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State v. Iaco6/22/2005
ied the following question to this court.
Whether a partial and incomplete reading of Implied Consent Warnings by Law Enforcement Officers based upon an agency policy directive, which excludes the portion of the Implied Consent Warnings pertaining to refusal and advisement of right to refuse a chemical test and/or the criminal and administrative consequences of a refusal is deemed to be in substantial compliance with F.S. 316.1932(1)(a)?
Kim Case
Law enforcement stopped the defendant for a traffic infraction. The officer smelled alcohol on the defendant's breath. The defendant's eyes were red, bloodshot, and watery. He admitted to drinking alcohol. The defendant was unable to remove his driver's license from his wallet. Another officer arrived and conducted a field sobriety test. The defendant discontinued the test and admitted he was drunk. He was arrested and taken to the Broward County Sheriff's Office B.A.T. facility.
The defendant was read the precise abbreviated advisement that was given in the Iaco case. He was not advised of the administrative or criminal consequences of refusing the breath test. He submitted to the test.
The State charged the defendant with DUI. The defendant filed a motion to exclude the results of his breath tests. After hearing legal argument, the same trial court that heard the Iaco case granted the motion to suppress and certified the same question to this court as one of great public importance. The State appealed.
We rephrase the question presented as follows:
Whether suppression of evidence is warranted when law enforcement intentionally fails to read the full implied consent warnings based upon a department policy?
We answer the question in the negative.
In Gunn, this court held that exclusion of evidence was an inappropriate sanction on the State when law enforcement failed to fully advise a defendant of the consequences for failing to submit to a breathalyzer test. Gunn, 408 So. 2d at 649. This court found "no legislative intent to impose a further sanction on the State by excluding as evidence the results of a chemical test administered to a driver (who has not affirmatively revoked the statutory consent) merely because of his not being informed, prior to testing, of the consequences should testing be refused." Id. The Fifth District Court of Appeal reached the same conclusion in Pardo. Indeed, at least one other jurisdiction has held similarly. See, e.g., State v. Huskins, 989 S.W.2d 735 (Tenn. Crim. App. 1998); State v. Humphreys, 70 S.W.3d 752 (Tenn. Crim. App. 2001).
Our earlier opinion in Gunn is controlling. Contrary to the trial court's conclusion that Gunn could be distinguished because it involved an inadvertent failure to advise of the criminal and administrative consequences of a refusal to take a breath test, Gunn did not indicate that the failure to advise in that case was in fact inadvertent. As we noted in Gunn, the administrative and criminal consequences apply only if the defendant refuses the breathalyzer test. When the defendant consents to the test, those consequences do not apply. Thus, failing to be advised of them does not warrant suppression of the test results.
We answer the certified question in the negative, reverse the suppression orders, and remand the cases to the county court for further proceedings.
STEVENSON and TAYLOR, JJ., concur.
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