JENNIFER GRZELKA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this DUI case, the court addresses whether evidence of a defendant's refusal to submit to a breath test should be excluded when the police failed to provide complete statutory warnings about the consequences of refusal. The court affirms admission of the evidence, finding no abuse of discretion.
The trial court did not abuse its discretion in admitting the refusal evidence. Although the statutory warning was incomplete, the statute does not require exclusion of evidence for failure to provide complete warnings, and the evidence is admissible under general rules of evidence because Appellant was advised of at least one adverse consequence.
[1] Evidence of a suspect's refusal to submit to a breath test is admissible if the suspect was informed that adverse consequences would result from the refusal.
[2] A statute governing the privilege of driving does not necessarily provide the sole basis for the admission of evidence related to breath testing.
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“Although section 316.1932(l)(a)l.a. provides that the refusal to submit to a breath test "upon the request of a law enforcement officer as provided in this section is admissible into evidence ..." nothing in the statute requires exclusion when the statutory warning is not complete.”
Establishes that incomplete statutory warning does not mandate exclusion of refusal evidence
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Join FLexlaw to unlock all legal intelligenceAppellant Grzelka was requested to submit to a breath test during a DUI investigation. She was warned that refusal would result in suspension of her d…
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TORPY, J.
In this DUI case, the question presented is whether the trial court abused its discretion in admitting evidence that Appellant refused to submit to a breath test. Finding that the lower court did not abuse its discretion, we affirm.
When asked to submit to a breath test, Appellant was warned that her refusal would result in the suspension of her driver’s license, but she was not informed that, if her license previously had been suspended for a prior refusal, her refusal would constitute a misdemeanor, as is required by section 316.1932(l)(a)l.a., Florida Statutes (2003). Appellant contends that the failure of the police to give the complete warning, as required, necessitates that the evidence of her refusal be excluded. We disagree.
Although section 316.1932(l)(a)l.a. provides that the refusal to submit to a breath test “upon the request of a law enforcement officer as provided in this section is admissible into evidence ...,” nothing in the statute requires exclusion when the statutory warning is not complete. Moreover, this statute, which is primarily intended to regulate the privilege of driving, does not provide the sole basis for admission of evidence related to breath testing. Pardo v. State, 429 So. 2d 1313, 1315 (Fla. 5th DCA 1983). Thus, we must look to the general rules of evidence to determine if the trial court abused its discretion in admitting this evidence.
Generally, all relevant evidence is admissible unless excluded by law. § 90.402, Fla. Stat. (2003). Relevant evidence is that which tends to prove or disprove a material fact. § 90.401, Fla. Stat. (2003). Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So. 2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence.
AFFIRMED.
THOMPSON and ORFINGER, JJ., concur.
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- Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983)
- Clotilde Estela Menna v. State, 846 So. 2d 502 (Fla. 2003)