IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 05-107 APANO
Opinion filed ________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Thomas Freeman
Mark Goettel, Esq.
Attorney for appellant
Noelle Caserta, Esq.
Assistant State Attorney
ORDER AND OPINION
MATTER is before the Court on the defendant, Timothy House’s, appeal from a
judgment and sentence entered by the
The defendant was convicted of DUI following a jury trial. He is appealing that conviction, claiming that he was deprived of a fair trial because of a comment made by the State during the trial. During the closing argument the State made the following argument:
But if he only had a couple of drinks, why did he not submit
to a breath test? He was read implied consent. The deputy told
him, “If you don’t submit to the breath test, you’re going to lose
your driver’s license for a year.” And we heard from the
defendant on the stand that driving is very important to him,
very important to him. How can he drive his parents to the
hospital, to the doctor if he doesn’t have a driver’s license?
And yet he very easily, very quickly and simply gave up
that driver’s license on May 2d, 2005. Why? Because he
didn’t want to show you what was on his breath because
he knew he would blow over the legal limit. If he only
had a couple drinks earlier, if he knew he was going to
blow under the legal limit, why not take the test and show
you, show the deputy, show us that he wasn’t impaired?
Defense counsel objected to the comment, but was overruled. The defendant claims that the State’s comment improperly shifted the burden of proof. He argues that he has no burden to show the jury or the deputy he wasn’t impaired.
to submit to a breath test is admissible in a DUI trial. See
State cites, Kirby v. State, 9 Fla. L. Weekly Supp. 530 (
In both Sandez and Leech, the courts concluded that the State improperly crossed over the line in its arguments. Similarly, this Court finds the State’s argument improperly shifted the burden of proof.
The State might have avoided this result by arguing that the defendant refused the test and the only reasonable explanation for that is the defendant knew he was impaired and would fail the test. It is the use of words indicating that the defendant needed to prove something to the jury that created the problem.
reviewed the transcript, this Court cannot say that the State, pursuant to State
v. DiGuillo, 491 So.2d 1129 (
IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and this matter is remanded to the trial court for action consistent with this Order and Opinion.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene H. Sullivan
cc: State Attorney
Mark Goettel, Esq.