Motion to Suppress – DUI – Actual Physical Control

MOTION TO SUPPRESS

COMES NOW the Defendant, by and through his 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 the results of the breathalyzer test, and in support thereof, states as follows:
Facts
1. The Defendant was arrested on October 10, for Driving Under the Influence (“DUI”). Arrest and Booking Report.
2. When the arresting officer, R. D. B., arrived on the scene, the Defendant was “at the exterior of the vehicle.” Arrest and Booking Report.
3. No other law enforcement officer observed the Defendant in actual physical control of the vehicle. Arrest and Booking Report.
4. A civilian witness was the only person who stated he witnessed the Defendant driving the vehicle. Arrest and Booking Report.
5. The Defendant was not involved in a traffic crash. Arrest and Booking Report.
6. The Defendant was detained for a DUI investigation and Field Sobriety Exercises. He was arrested and transported to the Police Memorial Building, where he submitted to a breathalyzer test. Arrest and Booking Report.

MEMORANDUM OF LAW

Section 901.15(1), Fla. Stat. provides that a law enforcement officer may arrest a person for a misdemeanor “committed in the presence of the officer.” 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).
Here, when Officer B. arrived to investigate the alleged DUI, the Defendant was standing outside of the vehicle, and another person had the keys to the vehicle. No law enforcement officer observed the Defendant in actual physical control of the vehicle. The Defendant had not been involved in a traffic crash.
Because no law enforcement officer observed the Defendant in actual physical control of the vehicle, the alleged crime of DUI was not committed in the officer’s presence, as required by Section 901.15(1), Fla. Stat., and the arrest was illegal. See also, Sawyer v. State, 905 So. 2d 232 (Fla. 2d DCA 2005); Green v. State, 20 Fla L. Weekly Supp. 745 (Fla. 4th Cir. Ct. March 14 2013); Demchenko v. State, 18 Fla. L. Weekly Supp. 496 (Fla. 5th Cir. Ct. Feb. 18, 2011).
WHEREFORE, the defendant respectfully requests the Court to enter an order suppressing all evidence obtained as a result of the arrest of the Defendant.