PATHOS LAMPKIN, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pathos Lampkin appeals his conviction on three counts including driving under the influence, carrying a concealed firearm, and possession of a firearm by a convicted felon. The court affirmed his conviction, finding no reversible error in the admission of his breathalyzer refusal, prior conviction evidence, or prosecutor's closing argument.
The court affirmed the conviction on all grounds. Although the court did not reach the merits regarding the breathalyzer refusal, it found harmless error because sufficient competent evidence established intoxication. The court found no error in admitting the certified copy of prior conviction and no impropriety in the prosecutor's closing remarks.
[1] Evidence of a defendant's refusal to take a breathalyzer test is admissible in criminal proceedings.
[2] The admission of evidence of a defendant's refusal to take a breathalyzer test constitutes harmless error when other competent evidence establishes the defendant's intoxi…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Without reaching the merits of appellant's contention, we find sufficient competent evidence in the record to establish appellant's intoxication.”
The court applied harmless error analysis, finding that even assuming the breathalyzer refusal was improperly admitted, other evidence supported the conviction.
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Join FLexlaw to unlock all legal intelligenceLampkin was arrested and subsequently convicted by jury on three counts: carrying a concealed firearm, possession of a firearm by a convicted felon, a…
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DELL, Judge.
Pathos Lampkin, Sr., appeals from the judgment and sentence rendered after a jury found him guilty on three counts: (1) carrying a concealed firearm; (2) possession of a firearm by a convicted felon; and (3) driving under the influence. Before appellant’s trial, defense counsel moved to exclude evidence of Lampkin’s refusal to take a breathalyzer test and also moved to exclude evidence of the nature of Lamp-kin’s previous conviction. The trial court denied both motions. At the close of the trial, the prosecutor’s argument contained certain statements the appellant alleges improperly referred to his failure to testify.
Appellant contends the trial court erred by admitting evidence of his refusal to take a breathalyzer test. Without reaching the merits of appellant’s contention, we find sufficient competent evidence in the record to establish appellant’s intoxication. In Grala v. State, 414 So. 2d 621 (Fla. 3d DCA 1982), the district court found that an improper admission of actual test results constituted only harmless error where other competent evidence established the appellant’s state of intoxication. Thus we find no reversible error in the admission of appellant’s refusal to take the test.
We note that after appellant’s arrest section 316.1932, Florida Statutes (Supp.1982) became effective. Subsection (l)(a) provides in part that evidence of a refusal to take a breathalyzer test “shall be admissible into evidence in any criminal proceeding.” The United States Supreme Court, in construing a similar South Dakota statute, approved the admissibility of the refusal in South Dakota v. Neville, 459 U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Relying on Neville, the Second District Court of Appeal held section 316.-1932(l)(a), Florida Statutes, to be constitutional. State v. Pagach, 442 So. 2d 331 (Fla. 2d DCA 1983). We agree with the holding of the Second District.
Regarding the other points raised by the appellant, we find no error in the trial court’s admission of a certified copy of appellant’s prior conviction, see Parker v. State, 408 So. 2d 1037, 1038 (Fla.1982) and we find no impropriety in the prosecutor’s remarks made during closing argument, see White v. State, 377 So. 2d 1149 (Fla.1979). Accordingly, we affirm the judgment and sentence rendered by the trial court.
ANSTEAD, C.J., and HERSEY, J., concur.
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Citator
Cited By
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Art Crawford, Jr. v. State, 473 So. 2d 700 (Fla. 4th DCA 1985)…State, 56 Fla. 57, 47 So. 389 (1908); Gray v. State, 42 Fla. 174, 28 So. 53 (1900); Mabery v. State, 303 So. 2d 369 (Fla. 3d DCA 1974); Woodside v. State, 206 So. 2d 426 (Fla. 3d DCA 1968). The second is a decision of this court, Lampkin v. State, 445 So. 2d 673 (Fla. 4th DCA 1984). Although the opinion does not recite the prosecutor’s comments, the briefs reflect that the prosecutor said: There’s only been one version of facts given from that chair right there and B.R. Johnson (policeman) made that versio…
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State v. MacIas, 481 So. 2d 979 (Fla. 4th DCA 1986)…itting the results of a blood test where proper procedures were not followed, but held that such error was harmless because there was overwhelming evidence of guilt aside from the blood test. This court cited Grala with approval in Lampkin v. State, 445 So. 2d 673 (Fla. 4th DCA 1984). The instant case is similar to Grala in that there was also testimony that respondent was driving erratically, smelled strongly of alcohol, had bloodshot eyes and admitted to having consumed several alcoholic drinks. In additio…
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Howitt v. State, 266 So. 3d 219 (Fla. 5th DCA 2019)
Authorities Cited
- South Dakota v. Neville, 459 U.S. 553 (U.S. 1983)
- White v. State, 377 So. 2d 1149 (Fla. 1979)
- Parker v. State, 408 So. 2d 1037 (Fla. 1982)
- Grala v. State, 414 So. 2d 621 (Fla. 3d DCA 1982)
- Messier v. State, 442 So. 2d 331 (Fla. 4th DCA 1983)