State v. Gunn

• Court: Florida District Court of Appeals
• Writing for the Court: HERSEY; HURLEY; HURLEY
• Citation: State v. Gunn, 408 So.2d 647 (Fla. App. 1981)
• Decision Date: 23 December 1981
• Docket Number: No. 81-321,81-321
• Parties: STATE of Florida, Appellant, v. Joseph GUNN, Appellee.

Page 647

408 So.2d 647

STATE of Florida, Appellant, v. Joseph GUNN, Appellee.

No. 81-321.

District Court of Appeal of Florida, Fourth District.

Dec. 23, 1981.

Rehearing Denied Feb. 5, 1982.

Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellee.

OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

Appellant, upon being arrested for driving while intoxicated, submitted without objection to a breathalyzer test. The trial court granted his motion to suppress the result of that test because the arresting officer, before giving the test, did not advise appellant that his failure to submit to the test would result in a suspension of his privilege to operate a motor vehicle for a period of three months. We reverse.

Without question, both the statute, Section 322.261(1)(a), Florida Statutes (1979), ¹ and the supreme court decision construing the statute, Sambrine v. State, 386 So.2d 546 (Fla.1980) state that the driver of an automobile, who is statutorily required to take the chemical test, shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of three months. Neither the statute nor the Sambrine opinion elaborates on this requirement. Indeed, the statutory language is reasonably susceptible of the construction that the cautionary warning need be given only if the driver should indicate his intention to refuse to submit to the test. Nonetheless, for the purpose of our decision here, we assume that a driver required by the statute to submit to a chemical test must be informed, prior to the test being administered, of the consequence of his refusal to submit to the test even though the driver has given no indication of a refusal. The question is simply one of determining the appropriate sanction to be imposed on the state when the driver submits to the chemical test without being so informed.

In Sambrine v. State, supra, the court held that the results of a blood-alcohol test were inadmissible when the test was administered despite the driver's refusal to submit to the test. However, we find nothing in the Sambrine opinion which would preclude the conclusion that chemical test results are admissible where the driver does not affirmatively withdraw his consent, even though the driver is not first informed of the consequence of his refusal to submit to the test. Granted, the statute gives the driver the right to refuse testing. Likewise, it provides a definite sanction for refusal, as well as a detailed procedure for the enforcement of such sanction. Taken as a whole, the statute manifests a legislative intent that a failure to inform a driver of the consequence of refusing to submit to testing will simply afford the driver an escape from suspension of driving privileges, should he, in fact, face such suspension by virtue of having refused testing.

We find 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.

The order of the trial court suppressing the result of the breathalyzer test is reversed.

HERSEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge, dissenting.

As a preface to this dissent, I acknowledge that I can discern little wisdom in the present statutory scheme which permits individuals charged with crimes as serious as vehicular homicide to withhold vital non-testimonial evidence, viz., the results of blood or breathalyzer tests. The mounting carnage on our highways, coupled with the practical difficulty of proving intoxication without the aid of blood or breathalyzer tests, suggest an urgent need for the Legislature to reconsider the desirability of a statutory privilege to withhold non-testimonial evidence of impairment or intoxication. In my view, the right to refuse testing can no longer be justified in light of its terrible cost to society.

Nonetheless, the ability to grant a statutory privilege is a matter peculiarly within the legislative sphere. Sambrine v. State, 386 So.2d 546, 549 (Fla.1980). Therefore, any change must come from the Legislature. Until the legislative branch instructs otherwise, courts must diligently enforce the statute as drawn.

"Any careful reading of section 322.261 leads to the inescapable conclusion that a person is given the right to refuse testing." Sambrine v. State, supra, at 548. Moreover, the section provides that a driver "shall be told that his failure to submit to such a chemical test will result...