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Florida’s Confusion Doctrine

In some cases, your criminal defense attorney can move to suppress the fact that you refused to submit to a chemical test or even the fact that the request for a chemical test was made at all. If the court suppresses this evidence, then the prosecutor doesn’t get to tell the jury that you refused to take the breath, blood, or urine test.

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 prior to 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 prior to 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.

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, then 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. We can also help you move to exclude any statements taken in violation your Miranda rights.

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.

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 prior to the breath test. Id.

The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an 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 in order to invoke the doctrine. Id. See also Moore v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).


This article was last updated on Friday, May 10, 2019.

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