Motion to Suppress – DUI – Recollection of Incident
SUPPLEMENT TO MOTION TO SUPPRESS
COMES NOW the Defendant, by and through his undersigned attorney, and provides this Supplement to his previously filed Motion to Suppress, and states as follows:
1. The Defendant was arrested on November 28 for Driving Under the Influence (DUI). Arrest and Booking Report.
2. Officer T.C.M. was the officer who stopped the Defendant on the night of his arrest.
3. Officer M. testified at a Department of Motor Vehicles (DMV) Formal Review Hearing regarding the stop, on January 21, less than two months after the arrest.
4. At the DMV Hearing, Officer M. was given an opportunity to review the Arrest and Booking Report. Tr. 6.
5. Even though he had reviewed the Arrest and Booking Report before the DMV hearing, Officer M. held the Arrest in Booking Report in his hand and testified from that report. Tr. 11.
6. When questioned at the DMV Hearing about the stop of the Defendant, Officer M. could not recall the following:
a. Whether he was traveling directly behind the Defendant before he stopped him. Tr. at 9.
b. How many times the Defendant moved or weaved within his lane. Tr. at 10.
c. How many times the Defendant went over the lines. Tr. at 10.
d. Whether the Defendant used his blinker when he changed lanes. Tr. at 12
e. Where in the vehicle the odor of alcohol was coming from. Tr. at 18.
f. Whether the passenger in the vehicle had been drinking. Tr. at 18.
7. Officer P. specifically testified at the DMV Hearing he did not have an independent recollection of this incident, other than what he was reading in the Arrest and Booking Report. Tr. at 18.
8. When asked at the DMV Hearing if that meant he had no independent recollection of the entire incident, he said he did not. He stated it wasn’t “a big memory” for him, so you didn’t have anything beyond what he was reading in the report. Tr. at 18.
9. Despite his testimony at the DMV Hearing, at the Motion to Suppress Hearing held on this matter on April 14, on direct examination, Officer M. testified he did have an independent recollection of the stop of the Defendant.
10. However, Officer M. agreed on cross examination that the testimony he gave at the DMV Hearing was accurate. He also testified that nothing had occurred since the DMV Hearing to refresh his recollection of the stop of the Defendant.
MEMORANDUM OF LAW
A. No Present Recollection or Memory
If a witness has no present recollection or memory of the events, the witness cannot testify to those events. K.E.A. v. State, 807 So.2d 410, 411 (Fla. 3d DCA 2001). Counsel may show the witness a writing or other object in an attempt to refresh the witness’ recollection. Id. If the witness’ memory is jogged, the witness may testify from their present memory, pursuant to § 90.613(1), Fla. Stat.
In K.E.A. (as in this case) the police officer’s memory was never jogged by the arrest report. Id. The court held that because his memory was not refreshed, his testimony could not form the basis of the juvenile’s adjudication of delinquency. Id. Similarly, in this case, Officer M.’s memory was not refreshed by his review of the Arrest and Booking Report, and thus his testimony cannot form the basis to establish a lawful stop of the Defendant.
Here, the State argued that because Officer M. testified during direct examination at the Suppression Hearing on April 14 that he did have an independent recollection of the stop of the Defendant, that was enough to permit him to testify regarding the stop. However, the testimony of Officer M. was properly impeached on cross examination, with his testimony from the DMV Hearing.
During the suppression hearing, Officer M. agreed he testified at the DMV Hearing on January 21, 2016 that he did not have an independent memory of the stop. He further testified nothing had refreshed his memory since the DMV Hearing. Thus, it was established a fortiori, that he could not have possibly have an independent recollection of the stop of the Defendant, when he testified at the Suppression Hearing.
Because Officer M. did not have an independent recollection of the stop of the Defendant, his testimony regarding the stop cannot be relied to justify stopping or detaining the Defendant. Therefore, 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 should be suppressed.
WHEREFORE, the defendant respectfully requests the Court to enter an order suppressing all evidence obtained as a result of the stop of the Defendant, including the officers’ observations, the results of the Field Sobriety Exercises (“FSE”), any written or oral statements made by the Defendant, the results of the Implied Consent procedures, and the results of the breathalyzer test.