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The Pre-Arrest Right to Remain Silent under the Florida Constitution

If you are under investigation for a criminal charge, it is important to seek out the services of a qualified criminal defense attorney before you make a statement or answer any questions. Both the United States Constitution and the Florida Constitution provide important protections against self-incrimination.

The Florida Supreme Court recently decided on May 5, 2016, State v. Horwitz, SC15-348 (2016), the defendant, Donna Horwitz, was convicted of first-degree murder with a firearm. During the trial, the prosecutors with the State of Florida presented evidence of Horwitz’s pre-arrest, pre-Miranda silence and argued that the jury should consider this silence as evidence of Horwitz’s consciousness of guilt.

The issue in the case was whether the prosecutor could introduce evidence of a defendant’s pre-arrest, pre-Miranda, silence where the defendant does not testify at trial.

The Court of Appeal reversed and remanded for a new trial. The court held concluded that because Horwitz did not testify at trial, the use of her pre-arrest, pre-Miranda silence was improper as a matter of state constitutional law. The Supreme Court approved of the Court of Appeal’s decision, concluding that the use of a Horwitz’s silence as substantive evidence of guilt violates the Florida constitutional right against self-incrimination.

Furthermore, the court found that as a matter of Florida evidentiary law, the prosecutor is precluded from using that silence to argue a defendant’s consciousness of guilt.

In this case, Horwitz argued the Florida Constitution is more protective of the privilege against self-incrimination than the Federal Fifth Amendment. Horwitz concluded that pursuant to Florida Supreme Court precedent, pre-arrest, pre-Miranda silence is only admissible if it is used for impeachment because it was inconsistent with the trial testimony. Horwitz exercised her right to remain silent pre-arrest and at trial.

The Florida Supreme Court has previously stated that the privilege against self-incrimination within the Florida Constitution provided more protection than the privilege within the Fifth Amendment of the US Constitution in State v. Hoggins, 718 So. 2d 761 (Fla. 1998).

The Florida Supreme Court went on to conclude that, “Allowing the defendant’s previous silence to be used as substantive evidence of consciousness of guilt would penalize the defendant for exercising that right [to remain silent] at trial.” This case is an important confirmation of an individual’s right to remain silent before and after an arrest.

Additional Resources

State v. Horwitz, SC15-348 (2016) – Visit the website of the Florida Supreme Court to read the entire opinion decided on May 5, 2016.


The criminal defense attorneys in Tallahassee, FL, at [[$firm]] represent clients charged with felony, misdemeanor, and DUI criminal offenses. We pay attention to recently decided cases that impact the criminal justice system.

Contact our offices at (850) 681-7777 to schedule an initial consultation, either in the office or on the phone.

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“But I Think I am Guilty”: Why Hire a DUI Defense Attorney Even When You Think You’re Guilty


An arrest for drunk driving or driving under the influence (DUI) can be a traumatizing experience. After a drink or two at the Florida State Seminoles’ game, the company end-of-year party, or other social gathering, it is possible to “feel fine” or “not feel drunk” and still be arrested for DUI.

If you are arrested for DUI in Leon County, including Tallahassee, Woodville, or surrounding areas, it is important to consult an experienced DUI attorney immediately. Even if you feel that you will obviously be convicted, it is crucial to consult an experienced DUI attorney who has specialized knowledge of DUI law and the Florida criminal law process.

How a DUI Arrest Occurs in Tallahassee, Florida.

Generally, an individual is arrested for DUI following a traffic stop or other encounter with a police officer. The officer may observe certain bad driving behaviors including the following:

  • Swerving or failure to maintain lane
  • Driving too slowly
  • Speeding
  • Accident or collision
  • DUI checkpoint

Field Sobriety Tests in Northern Florida

Customarily, the officer will request the driver submit to a field sobriety test, like the walk and turn, horizontal gaze nystagmus, or one-leg stand. Field sobriety tests are ordinarily filmed on the officer’s dash camera or body camera. Although a driver is not required to submit to field sobriety tests, most drivers will comply with the officer’s request.

Typically, field sobriety tests are conducted as follows:

  1. Horizontal Gaze Nystagmus– The officer holds a stimulus, usually a pen or stylus, in front of the drivers face and requests the driver follow the movement of the pen from left to right in a horizontal motion. The officer watches the driver’s eyes for a nystagmus or a deviation in the eye movement.
  2. Walk and Turn– The officer requests the driver walk in a straight line with both hands by his or her side. The driver must walk in the straight line, one foot in front of the other, heel to toe. The driver must then pivot after a certain number of steps and repeat the heel-toe movement in the opposite direction.
  3. One-Leg Stand– With the one-leg stand test, the officer requests the driver stand and lift one leg approximately 6 inches off the ground and maintain both hands by his or her side. The officer observes the driver for signs of intoxication, including failure to maintain balance or follow instructions.

Chemical and Breathalyzer Testing in Florida

Lastly, the officer may request the driver submit to chemical testing, including blood, alcohol, or urine testing. Florida is an implied consent state. By virtue of having a driver’s license and driving on Florida’s roads, an individual consents chemical testing. Refusal to submit to chemical testing may result in driver’s license suspension.

The most commonly used chemical test is the breathalyzer test. Most law enforcement agencies use the Intoxilyzer 8000, which tests the blood alcohol concentration or BAC. If the test shows the driver (over the age of 21) had a BAC of 0.08 or higher, he or she may be charged with DUI under Florida Statute § 316.193. If the driver is under the age of 21, he or she may be charged with DUI if the BAC is 0.02 or higher.

Blood alcohol concentration or BAC cannot be predicted in advance and is based on several factors, including but not limited to the following:

  1. The driver’s weight
  2. The driver’s metabolism
  3. The amount of alcohol consumed
  4. The time that elapsed while the alcohol was consumed
  5. Food consumed while drinking alcohol

Issues with Evidence Collected During a DUI Stop in Northern Florida

While it may appear the evidence collected during a DUI stop, including the dash-cam video of the field sobriety test and breathalyzer results, may seem overwhelming and conclusively prove guilt, it is important to understand DUI defense attorneys are specially trained to handle these matters.

Depending on the unique facts in your case, an experienced Tallahassee drunk driving defense lawyer may be able to challenge the sufficiency of the evidence in your case. For example, there are several recognized reasons an individual may fail a field sobriety test without being impaired, including the following:

  1. Age– The field sobriety tests, especially the walk and turn and one-leg stand require a certain amount of coordination, which may be diminished with age. An individual may fail or perform poorly because of a bad hip, prior injury, or other age-related incapacity.
  2. Medical Condition– Certain medical conditions or medications may cause an individual to perform poorly on a field sobriety test. For example, every individual has some sort of nystagmus or deviation of eye moment. The nystagmus may be intensified by certain diabetes medications and head injury.
  3. Lack of Coordination- Naturally, some people are more coordinated than others. Standing on one leg for 30 seconds may be challenging and require several attempts even if the person is not impaired.
  4. Officer Error- According to the National Highway Traffic Safety Administration, the officer administering the field sobriety test must follow certain procedures. Failure to follow these procedures can invalidate the test or cause a driver to perform poorly. For example, the officer must perform these tests on a level surface.

In addition to issues with the field sobriety test, there may be issues with the breathalyzer machine, the Intoxilyzer 8000, and the subsequent results. While the general public may believe the Intoxilyzer 8000 is a reliable device, there are several surprising issues with the device, including the following:

  1. The Intoxilyzer 8000 destroys the entire sample, making retesting impossible.
  2. The factory warranty on the Intoxilyzer 8000 lasts only 90 days.
  3. Each state can design its own software to report or hide certain data that is important to determine whether the machine is working properly.

Challenging Evidence in DUI Cases in Tallahassee, Florida

There are many aspects to a DUI case in Tallahassee, Florida. It is imperative to consult a DUI attorney with the experience and skill to analyze the evidence against you and build the strongest defense on your behalf.

The team of attorneys at the Law Offices of Don Pumphrey have tried countless DUI cases to verdict and will devise the best strategies to obtain the most favorable result on your behalf. Contact the Law Offices of Don Pumphrey at (850) 681-7777 for a free, confidential review of your case.

The Law Offices of Don Pumphrey strongly defends individuals charged with DUI, Underage DUI, and Drugged Driving throughout Leon, Bay, Jefferson, Wakulla, Gadsden, Gulf, Liberty, Calhoun, Washington, Jackson, Franklin Counties, and surrounding areas.

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Attorney Don Pumphrey, Jr.

Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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553 E. Tennessee St.
Tallahassee, FL 32308

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The information provided on this site is for general information purposes only. The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your own individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Use of this website or submission of an online form, does not create an attorney-client relationship.

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Principal office located at: 553 E. Tennessee St., Tallahassee, FL 32308