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Docket Number

CASE NO. 96-1221

Attorney(S)

Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Oroso, Assistant Attorney General, Barry E. Krischer, State Attorney, and Ira D. Karmelin, Assistant State Attorney, West Palm Beach, for petitioner. Richard L. Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for Respondent-Kevin Talty. James K. Green of James K. Green, P.A., West Palm Beach, for Respondent-Gino Rubio.

Judges

Martha C. Warner
W. Matthew Stevenson

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Smart Summary

State of Florida v. Kevin Talty and Gino Rubio — District Court of Appeal, Fourth District (Apr. 9, 1997)

Factual and Procedural Background

The respondents (Talty and Rubio) were stopped on suspicion of driving while intoxicated and refused the "implied consent" breath alcohol tests at the time of the stops. After each was arrested and taken into custody, each was told he could be released from jail if he took a breath test and his blood alcohol level was shown to be less than 0.05%. Neither respondent was informed that the pre-release test result could be used against him in a criminal proceeding. Both respondents submitted to the pre-release tests.

Each respondent moved to suppress his pre-release test result prior to trial, arguing that the Legislature neither provided for nor intended that such pre-release test results be admissible at trial. In Talty's case the county court denied the motion to suppress; in Rubio's case the county court granted the motion. Both Talty and the State appealed the respective county-court orders to the circuit court sitting in its appellate capacity. The circuit court held that the pre-release test results should have been suppressed as their admission was "fundamentally unfair" where the arrestees were not told the results could be used against them. The State petitioned this court for certiorari review of the circuit court's decisions.

Legal Issues Presented

Whether the admission at criminal trial of pre-release breath alcohol test results obtained under section 316.193(9), Florida Statutes (1993), is fundamentally unfair under constitutional due process where the arrestee was not informed the test could be used as evidence against him.
Whether, under statutory construction of section 316.1934(2) in relation to sections 316.1932/316.1933 and 316.193(9), the Legislature intended the results of pre-release tests to be admissible in evidence.

Arguments of the Parties

Respondents' Arguments

The Legislature did not provide that the results of pre-release breath tests (administered under § 316.193(9)) would be admissible at trial and did not intend such results to be admissible.
Admission of pre-release test results is fundamentally unfair where the arrestee was told only that taking a test could secure release from custody and was not informed the test result could be used against him in a criminal prosecution.

State's Position

The opinion records that the State petitions for certiorari from the circuit court's decisions reversing or denying suppression, but the opinion does not contain a detailed account of the State's legal arguments on the merits in this court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Haines City Community Development v. Heggs, 658 So.2d 523	The standard governing review of circuit-court decisions when the circuit court is sitting in its appellate capacity: inquiry limited to whether procedural due process was afforded and whether the circuit court applied the correct law.	The court applied this standard to frame its review and concluded there was no claim of denied procedural due process; the question was whether the circuit court applied the correct law.
South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916 (1983)	Holds that failure to warn an accused that refusal to take a breath test could be used against him is not an implicit promise to forgo use of evidence and does not violate due process; refusal is not a fundamental right but a matter of legislative grace.	The court contrasted Neville with the circumstances of pre-release tests: because in Neville some adverse effects were warned about, the absence of a warning did not deceive; here, by offering release without warning of evidentiary use, the court found a different due process concern under the circuit court's analysis.
State v. Pagach, 442 So.2d 331	Florida court authority adopting Neville and declining to render evidence inadmissible based on a failure to advise that a refusal could be used in court.	Used as supporting authority that Florida courts have followed Neville on the refusal-warning issue; the opinion distinguishes that line of cases from the pre-release-test context.
State v. Sowers, 442 So.2d 239	Another Florida decision cited with Pagach as agreeing with Neville.	Referenced as additional authority for the proposition that failure to warn about evidentiary use of a refusal does not itself render admission unfair under the precedents cited, distinguishing those precedents from the present facts.
PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283	Expressio unius est exclusio alterius — when a statute lists things within its operation, it is construed to exclude things not expressly mentioned.	The court applied this statutory-construction principle to § 316.1934(2), noting that the statute permits admission of tests administered under §§ 316.1932 or 316.1933 but does not refer to tests under § 316.193(9); therefore, pre-release tests were not included by the Legislature.
Thayer v. State, 335 So.2d 815, 817	Supporting authority for the expressio unius exclusionary canon in statutory interpretation.	Used to reinforce the statutory-construction conclusion that omission of § 316.193(9) from § 316.1934(2) indicates legislative intent not to make pre-release tests admissible.
The Florida Bar v. Rayman, 238 So.2d 594	(Cited in concurrence) The principle that a court may resolve a case on non-constitutional grounds when available, avoiding unnecessary constitutional determinations.	Justice Stevenson, concurring specially, invoked this authority to justify disposing of the case on the non-constitutional statutory-ground and declining to reach the due process question.
Florida High School Activities Ass'n v. Temple Baptist Church, Inc., 509 So.2d 1381	(Cited in concurrence) Additional authority supporting resolving cases on non-constitutional grounds when possible.	Referenced by the concurrence for the same procedural principle of avoiding unnecessary constitutional rulings.
Graybar Elec. Co. v. Florida Dep't of Revenue, 347 So.2d 718, cert. denied, 358 So.2d 134 (Fla. 1978)	(Cited in concurrence) Authority for deciding a case on non-constitutional ground without addressing constitutional questions.	Invoked by the concurrence as further support for resolving the appeal on statutory construction and not addressing due process.

Court's Reasoning and Analysis

The court reviewed the circuit court's appellate decision under the limited standard from Haines City Community Development v. Heggs, focusing on whether the circuit court afforded procedural due process and applied the correct law. The court noted that no claim of procedural due process denial was made; the dispute concerned whether the circuit court applied the correct legal standards.

The majority discussed two bases for upholding the circuit court's suppression rulings:

Constitutional due process analysis (as adopted by the circuit court): the court observed that the implied consent statute (§ 316.1932(1)(a)) requires advising arrestees of some consequences of refusing a test (loss of driving privileges), but the pre-release statute (§ 316.193(9)) contains no warning that a pre-release test may be used as evidence in a criminal proceeding. The court distinguished South Dakota v. Neville (failure to warn about admission of refusal) because, in Neville, the arrestee was warned of some adverse consequences and there was no deception. Here, by contrast, the only consequence offered to the arrestee was release from custody; the court agreed with the circuit court that permitting the State to use the pre-release test result after offering the test as a "safe harbor" would be a deception crossing the bounds of fundamental fairness.
Statutory-construction analysis (alternative ground): the court examined § 316.1934(2), which expressly makes admissible tests administered in accordance with § 316.1932 or § 316.1933. The court observed that § 316.1934(2) does not refer to tests administered under § 316.193(9)(b). Applying the expressio unius canon (when a statute lists specific items it excludes others not listed), the court concluded that the Legislature did not intend pre-release tests under § 316.193(9) to be admissible in evidence. The court also noted that § 316.193(9) was enacted in 1991 and that the Legislature has not amended § 316.1934(2) to include § 316.193(9) among admissible tests.

Because the statutory-construction ground independently supports exclusion of pre-release test results, the court denied the State's petition for certiorari. Justice Stevenson, in a special concurrence, agreed with disposition on the statutory ground and expressly declined to reach the constitutional due process issue.

Holding and Implications

PETITION FOR CERTIORARI DENIED.

Implications:

The denial of the State's petition leaves intact the circuit court's rulings that the respondents' motions to suppress their pre-release breath test results should have been granted.
As an independent statutory matter, the court concluded that § 316.1934(2) does not make admissible the results of tests administered under § 316.193(9); therefore, under the court's statutory interpretation, pre-release breath tests administered under § 316.193(9) are not admissible in evidence against the person taking them.
Justice Stevenson concurred in the result on statutory grounds and would avoid the constitutional due process question; the majority discussed the due process argument but the statutory conclusion was sufficient to dispose of the petition in this court.

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STATE OF FLORIDA, Petitioner, v. KEVIN TALTY and GINO RUBIO, Respondents.

WARNER, J.

The state petitions for certiorari from two decisions of the circuit court sitting in its appellate capacity holding that respondents' motions to suppress the results of their pre-release breath alcohol tests administered in accordance with section 316.193(9), Florida Statutes (1993), should have been granted by the county court. The circuit court held that the admission of such evidence was fundamentally unfair to the respondents where the respondents were not told that it could be used as evidence against them in a criminal proceeding.

The respondents/defendants were stopped for suspicion of driving while intoxicated and refused to take "implied consent" breath alcohol tests. After each defendant was arrested and taken into custody on the charges, he was told that he would be released from jail if he took a breath test and his test result indicated that he had a blood alcohol level of less than 0.05%. Neither defendant was advised that this pre-release test result could be used against him. The defendants took the tests.

Before their criminal trials, each defendant moved to suppress his pre-release test result. They both argued that the Legislature did not provide and did not intend that the results of pre-release tests would be admissible at trial. In Talty's case, the county court denied the motion to suppress, but in Rubio's case the county court granted the motion. Both Talty and the State appealed the orders.

In its opinion the circuit court noted that the implied consent statute requires law enforcement to inform a person suspected of driving under the influence of alcohol of the consequences of refusing the breath test. See § 316.1932(1)(a), Fla. Stat. (1993). In contrast, the pre-release statute, which permits a person to be released from custody if the person's blood alcohol level is less than 0.05%, contains no warning that this test may be used as evidence in a criminal proceeding. See § 316.193(9). The court held that there is "a fundamental unfairness in section 316.193(9) in that it purports to allow the State to get in the back door evidence it could not get in the front door." Finding that the relevancy is outweighed by the prejudice and fundamental unfairness in admitting the blood test, unless a person is specifically told that it can be used as evidence in a criminal proceeding, the circuit court held that the test results should have been suppressed. The State petitions for certiorari from these decisions.

Our review of decisions of a circuit court acting in its appellate capacity is governed by Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995):

The inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. As explained above, these two components are merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law. . . .

This standard, while narrow, also contains a degree of flexibility and discretion. For example, a reviewing court is drawing new lines and setting judicial policy as it individually determines those errors sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari.

Id. at 530-31 (footnote omitted). In the instant case, there is no claim that procedural due process was not afforded. The issue is whether the circuit court applied the correct law.

In holding that the admission of pre-release breath tests was prejudicial and fundamentally unfair, the circuit court analyzed the case under a constitutional due process standard. The court held that it is fundamentally unfair to tell an arrestee that consent to the breath test may be refused with the consequence of the loss of driving privileges and then allow the person to take a breath test to be released from custody and admit it in evidence, as the arrestee would not know the consequences of his act.

Section 316.1932(1)(a) provides that any person accepting driving privileges in this state impliedly consents to the administration of breath, blood, or urine tests for alcohol and chemical substances when arrested for any offense allegedly committed while that person was driving a vehicle under the influence of alcohol. The Legislature permits a suspect to refuse to take such a test, but that refusal carries with it a suspension of the driver's license. Id. An arresting officer is required to inform the person that refusal to consent to the test will result in the suspension of the person's driving privileges. The statute also provides that the refusal is admissible in evidence, but there is no statutory requirement that the arrestee be informed of the evidentiary consequences of a refusal.

The United States Supreme Court held in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916 (1983), that the failure of a police officer to warn the accused that his refusal to take the breath test could be used against him was "not the sort of implicit promise to forgo use of evidence that would unfairly `trick' respondent if the evidence were later offered against him at trial." 459 U.S. at 566. Concluding that the right to refuse was not a fundamental right but one of legislative grace, the use of the evidence of refusal comported with fundamental fairness required by due process. Our courts have agreed with the Supreme Court. In State v. Pagach, 442 So.2d 331 (Fla. 2d DCA 1983), the court adopted Neville and also declined to apply Article I, section 9 of the Florida Constitution in a manner which would render such evidence inadmissible based upon the failure to advise that the refusal could be used against the arrestee in court. See also State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983).

Neville rests its determination that no due process violation occurred on the lack of deception in failing to advise of all adverse consequences, where the arrestee was advised of some adverse effects. We cannot say the same for the administration of the pre-release test. Once in custody, a person arrested for driving under the influence of alcohol may be released only upon compliance with section 316.193(9) which allows release under the following circumstances:

(a) Until he is no longer under the influence of alcoholic beverages . . . and affected to the extent that his normal faculties are impaired;

(b) Until his blood alcohol level is less than 0.05 percent; or

(c) Until 8 hours have elapsed from the time he was arrested.

§ 316.193(9). The taking of the test is clearly optional with the person in custody. There is no compulsion in the law to submit to further testing. But the test is offered to the arrestee with the assurance that it may lead to the release from custody. The law does not require any warning of any adverse consequences of the test, and none are given. Id. The police officers only advised these respondents that a breath test could allow their early release from custody. Thus, as the circuit court noted, a defendant could view the test as a "safe harbor." While in Neville the giving of "warnings" did not create an implicit assurance of other adverse consequences, i.e., the admission in evidence of the refusal to take the test, here the only "consequence" offered was release from custody. To then use the results of the test adversely to the defendants would be the type of deception or trick which would cross constitutional due process boundaries. We cannot say that the circuit court failed to apply the correct law when it made this due process analysis.

However, we also discern another reason to uphold the circuit court's opinion which was not articulated. We consider this issue to be one of statutory interpretation.

Section 316.1934(2), Florida Statutes (1993), provides:

Upon the trial of any civil or criminal action . . . . the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible . . . .

(emphasis added). Notably, this section does not refer to the admission of the results of a test administered under section 316.193(9)(b). As the county court noted in its decision in the Rubio appeal, when a statute includes a list of things that fall within its operation, it is construed as excluding all things that are not expressly mentioned. Expressio unius est exclusio alterius. PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988); Thayer v. State, 335 So.2d 815, 817 (Fla. 1976) . Here, the Legislature failed to include pre-release breath tests as being admissible in evidence. Therefore, under statutory construction principles, the pre-release test is not admissible in evidence against the person taking it.

Section 316.193(9) became law in 1991. Ch. 91-255, Laws of Fla. (1991). While section 316.1934 was enacted earlier, it was modified in the same law, and several other modifications to both statutes have occurred through the years. The Legislature has not seen fit to include section 316.193(9) in the admissible tests listed in section 316.1934(2).

Petition for certiorari is denied.

POLEN, J., concurs.

STEVENSON, J., concurs specially with opinion.

STEVENSON, J., concurring specially.

I concur in the result to the extent that the majority opinion bases its denial of the petition for certiorari on statutory interpretation, i.e., that the legislature did not intend for the pre-release test to be admissible against the person taking it. § 316.1934(2), Fla. Stat. (1993). Since the issue before this court can be disposed of on this non-constitutional ground, I would not reach the due process issue which is the focus of the majority's opinion. The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970)("While we take note of these serious constitutional questions, we find it unnecessary to rest our decision upon their determination since this proceeding can be disposed of on [non-constitutional grounds]."); Florida High School Activities Ass'n v. Temple Baptist Church, Inc., 509 So.2d 1381 (Fla. 1st DCA 1987); Graybar Elec. Co. v. Florida Dep't of Revenue, 347 So.2d 718 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 134 (Fla. 1978).

STATE v. TALTY