Appeal No.: DD-57
Case No.: TT00-000359-LD
STATE OF FLORIDA,
Appellant,
v.
SCOTT E. ELLIS,
Appellee.
_________________________
OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Karla F. Wright presiding. The State charged Scott Ellis, with driving under the influence. The trial court granted Ellis' motion to suppress the breath test results, and the State appeals the county court ruling. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the trial court is affirmed.
The sole issue before this court is whether the trial court erred by denying Appellee's motion to suppress breath test results obtained following his arrest.
On February 5, 2000, Officer Jeffrey Kemper of the Lakeland Police Department stopped the Appellee in the 100 Block of East Orange Street in Lakeland, Florida. The Appellee does not have a valid Florida driver's license but is a licensed driver from Tennessee. After arresting the Appellee, Officer Kemper transported him to the police station and read an implied consent warning to him, which contained the following language:
"You have been placed under arrest. When you signed for your driver's license you consented to a breath or urine test to determine the alcohol content or presence of controlled substances in your blood. I am now prepared to give you a breath test (or urine test, or both). Failure to submit to such a breath or urine test, or both, will result in suspension of your privilege to operate a motor vehicle for a period of one (1) year for a first refusal and a period of eighteen (18) months if your driving privilege has been previously suspended as a result of a refusal to submit to such a test or tests. Refusal to submit to a chemical breath or urine test upon refusal of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding."
After receiving the warning, the Appellee took the breath test and later moved to suppress the results on April 12, 2000. The trial judge granted the motion, stating that ADefendant's refusal, under the stipulated facts, was not voluntary because the Implied Consent form read to him contained a legal misstatement. The State then filed a timely Notice of Appeal on June 19, 2001.
The admissibility of evidence is within the exclusive discretion of the trial court and such decisions are presumptively correct and will not be disturbed absent a showing of an abuse of discretion. San Martin v. State, 717 So.2d 462 (Fla. 1998).
Having reviewed the record in this case, it cannot be said that the trial court abused its discretion. By misrepresenting to Appellee that if he refused the breath test his driving privileges in Tennessee would be suspended, the police officer tainted the Appellee's consent to take the breathalyzer test. The Court finds that the trial court did not err in granting Appellee's motion to suppress because the implied consent warning was invalid as read to him, an out-of-state driver. Consequently, the breath test results are not admissible against the Appellee.
Therefore, it is ORDERED AND ADJUDGED that the ruling of the county court is AFFIRMED.
DONE AND ORDERED in Bartow, Florida this day of March, 2002.
CHARLES B. CURRY, Chief Judge