Paul v. State
In a DUI appeal, the Fourth DCA held that the prosecutor's rebuttal comment that the defendant 'could have shown us' he wasn't impaired by performing roadside exercises or giving a breath sample, immediately followed by an explanation that the refusals showed consciousness of guilt, was a permissible comment on admitted refusal evidence and did not improperly shift the burden of proof. The court distinguished Osorio (3d DCA 2026), Sheely, and Concha, and alternatively found any error harmless given the isolated nature of the comment and the standard burden instruction.
Key facts
- Paul was charged with DUI; the trial court admitted evidence of his refusal to submit to breath testing and roadside exercises.
- During closing arguments, the prosecutor stated that Paul 'could have shown us' he wasn't impaired by performing roadside exercises or giving a breath sample, immediately followed by argument that the refusals showed consciousness of guilt.
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Why it matters
This decision draws a usable line between permissible consciousness-of-guilt argument based on DUI refusal evidence and impermissible burden-shifting, harmonizing the Fourth DCA's Sheely and Concha line with the Third… — full analysis with a trial
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