Gerard v. State

40 Fla. Supp. 2d 41

• Court: Circuit Court for the Judicial Circuits of Florida
• Decided: April 13, 1989
• Docket: Case No. 88-185-CA A02 (County Court Case No. 88-11592-TC A02)
• Status: Published

Opinions

OPINION OF THE COURT

JAMES T. CARLISLE, Circuit Judge.

ORDER DENYING PETITION FOR COMMON LAW WRIT OF CERTIORARI

The appellant contends the suspension of his driver’s license under the implied consent law should be reversed because the police advised him of the implications of the implied consent law and his Miranda Rights in such a way as to lead him to believe he could refuse to submit to a breathalyzer test until he had the opportunity to consult with counsel. He relies on Weisman v Sullivan 211 NW 2d 906 (Nebraska, 1983).

At the implied consent hearing, Officer Budash could not remember what occurred at the Batmobile in connection with the reading of the implied consent and the Miranda Rights.

“Q. Was he read his Miranda Rights?

A. I believe he would be, yes, by the Batmobile operator.

Q. ... do you know if they were read simultaneously, one right after the other, before he indicated what he wished to do?

A. That might very well be the case, but the implied consent would be the first of the two . . .

Q. What I want, what I would like you to answer, sir, is, was it read immediately after the implied?

A. That is a real possibility, but I would not know without looking at the tape.”

On the other hand, the defendant was clear that the implied consent and the Miranda Rights were read simultaneously.

“Q. Were you, in addition to being read and asked about performing tests, were you asked about Miranda Rights?

A. Yes, I was instructed about my Miranda Rights, since I thought I did have a right to an attorney.

Q. O.K., were you advised separately, or were they read to you together?

A. They were read together.”

A video tape of these proceedings was taken at the Batmobile. Defense counsel did not introduce the tape into evidence, assuming the State would have furnished it. He asked for a continuance for the purpose of producing the tape. That motion was denied.

Appellant had the burden of showing by the greater weight of the evidence that the manner in which the Rights were read led him to his erroneous belief and refusal to submit to the test. This appellant failed to do. An examination of the transcript of testimony reflects not so much that appellant was confused but that he wanted to talk to an attorney because he:

“didn’t know they’re inaccurate. I didn’t know exactly what the accuracies are. I heard rumors if you put a penny in your mouth you could throw it off. Like I heard before, a lady didn’t blow exactly hard enough into it. I didn’t want to risk my whole future just on an inaccurate test.”

This case must be affirmed on the authority of Nelson v State, 508 So.2d 49, and State v Hoch, 500 So.2d 597.