DEIVIS PATINO ORTEGA
v.
STATE OF FLORIDA
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The Florida Fourth District Court of Appeal affirmed a lower court decision regarding the admissibility of evidence concerning a defendant's refusal to submit to a blood-alcohol or breath test. The court held that such refusal is not protected by the privilege against self-incrimination and that the admission of this evidence does not violate constitutional protections.
A refusal to take a blood-alcohol or breath test after a lawful police request is not compelled conduct protected by the privilege against self-incrimination. The admission of evidence of such refusal does not violate the Fifth Amendment to the U.S. Constitution or Article I, section 9 of the Florida Constitution.
[1] A refusal to take a lawfully requested blood-alcohol test is not an act coerced by the officer and is not protected by the privilege against self-incrimination.
[2] A post-arrest explanation of a motorist's obligation to take a breath test and the criminalization of a refusal to take such a test do not constitute testimonial interrog…
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Join FLexlaw to unlock all legal intelligence“a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination”
Establishes the core holding that test refusal is not constitutionally protected conduct
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Join FLexlaw to unlock all legal intelligenceThe case involved a defendant, Deivis Patino Ortega, who was arrested and refused to take a blood-alcohol or breath test after being lawfully requeste…
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PER CURIAM.
Affirmed. See South Dakota v. Neville, 459 U.S. 553, 564 (1983) (holding that that “a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination”); State v. Busciglio, 976 So. 2d 15, 18, 21–22 (Fla. 2d DCA 2008) (holding that “whether analyzed under article I, section 9, of the Florida Constitution or the Fifth Amendment of the United States Constitution,”“neither [a] yes/no question nor its answer” to an officer's “postarrest statutory explanation of [a motorist]'s obligation to take a breath test” and “the criminalization of a refusal to take a breath test” pursuant to section 316.1939, Florida Statutes, “constituted a testimonial interrogation implicating [the motorist]'s right to counsel”); State v. Sowers, 442 So. 2d 239, 239–40 (Fla. 5th DCA 1983) (holding that admitting evidence of the defendant's “refus[al] to submit to a chemical test for intoxication" pursuant to section 316.1932(1)(a), Florida Statutes, is not unconstitutional and does not violate the Fifth Amendment to the U.S. Constitution and Article I, section 9 of the Florida Constitution); Evans v. Hamilton, 885 So. 2d 950, 951 (Fla. 4th DCA 2004) (holding that “[b]ecause a refusal to take a blood-alcohol test is not compelled, and admission of such refusal does not violate the Fifth Amendment, the trial court did not err in finding that section 316.066 does not prevent the admission into evidence of [the motorist]'s refusal to submit to a blood-alcohol test").
KUNTZ, C.J., GROSS and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- South Dakota v. Neville, 459 U.S. 553 (U.S. 1983)
- State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA 2008)
- Terence Evans and Edwina Evans v. Hamilton, 885 So. 2d 950 (Fla. 4th DCA 2004)