Cinthia Vargas v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: March 18, 2026
• Docket: 3D2024-0882
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 18, 2026. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0882 Lower Tribunal Nos. AHPM9BE & AHPM9CE ________________

Cinthia Vargas, Appellant,

vs.

State of Florida, Appellee.

An Appeal from the County Court for Miami-Dade County, Julie Harris Nelson, Judge.

Piotrowski Law, and Jaime Lapidus, for appellant.

James Uthmeier, Attorney General, and Ryan Schelwat, Assistant Attorney General, for appellee.

Before SCALES, C.J., and LOGUE and LOBREE, JJ.

PER CURIAM. Appellant Cinthia Vargas appeals a judgment and sentence rendered

after a jury found her guilty of Driving Under the Influence (“DUI”).1 She

challenges the trial court’s overruling her numerous objections to the

testimony of the arresting officers who were called to the scene of the

accident. Relying on McKeown v. State, 16 So. 3d 247 (Fla. 4th DCA 2009),

she argued below, as she does on appeal, that allowing one of the officers

to testify that not every person he stopped for DUI is arrested constituted

improper bolstering.

We agree with the State that this case is distinguishable from

McKeown. In McKeown, the testifying officer provided a percentage estimate

1(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

§ 316.193(1), Fla. Stat. (2023).

2 of his DUI arrests compared to his DUI investigations, which the Fourth

District found bolstered the State’s case by implying that the defendant would

not have been arrested and prosecuted unless he had been guilty. Id. at 249.

In our case, the officer’s testimony was couched in general terms about his

DUI arrests.2 We hardly see how this testimony connects arrest and guilt or

crosses a line that restrains a prosecutor from maintaining that the State

prosecutes only the guilty. See generally Ruiz v. State, 743 So. 2d 1, 5 (Fla.

1999) (rejecting prosecutorial statements implying that only the guilty are

prosecuted). We therefore find no reversible error in the trial court’s

overruling Vargas’s objections to the investigating officer’s testimony.3

2 The officer’s relevant testimony was as follows:

State: “So, every person that you stopped for DUI, did you end up arresting them for DUI?”

Officer: No.

State: And why’s that?”

Officer: “Some people meet the criteria for DUI, some people don’t.” 3 The State’s examination of the second officer – who conducted the field sobriety tests – also was not improper for eliciting from this officer that Vargas appeared impaired. An officer is allowed to provide this observation to the jury. Williams v. State, 710 So. 2d 24, 28-29 (Fla. 3d DCA 1998).

3 Vargas also alleges on appeal that the trial court committed

fundamental error when it allowed the State (without objection) to suggest

that Vargas sought to hide evidence of her guilt when she declined to take a

breathalyzer test. We find no fundamental error occurred because the State,

in its argument and in its examination of Vargas, was seeking not to shift the

burden of proof, but rather, to establish that Vargas’s declining to take the

breathalyzer test constituted evidence of her consciousness of guilt. State v.

Taylor, 648 So. 2d 701, 704 (Fla. 1995); see § 316.1932(1)(a)1.a. (Fla. Stat.

2023) (“The refusal to submit to a chemical or physical breath test upon the

request of a law enforcement officer as provided in this section is admissible

into evidence in any criminal proceeding.”).

Affirmed.