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State v. Menna7/13/2001
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In South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), the United States Supreme Court considered whether evidence of a defendant's refusal to submit to a blood-alcohol test offended the right against self-incrimination. The Court held that the refusal to do so after a police officer has lawfully requested it was not an act coerced by the officer and thus not protected by the privilege against self- incrimination.
In addition to Burns, our opinion in State v. Sowers, 442 So. 2d 239 (Fla. 5th DA 1983), which the parties and the trial court seemingly have overlooked, relied upon the United States Supreme Court case of South Dakota v. Neville, 459 U.S. 553 (1983) and held that the introduction of evidence in a criminal case that a defendant refused to submit to a chemical test for intoxication did not violate the United States Constitution nor the Florida Constitution.
The key question posed by the instant petition is whether our prior opinions in Burns and Sower are in conflict with, and therefore superseded by, the opinion of the Florida Supreme Court in Taylor. Can Taylor be reconciled with the view expressed in the special concurrence of Justice Grimes in Occhicone?
In Taylor the Florida Supreme Court held that the refusal by a DUI suspect to submit to a pre-arrest field test was admissible in evidence against him. The Court noted that Taylor had not been misled by the police "into believing that refusal was a `safe harbor' free of adverse consequences, i.e., he was told that he could lose his license." Taylor was not told that his refusal could be used against him in court. The Court noted that Taylor knew there were possible adverse consequences in refusing to take the test such as loss of license and the prospect of prosecution; in other words, his refusal did not provide a "safe harbor" free of adverse consequences. His refusal therefore was relevant to show consciousness of guilt. Although Taylor cites to Neville, it makes no mention of Herring.
Menna argues that because she was unaware of any adverse consequences attendant upon her refusal to submit to the gunshot residue test, her refusal, unlike Taylor's, cannot be construed as showing consciousness of guilt. But the record in this case shows that she was told that the proposed test could clear her from prosecution; the converse of that eventuality would be the possibility, if not probability, of prosecution for murder, surely an adverse consequence. Moreover, there is nothing in the Taylor opinion that could be construed as a repudiation of the special concurrence of Judge Grimes in Occhicone or of our prior opinions in Burns or Sowers.
We find that the trial court did not apply the correct law to this case. See Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). Accordingly, we grant the state's petition for certiorari, and quash the in limine order of suppression. We certify conflict with Herring.
PETITION GRANTED; ORDER QUASHED.
THOMPSON, CJ. and ORFINGER, R.B., J., concur.
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