408 So. 2d 589 | Fla. Dist. Ct. App. | 1981
STATE of Florida, Petitioner,
v.
Kenneth Ray DUCKSWORTH, Respondent.
District Court of Appeal of Florida, Second District.
*590 Ralph L. Marchbank, Jr., Asst. State Atty., Sarasota, for petitioner.
Elliott C. Metcalfe, Jr., Public Defender, Sarasota, and Becky A. Titus, Asst. Public Defender, Sarasota, for respondent.
OTT, Judge.
In reliance upon our opinion in State v. Duke, 378 So.2d 96 (Fla. 2d DCA 1979) the county court permitted the state to introduce evidence, in appellee's DUI prosecution, that when arrested he had refused to submit to a test for alcohol in his system. The circuit court reversed appellee's conviction, on the ground that Duke was effectively invalidated by Sambrine v. State, 386 So.2d 546 (Fla. 1980).
The circuit court was correct. Duke was predicated upon our belief that the conditions for admissibility set forth in State v. Esperti, 220 So.2d 416 (Fla. 2d DCA 1969), cert. dismissed, 225 So.2d 910 (Fla. 1969), had been met, in that the tests authorized by section 322.261(1)(a), Florida Statutes, are compulsory. Sambrine holds that they are not.
The state's petition for certiorari is DENIED.
SCHEB, C.J., and RYDER, J., concur.