Florida’s Confusion Doctrine for DUI Refusals

Your refusal to submit to a breath, blood, or urine test might be suppressed under the “confusion doctrine.” The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee’s refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel before taking the test. See Kurecka v. State, 67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010).

Under the confusion doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Id. at 1056 (internal citations omitted).

In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states. Id. at 1057-60. That Court concluded that Florida’s implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney before the administration of the test. Id. at 1060-61.

“Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id. at 1060.

Even if the Court does not exclude the evidence, the DUI defense attorney should be prepared at trial to show the jury the confusion caused by the reading of the implied consent warning. On one hand, you are told you have the right to remain silent, on the other hand, you are told you must answer the question about whether you will submit to blood, breath, or urine testing.

Attorney for the Confusion Doctrine in Florida

If you refused to take a breath, blood, or urine test by remaining silent, but only because you were confused about your right to remain silent after being read the Miranda warning, contact an experienced criminal defense attorney at Sammis Law Firm.

Our attorneys are experienced in fighting the DUI refusal case after an arrest by the Hillsborough County Sheriff’s Office, the Tampa Police Department, or the Florida Highway Patrol.

Whether this is your first DUI arrest or a second or subsequent offense, we can help you fight a DUI refusal case in Tampa, FL. At trial, we can show the reasons why an innocent person my by confused by the implied consent warnings and fail to provide a breath, blood, or urine sample.

For more information, call 813-250-0500.

When the Court Refuses to Apply the Confusion Doctrine

In Dep’t of Highway Safety & Motor Vehicles v. Marshall, 848 So. 2d 482, 485-86 (Fla. 5th DCA 2003), the court declined to apply the “confusion doctrine.” In that case, the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall’s self-serving testimony regarding her confusion about her right to counsel. Id.

Additionally, none of the DHSMV documents supported Ms. Marshall’s claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney before the breath test. Id.

The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep’t of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003).

The Court found that Mr. Bosch’s reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer to invoke the doctrine. Id. 

Recent Case on the Confusion Doctrine in Florida

In a recent case in Florida, the court explained:

….The Confusion Doctrine is a judicially created exclusionary rule that refers to the confusion of a defendant when given Miranda warnings and implied consent warnings during a DUI investigation, specifically the interaction of a Defendant’s right to counsel during questioning pursuant to Miranda and the lack of such a right during breath or blood test administration.

Under this doctrine, evidence of a defendant’s refusal to submit to a breath or blood test as consciousness of guilt could be excluded where Miranda and implied consent warnings given by an officer led a defendant to incorrectly believe that they had the right to speak to an attorney before taking such a test.

This doctrine may, or may not, exist in Florida, depending upon which circuit, county, or individual judge one asks. Even if the doctrine exists, it is limited to circumstances where (1) the defendant is legitimately confused about the interaction of Miranda and implied consent warnings, and (2) the defendant communicates this specific confusion to the investigating officer.

The questions posed in this case are (1) whether this Court will adopt the Confusion Doctrine, as some courts have, and (2) if the Court adopts the Confusion Doctrine, whether it applies to this case, requiring the exclusion of the Defendant’s refusal to submit to a blood test as consciousness of guilt after receiving Miranda and implied consent warnings during the DUI investigation. For the reasons stated below, the Court’s answer to both of these questions is no.

…Several Florida courts adopted the Confusion Doctrine, beginning with the Alves decision from Orange County Judge Lauten in 1995. State v. Alves, 3 Fla. L. Weekly Supp. 553a (Orange County, Fla. 9th Cir. 1995). Alves extended the principle in Florida law that “[i]f a defendant is led to reasonably believe [they] are exercising a right or protected course of conduct then the exercise of that right or course of conduct cannot be used against [them], even if in fact or law [they] did not actually have such a right” or course of conduct. Id.

The Alves court extended this principle to the interaction between Miranda and implied consent warnings from the Florida Third District Court of Appeals decision in Herring v. State, 501 So.2d 19 (Fla. 3rd DCA 1992), as supported by the Supreme Court of Florida in Menna v. State, 846 So.2d 502 (Fla. 2003).

In Menna, the Supreme Court of Florida approved the reasoning of Herring that it is “unduly prejudicial and unfair to admit evidence that a defendant had refused to take a test where the defendant is either told [they] may refuse the test, or the defendant is not told of any adverse consequences which would attach to the refusal.” Id.

However, neither Menna nor its predecessors or progeny dealt with the specific issue of the interaction between Miranda and implied consent warnings. Instead, Menna and Herring concerned defendants refusing to submit to a required gunshot residue test without being told that their refusal to do so could result in adverse consequences, including being used against them at trial. Menna, 846 So.2d at 503; Herring, 501 So.2d at 21.3

…In the thirty (30) years since the Alves decision, neither the Florida Legislature nor any appellate court codified or adopted the Confusion Doctrine as binding authority in Florida. Additionally, the specific application of the Confusion Doctrine to the interaction of Miranda and implied consent warnings in Alves derived not from any legislative act or binding precedent in Florida, but from appellate decisions in Pennsylvania, Colorado, Hawaii, Alaska, Washington, California, and North Dakota. Alves, 3 Fla. L. Weekly Supp. 553a.

…Subsequent to Alves, several Florida trial courts recognized the Confusion Doctrine, including Duval County in the Fourth Circuit in State v. Jahada, 18 Fla. L. Weekly Supp. 78a (Duval County, Fla. 4th Cir. 2010); the Sixth Circuit in Vanek v. Florida DHSMV4, 21 Fla. L. Weekly Supp. 544a (Fla. 6th Cir., 2014); Mastenbroek v. DHSMV, 17 Fla. L. Weekly Supp. 949a (Fla. 6th Cir. 2009); and Bolek v. Florida DHSMV, 13 Fla. L. Weekly Supp. 215a (Fla. 6th Cir. 2005); the Seventh Circuit in Bosch v. Florida DHSMV, 10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. 2003); Crawley v. Florida DHSMV, 24 Fla. L. Weekly Supp. 412a (Fla. 7th Cir. 2016); and Parker v. Florida DHSMV, 28 Fla. L. Weekly Supp. 649a (Fla. 6th Cir. 2020); the Ninth Circuit in Fox v. Florida DHSMV, 11 Fla. L. Weekly Supp. 776a (Fla. 9th Cir. 2004); the Seventeenth Circuit in Brown v. Florida DHSMV, 20 Fla. L. Weekly Supp. 339a (Fla. 17th Cir. 2013); Hubert v. Florida DHSMV, 20 Fla. L. Weekly Supp. 651a (Fla. 17th Cir. 2013); and State v. Nutt, 13 Fla. L. Weekly Supp. 1094a (Broward County, Fla. 17th Cir. 2006); and the Eighteenth Circuit in Brown v. Florida DHSMV, 12 Fla. L. Weekly Supp. 53a (Fla. 18th Cir. 2004); and State v. Bloomquist, 13 Fla. L. Weekly Supp. 1020a (Brevard County, Fla. 18th Cir. 2006).

Importantly, even though these courts adopted the Confusion Doctrine, they also held that it only applies if (1) a defendant is legitimately confused about the interaction of Miranda and implied consent warnings, and (2) the defendant communicates this specific confusion to the investigating officer.

…Other Florida trial courts, including other judges in some of the same circuits as listed above, recognized there might be a Confusion Doctrine, but also ruled, as above, that it did not apply if a defendant was not legitimately confused about the interaction of Miranda and implied consent warnings and failed to express their confusion regarding such interaction to law enforcement. These courts also recognized that Alves is not binding on other courts. See Green v. Florida DHSMV, 14 Fla. L. Weekly Supp. 43c (Fla. 4th Cir. 2006) (specifically noting that the Confusion Doctrine has not been accepted in Florida by the District Courts of Appeal and declined to apply it in that case); State v. Heffron, 18 Fla. L. Weekly Supp. 1088a (Fla. 6th Cir. 2011) (specifically noting that “[t]he confusion doctrine is not clearly recognized in Florida” and “the Alves trial court order is not binding on this Court”); Beyer v. Florida DHSMV, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. 2005) (also recognizing that Alves is not binding on other courts); Platte v. Florida DHSMV, 21 Fla. L. Weekly Supp. 9a (Fla. 6th Cir. 2013); Lavin v. Florida DHSMV, 16 Fla. L. Weekly Supp. 605a (Fla. 6th Cir. 2009); State v. Hart, 25 Fla. L. Weekly Supp. 461a (Fla. 7th Cir. 2017); Moore v. Florida DHSMV, 13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. 2006); State v. Wymer, 4 Fla. L. Weekly Supp. 113a (Fla. 13th Cir. 1995).

…To add to the nebulous existence of the Confusion Doctrine, other Florida trial courts flatly rejected it. Judge Bennett of the Twelfth Circuit in Potts v. Florida DHSMV, 15 Fla. L. Weekly Supp. 783a (Fla. 12th Cir. 2008), stated in his ruling that, “[a]t least two other circuit courts in Florida have recognized the confusion doctrine; however, no appellate court in Florida has addressed this doctrine, and only a minority of jurisdictions outside of Florida have upheld it.” Id.

Judge Bennett also rejected the Confusion Doctrine “because it places an unnecessary burden on law enforcement,” finding it “impractical for a DUI suspect to believe that court appointed counsel will be made immediately available in helping them decide whether or not to submit to” a breath or blood test. Id.

…The Court also considered the opinion of Judge McDonald of the 10th Circuit in his rejection to adopt the Confusion Doctrine in Bishop v. Florida DHSMV, 3 Fla. L. Weekly Supp. 14a (Fla. 10th Cir. 1992): “This Court recognizes, and Petitioner provides examples where the highest courts of several states have recognized a ‘confusion doctrine.’ However, to recognize such a doctrine here would require this Court to create a new rule of law. This Court declines to do so.” Id.

Manatee County Judge Doyle in the Twelfth Circuit reached the same conclusion as Judge McDonald: Adopting the Confusion Doctrine would require the court to impose a new rule of law, which she declined to do. State v. Milen, 29 Fla. L. Weekly Supp. 144a (Fla. 12th Cir. 2021).

Judge Brousseau in the Twentieth Circuit noted in his rejection of the Confusion Doctrine that it is not recognized as a defense in Florida, that no appellate decisions affirmatively created such a doctrine, and that the circuits are split over its application. Chlebek v. Florida DHSMV, 12 Fla. L. Weekly Supp. 843a (Fla. 20th Cir. 2005).

…In an attempt to resolve the question of whether or not the Confusion Doctrine exists in Florida, the Fourth District Court of Appeals answered with a resounding. . .maybe? In Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b], the appellate court discussed whether the Confusion Doctrine exists, recognizing that it is “judicially created rule” wherein “a licensee’s refusal to submit to a breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking the breath test.” Id. at 1056. The Kurecka court noted the split in circuit courts regarding the Confusion Doctrine’s adoption and parameters. The Kurecka court also noted that while some states adopted the Confusion Doctrine, others rejected it because their implied consent statutes do not require it or that the doctrine does not apply “so long as the defendant is advised that [their] refusal will lead to a license suspension.” Id. at 1058-59. The Kurecka court considered the following reasoning from Wisconsin:

Requiring officers to address nonexistent rights undercuts the “simple and straightforward” approach and risks confusing a potentially intoxicated defendant. If police move beyond the consistent statutory procedures and attempt to explain the law’s parameters, defendants will ignite the confusion defense. Explanations that exceed the statute’s language would cause an “oversupply of information” and encourage “misled” defendants to challenge an officer’s compliance with statutory requirements. This result would frustrate the legislature’s intention to facilitate drunk driving convictions by offering defendants an avenue for litigating which presumed rights merit inclusion in an officer’s explanation.

Id. at 1060, citing State v. Reitter, 227 Wis.2d 213, 595 N.W.2d 646 (1999).

…With this reasoning in mind, the Kurecka court stated, “Florida’s implied consent statute does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test.” Kurecka, 67 So.3d at 1060.

“The statute requires only that the person be told that [their] failure to submit to the test will result in a suspension of the privilege to drive for a period of time and that a refusal to submit can be admitted at trial.” Id.

“Courts must look at the terms of the statute at issue and the legislative intent rather than to ‘judge-made exceptions to judge-made rules’ when deciding to suppress evidence.” Id.

“Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id.

Courts “cannot impose duties beyond those created by the legislature. The implied consent statute was enacted to assist in the prosecution of drunk drivers. Determining whether informing a suspect that he does not have the right to an attorney for breath testing purposes — as part of the implied consent warning — supports or frustrates the goal of gathering evidence for these cases is a matter for the legislature to decide.” Id. (emphasis added).

The Kurecka court did not hold whether the Confusion Doctrine exists, stating, “Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida.” Id.

The Kurecka court simply held that if the Confusion Doctrine did exist, it did not apply to the cases at issue. Id. The Kurecka court also noted, as stated above, that the Confusion Doctrine exceeds the requirements of the implied consent statute and that the legislature has the authority to expand that statute to include such a doctrine, but in the years after Alves, they have declined to do so. Id. It is therefore still within the discretion of individual trial judges to adopt or reject this doctrine.

…After considering the history and development of the Confusion Doctrine, its existence as a judicially created rule with no authority in legislative act or binding precedent, its adoption in an apparent minority of circuits in Florida and a minority of states, that courts within the same circuits in Florida reach different conclusions regarding its existence, that finding such a doctrine places an unreasonable burden on law enforcement to discuss legal issues with a defendant well beyond the requirements of the implied consent statute, that such a discussion is likely to lead to greater confusion on the part of a defendant, that the only appellate decision directly addressing this doctrine declined to adopt it in part because it held that doing so is a prerogative for the legislature, the legislature’s declination to adopt such an expansion in the requirements of the implied consent statute in the thirty (30) years since Alves, the fundamental and separate powers and duties of the legislative and judicial branches of government, and that adopting this doctrine would necessitate this Court to impose a new rule of law in Wakulla County without a foundation in statutory or appellate authority, this Court, with respect to its brother and sister courts, declines to adopt the Confusion Doctrine.

…Even if the Court did adopt the Confusion Doctrine, it finds it inapplicable to this case. The Confusion Doctrine requires a defendant to (1) be legitimately confused about the interaction of Miranda and implied consent warnings, and (2) communicate this specific confusion to the investigating officer…

…Importantly, even though the Court declined to adopt the Confusion Doctrine and denied the Defendant’s Motion, the Defendant is not precluded from explaining to the jury her reasons for refusing to take the blood test. Kurecka, 67 So.3d at 1061. The Defendant can introduce refusal evidence, along with other testimony concerning the circumstances of the refusal, which could be in her favor and counter the State’s consciousness of guilt argument. Id. ….

State v. Roberts, FLWSUPP 3306ROBE (Fla. 2nd Cir. 2025).

This article was last updated on Friday, October 17, 2025.