NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 11-00011APANO UCN:
JASON ROBERT HEFFRON
Opinion filed _____________________.
Appeal from an Order Granting
Motion to Suppress
entered by the Pinellas County Court
County Judge John Carassas
Joseph T. Murray III, Esquire
Office of the State Attorney
Attorney for Appellant
J. Kevin Hayslett, Esquire
Attorney for Appellee
ORDER AND OPINION
MATTER is before the Court on Appellant, State of
Factual Background and Trial Court Proceedings
On January 18, 2010, at approximately 2:20 a.m., the Appellee’s vehicle was stopped by Deputy James Wilhelm of the Pinellas County Sheriff’s Office for traveling at an unlawful speed as well as crossing a lane marker. Upon contact with Mr. Heffron, Deputy Wilhelm observed an open can of cold beer in the Appellee’s vehicle, smelled a strong, distinct odor of alcohol coming from the Appellee’s mouth and vehicle, and noticed that the Appellee’s eyes were bloodshot, watery, and glassy. An investigation was conducted and Mr. Heffron was ultimately arrested for Driving Under the Influence.
After being read his Miranda rights, Mr. Heffron agreed to speak with Deputy Wilhelm and, after questioning, was taken to a testing facility. At the conclusion of a twenty-minute observation period, the Appellee was asked if he would take a breath test; he replied, “No.” Deputy Wilhelm then read Mr. Heffron the Implied Consent law; the Appellee said he didn’t understand it. Deputy Wilhelm then read Implied Consent again; Mr. Heffron replied, “I have no idea what you’re talking about.” Deputy Wilhelm asked Mr. Heffron several times what part of Implied Consent he didn’t understand and told him he would be more than happy to explain it to him; the Appellee would not specify what he did not understand. Deputy Wilhelm tried to simplify the language of Implied Consent, explaining to Mr. Heffron that if he refused to take the breath test he will lose his license for one year; Mr. Heffron just gave Deputy Wilhelm a blank look. Deputy Wilhelm then read Implied Consent two more times; again, the Appellee just gave a blank look. At one point, Deputy Wilhelm even explained to Mr. Heffron that if he did not answer whether or not he would provide a breath sample, he would be counted as a refusal. Ultimately, after approximately ten or fifteen minutes of interaction regarding the breath test, Deputy Wilhelm documented Mr. Heffron’s actions as a refusal to submit to a breath test.
On January 25, 2010, a Florida DUI Uniform Traffic Citation was filed. Thereafter, Mr. Heffron filed a Motion to Suppress his refusal of the breath test, citing the Confusion Doctrine. At hearing on the motion Appellee’s counsel further argued that Mr. Heffron never actually refused the breath test. Deputy Wilhelm was the only witness to testify. At the conclusion of the hearing the trial court ruled as follows:
I'm going to look at the totality of the circumstances. It's a very narrow issue on whether a ‑‑ the defendant in this case, Mr. Heffron, refused the breath test. I have to look at the totality of the circumstance, all the information that is provided to the Court here today, which showed that the defendant was cooperative throughout the entire process.
The decision on whether the test was offered and whether it was refused is unclear to the Court today. It ‑‑ I must weigh the credibility of all witnesses, and without making a specific ruling on credibility, I am going to find that it does not ‑‑ it is not clear to this Court that this person who acted in a cooperative manner up unto a certain point then somehow shifted and then decided to be uncooperative and refused.
There is no clear refusal. A blank response or no response is exactly that; it's no response. And it is not clear under the law or the case law that that means it is a refusal. So for that ‑‑ for the limited purpose of this motion today, I'm going to grant the motion to suppress as to the refusal only. (emphasis added).
The trial court then explained:
So, Mr. Hayslett will you prepare the [order]? I've granted your motion. Please make sure it is narrowly tailored to exactly what I ruled here today based on the case law and specifically, by the way, the case you mentioned, the Alves case is the determining factor, as least as far as case law is concerned. (emphasis added).
This appeal was timely filed.
Standard of Review
Our review of a trial court's ruling on a motion to suppress evidence
involves a mixed question of law and fact. We accord a presumption of
correctness with regard to the trial court's determination of facts where the
trial court's factual findings are supported by competent, substantial
evidence and reasonable inferences therefrom must be construed in a manner most
favorable to upholding the trial court's ruling. However, we review the trial court's
application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657,
134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001); State v. Pruitt,
967So2d 1021 (
Involved Points of Law
1. Miranda Rights & Implied Consent Warnings. Under a judicially created exclusionary rule, known as the confusion doctrine, “a licensee's refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Ringel v. State, 9 Fla. Supp. 678a (Fla. 18th Cir.Ct.2002). The confusion doctrine is not clearly recognized in Florida. “Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida.” Kurecka v. State, 2010 WL 3766727, 9 (Fla. 4th DCA 2010) (emphasis added).
The doctrine is usually invoked by drivers as a defense to a license suspension or revocation. In most instances, the drivers assert that, because the police officer contemporaneously advised them of their Miranda rights (right to refuse interrogation and to have an attorney present at all stages of an interrogation) and read them the requirements and sanctions of the implied consent law, they believed that they could consult with counsel before deciding whether to submit to breath testing. They contend that they should not be held strictly accountable for refusing to take a breath test and suffer a license suspension or revocation when the officer confused them about their right to counsel. See, e.g., Calvert v. State, 184 Colo. 214, 519 P.2d 341 (1974).
The confusion doctrine has been adopted by courts in several states and considered by a few courts in Florida. Florida courts that have applied the doctrine have rendered conflicting opinions on its applicability and scope. See Ringel, 9 Fla. Supp. 678a; State v. Alves, 3 Fla. Supp. 553a (Fla. Orange Cty. Ct.1995); Wymer at 113a. The only Florida district court to consider the concept did so in the context of a license suspension administrative hearing. See Dep't of Safety & Motor Vehicles v. Marshall, 848 So.2d 482 (Fla. 5th DCA 2003). In Marshall, the fifth district did not decide whether the confusion doctrine existed in Florida. It determined only that the evidence in that case did not support the licensee's claim that she was told by police that she could consult with an attorney prior to deciding whether to submit to a breath test. Consequently, the court quashed the circuit court's decision to reverse an administrative final order of driver's license suspension.
As the eighteenth circuit noted in Ringel, courts that have addressed the confusion doctrine have done so with mixed results, from outright rejecting it to liberally applying it to excuse a defendant's refusal to submit to a breath test when law enforcement failed to affirmatively advise the driver that Miranda rights do not apply to the decision to take the test.
Kurecka, at 4 -5. In Kurecka the court did not apply the confusion doctrine because it was undisputed in that case that the defendant’s confusion was not officer-induced. 
A licensee, when asked to take a breath test, has an affirmative duty to make any confusion about his or her rights known to law enforcement, so that law enforcement is aware that further explanation is needed. Bolek v. Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 215a (Fla. 6th Cir. App. Ct. 2005); see Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. 2005). “If, after receiving the implied consent warning, the licensee is still confused about the applicability of Miranda rights to the decision to take a breath test, the licensee should make that confusion known to law enforcement, so that law enforcement is aware that further explanation is necessary.” Ringel v. Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. App. Ct. 2002).
2. The Alves Case. State v. Alves, is a trial court order granting a motion to suppress. 3 Fla. L. Weekly Supp. 553a (Fla. Orange Cty. Ct. 1995). “In Alves, the county court found that the confusion doctrine applied to the facts in that case because the defendant was read his Miranda rights, emphatically requested the opportunity to speak to a lawyer when he was requested to take a breath test, and it was never explained that the Miranda rights previously read were not applicable to the implied consent procedure for the breath test.” Kurecka, 2010 WL 3766727 at 6. This court has previously explained and by this opinion we say again that the Alves trial court order is not binding on this Court. See Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. Sept. 7, 2005).
The Present Case
In the present case, at the scene of the traffic stop Mr. Heffron was read his Miranda rights and agreed to speak with Deputy Wilhelm. Later, after being transported to a testing facility and after a twenty-minute observation period, the Appellee was asked if he would take a breath test; he replied, “No.” Deputy Wilhelm then read Mr. Heffron the Implied Consent law; the Appellee said he didn’t understand it. Deputy Wilhelm then read Implied Consent again; Mr. Heffron replied, “I have no idea what you’re talking about.” Deputy Wilhelm asked Mr. Heffron several times what part of Implied Consent he didn’t understand and told him he would be more than happy to explain it to him; the Appellee would not specify what he did not understand. Deputy Wilhelm tried to simplify the language of Implied Consent, explaining to Mr. Heffron that if he refused to take the breath test he will lose his license for one year; Mr. Heffron just gave Deputy Wilhelm a blank look. Deputy Wilhelm then read Implied Consent two more times; again, the Appellee just gave a blank look. The exchange continued. In the end, Mr. Heffron never took the breath test, never explained his professed lack of understanding and never mentioned a desire to speak with an attorney or any confusion about his Miranda rights. He simply responded with a blank look. Mr. Heffron, by his behavior, clearly refused to provide the required breath samples. Obliviously, he also failed to provide the breath samples. See Rule 11D-8.002(12), Florida Administrative Code, (Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test.)
The trial court’s ruling that “[t]here [was] no clear refusal” was error. A driver cannot lawfully avoid the requirements of Florida’s implied consent statute by simply giving a blank look or no response. Secondly, the Alves trial court order is not binding or controlling authority.
The order of the trial court granting Appellee’s Motion to Suppress should be reversed.
IT IS THEREFORE ORDERED that the order of the trial court granting Appellee’s Motion to Suppress is reversed.
ORDERED at Clearwater, Florida this ___ day of August, 2011.
Original order entered on August 10, 2011 by Circuit Judges Michael F. Andrews, Raymond O. Gross, and R. Timothy Peters.
cc: Honorable John Carassas
Office of the State Attorney
J. Kevin Hayslett, Esquire
 The Kurecka decision contains a detailed discussion of Florida’s implied consent statute as well as an explanation of the limitations of inferring that the exclusionary rule is available as remedy for violations of a statute. “If a statute does not expressly list the exclusionary rule as a remedy, the Florida Supreme Court will ‘not infer that this remedy is available for violations of the statute-regardless of its effectiveness as a deterrent or how desirable or beneficial we believe the exclusion may be.’ Jenkins v. State, 978 So.2d 116, 130 (Fla.2008). Courts must look at the terms of the statute at issue and the legislative intent rather than to ‘judge-made exceptions to judge-made rules’ when deciding whether to suppress evidence.” Kurecka, 2010 WL 3766727 at 8.