Background
Osee Bob Paul was convicted in Palm Beach County Court of driving under the influence. The State presented testimony from the detaining officer, DUI investigator, and breath technician, along with video evidence, concerning Paul’s appearance and behavior. It also introduced evidence that Paul refused roadside exercises and a breath sample after being warned of the license-suspension consequence.
In rebuttal closing, after the defense challenged the impairment evidence, the prosecutor said that if Paul was not impaired, he could have shown it by taking the roadside exercises or giving a breath sample, and characterized the refusals as consciousness of guilt. The trial court overruled defense counsel’s objection. The jury was later instructed that the State bore the burden of proof and that Paul had no obligation to present evidence or prove anything.
The Court’s Holding
The Fourth District affirmed. Read in context, the prosecutor’s isolated remark was a permissible comment on admitted evidence of Paul’s refusals and the resulting inference of consciousness of guilt; it did not reasonably suggest that Paul bore a burden to prove his innocence.
The court emphasized that the State repeatedly stated before and after the remark that it had to prove DUI beyond a reasonable doubt, and the court gave a clear written and oral instruction that Paul was not required to prove anything. Even assuming error, the court held there was no reasonable possibility that the remark contributed to the verdict.
Key Takeaways
- A prosecutor may argue that a DUI defendant’s refusal of roadside exercises or a breath test supports consciousness of guilt when the refusal evidence is properly admitted.
- Closing argument crosses the line when it tells jurors the defendant had to prove innocence or take affirmative steps to dispel suspicion.
- Context matters: an isolated remark, repeated acknowledgment of the State’s burden, and correct jury instructions supported affirmance.
Why It Matters
The decision distinguishes permissible consciousness-of-guilt argument from improper burden shifting in DUI cases. Prosecutors should frame refusal evidence as affirmative evidence supporting impairment, not as an obligation on the defendant to establish innocence.