Kurecka v. State (4th District Court of Appeals, September 29th, 2010)

Charles Kurecka was involved in an automobile accident on August 24, 2005. Officer Joseph Rubin of the Greenacres Department of Public Safety responded to the scene of the accident and conducted a DUI investigation. After performing field sobriety exercises, Kurecka was arrested for DUIand transported to the Greenacres Public Safety Department.   Defendant was requested by law enforcement to submit to breath testing.  Upon hearing the request, Defendant requested to speak with an attorney. Prior to requesting Defendant to submit to breath testing, law enforcement had not advised Defendant of his Miranda rights. As such, Defendant's desire for counsel was not premised upon law enforcement advice, but his own belief that he needed to speak with an attorney. Law enforcement did not inform Defendant that he did not have a right to speak with counsel prior to deciding to take or refuse breath testing. Because he wanted to speak with counsel first, Defendant refused to submit to breath testing.

The Defense filed a Motion To Suppress the Defendant's refusal based upon the following argument:  A DEFENDANT'S MISTAKEN BELIEF IN THE RIGHT TO COUNSEL PRIOR TO BREATH TESTING, NOT CREATED BY LAW ENFORCEMENT, BUT MADE KNOWN TO LAW ENFORCEMENT, REQUIRED THE SUPPRESSION OF THE REFUSAL TO SUBMIT TO BREATH TESTING IF LAW ENFORCEMENT DOES NOT CORRECT THE DEFENDANT'S MISTAKEN BELIEF?

Ultimately the Appeals court said no to this argument.  However, they did say "we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant's confusion about the right to counsel for breath testing."  Based upon this language, if in a DUI case a Defendant is miss-informed by an officer the Court may through out a refusal to take the the breath test.