Florida DUI: The Confusion Doctrine and Trenton’s Law

July 29, 2025 Don Pumphrey, Jr. Criminal Defense, Drunk Driving/DUI Social Share

In Florida, the confusion doctrine is a legal principle that applies when a defendant receives an implied consent warning and a Miranda warning before submitting to a DUI test. This blog will discuss the confusion doctrine and how it may result in the suppression of evidence – especially given the recent passage of Trenton’s Law. 

The confusion doctrine in is implicated in when a law enforcement officer gives two separate warnings to a driver before administering a DUI test:

• Miranda warning: This notifies a driver of their Miranda rights (right to remain silent, the fact that anything they say can and will be used against them, and the right to an attorney)
• Implied consent warning: A warning notifying the driver of the legal requirement that they submit to a breathalyzer/other DUI test (implied consent), and that they do not have the right to refuse the test (under Fla. Stat. 316.1939)

This creates a difficult situation – the driver has been told that they have the right to an attorney at that moment and also must comply with the breathalyzer request before the attorney can be contacted. As a driver may be confused by an officer regarding what their rights are in such a situation, Florida’s courts have (partially) recognized the “confusion doctrine.” Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010)

In Kurecka, the defendant was involved in an accident and notified by an officer that he had to take a breath alcohol test (implied consent warning). Kurecka refused, citing his right to an attorney. His refusal was used as evidence against him in court when he was charged with DUI (based on other signs of actual impairment). He was convicted of DUI, then appealed. 

On appeal, Kurecka argued that because he believed he had a right to consult an attorney before submitting to a DUI test (not true under implied consent law), his refusal should not have been used against him as evidence in court. But the Kurecka court disagreed.

The court noted that Kurecka’s belief that he had a right to an attorney arose before he was told he needed to submit to a DUI test. Kurecka consistently asked for an attorney in response to each question he was asked by the arresting officer – he was not read his rights before he asked for an attorney. 

The court held that unless the confusion regarding a right to an attorney before submitting to a DUI test is created by the officer (via reading both Miranda and an implied consent warning), the confusion doctrine is inapplicable. But the court made clear that even though his refusal could be used against him, Kurecka was permitted to argue why he refused the DUI test (belief in his right to an attorney as opposed to actually being under the influence).

Florida law surrounding the confusion doctrine is admittedly… confusing. Some courts (like Kurecka) seem to acknowledge the doctrine’s existence in the narrow circumstance where an officer induces a defendant to believe that they have a right to an attorney before a DUI test (by virtue of giving them a Miranda warning with an implied consent warning at the same time). Other courts have not acknowledged it at all.

However, the issue could be taking center stage soon with the passage of Trenton’s Law. This law makes refusal to submit to a DUI breath test – even for the first time – a crime in Florida. It also requires a modified implied consent warning, as officers must now tell a driver that refusing a DUI test is a criminal offense.

This is significant because in Kurecka, the court observed that officers must advise someone that their failure to submit to a DUI test will result in a license suspension, and notify them of the fact that a refusal can be used against them at a DUI trial (if they are arrested). 

But it is worthy of note that in many cases (before Trenton’s Law), a refusal to submit to a DUI test would preclude criminal charges from being brought – unless the officer developed probable cause from other facts that the driver was impaired and in actual physical control of the vehicle. A first-time refusal of a DUI test was not a crime, just a civil infraction.

Now that all refusals to submit to DUI testing in Florida are crimes (as of October 1, 2025), the “confusion doctrine” may start to be more widely applied. This is because if someone is under the influence (>0.08 BAC) and is asked to submit to a DUI test, they have no choice but to incriminate themselves (either by unlawfully refusing the test or blowing above the legal limit).

If an officer reads someone a Miranda warning, and also tells them that refusal to submit to a DUI test will lead to their arrest, a driver may observe they are being compelled to incriminate themselves. Logically, they may ask for an attorney.

If and when this occurs, will Florida’s courts hold that a defendant’s refusal to submit to a DUI test is inadmissible if they are charged with DUI, given the U.S. Constitution’s protection against self-incrimination? Part of the logic for not previously excluding this evidence from a DUI trial under the confusion doctrine was that a DUI test refusal was not automatically incriminating (Kurecka).

Now that a refusal is automatically incriminating (under Trenton’s Law) and a driver must be notified of this before submitting to a DUI test, how will Florida’s courts apply the confusion doctrine? Though the answer is unclear, a failure to suppress a DUI test refusal may implicate a defendant’s Fifth Amendment protection against self-incrimination in a way that it previously did not before Trenton’s Law.

It is critical to find experienced and trusted legal representation as soon as possible if someone is charged with DUI, BUI, vehicular homicide, DUI manslaughter, BUI manslaughter or vessel homicide. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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