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Folden v. State

District Court of Appeal of Florida, Fifth District
May 22, 2009
16 So. 3d 849 (Fla. Dist. Ct. App. 2009)

Opinion

No. 5D08-2967.

May 22, 2009.

Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.


John E. Folden appeals his conviction of refusing to submit to a breath test. Folden contends that the State failed to prove that his driving privilege had previously been suspended for refusing to submit to a breath test as required by section 316.1939, Florida Statutes (2008). The State properly concedes error and we reverse.

Folden was acquitted of felony driving under the influence.

Refusal to submit to a breath test is a misdemeanor if the defendant's driving privilege had previously been suspended for refusing to submit to a lawful test of the defendant's breath, urine or blood. See § 316.1939, Fla. Stat. (2008). To prove the defendant's prior license suspension for refusing to submit to a breath test, the State submitted Folden's certified driving record (CDR), and suggested that the notation found on the CDR of "BAL unknown" meant that Folden had previously refused to submit to a breath test. No other evidence of a prior refusal was offered. The State concedes that the "BAL unknown" on the CDR does not establish beyond a reasonable doubt that Folden previously refused to submit to a breath test.

We commend the State for its candor.

Accordingly, we reverse Folden's conviction. However, as Folden recognizes, the evidence adequately demonstrates that he was advised of his obligation to submit to a breath test and refused. As such, on remand, the trial court shall forward a copy of this opinion to the Department of Highway Safety and Motor Vehicles to suspend Folden's license if it deems appropriate. See §§ 322.2615, 316.1932(1)(a), Fla. Stat. (2008).

REVERSED AND REMANDED.

EVANDER and COHEN, JJ., concur.


Summaries of

Folden v. State

District Court of Appeal of Florida, Fifth District
May 22, 2009
16 So. 3d 849 (Fla. Dist. Ct. App. 2009)
Case details for

Folden v. State

Case Details

Full title:John E. FOLDEN, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Fifth District

Date published: May 22, 2009

Citations

16 So. 3d 849 (Fla. Dist. Ct. App. 2009)