Filing # 25174507 E-Filed 03/23/2015 09:33:21 AM we IN THE COUNTY COURT FOR THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CASE NOS. 48-2015-CT-1033-A-O 48-2015-CT-1034-A-O STATE OF FLORIDA, Plaintiff, vs. SHAWNA KI FRONTARIO, Defendant. J DEFENDANT'S MOTION TO EXCLUDE BREATH ALCOHOL TEST RESULTS BASED UPON MISADVISE BY ARRESTING OFFICER REGARDING THE IMPLIED CONSENT WARNINGS ‘The Defendant, SHAWNA KI FRONTARIO, by and through her undersigned attorney, pursuant to Fla. R. Crim. P. 3.190(g) hereby respectiully requests this Honorable Court to enter its Order suppressing as evidence the Defendant's breath alcohol test results, and as grounds therefor would state: 4. The Defendant was arrested on January 31, 2016, by Officer Hutto of the Orlando Police Department for the offense of Driving Under the Influence with Property Damage and Driving Under the Influence. 2. The Defendant received in discovery a video/audio DVD of her arrest. A review of that DVD will reveal the following: OFFICER HUTTO: 1'm officer Hutto with the Orlando Police Department. Today's date is 1131/2015 and the time is approximately 0016:00 hours, Ma'am, please state your full name. ‘MS. FRONTARIO: ‘Shawna Ki Frontario, OFFICER HUTTO: ‘Ma‘am, | am now requesting that you submit to an approved test of your breath for the purpose of determining the alcohol content of your breath.MS, FRONTARIO. NO. OFFICER HUTTO: you refuse to take this test, your driving MS. FRONTARIO: You Like that (OFFICER HUTTO: ‘your driving privilege will be suspended for a period of one year for your first Tefusal or 18 months if your driving privilege has been previously ‘suspended for refusing to submit to a lawl test. ‘Additionally, if you refuse to take this test and your driving privilege has been previously suspended for a prior refusal, you wil be committing @ misdemeanor. Your refusal to submit to this test is admissible into evidence in any criminal proceeding, will you take the test, yes or no? will you take the test, yes or no? MS, FRONTARIO: Tm net sure, So | say no, and I can't drive for a year. Is that what you said? OFFICER HUTTO. That’, | believe that's what that says, yes, ma'am. MS. FRONTARIO: okay. or | say yes, and | pass or if fail, then what? OFFICER HUTTO: Ifyou provide a breath sample under .08, you'll keep your license. if it's above .08, your license will be suspended, but you can apply for a business purpose license. ‘And of course, | don't know ifthere's any prior refusal or anything MS. FRONTARIO: No OFFICER HUTTO: (Of course, other things come into play MS. FRONTARIO: But for how, like, | don't know, | just want to know everything. OFFICER HUTTO: | mats it MS. FRONTARIO: Thats it? OFFICER HUTTO: if you refuse, it's suspended for a year. And if you provide it and it's ‘over .08, is suspended for a year. And ifit's under, you keep your license. And if it's suspended or if it, yeah, if i's suspended you can apply for a business purpose license. Do you want me to read the whole _[ thing again? MS. FRONTARIO: Yeah, go ahead and do that. OFFICER HUTTO: okay. | am now requesting that you submit to an approved test of your breath for the purpose of determining the alcohol content of your breath. If you refuse to take this test, your driving privilage will be suspended for period of one year for a first refusal or 18 months if your driving privilege has been previously suspended for refusing to submit to a lawful test ‘Additionally, if you refuse to take this test and your drving privilege has been previously suspended for a prior refusal, you will be commiting a misdemeanor. Your refusal to submit to this test is admissible into evidence in any criminal proceeding. will you take the test, yes or no? MS. FRONTARIO: Okay . So if say no, | can't drive fora year? [orricer HuTTo Your license will be suspended MS. FRONTARIO: All rightOFFICER HUTTO: ~at this point MS. FRONTARIO: Then | guess there is not much of a choice, OFFICER HUTTO: Its America, There's a choice, You don' have to do anything you don't want to do, MS. FRONTARIO ‘Awesome. okay OFFICER HUTTO: Yes or no? MS. FRONTARIO. {feel ike you're being tricky, Yes. 3. As stated above, Officer Hutto provided the Defendant with various implied consent warnings which were misstatements of the law. 4. Asa result of these misstatements of the law by Officer Hutto, the Defendant submitted to a breath test 5. In State v. Forman, 10 Fla. L. Weekly Supp. 47a (Fla. 11" Cir. 2002), the Eleventh Circuit Court held that a police officer may not persuade a defendant to take a breathalyzer test by misinforming the defendant that the consequences of refusal are more severe than provided by law. 6. In State v. Perdue, 17 Fla. L. Weekly Supp. 186a (Fla, 16" Cir. 2010), the Sixteenth Judicial Circuit held that the defendant's consent to a breath test was not voluntary where the officer misinformed the defendant that he would be eligible for a hardship license if he submitted to a breath test but not eligible if he refused a breath test. 7, In State v. Henry, 15 Fla. L. Weekly C21 (Fla. 15" Cir. 1990), the Fifteenth Circuit Court held that, since the legislature was clear in proscribing the prescribed method and language to be used when issuing implied consent warnings, officers who elect to go beyond the statutorily mandated language do so at the peril of suppression of evidence if they misstate the law or the rights of the defendant.8 Numerous other county and circuit courts in Florida have held that misinformation by an officer is highly coercive, and consent obtained thereafter is involuntary. See State v, Cox, 9 Fla. L. Weekly Supp. 634a (Fla. 16” Cir. 2002); State v. Ellis, 9 Fla. L. Weekly Supp. 275a (Fla. 10" Cir, 2002); State v. Dennis, 12 Fla. L. Weekly ‘Supp. 569b (Fla. Pinellas Cty. Ct. 2005); State v. Davis, 11 Fla. L. Weekly Supp. 658b (Fla. Bay Cty. Ct. 2004) WHEREFORE, the Defendant respectfully requests this Honorable Court to enter an Order Suppressing as Evidence the Defendant's breath alcohol test results in the instant case. I HEREBY CERTIFY that a true copy of the foregoing was filed utilizing the Florida Courts E-Filing Portal and was served via electronic mail this 23rd day of March, 2016, to: Office of the State Attorney, Traffic Division 82, 415 N. Orange Avenue, Orlando, FL 32801, division82@sao9.0ra siMatthew P_ Ferry MATTHEW P. FERRY, of LINDSEY & FERRY, P.A. 1150 Louisiana Avenue, Suite 2 Winter Park, FL 32789 Mail. P.O. Box 505 Winter Park, FL 32790 Telephone: (407) 644-4044 Facsimile: (407) 599-2207 Attorneys for the Defendant matt@lindseyandferry.com Attorney No. 28950