The defendant's refusal to perform investitive testing such as the FSEs is admissible to show the consciousness of the Defendant’s guilt only if the Defendant was informed of at least one adverse consequence that would result from his refusal to perform the FSEs. The court made this clear in Grzelka v. State
Grzelka v. State, 881 So.2d 633 (Fla. 5th DCA 2004)
Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence.
FOUNDATION
In David A. Demers, Florida DUI Handbook § 10.3 (Florida Practice Series 2022 ed.) Judge Demers gives states the following three prong predicate for a refusal citing State v. Wilkins, 6 Fla. L. Weekly Supp. 663 (Fla. Brevard Cty. Ct. Feb. 1 1999) “the defendant should be advised or otherwise aware of: 1)the fact that the officer suspected the Defendant of being DUI or was investigating that offense, 2) the purpose of the tests, and 3) the fact that adverse consequences may result from the refusal.”
