SHIRLEY HURTADO

v.

STATE OF FLORIDA

the County Court for Miami-Dade Count Florid Ed d y, a, war Newman, ael T. Davis, Office of the Public Defender, for Appellant. z Rundle and Nicole M. Sarasua, Office of the State Attorney, for Before, FIRTEL, BERNSTEIN, and CABALLERO, J].

LLEF

FDGI

[*2] BERNSTEIN, J. The Defendant/Appellant, Shirley Hurtado, was charged by the State of Florida for violating section 316.193, Florida Statutes (2011), for Driving Under the Influence (“DUI”). In this appeal, Defendant challenges the State’s closing arguments. At closing, the State commented on the Defendant’s refusal to give a breath sample upon arrest. The relevant transcript testimony is as follows: STATE:

DEFENSE

STATE: COURT: STATE:

DEFENSE

COURT: STATE:

DEFENSE

COURT: STATE:

DEFENSE

COURT: STATE: DEFENSE: COURT: STATE:

DEFENSE

STATE: COURT: ***

DEFENSE

COURT: Ladies and gentlemen, the Defendant could’ve blown our ease out of the water today if she had provided a breath sample. Objection — If she knew she was innocent — Overruled. Then why didn’t she just blow? Because she knew she was guilty. Objection — Overruled. Even after she was informed that her license would be suspended for a year if she refused to blow, she still refused. She knew she wasn’t innocent. Objection. Overruled. I Any worry that she might have had in the back of the officer’s cop car on the way to the station was that she was worried because she knew ~— Objection, speculation. Overruled. She was guilty of DUI. Objection, facts not in evidence. Overruled. Ladies and gentlemen, we’ve proved our case beyond a reasonable doubt, the roadside exercise, all the signs ofimpairment that you heard from the officers, and the fact that the Defendant had a chance to prove her innocence - Objection, re-close. When she was offered a breath and refused. Overruled. Your Honor, we have a motion. Sidebar. (Whereupon, the following sidebar occurred): DEFENSE: Defense would — COURT: STATE: Should I grant it, State? No. DEFENSE: Based on the comments — COURT: Motion denied. [*3] The Defendant contends that all of the above stated comments by the State are improper, arguing that they violated the Defendant’s Fifth Amendment right and that the comments improperly shifted the burden to the Defendant to prove her innocence. As to these arguments, we agree in part. " While the Fifth Amendment bars compelled “ecnnnunications” or “testimony,” it generally does not bar “compulsion which makes a suspect or accused the source of real or physical evidence.” Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008). Further, “A refusal to submit to a breath test is circumstantial evidence probative of the defendant’s consciousness of guilt and ultimately guilt itself and is admissible as inculpatory evidence in criminal trials.” Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986). Thus, the following comments by the prosecutor are permissible because they directly refer to the defendant’s consciousness of guilt: STATE: “If she knew she was innocent Then why didn’t shejust blow‘? Because she knew she was guilty. Even after she was informed that her license would be suspended for a year if she refused to blow, she still refused. She knew she wasn’t innocent. Any worry that she might have had in the back ofthe officer’s cop car on the way to the station was that she was worried because she knew She was guilty ofDUI.” However, while the State is permitted to argue consciousness ofguilt, the State may not “comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991). The facts ofthe instant case are similar to that ofMorris v. Sate, 988 So. 2d I20, 121 (Fla. 5*“ DCA 2008), where the defendant refused to take a breath alcohol test. Id. at 122. In closing argument, the State in Morris argued that the defendant would have given a breath test if he was innocent. The Fifth District Court ofAppeal, though recognizing that failure to submit to a breath test is admissible as evidence of consciousness of guilt, concluded that the prosecutor en'ed. The [*4] court in Morris held that the prosecutor improperly shifted the burden ofproofby arguing that an innocent person would volunteer to take a breath test to prove his or her innocence.” Id. at 123. The court reversed and remanded for a new trial. The same logic applies to the instant case. Although the State properly commented on Hurtado’s consciousness of guilt when she refused to take a breath test, the State improperly shifted the burden to the Defendant to prove her innocence, when it made the following comment: Ladies and gentlemen, we’ve proved our case beyond a reasonable doubt, the roadside exercise, all the signs ofimpairment that you heard from the officers, and the fact that the Defendant had a chance to prove her innocence — When she was offered a breath and refused. We find that the trial court erred when it failed to sustain the objection to this burden-shifting comment. Upon a finding of error, the harmless error test must be applied. State v. DiGuili0, 491 So. 2d 1129 (Fla. 1986). The harmless error test “places the burden on the State, as the beneficiary of that error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility error contributed to the conviction.” Id. The beneficiary of the error has the burden ofshowing it was harmless, and application ofthe harmless error rule requires examination of the entire record. Id. The State must prove beyond a reasonable doubt that the error was harmless because credibility was a central issue at trial. Id. Upon applying the harmless error test, we find that the State has not met its burden on appeal ofproving harmless error beyond a reasonable doubt. For the foregoing reasons, this case is hereby REVERSED and REMANDED for a new trial. FIRTEL and CABALLERO, JJ, concur. eveoumr. r I