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Motion to Suppress – DUI – Unlawful Detention

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 any chemical tests, and in support thereof, states as follows:
Facts
1. The Defendant was arrested on January 25, for driving under the influence (“DUI”), by Officer T. L. S., of the Jacksonville Sheriff’s Office (“JSO”). Arrest and Booking Report.
2. Officer S. responded to assist Mayport Navy Base Police Officer D. T., who was conducting routine inspections of vehicles driving onto the Mayport Navy Base. Arrest and Booking Report.
3. Officer T. did not report that Mr. S. committed a traffic infraction or a suspicious or erratic driving pattern. Arrest and Booking Report.
4. Officer S. arrived and made contact with the Defendant, who was sitting in the driver’s seat of his vehicle. Arrest and Booking Report.
5. Officer S. asked the Defendant to exit his vehicle. Arrest and Booking Report.
6. Officer S. asked the Defendant if he would perform Field Sobriety Exercises (“FSE”), and he agreed. Arrest and Booking Report.
7. A video recording was made of the DUI investigation, including the FSE. Arrest and Booking Report.
8. Officer S. arrested the Defendant for DUI. Arrest and Booking Report.
9. The Defendant was not issued any other traffic citations. Arrest and Booking Report.

MEMORANDUM OF LAW

A. Unlawful Detention
Officer T. did not have a reasonable suspicion that the Defendant was driving under the influence, and therefore he should not have detained the Defendant for a DUI investigation. The Defendant’s driving pattern did not provide reasonable suspicion that he was under the influence to the extent his normal faculties were impaired. The Defendant did not violate any traffic laws. Additionally, the Defendant was not driving in a way that indicated he was impaired. He was not weaving, swerving, following other cars too closely, or otherwise driving erratically. None of the Defendant’s actions while inside the vehicle indicated he was impaired, and did not provide reasonable suspicion he was DUI.
Officer T. reported that “he noticed the suspect had bloodshot-watery eyes, flush face, and a moderate odor of alcohol coming from his breath.” Arrest and Booking Report. He detained the Defendant, and “requested a DUI officer to assist with the traffic stop.” Arrest and Booking Report. When Officer S. arrived, he reported the same indicators of impairment reported by Officer T. (“bloodshot-watery eyes, flush face, and a moderate odor of alcohol coming from his breath”), but no other indicators of impairment.

Assuming arguendo the officers did smell the odor of alcohol on the Defendant’s breath, 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. 4th 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 odor, without more, was not an indication that the Defendant was driving under the influence. Therefore, the officers’ detention of the Defendant for a DUI investigation was unlawful.
Officer S. requested that the Defendant exit his vehicle. The Defendant was not free to leave, and was therefore detained. Pursuant to Popple v. State, 626 So.2d 185 (Fla. 1993), an officer’s request that a defendant exit a vehicle constitutes an investigatory stop, which must be based upon a reasonable suspicion of criminal activity. Even if Officer T. was justified in stopping the Defendant, the officers should not have detained him longer than was necessary to conduct the inspection, without reasonable suspicion of criminal activity. See Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002); Cresswell v. State, 564 So.2d 480 (1990); and Gilchrist v. State, 757 So.2d 582 (Fla. 1st DCA 2000).
Thus, the continued detention of the Defendant and the request that he exit the vehicle was illegal, and any observations by the officers or evidence seized as a result of the Defendant continued, illegal detention should be suppressed.

B. No Probable Cause to Arrest
Officer S. did not have probable cause to arrest the Defendant for DUI. The totality of the circumstances of the DUI investigation did not give rise to probable cause to believe that the Defendant was under the influence of drugs or alcohol to the extent his normal faculties were impaired. The video recording of the DUI investigation contradicts Officer S.’s report and demonstrates that the Defendant was not impaired.
As is shown on the video recording, the Defendant did not have any difficulty exiting his vehicle. He walked normally, to the rear of the vehicle, without hanging onto the vehicle, stumbling or swaying.
The officer conducted the FSE on the side of the road, with vehicles passing by. After exiting the vehicle, the Defendant stood on the side of the road answering the officer’s questions, for more than six (6) minutes. During that entire time, he stood steadily, without swaying. As he answered the officer’s questions, his voice is normal, and his speech is not slurred or thick-tongued.
The first FSE performed by the Defendant was the HGN. During that exercise, the officer held both his flashlight and a pen light up near his eyes, which was confusing to the Defendant. During the exercise, which lasted approximately another two and one-half (2 1/2) minutes, the Defendant did not sway or have trouble standing. The Defendant then continued to stand, without swaying, for another minute, while the officer retrieved the tape for the Walk and Turn Exercise. Thus, at the beginning of the video recording, the Defendant stands, without swaying, for approximately ten (10) minutes.
Officer S. then had the Defendant perform the Walk and Turn and One Leg Stand exercises. The Defendant followed instructions during both exercises. Despite the adverse conditions involved with being on the side of a busy road, the Defendant both exercises very well.
Prior to the Walk and Turn Exercise, he helped the officer lay the tape on the ground without difficulty. The Defendant bent his knees, squatted straight down, and then stood up, without losing his balance or swaying. He stood steadily, in the correct position, during the instruction stage, and did not begin too soon. As instructed, he continued walking heel-to-toe without stopping, looked at his feet, and counted his steps out loud. It does not appear that he stepped off the line, missed heel to toe, or raised his arms more than 6 inches for balance. After the first 9 steps, he did the turn correctly. He did not ask any questions during the exercise, as instructed.
During the One Leg Stand Exercise, the Defendant once again stood steadily, without swaying, during the instruction stage. He did not begin the exercise until told to do so. As the DUI video clearly shows, he lifted one foot approximately six inches, counted out loud, and kept his arms by his side, as instructed. This video contradicts Officer S.’s Field Sobriety Report, which states that the Defendant raised his arms and swayed during the entire exercise. It is clear he did not. During the first ten seconds, one time, he raised his right arm a few inches and swayed, but he quickly placed his arm down by his side and corrected his stance, without putting his foot down.
Additionally, the Defendant held his foot up for 30 seconds, as required. Although he put his foot down when he got to number 1022 (just as a car drove by), according to the timer on the video recording, the Defendant actually stood on one foot with his other foot raised for 30 seconds. According to the Florida IPTM Prearrest Screening Procedures, a clue should only be assessed if the suspect puts his or her foot down one or more times during the 30-second count. IPTM, p. 20. The IPTM states:
Remember that time is critical in this test period. Research has shown that a person with a B.A.C. of 0.10 percent can maintain his balance for up to 25 seconds, but seldom as long as 30.
Id. Thus, the Defendant should not have been assessed a clue because he did not put his foot down before 30 seconds had elapsed. His ability to keep his leg raised for 30 seconds indicates he was not impaired.
The Defendant was polite and cooperative with Officer S. during the entire investigation. When asked if he had anything to drink, he admitted to having four beers. The Defendant denied taking any prescription or illegal drugs that day. When the officer asked him to rate himself on a sobriety scale of 0 – 10, the Defendant put himself at a “3.”
Based on the totality of the circumstances, Officer S. did not have probable cause to believe that the Defendant was impaired by alcohol or drugs, and the arrest of the Defendant for DUI was illegal.
C. Conclusion

Officers T. and S. did not have a reasonable suspicion of criminal activity to justify detaining the Defendant for a DUI investigation. After completing his DUI investigation, Officer S. did not have probable cause to arrest the Defendant for DUI. Therefore, any and all evidence seized and/or obtained from the Defendant as a result of the illegal 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 the results of any chemical tests 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 of the Defendant.