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State v. Holland (4th District Court of Appeals, December 14th, 2011).

The Defendant was initially stopped by a Broward County Deputy for suspicion of DUI.  Another Deputy was called to the scene to do the DUI investigation.  The second Deputy requested the driver to submit to Field Sobriety Exercises (FSTs).  The interaction was video taped.  Before trial, the State announced that it did not intend to call the second Deputy as a witness.  The Defense made a Motion to Suppress all of that Deputies involvement in the investigation. This included the entire contents of the videotape. The Defense argued that the State's decision not to call the second Deputy would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution.

Unfortunately, the Court disagreed.  First, they said his refusal to submit to sobriety testing is admissible regardless as "this issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) which provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a)1.a., Fla. Stat. (2010); see also State v. Kline,764 So.2d 716, 717 (Fla. 5th DCA 2000).

Next, the Supreme Court has held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant.  The Court then said that the directives by the Deputy on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts.  Therefore, the video tape comes in over the objections of the Defense.

This decision, if adopted in practice by our Circuit's State Attorney's office, could impact the fairness of many current DUI cases.  Essentially, it allows the prosecutor to push play on a DUI video to prove their case.