NRB was arrested for DUI on February 10, 2008.  PSLPD Officer Jennifer Cuty also charged NRB with a criminal refusal to submit to testing after a previous refusal resulting in a suspension.  316.1939(1), Fla. Stat.

In this case, the State sought four months county jail on the refusal charge.  NRB was highly motivated to avoid such a jail sentence, as would be most persons facing similar time.

NRB located Jeffrey H. Garland through the Treasure Coast DUI Defense Group.  Upon being retained, Attorney Garland jumped in to search for evidence to contradict the affidavit of refusal to submit to breath, urine, or blood test.

Officer Cuty executed the refusal affidavit.  In so doing, Officer Cuty swore to the following statement: “I did inform said person that he or she commits a misdemeanor, if said person refuses to submit to a lawful test of his or her breath, urine, or blood, and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood.”  On the face of it, this was an open and shut case against NRB for the criminal refusal charge.

The State failed to provide a copy of the roadside video made by Officer Cuty.  The defense forced production of the video via a promptly filed motion to compel discovery.

After obtaining a copy of the video, Garland found out that Officer Cuty did not, in fact, tell NRB that he commits a misdemeanor by refusing to submit to testing after a previous refusal.  Instead, Officer Cuty told NRB that he could face an additional charge for such a refusal.

On May 22, 2008, Garland filed a motion to dismiss count 2 under the authority of Rule 3.190(c)(4), Florida Rules of Criminal Procedure.  This rule allows the court to determine the legal sufficiency of the evidence if there are no material disputed facts, and the undisputed material facts fail to establish a prima facie case of guilt.

The motion to dismiss count 2 made the following arguments:

A.    Section 316.1939(d) requires that the accused be informed that a refusal to submit to a lawful test of his or her breath, urine or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine or blood, is a misdemeanor….  (Emphasis supplied).

B.    Florida Standard Jury Instruction 28.13 defines the elements for refusal to submit to testing in violation of Section 316.1939.  The jury instruction specifies that there are six separate elements to the offense.  Elements four and five are defined as follows:

4.    (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [blood] [urine], if [his] [her] driving privilege has been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].
5.    (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath] [blood] [urine] when requested to do so by a [law enforcement officer] [correctional officer].
(Emphasis supplied)

C.    State v. Busciglio, 976 So.2d 15 (Fla. 2nd DCA 2008), and State v. Dubiel, 958 So.2d 46 (Fla. 4th DCA 2007), have both stated that the misdemeanor advisement is an element of the offense of refusal to submit to testing in violation of Section 316.1939.

D.    The warning that there might be an additional charge does not comply with the statutory requirement that the subject be informed that it is a misdemeanor to refuse to submit to a lawful test….  The term charge could refer to many things.  For example, charge could refer to a non-criminal citation, an additional court cost or fine, or even the use of a credit card, an explosive device, or the energy in a battery.  In short, the charge did not communicate that it would be punishable as a crime to refuse to submit.

County Judge Clifford H. Barnes agreed that the warning about a charge did not comply with the statutory requirements.  On June 3, 2008, Judge Barnes dismissed the count alleging the refusal to submit to testing in violation of Section 316.1939.

The defense learned, in this case, that Officer Cuty was reading from a PSLPD-issued card when she gave the warning to NRB.  The card improperly refers to an additional charge rather than the required warning about a misdemeanor.  Since this is a department issued card, there is a strong likelihood that improper warnings are being routinely given by the Port St. Lucie Police Department.  It is also likely that officers are executing refusal affidavits which incorrectly swear that the arrestees were warned of misdemeanor consequences when, in fact, they were not.