Motion to Suppress & Memorandum of Law – DUI

COMES NOW the Defendant, by and through her undersigned attorney, pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure, and respectfully moves this Court to suppress any and all evidence seized and/or obtained from the Defendant, including the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements, the results of the Implied Consent procedures, and her refusal to take the breathalyzer test, and in support thereof, states as follows:

Facts

1. The Client was arrested on June 8, for Driving Under the Influence (“DUI”). Arrest and Booking Report.
2. Officers T. L. T. and J. L. D. testified at a Department of Motor Vehicles (“DMV) Formal Review Hearing (“Hearing”) on July 11, regarding her arrest[1].
3. Officer T. L. T. stopped the Client at 12:30 a.m. for alleged speeding. Arrest and Booking Report.
4. The Client was not charged with committing any other traffic violations. Arrest and Booking Report.
5. Officer T. L. T. activated his blue lights and conducted a traffic stop. Arrest and Booking Report.
6. Officer T. L. T. requested the Client’s driver’s license, registration, and insurance, which she provided. Arrest and Booking Report.
7. Officer T. L. T. stated he detected a strong odor of alcohol coming from the Client’s breath. Arrest and Booking Report.
8. Officer T. L. T. alleged that the Client’s eyes were bloodshot and watery. Arrest and Booking Report.
9. Officer T. L. T. requested that the Client exit her vehicle to perform Field Sobriety Exercises (“FSE”). Arrest and Booking Report.
10. Officer T. L. T. read the Client his Miranda Arrest and Booking Report.
11. During his investigation, the Client admitted to consuming alcohol, between the hours of 8:00 p.m. and 11:30 p.m. Arrest and Booking Report.
12. The Client agreed to perform FSE. Arrest and Booking Report.
13. The Client performance on the FSE did not indicate she was under the influence to the extent that her normal faculties were impaired. DUI Video.
14. Officer T. L. T. arrested the Client for DUI. Arrest and Booking Report.
15. After the arrest, Officer T. L. T. wrote one civil traffic citation for speeding. Arrest and Booking Report.

MEMORANDUM OF LAW

Unlawful Stop

Section 901.151(2) Fla. Stat. (the “Stop and Frisk” law), provides that an officer may stop and detain a person when he has a reasonable suspicion that he has committed, is committing, or is about to commit a crime, and may temporarily detain that person to ascertain his identity and the circumstances surrounding his presence in the area.  Officer T. L. T. did not have a reasonable suspicion of criminal activity, a prerequisite to stop and detain the Client, and the evidence obtained as a result of the illegal stop and detention should be suppressed.

The stop by police of an occupied automobile for a traffic violation constitutes a “seizure” within the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, to justify a warrantless seizure, the government must “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added).  To justify a warrantless stop an officer must have an articulable, reasonable suspicion that a violation of the law has occurred. Brown v. State, 719 So.2d 1243, 1245 (Fla. 5th DCA 1998).  In the instant case, the stop of the Client was not justified, and the evidence obtained as a result of the stop should be suppressed.

No Reasonable Suspicion for Detention

The odor of alcohol alone does not provide reasonable cause that a person is driving under the influence.  Kliphouse v. State, 771 So. 2d 16, 22 (Fla. 4^th DCA 2000).  The odor of alcohol does not provide reasonable suspicion for the officer to initiate a DUI investigation.  Buttner v. State, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994).

The officers’ observations of the Client before he asked her to exit her vehicle did not provide reasonable suspicion that she “had committed, was committing, or was about to commit” a crime, as required by § 901.151, Florida’s Stop and Frisk Law.  Therefore, the detention of the Client for a DUI investigation was illegal, and the results of that detention should be suppressed.

“Asking a person to exit a vehicle in order to talk to him (not as a safety measure during a legitimate traffic stop) is a show of authority that goes beyond a consensual encounter.” Gilchrist v. State, 757 So.2d 582, 583 (Fla. 1ST DCA 2000).  In this case, even if the court finds that the traffic stop was legal, the officer’s directive that the Client exit her vehicle and submit to FSE was not based on reasonable suspicion of DUI, or a concern for safety, and was an unlawful detention.  Furthermore, because the officer did not have a reasonable suspicion of criminal activity, the Client should not have been detained for longer than was necessary for the officers to issue the traffic citations.  A traffic stop must last no longer than the time it takes to write the traffic citation.  See Cresswell v. State, 564 So.2d 480, 482 (Fla. 1990); Eldridge v. State, 817 So.2d 884, 885 (Fla. 5^th DCA 2002).  In order to justify a longer detention, an officer must have a reasonable suspicion of criminal activity.  Id.  Because the officer did not have a reasonable suspicion of criminal activity, the continued detention of the Client for a DUI investigation was unlawful.

Based on the cases cited above, the officer should not have detained the defendant longer than was necessary to write a traffic citation, because he did not have a reasonable suspicion of criminal activity.

No Probable Cause to Arrest

All warrantless seizures are presumptively unreasonable, and invalid.  See Katz v. United States, 389 U.S. 347 (1967).  Thus, where a subject is seized without a warrant, the burden rests upon the state to produce evidence that the detaining officer had probable cause to arrest.  Terry v. Ohio, 392 U.S. 1 (1968).  A law enforcement officer may arrest a person without a warrant, either immediately or in fresh pursuit, when there is probable cause to believe that a violation of chapter 316 has been committed.  Section 901.15(5), Fla. Stat.

“Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.”  State v, Kliphouse, 771 So.2d 16, 22 (Fla. 2000).  In the absence of probable cause, the arrest was unlawful, and any evidence recovered thereafter must be suppressed.

Here, as evidenced by the DUI video, the Client performed FSE’s properly, and with no indication her normal faculties were impaired.  Furthermore, her behavior on the video, including her actions of walking, talking, and speaking all appeared normal, and without signs of impairment.  Therefore, the officer did not have probable cause to arrest her, and the evidence must be suppressed.

Conclusion

The officer did not have reasonable suspicion of criminal activity to justify stopping the Client or detaining her for a DUI investigation, nor did he have probable cause to arrest the Client for DUI.  Therefore, any and all evidence seized and/or obtained from the Client as a result of the illegal stop, detention, and arrest, including the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements, the results of the Implied Consent procedures, and her refusal to take the breathalyzer test should be suppressed.  WHEREFORE, the defendant respectfully requests the Court to enter an order suppressing all evidence obtained as a result of the detention and arrest.