Refusing to Submit to a Hand Swab Gunshot Residue Test
In Herring v. State, 501 So. 2d 19 (Fla. 3d DCA 1986), the defendant was arrested and, shortly thereafter, the police requested that he submit to a hand swab gunshot residue test. See Herring, 501 So. 2d at 20.
The defendant refused to submit to the test but was not told that he was required to take the test, or that his refusal could be used against him. See id.
At trial, testimony of the defendant's refusal to take the test was introduced over objection and the prosecutor argued to the jury that the testimony "was convincing proof of the defendant's consciousness of his guilt." Id.
On appeal, the Third District held that it was error to admit evidence of defendant's refusal:
The failure to communicate to Herring that the test was compulsory carried with it, we think, the implicit suggestion that the test was permissive and that he thus had a right to refuse.
Consequently, even if the refusal had some arguable probative value, its admission would be unfair where the police may have led the defendant to believe that he had a right to refuse. Herring, 501 So. 2d at 21.