STATE OF FLORIDA, APPELLANT,
v.
RAYMOND BARRETT, APPELLEE
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Florida affirmed suppression of pre-arrest breath test results, holding that breath tests are admissible only when incidental to a lawful arrest, regardless of whether death or serious injury occurred.
Breath test results are admissible in evidence only when the test is incidental to a lawful arrest, and pre-arrest breath tests are inadmissible in any proceeding.
[1] Pre-arrest breath test results are inadmissible in evidence in any civil or criminal proceeding, even when the driver caused death or serious injury and could be compelle…
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Join FLexlaw to unlock all legal intelligence“The results of a chemical test of a driver's breath to determine the alcohol content of his blodd are admissible in evidence only where the test is incidental to a lawful arrest.”
Statement of the controlling statutory rule under § 316.1932(1)(a), Fla.Stat. (1985)
A driver was subjected to a pre-arrest breath test to determine alcohol content. The trial court suppressed the results.…
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ORFINGER, Judge.
We affirm the order of the trial court suppressing the results of a pre-arrest breath test on the ground that the results of a chemical test of a driver’s breath to determine the alcohol content of his blodd are admissible in evidence only where the test is incidental to a lawful arrest. § 316.1932(1)(a), Fla.Stat. (1985). The results of a pre-arrest breath test are not admissible into evidence in any civil or criminal proceeding. § 316.1932(1)(b)1, Fla.Stat. (1985). The State suggests that because an officer may compel a driver to submit to a blood test where the officer has probable cause to believe that the driver was operating the motor vehicle while under the influence of alcoholic beverages and has caused death or serious injury, (section 316.1933(1)) which test need not be incident to arrest, that when death or serious injury has occurred the driver can consent to the administration of a less intrusive breath test which should thus be admissible as would be a non-consensual blood test. While this argument is enticing, the legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible. Cf. State v. Williams, 417 So. 2d 755 (Fla. 5th DCA 1982). There is nothing in this record to suggest that the defendant consented to a breath test in lieu of a blood test.
AFFIRMED.
COBB and COWART, JJ., concur.
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Citator
Cited By
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State v. Whitley, 846 So. 2d 1163 (Fla. 5th DCA 2003)…lature’s intent. Although the statute does not explicitly state that the person must be lawfully arrested for DUI before the breath test is administered, it does provide that the “test must be incidental to a lawful arrest.” Id. In State v. Barrett, 508 So. 2d 361, 362 (Fla. 5th DCA), review denied, 511 So. 2d 299 (Fla.1987), this court, applying section 316.1932(1)(a)l., held that “the legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath…
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State v. Serrago, 875 So. 2d 815 (Fla. 2d DCA 2004)…administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest.” In addition, Department of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 (Fla. 5th DCA 2003), quoted with approval from State v. Barrett, 508 So. 2d 361, 362 (Fla. 5th DCA), review denied, 511 So. 2d 299 (Fla.1987), as follows: “ ‘[T]he legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.’ ” The court noted th…
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State v. Rivas-Marmol, 679 So. 2d 808 (Fla. 3d DCA 1996)…added). The county court interpreted the statute to mean that the breath test could be administered only after the defendant had been placed under arrest. In so doing, the county court followed the opinion of the Fifth District in State v. Barrett, 508 So. 2d 361 (Fla. 5th DCA), review denied, 511 So. 2d 299 (Fla.1987). The Fifth District said that breath test results “are admissible in evidence only where the test is incidental to a lawful arrest. The results of a pre-arrest breath test are not admissible i…1 / 2
Authorities Cited
- State v. Williams, 417 So. 2d 755 (Fla. 5th DCA 1982)