’s note: the bold language has been stricken by the Supreme Court for the reason expressed below. It
has been left in the instruction in anticipation of future developments, but it is no longer part of the standard
instructions.]

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if
the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases,
if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes
moot. Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving under the Influence if at the time of the alleged offense, the vehicle was
inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle
became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable
at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that
the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the
other elements of the charge have been proved beyond a reasonable doubt.

Give as applicable if the jury finds the defendant guilty of Driving under the Influence. Note: BUI and out-of-
state DUI/DWI convictions count as prior convictions. See § 316.193(6)(k), Fla. Stat. See State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).

Now that you have found the defendant guilty of Driving under the Influence, you must further determine
whether the State has proven beyond a reasonable doubt whether:

a. the defendant was previously convicted two times of Driving under the Influence and one of the prior Driving
Under the Influence convictions took place within 10 years of the Driving Under the Influence that you found
the defendant committed.

b. the defendant was previously convicted three times of Driving under the Influence.

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

Give if applicable. 316.193(12), Fla. Stat.

If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been
previously convicted of Driving under the Influence, you may conclude that the State has established that prior
Driving under the Influence conviction. However, such evidence may be contradicted or rebutted by other
evidence. Accordingly, this inference may be considered along with any other evidence in deciding whether the
defendant has a prior Driving under the Influence conviction.

Lesser Included Offenses

FELONY DRIVING UNDER THE INFLUENCE—[THIRD OFFENSE WITH 10 YEARS OF A PRIOR

CONVICTION][FOURTH OFFENSE] 316.193(2)(b)1 or 316.193(2)(b)3
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Driving under the influence 316.193(1) 28.1

Attempt 777.04(1) 5.1

Driving under the influence 316.193(3)(a)(b)(c)1. 28.1(a)

causing property damage or injury

Comment
This instruction should be used for Felony Driving under the Influence based on prior convictions. For Felony
Driving under the Influence based on prior convictions, it is error to inform the jury of prior Driving under the
Influence/Boating under the Influence convictions until the verdict on the underlying Driving under the
Influence is rendered. Therefore, if the information or indictment contains an allegation of prior Driving under
the Influence/Boating under the Influence convictions, do not read that allegation and do not send the
information or indictment into the jury room. If the defendant is found guilty of Driving under the Influence, the
historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See
State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 2009 [6 So.3d 574] and amended in 2016 [192 So.3d 1190].

28.3 DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY § 316.193(3)(a)
(b)(c) 2, Fla. Stat.
To prove the crime of Driving under the Influence Causing Serious Bodily Injury, the State must prove the
following three elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent
that [his][her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters
of breath].
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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

3. As a result of operating the vehicle, (defendant) caused or contributed to causing [serious bodily injury to
(victim)].

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving under the Influence Causing [Property Damage] [Injury], you must
also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control
of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the Driving
under the Influence.

Definitions. Give as applicable.

§ 316.003(75), Fla. Stat.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a
highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an
automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001).

Impaired means diminished in some material respect.

Give if applicable.

The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the
capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

§ 316.1933, Fla. Stat.

“Serious bodily injury” means a physical condition that creates a substantial risk of death, serious personal
disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

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Appendix H. Relevant Standard Jury Instructions in..., 11 Fla. Prac., DUI...

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the
influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating that the defendant was under the influence of
alcoholic beverages to the extent that [his][her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant
had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any
presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence
in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his][her]
normal faculties were impaired.

3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the
defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to
establish that the defendant was under the influence of alcoholic beverages to the extent that [his][her]
normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that
[his][her] normal faculties were impaired.

[Author’s note: the bold language has been stricken by the Supreme Court for the reason expressed below. It
has been left in the instruction in anticipation of future developments, but it is no longer part of the standard
instructions.]

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if
the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases,
if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes
moot. Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving under the Influence Causing Serious Bodily injury if at the time of the
alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the
influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt
that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty.
However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should
find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.

Lesser Included Offenses

DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY-316.193(1)(a)(b)(c)2

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Driving under the influence 316.193(3(a)(b)(c)1. 28.1

causing injury

Driving under the influence 316.193(1) 28.1

Driving under the influence 316.193(3(a)(b)(c)1. 28.1(a)

causing property damage
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Attempt 777.04(1) 5.1

Comment
This instruction was adopted in 1992 and amended in 1998 [723 So.2d 123]; 2009 [6 So.3d 574], 2013 [131
So.3d 720], and 2016 [192 So.3d 1190].

28.13 Refusal to Submit to Testing, § 316.1939, Fla. Stat.

To prove the crime of Refusal to Submit to Testing, the State must prove the following six elements beyond a
reasonable doubt:

Give 1a and/or 1b as applicable.

1. A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control
of] a motor vehicle in this state while

a. under the influence of [an alcoholic beverage] [ ( a chemical substance listed in 877.111 Fla. Stat.) ][ (a
controlled substance listed in Chapter 893) ] to the extent (Defendant’s) normal faculties were impaired.

b. [his][her] [breath] [blood] alcohol level was .08 or higher.

Give 2a in cases where the defendant was arrested. Give 2b in cases where the defendant appeared for
treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test was
impractical or impossible.

2. a. The law enforcement officer arrested (defendant) for Driving Under the Influence.

b. The law enforcement officer requested a blood test.

3. (Defendant) was informed that if [he][she] refused to submit to a [chemical] [physical] test of [his][her]
[breath] [blood] [urine], [his][her] privilege to operate a motor vehicle would be suspended for a period of one
year, or, in the case of a second or subsequent refusal, for a period of 18 months.

4. (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his][her] [breath]
[blood] [urine], if [his][her] driving privilege had been previously suspended for a prior refusal to submit to a
lawful test of his [breath] [blood] [urine].

5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his][her] [breath]
[blood] [urine] when requested to do so by a [law enforcement officer] [correctional officer].

6. (Defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of
[his][her] [breath] [blood] [urine].

Inference

You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior
refusal to submit to a lawful test of [his] [her][[breath][blood][urine] if a record from the Department of
Highway Safety and Motor Vehicles shows such a suspension.

Definitions

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”Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway, but not including any
bicycle, motorized scooter, electric personal assistive mobility device, swamp buggy, or moped.

”Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement
officer’s knowledge, training and experience, gave the officer reasonable grounds and a fair probability to
believe that a crime had been committed.

Give if applicable

”Actual physical control” means the defendant must be physically in or on the motor vehicle and have the
capability to operate the motor vehicle, regardless of whether [he][she] is actually operating the vehicle at the
time.

Lesser Included Offenses

No category one lesser included offenses have been identified for this offense.

Attempt has been identified as a category two lesser included.

Comment
Where the lawfulness of the arrest is at issue, a special instruction may be warranted.

This instruction was adopted in 2007 [965 So.2d 811] and 2013 [131 So.3d 692].

Author’s note: the Supreme Court made significant changes in all the DUI instructions, except for this one. In
re Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016).

7.8 DRIVING UNDER THE INFLUENCE MANSLAUGHTER §§ 316.193(3)(a), (3)(b), and (3)(c) 3.,
Fla. Stat.
To prove the crime of Driving under the Influence Manslaughter, the State must prove the following three
elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control] of a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant).

Give 2a or b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent
that [his][her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters
of breath].

3. As a result of operating the vehicle, (defendant) caused or contributed to the cause of the death of [(victim)]
[an unborn child].

Give if §§ 316.193(3)(a), (3)(b), and (3)(c)3.b., Fla. Stat., is charged:

If you find the defendant guilty of Driving under the Influence Manslaughter, you must further determine
whether the State proved beyond a reasonable doubt that:

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(Defendant), at the time of the crash,

a. knew or should have known that the crash occurred and

b. failed to give information as required by law and

c. failed to render aid as required by law.

Florida law requires that the driver of any vehicle involved in a crash resulting in injury to or death of any
person, or damage to any vehicle or other property which is driven or attended by any person, must supply [his]
[her] name, address, and the registration number of the vehicle [he] [she] is driving to any person injured in the
crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash.
Upon request and if available, the driver shall also exhibit [his] [her] license or permit to drive.

The driver shall give the same information and, upon request, exhibit his or her license or permit, to any police
officer who is at the scene of the crash or who is investigating the crash.

The driver shall also render reasonable assistance to any person injured in the crash, including carrying, or the
making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or
surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured
person.

In the event none of the persons specified above are in condition to receive the information to which they
otherwise would be entitled, and no police officer is present, the driver of a vehicle involved in the crash, after
trying to fulfill the requirements listed above as much as possible, shall immediately report the crash to the
nearest office of a duly authorized police authority and supply the information specified above.

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving under the Influence Manslaughter, you must also determine whether
the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control
of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the driving
under the influence.

Definitions. Give as applicable.

§ 316.003(95), Fla. Stat.

“Vehicle” is every device, in, upon, or by which any person or property is or may be transported or drawn upon
a highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an
automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).

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“Impaired” means diminished in some material respect.

Give if applicable.

The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

“Actual physical control of a vehicle” means the defendant must be physically in [or on] the vehicle and have
the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the
time.

§ 322.01(2), Fla. Stat.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

§ 877.111(1), Fla. Stat.

( ) is a chemical substance under Florida law.

Chapter 893, Fla. Stat.

( ) is a controlled substance under Florida law.

§ 775.021(5), Fla. Stat.

An “unborn child” means a member of the species Homo sapiens, at any stage of development, and who is
carried in the womb.

Give if applicable. § 775.021(5)(b), Fla. Stat.

Driving Under the Influence Manslaughter does not require the State to prove that the defendant knew or should
have known that (victim) was pregnant or that the defendant intended to cause the death of the unborn child.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

1. If you find from the evidence that while driving [or in actual physical control of] a motor vehicle, the
defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under
the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving [or in actual physical control of] a motor vehicle, the
defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to
any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that
[his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other
evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that
[his] [her] normal faculties were impaired.

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if
the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases,
if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes
moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.

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It is a defense to the charge of Driving under the Influence if at the time of the alleged offense, the vehicle was
inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle
became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable
at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that
the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the
other elements of the charge have been proved beyond a reasonable doubt.

DRIVING UNDER THE INFLUENCE MANSLAUGHTER INJURY-316.193(3)(A), (3)(B), AND (3)

(C)3.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Driving under the influence 316.193(1) 28.1

Driving under the influence 316.193(3)(a), (3)(b), and 28.3

causing serious bodily injury (3)(c)2.

Driving under the influence 316.193(3)(a), (3)(b), and 28.1(a)

causing damage to person or (3)(c)1.
property

Editors’ Notes

COMMENT
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985]; 1987 [508 So. 2d 1221]; 1992
[603 So. 2d 1175]; 1995 [665 So. 2d 212]; 1998 [723 So. 2d 123]; 2006 [946 So. 2d 1061]; 2009 [6 So. 3d
574]; 2016 [190 So. 3d 1055]; and 2017 [211 So.3d 995].

25.7 Possession of a Controlled Substance § 893.13(6), Fla. Stat. [Excerpt]

There are two types of possession: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the substance is in a
place over which the person has control, and the person has the ability to control the substance.

Give if applicable.

Mere proximity to a substance is not sufficient to establish power and intention to control that substance

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when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a substance that was in a place [he] [she] did
not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence
and (2) exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence
of a substance and may jointly exercise control over it. In that case, each of those persons is considered to
be in possession of the substance.

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254
(Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [[his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention
to control it. If (defendant) did not have exclusive control over the place where a substance was located,
you may not infer [he] [[she] had knowledge of the presence of the substance or the power and intention
to control it, in the absence of other incriminating evidence.

3.6(J) Entrapment
The defense of entrapment has been raised. (Defendant) was entrapped if

1. [he] [she] was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to
engage in conduct constituting the crime of (crime charged), and

2. [he] [she] engaged in such conduct as the direct result of such inducement or encouragement, and

3. the person who induced or encouraged [him] [her] was a law enforcement officer or a person engaged in
cooperating with or acting as an agent of a law enforcement officer, and

4. the person who induced or encouraged [him] [her] employed methods of persuasion or inducement which
created a substantial risk that the crime would be committed by a person other than one who was ready to
commit it, and

5. (defendant) was not a person who was ready to commit the crime.

When claim of entrapment no defense

It is not entrapment if (defendant) had the predisposition to commit the (crime charged) (Defendant) had the
predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured

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(defendant), [he] [she] had a readiness or willingness to commit (crime charged) if the opportunity presented
itself.

It also is not entrapment merely because a law enforcement officer, in a good faith attempt to detect crime,

Give a., b., or c. as applicable

a. [provided the defendant the opportunity, means, and facilities to commit the offense, which the defendant
intended to commit and would have committed otherwise.]

b. [used tricks, decoys, or subterfuge to expose the defendant’s criminal acts.]

c. [was present and pretending to aid or assist in the commission of the offense.]

On the issue of entrapment, the defendant must prove to you by the greater weight of the evidence that a law
enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means
that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a
reasonable doubt that the defendant was predisposed to commit the (crime charged). The State must prove
defendant’s predisposition to commit the (crime charged) existed prior to and independent of the inducement or
encouragement.

Give if applicable

An informant is an agent of law enforcement for purposes of the entrapment defense.

If you find that the defendant was entrapped, you should find the defendant not guilty of (crime charged). If,
however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the
elements of the charge have been proved.

Comment
This instruction is to be used for offenses occurring on or after October 1, 1987.

This instruction should be given only if there is some evidence of the defendant’s lack of predisposition to
commit the crime. See Munoz v. State, 629 So.2d 90 (Fla. 1993).

This instruction was adopted in 1981 and was amended in 1989 and 1998.

3.6(k) Duress or Necessity

An issue in this case is whether (defendant) acted out of [duress] [[necessity] in committing the crime of
(crime charged) (lesser included offenses).

It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress]
[necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of
[duress] [[necessity], you must find the following six elements:

1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally
caused by [himself] [herself].

2. a. The [danger] [emergency] threatened significant harm to [himself] [[herself] [a third person].

Give 2b if escape charged.

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b. The [danger] [emergency] threatened death or serious bodily injury.

3. The threatened harm must have been real, imminent, and impending.

Give 4a if escape is not charged.

4. a. The defendant had no reasonable means to avoid the [danger] [[emergency] except by committing
the (crime charged) (lesser included offenses).

If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent
enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and Alcantaro v. State, 407 So.2d 922 (Fla.
1st DCA 1981), and if so, give 4b.

b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being
transported] [to] [from] [his] [her] work on a public road] because [he] [she] reasonably believed that
escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude
lawful authority.

5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to
avoid the [danger] [emergency].

6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime
charged) (lesser included offenses).

Definitions.

“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided
by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the
defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from
the threatened harm had passed.

The reasonableness of the defendant’s belief that [a danger] [an emergency] existed should be examined
in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included
offenses), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the
time the crime was committed.

The [danger] [emergency] facing the defendant need not have been actual; however, to justify the
commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency]
must have been so real that a reasonably cautious and prudent person under the same circumstances
would have believed that the [danger] [emergency] could be avoided only by committing the (crime
charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed
that the [danger] [[emergency] was real.

If you have a reasonable doubt as to whether the defendant committed the (crime charged) (lesser included
offenses) out of [duress] [necessity], you should find the defendant not guilty.

However, if you are convinced beyond a reasonable doubt that the defendant did not commit the (crime
charged) (lesser included offenses) out of [duress] [[necessity], you should find the defendant guilty if all
the elements of the charge have been proved.

Comment

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Duress is not a defense to premeditated murder or attempted premeditated murder. See Wright v. State, 402 So.
2d 493 (Fla. 3d DCA 1981) and Cawthon v. State, 382 So. 2d 796 (Fla. 1st DCA 1980). It is unclear whether
duress is a defense to other forms of homicide. Review Judge Ervin’s opinion in Chestnut v. State, 505 So.
2d 1352 (Fla. 1st DCA 1987), and the language in Gahley v. State, 567 So. 2d 456 (Fla. 1st DCA 1990), Corujo
v. State, 424 So. 2d 43 (Fla. 2d DCA 1982), and Hunt v. State, 753 So. 2d 609 (Fla. 5th DCA 2000).

For the defense of necessity for the charge of Felon in Possession of a Firearm, see State v. Chambers, 890 So.
2d 456 (Fla. 2d DCA 2004) and Marrero v. State, 516 So. 2d 1052 (Fla. 3d DCA 1987).

This instruction was adopted in July 1998 and amended in 2012 [95 So. 3d 868] and 2014 [143 So. 3d 893].

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

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Appendix I. Excerpts From Fla. Stat. ch. 327 Vessel Safety, 11 Fla. Prac., DUI...

11 Fla. Prac., DUI Handbook Appendix I (2018-2019 ed.)

West’s Florida Practice Series TM | November 2018 Update

DUI Handbook
David A. Demers, Esquirea0

Appendices

Appendix I. Excerpts From Fla. Stat. ch. 327 Vessel Safety

Selected Sections

327.352. Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal
(1)
(a)
1. The Legislature declares that the operation of a vessel is a privilege that must be exercised in a
reasonable manner. In order to protect the public health and safety, it is essential that a lawful and
effective means of reducing the incidence of boating while impaired or intoxicated be established.
Therefore, any person who accepts the privilege extended by the laws of this state of operating a vessel
within this state is, by so operating such vessel, deemed to have given his or her consent to submit to an
approved chemical test or physical test including, but not limited to, an infrared light test of his or her
breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is
lawfully arrested for any offense allegedly committed while the person was operating a vessel while
under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a
lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to
believe such person was operating the vessel within this state while under the influence of alcoholic
beverages. The administration of a breath test does not preclude the administration of another type of
test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will
result in a civil penalty of $500, and shall also be told that if he or she refuses to submit to a lawful test
of his or her breath and he or she has been previously fined for refusal to submit to any lawful test of his
or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The
refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as
provided in this section is admissible into evidence in any criminal proceeding.
2. Any person who accepts the privilege extended by the laws of this state of operating a vessel within
this state is, by so operating such vessel, deemed to have given his or her consent to submit to a urine
test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or
controlled substances if the person is lawfully arrested for any offense allegedly committed while the
person was operating a vessel while under the influence of chemical substances or controlled substances.
The urine test must be incidental to a lawful arrest and administered at a detention facility or any other
facility, mobile or otherwise, which is equipped to administer such tests at the request of a law
enforcement officer who has reasonable cause to believe such person was operating a vessel within this
state while under the influence of chemical substances or controlled substances. The urine test shall be
administered at a detention facility or any other facility, mobile or otherwise, which is equipped to
administer such test in a reasonable manner that will ensure the accuracy of the specimen and maintain
the privacy of the individual involved. The administration of a urine test does not preclude the
administration of another type of test. The person shall be told that his or her failure to submit to any

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Appendix I. Excerpts From Fla. Stat. ch. 327 Vessel Safety, 11 Fla. Prac., DUI...

lawful test of his or her urine will result in a civil penalty of $500, and shall also be told that if he or she
refuses to submit to a lawful test of his or her urine and he or she has been previously fined for refusal to
submit to any lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in
addition to any other penalties. The refusal to submit to a urine test upon the request of a law
enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.
1. The blood-alcohol level must be based upon grams of alcohol per 100 milliliters of blood. The breath-
alcohol level must be based upon grams of alcohol per 210 liters of breath.
2. An analysis of a person’s breath, in order to be considered valid under this section, must have been
performed substantially according to methods approved by the Department of Law Enforcement. Any
insubstantial differences between approved techniques and actual testing procedures in any individual
case do not render the test or test results invalid.
3. The Alcohol Testing Program within the Department of Law Enforcement is responsible for the
regulation of the operation, inspection, and registration of breath test instruments utilized under the
driving and boating under the influence provisions and related provisions located in this chapter and
chapters 316 and 322. The program is responsible for the regulation of the individuals who operate,
inspect, and instruct on the breath test instruments utilized in the driving and boating under the influence
provisions and related provisions located in this chapter and chapters 316 and 322. The program is
further responsible for the regulation of blood analysts who conduct blood testing to be utilized under
the driving and boating under the influence provisions and related provisions located in this chapter and
chapters 316 and 322. The program shall:
a. Establish uniform criteria for the issuance of permits to breath test operators, agency inspectors,
instructors, blood analysts, and instruments.
b. Have the authority to permit breath test operators, agency inspectors, instructors, blood analysts,
and instruments.
c. Have the authority to discipline and suspend, revoke, or renew the permits of breath test operators,
agency inspectors, instructors, blood analysts, and instruments.
d. Establish uniform requirements for instruction and curricula for the operation and inspection of
approved instruments.
e. Have the authority to specify one approved curriculum for the operation and inspection of approved
instruments.
f. Establish a procedure for the approval of breath test operator and agency inspector classes.
g. Have the authority to approve or disapprove breath test instruments and accompanying
paraphernalia for use pursuant to the driving and boating under the influence provisions and related
provisions located in this chapter and chapters 316 and 322.
h. With the approval of the executive director of the Department of Law Enforcement, make and enter
into contracts and agreements with other agencies, organizations, associations, corporations,
individuals, or federal agencies as are necessary, expedient, or incidental to the performance of duties.
i. Issue final orders which include findings of fact and conclusions of law and which constitute final
agency action for the purpose of chapter 120.
j. Enforce compliance with the provisions of this section through civil or administrative proceedings.
k. Make recommendations concerning any matter within the purview of this section, this chapter,
chapter 316, or chapter 322.
l. Promulgate rules for the administration and implementation of this section, including definitions of
terms.
m. Consult and cooperate with other entities for the purpose of implementing the mandates of this
section.
n. Have the authority to approve the type of blood test utilized under the driving and boating under the
influence provisions and related provisions located in this chapter and chapters 316 and 322.
o. Have the authority to specify techniques and methods for breath alcohol testing and blood testing
utilized under the driving and boating under the influence provisions and related provisions located in
this chapter and chapters 316 and 322.
p. Have the authority to approve repair facilities for the approved breath test instruments, including
the authority to set criteria for approval.
Nothing in this section shall be construed to supersede provisions in this chapter and chapters 316 and 322.

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Appendix I. Excerpts From Fla. Stat. ch. 327 Vessel Safety, 11 Fla. Prac., DUI...

The specifications in this section are derived from the power and authority previously and currently
possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of
chapter 99–379, Laws of Florida.
(c) Any person who accepts the privilege extended by the laws of this state of operating a vessel within this
state is, by operating such vessel, deemed to have given his or her consent to submit to an approved blood
test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of
determining the presence of chemical substances or controlled substances as provided in this section if
there is reasonable cause to believe the person was operating a vessel while under the influence of
alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital,
clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.
As used in this paragraph, the term “other medical facility” includes an ambulance or other medical
emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is
incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to
have withdrawn his or her consent to such test. Any person who is capable of refusal shall be told that his
or her failure to submit to such a blood test will result in a civil penalty of $500 and that a refusal to submit
to a lawful test of his or her blood, if he or she has previously been fined for refusal to submit to any lawful
test of his or her breath, urine, or blood, is a misdemeanor. The refusal to submit to a blood test upon the
request of a law enforcement officer shall be admissible in evidence in any criminal proceeding.
(d) If the arresting officer does not request a chemical or physical breath test of the person arrested for any
offense allegedly committed while the person was operating a vessel while under the influence of alcoholic
beverages or controlled substances, the person may request the arresting officer to have a chemical or
physical test made of the arrested person’s breath or a test of the urine or blood for the purpose of
determining the alcoholic content of the person’s blood or breath or the presence of chemical substances or
controlled substances; and, if so requested, the arresting officer shall have the test performed.
1. The tests determining the weight of alcohol in the defendant’s blood or breath shall be administered at
the request of a law enforcement officer substantially in accordance with rules of the Department of Law
Enforcement. However, the failure of a law enforcement officer to request the withdrawal of blood does
not affect the admissibility of a test of blood withdrawn for medical purposes.
2. Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel
authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor,
technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for
the purpose of determining its alcoholic content or the presence of chemical substances or controlled
substances therein. However, the failure of a law enforcement officer to request the withdrawal of blood
does not affect the admissibility of a test of blood withdrawn for medical purposes.
3. The person tested may, at his or her own expense, have a physician, registered nurse, other personnel
authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor,
technologist, or technician, or other person of his or her own choosing administer an independent test in
addition to the test administered at the direction of the law enforcement officer for the purpose of
determining the amount of alcohol in the person’s blood or breath or the presence of chemical
substances or controlled substances at the time alleged, as shown by chemical analysis of his or her
blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an
independent test by a person does not preclude the admissibility in evidence of the test taken at the
direction of the law enforcement officer. The law enforcement officer shall not interfere with the
person’s opportunity to obtain the independent test and shall provide the person with timely telephone
access to secure the test, but the burden is on the person to arrange and secure the test at the person’s
own expense.
4. Upon the request of the person tested, full information concerning the results of the test taken at the
direction of the law enforcement officer shall be made available to the person or his or her attorney. Full
information is limited to the following:
a. The type of test administered and the procedures followed.
b. The time of the collection of the blood or breath sample analyzed.
c. The numerical results of the test indicating the alcohol content of the blood and breath.
d. The type and status of any permit issued by the Department of Law Enforcement which was held
by the person who performed the test.

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Appendix I. Excerpts From Fla. Stat. ch. 327 Vessel Safety, 11 Fla. Prac., DUI...

e. If the test was administered by means of a breath testing instrument, the date of performance of the
most recent required inspection of such instrument.
Full information does not include manuals, schematics, or software of the instrument used to test the
person or any other material that is not in the actual possession of the state. Additionally, full information
does not include information in the possession of the manufacturer of the test instrument.
5. A hospital, clinical laboratory, medical clinic, or similar medical institution or physician, certified
paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw
blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other
person assisting a law enforcement officer does not incur any civil or criminal liability as a result of the
withdrawal or analysis of a blood or urine specimen, or the chemical or physical test of a person’s breath
pursuant to accepted medical standards when requested by a law enforcement officer, regardless of
whether or not the subject resisted administration of the test.
(2) The results of any test administered pursuant to this section for the purpose of detecting the presence of
any controlled substance shall not be admissible as evidence in a criminal prosecution for the possession of a
controlled substance.
(3) Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical
records, information relating to the alcoholic content of the blood or breath or the presence of chemical
substances or controlled substances in the blood obtained pursuant to this section shall be released to a court,
prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of
s. 327.35 upon request for such information.

Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
a0
Circuit Court Judge, Sixth Judicial Circuit, Pinellas County Florida.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government

Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.