Osorio v. State
In a DUI-property-damage prosecution, the Third DCA held that the prosecutor's closing argument crossed from permissible consciousness-of-guilt commentary on a breath-test refusal into impermissible burden-shifting by repeatedly telling the jury Osorio could have 'proven his innocence' by submitting to a breathalyzer. Applying DiGuilio harmless-error review, the majority found the error was not harmless given that Osorio's impairment signs could be attributed to benign causes, and reversed for a new trial. Judge Gooden dissented, finding the remarks proper fair comment/fair reply and, alternatively, harmless beyond a reasonable doubt given repeated proper burden instructions and overwhelming evidence of impairment.
Key facts
- Defendant Osorio was prosecuted for DUI and property damage in Florida trial court.
- At trial, the prosecutor argued in closing that Osorio could have 'proven his innocence' by submitting to a breathalyzer test, and repeatedly referenced his refusal as evidence he knew the results would show impairment.
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Why it matters
This opinion sharpens the line, already explored in Sheely, Morris, and Concha, between permissible consciousness-of-guilt argument regarding a DUI breath-test refusal and impermissible burden-shifting, and it is… — full analysis with a trial
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