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State v. Iaco6/22/2005
The State, pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(B) and 9.160, appeals two county court orders granting the defendants' motions to exclude the results of the breath tests and certifying a question of great public importance. We accept jurisdiction in both cases. We have consolidated them as they involve identical issues.
In each case, the State argues the trial court erred in suppressing the defendant's breath test results. We agree. Both orders are reversed and the cases remanded to the county court for further proceedings.
Iaco Case
Law enforcement stopped the defendant for speeding. The officer smelled alcohol on the defendant's breath. The defendant's eyes were bloodshot and watery; her face was flushed. The officer asked the defendant to perform field sobriety exercises, which she was unable to complete. The officer arrested the defendant and transported her to the Broward County Blood and Alcohol Testing Center (B.A.T.), where he read her the beginning, but not the entirety, of the implied consent advisement.
Specifically, the officer read the following:
You have been placed under arrest for driving under the influence of alcohol and/or a controlled substance. Under Florida law you are required to submit to a breath test to determine the alcohol content of your breath. Will you submit to testing?
The defendant consented to the test. The officer did not advise her of either the administrative or criminal consequences of refusing to take the test.
The State charged the defendant with driving under the influence . The defendant moved to exclude the breath analysis results on the basis that the informed consent advisement was incomplete and not in compliance with section 316.1932, Florida Statutes (2002). The State responded that the incomplete advisement did not affect the admissibility of the results, citing State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA 1981).
At the hearing on the motion to exclude, the officer testified to the facts leading up to the defendant's arrest. He admitted he had read only the abbreviated version of the informed consent advisement, even though he knew the statute contained additional language. He acknowledged that "if the person goes ahead and complies - gives consent to comply with the tests, then the implied consent is not read any further . . . ."
Defense counsel argued the statute requires law enforcement to read the entire informed consent advisement because it uses the word "shall." Further, he argued the Broward County State Attorney's Office had instituted a policy that required law enforcement to inform persons only that they are required by law to submit to the test before asking them if they are willing to submit. Because of this policy, defense counsel argued that Gunn was distinguishable.
The county court granted the motion. It found section 316.1932(1)(a), Florida Statutes, "expressly states that a subject arrested for DUI 'shall' be advised of the consequences of refusing to provide a sample of breath," thereby making the full advisement mandatory. The court found "a limited and/or partial legal advisement represents a material modification of the plain language and intent of" section 316.1932(1)(a), Florida Statutes, and "affirmatively violates principles of fundamental fairness and Defendant's right to Due Process...." The trial court distinguished Gunn and Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983) by suggesting they involved inadvertent, unintentional failures to provide a full implied consent advisement as opposed to the formal policy directive that existed in the present cases. The court then certif
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