COUNTY CRIMINAL COURT: CRIMINAL PROCEDURE --- Prosecutorial comment --- Defendant deprived of a fair trial when the State placed the burden on the defendant to tell the jury why he did not submit to a breath test and show everyone he was not impaired. Judgment and sentence reversed. House v. State, No. CRC 05-107 APANO, (Fla. 6th Cir.App. Ct. March 6, 2007).










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




            (J. Morris)


            THIS MATTER is before the Court on the defendant, Timothy House’s, appeal from a judgment and sentence entered by the Pinellas County. After reviewing the briefs and record, this Court reverses the judgment and sentence.

            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.

            Refusal to submit to a breath test is admissible in a DUI trial. See South Dakota v. Neville, 459 U.S. 553 (1983); Fla. Stat. §316.1932. And the State may argue the significance of that refusal in its closing argument. State v. Taylor, 648 So.2d 701 (Fla. 1995). The State may not, however, cross over the line and unfairly comment on a defendant’s right to remain silent or shift the burden of proof onto the defendant.

            The State cites, Kirby v. State, 9 Fla. L. Weekly Supp. 530 (Fla. 17th Cir.Ct. May 29, 2002), in which a circuit appellate court found the following argument to be proper: “Now, the defendant is given the opportunity to take a breath test. Now, if her only problem is that she’s disabled and she can’t do these exercises only because she’s disabled why not just blow into this breath machine, prove that you’re not under the influence of alcohol, and you’re not impaired and go home.?” Two cases, however --neither cited by the defendant -- are more on point. In Sandez v. State, 10 Fla. L. Weekly Supp. 81 (Fla. 11th Cir.Ct. Dec. 3, 2002), a circuit court appellate panel reversed a DUI conviction where the prosecutor said in closing argument: “the defendant … had an opportunity to tell each and every one of you, tell me, tell the judge, the court reporter, tell the whole world what his blood alcohol level was.” Similarly, in Leech v. State, 9 Fla. L. Weekly Supp. 746 (Fla. 19th Cir.Ct. Oct. 10, 2001), where the defendant refused a breath test, another circuit court appellate panel ruled that the State’s argument was improper when the prosecutor said: “If he truly had two martinis, why wouldn’t he prove his innocence to the world?” Id. at 747.

            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.

            Having reviewed the transcript, this Court cannot say that the State, pursuant to State v. DiGuillo, 491 So.2d 1129 (Fla. 1986), has met its burden to prove beyond a reasonable doubt that the improper comment did not affect the verdict in this case. Therefore, the judgment and sentence is reversed, and the defendant is entitled to a new trial.

            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.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of March, 2007.



                                                                                    David A. Demers

                                                                                    Circuit Judge






                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge






                                                                                    Irene H. Sullivan

                                                                                    Circuit Judge


cc:        State Attorney


            State Attorney


            Mark Goettel, Esq.