Tobacco Ashes on Hands Could Be Confused With Gunpowder

In State v. Esperti, the Second District approved the admission of refusal evidence, where the defendant had been told that he had no choice but to submit to the test, and he resisted the test by sitting on his hands, wiping his hands, and rubbing tobacco ashes on his hands after learning that cigarette ashes could be confused with gunpowder. See State v. Esperti, 220 So. 2d 416, 417 (Fla. 2d DCA 1969). Under these circumstances, the Second District concluded: The acts and conduct of the defendant in this case, if given any probative force whatsoever, are susceptible of no prima facie explanation except consciousness of guilt; and evidence thereof is, we think, relevant and certainly material. If the defendant is to avoid such an inference he would, of course, be free to offer a reasonable explanation. Id. at 418. Hence, the district court approved of the admission of the defendant's refusal to submit to testing under the particular factual circumstances presented.