Motion to Supress Evidence – DUI
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 client, including the officers’ observations, 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:
1. The client was arrested on September 1, allegedly for Driving Under the Influence (“DUI”).
2. On September 18, a single count Information was filed, charging the client with Driving Under the Influence.
3. The State served their State’s Discovery Exhibit on September 11, listing three Category A witnesses, that is, the three officers involved in this arrest (whose names are recited in paragraph A.4., infra).
4. On October 31, all three officers were present at the scheduled DMV Formal Review Hearing, that is: (1) Officer O., who was the traffic officer that conducted the traffic stop, allegedly for the client failing to drive within a single lane, in violation of F.S. §316.089(1) – which is a motor vehicle civil infraction; (2) Officer B., who is a DUI investigator and purportedly conducted a DUI investigation (although his arrest was effected in less than 2 minutes); and (3) Officer O., the breathalyzer operator.
B. Unlawful Stop
1. Officer O. did not author the Arrest and Booking Report. However, he confirmed that the first two paragraphs of the narrative contained information he provided to Officer B., and testified that information was entirely accurate and complete and needed no additions nor corrections.
2. Nor did Officer O. write the traffic citation for the alleged failure to drive within a single lane. Instead, that was written by Officer B.
3. Officer O. testified he made visual contact with the vehicle driven by the client at approximately 2:05 a.m., on Saturday, September 1. He followed the client’s vehicle for approximately 1/4 of a mile (which he acknowledged was approximately 2.5 city blocks).
4. Officer O. conducted the traffic stop at approximately 2:07 a.m. (approximately two minutes after initially making visual contact).
5. As reflected by the FST video, Officer B. arrived at the scene at approximately 2:18 a.m. Thus, Officer O. detained the client for some 11 minutes, prior to the arrival of Officer B. Id. Moreover, as noted, at no time did he write a traffic citation for the client; Officer B. wrote it.
6. Although Officer O. testified he had been dispatched to an alleged reckless driver, he had no information as to the name of the person allegedly reporting that, such that any such information would have been anonymous. More importantly, none of that was observed by Officer O., as is required by law.
7. The sole reason for the traffic stop was the allegation that the client allegedly failed to drive within a single lane – as testified to by Officer O., and as set forth in the Arrest and Booking Report. However, that claim is factually and legally incorrect.
8. The client was traveling east on the inside lane of the street, which is a six lane roadway, divided by a center median (such that the eastbound traffic would not encounter the westbound traffic). It was on that stretch of road that Officer O. followed the client.
9. Officer O. followed the client for the 1/4th of a mile, and stayed two car lengths behind him – the entire time that he followed him. There were no cars between the two of them, and there were no cars ahead of the client, other than an SUV in the inside left lane (and thus two lanes to the left of the inside lane in which the client was traveling). That SUV was not affected in any way by the driving of the client.
10. Indeed, the client “wasn’t affecting any other traffic at the time [Officer O.] followed him.”
11. Although testifying that the client supposedly failed to maintain a single lane “several” times, in reality, when asked specifically about the driving pattern of the client, Officer O. testified there was only one instance where the client actually drove to the side of his lane, in which his wheel touched the broken stripe on the left side of his inside lane. Officer O. could not recall how much of the tire was touching the white stripe. In any event, the tire did not cross that line; rather, it was only “on the stripes.”
12. Thus, based on his testimony, it is clear that the client did not fail to maintain a “single lane.” To the contrary, he was always in the inside lane, and never crossed the line to any other lane.
13. Moreover, the representation in the Arrest and Booking Report, to form the basis for the lane citation, was that the client was allegedly “unable to maintain a single lane.” (emphasis added). Ex. E. However, that representation in the Arrest and Booking Report was incorrect. The videotape (Ex. A) commences with Officer B. asking Officer O. for an explanation as to what he (Officer O.) had observed, and why he had stopped the client. In that video, Mr. O. clearly states only that the client “had a hard time maintaining a lane” – not that he did not maintain a lane – just that he was having a “hard time.” Officer O. could not recall that contemporaneous, recorded statement, but acknowledged that his recollection at the time of those events (in the form of his report to Officer B.) was more accurate than it was at the time of the DMV hearing. Officer O. acknowledged there is indeed an important difference between a claim that a driver could not maintain a lane – versus that he was simply having a “hard time” doing so.
14. Officer O. testified there were no other traffic infractions committed by the client (such as speeding, following too closely, turn signal violations, or failure to have his headlights on).
15. Thus, the sole basis for the stop is the claimed violation of F.S. §316.089(1), the alleged failure to drive within a single lane. As noted above (¶¶ B/ 9-13), that claim is not supported by the facts testified to by Officer O., since the client never departed his far right lane, and never adversely affected any other traffic.
16. More importantly, even if the client had failed to maintain a single lane (which he did not), that alleged factual claim would not be sufficient to support a citation under F.S. §316.089(1). As noted in paragraph B.10, supra, Officer O. testified that the client was not interfering with any other traffic that evening as they were driving, and thus did not adversely affect any other traffic.
17. F.S. §316.089, driving on roadways laned for traffic, specifically provides, in subsection (1) (that is, the section cited by the officer), as follows:
A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
18. As noted, Officer O. testified that the client never “moved,” that is, left the single lane in which he was driving, that is, the inside lane. He claimed the client’s left tire touched the dividing line for the lanes, but never crossed over into the other lane. Rather, at worst, it was “on the stripes” of the dividing line, and did not cross over into the adjacent lane. Id. Thus, as noted, as a matter of fact, there was not any violation of this lane statute – apart and aside from whether the client ever adversely affected any other traffic.
19. Thus, the stop of the client was defective for two reasons: (1) the client never moved from his lane, and (2) never affected any other traffic.
20. Thus, as a matter of law, there was no violation of this lane statute.
21. The statute explicitly provides that the statute is not violated unless the movement somehow affects the safety of other traffic. Specifically, Jordan v. State, 831 So. 2d 1241 (Fla. 5th DCA 2002), held that Florida law “recognizes that it is not practicable, perhaps not even possible for a motorist to maintain a single lane at all times and that the crucial concern is safety rather than precision.” Jordan v. State, 831 So. 2d at 1243. Jordan pled guilty to possession of cocaine, following a traffic stop, and appealed the denial of his suppression motion. Id. at 1242.
22. The sole suppression issue was the lawfulness of the traffic stop for failure to maintain a single lane. Id. On appeal, Jordan argued “that failure to maintain a single lane does not create strict liability; moving from a single lane is permitted when a driver ascertains that the movement can be made safely.” Id. Jordan further argued that, absent any “testimony that his driving created a safety concern or any suspicion that he was impaired … the stop of his vehicle was unlawful.” Id. Reversing the denial of his suppression motion, the District Court held that “the arresting officer’s testimony at the suppression hearing failed to establish probable cause to reasonably believe that Jordan had committed any traffic infraction justifying the stop of his vehicle, even under the objective test of Whren. (citation omitted).
23. In addition, F.S. §316.089(1) was thoroughly analyzed in Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998). Crooks appealed his conviction for possession of marijuana following the denial of his motion to suppress. Crooks was stopped for failing to maintain a single lane, in violation of F.S. § 316.089(1), after he was observed driving “his car over the right-hand line on the edge of the right lane of northbound traffic.” There was no testimony that “Crooks moved any great distance over the line into the emergency lane.” Id. at 1042. The officers followed Crooks, and observed him drift over the right-hand line on two more occasions. In addition to there being no evidence presented describing how far over the line Crooks drove on those occasions, it was “clear that no other cars or pedestrians were near him on either occasion.” Id. There was also no suspicion that Crooks was intoxicated or otherwise impaired.
24. Reversing the order denying suppression, the DCA found that, since “the record does not establish how far into the right-hand emergency lane Crooks drove on any of the three occasions, there is no basis to state that he was outside the ‘practicable’ lane. Even if he was briefly outside this margin of error, there was no objective evidence suggesting that Crooks failed to ascertain that his movements could be made with safety.” Id.
25. Thus, the traffic stop of the client was unlawful, and any evidence acquired, including his identity, and any subsequent evidence acquired, including the interaction with Officer B., the arrest, and the breathalyzer test, must be suppressed.
C. No Reasonable Suspicion to Conduct DUI Investigation
1. Officer O. testified the client properly pulled over to the side of the road, and stayed seated in the car, waiting for him. As noted, prior to pulling him over, Officer O. had no reasonable suspicion that the client was committing any crime, including DUI.
2. After encountering him in his vehicle, Officer O. testified he believed he had factors that established reasonable suspicion that the client was impaired, that is: (1) bloodshot eyes; (2) slurred speech; and (3) the strong odor of alcohol.
3. The stop was after 2 a.m. in the morning and, as this Court knows, there are countless explanations for bloodshot eyes that time in the morning – other than impairment.
4. Regarding the claim of slurred speech, Officer O. had never heard the client speak, and could not even recall that he had a Spanish accent. Moreover, he could not identify a single word that he claimed was slurred, or how many times, or how many words. The videotape (Ex. A) clearly confirms the Spanish accent, and shows the absence of any slurred speech. Importantly, slurred speech is clearly a sign of impairment, as it is one of the strongest indicia of an impaired motor skill. Here, there was no slurred speech, and the fabrication of the claim of slurred speech destroys the credibility of Officer O. with regard to any other claim.
5. Lastly, even Officer B., the trained DUI officer, claimed the odor of alcohol was only moderate to strong. Moreover, Officer O. claimed the odor was only emanating from the client’s “person” – meaning it could have come from his body area, such as he may have spilled a drink on himself – rather than coming from his mouth.
6. Both officers testified the client was not free to go, and was in a custodial situation, immediately after the traffic stop.
7. In summary, even if the initial stop had been lawful, the officers did not have reasonable suspicion to detain the client, or to extract him from the car for Officer B. to conduct a DUI investigation.
D. No Probable Cause to Arrest
1. The best evidence of the lack of probable cause exists in the form of the videotape (Ex. A) of the encounter with the officers, and the jail video and transcript (Exhibits C and D). This video and audio evidence demonstrates the absence of probable cause, and refutes the false claims of the officers.
2. As noted, Officer B. claimed he heard slurred speech – which the video demonstrates is incorrect. He had no familiarity with the client, or what was normal speech for him, and acknowledged that the client had an accent. He could not identify any words that were slurred or mumbled – until he was pressed further, at which point he petulantly claimed he heard slurred speech when the client asked to speak with an attorney. The videotape reflects that testimony to be incorrect.
3. Officer B. acknowledged that the client was very polite and cooperative (as confirmed on his FST report).
4. Officer B. testified he had done some 1,500 DUI arrests. His demeanor during the hearing reflected a disdain not only for the DMV process, and undersigned counsel, but for the Constitutional rights of our citizens. Officer B. testified that the Miranda Rights were not a Constitutional right (although he acknowledged they flow from the 5th Amendment to the Constitution, which is, indeed, a part of the Constitution), and derogatorily asserted it was just a rule of the “courts.”
5. Worse yet, his disdain for these important Constitutional rights explains why Officer B. made a petulant and unsupported arrest. Specifically, Officer B. testified he arrested the client because of his “refusal” to take the FSTs. As his testimony confirmed, and as confirmed by the FST video (along with the transcript provided herewith as Exhibit B), at no time did the client “refuse” to take the tests. Rather, he simply told Officer B. he did not want to take the test “until I speak with my attorney.” As the client attempted to say that a fifth time, Officer B. petulantly arrested him.
6. Officer B. had no new information to establish probable cause for an arrest. Indeed, he relied on the same factors claimed by Officer O., that is, the odor of alcohol, bloodshot eyes and flushed face, and alleged slurred speech, as well as the claimed difficulty in the client allegedly being unstable as he walked to the area for the FSTs. There were no admissions of any consumption of alcohol, and no evidence of any open containers or signs of alcohol in the car. Moreover, Officer B. testified he would not have arrested him for DUI, as the client sat there in the car.
7. Officer B. testified to two physical stability issues concerning the client, claiming that the client used his car door to stand (as the client exited his Mercedes), and that he was unsteady walking back to his [Officer B.’s] car. However, the alleged claim that he had to lean on the car door to stand was explained by Officer B. to simply mean a situation where the client reached out to his car door, from where he was seated, to use the door to pull himself up out of the car – just like anyone would do in a sports vehicle. Moreover, nowhere in the video is any such evidence manifested.
8. The second claim is that the client was unsteady walking alongside Officer O.’s car, heading to the spot between the back of O.’s car and the front of B.’s car. However, the video shows the client actually stepping up onto the sidewalk, to allow Officer B. to walk on the street, and he did so properly, and without difficulty.
9. Importantly, the entire time that the client was standing between the two police cars, he was stable, and was not weaving. Ex. A.
10. Officer O. administered the Miranda rights by card, and agreed that, to his knowledge, the client was not an attorney and he had no knowledge of the client having any legal training. Instead, he agreed it would be expected that the client would rely on a uniformed, armed officer, with regard to these legal rights, and that the client would expect Officer B. to be truthful with him, when he told him about his Constitutional rights. Incredibly, after specifically informing him of his rights, including the right to have the presence of a lawyer of his choice, Officer B. then became angry when the client simply asked him for permission to do that which Officer B. said he could do. Indeed, the video reflects that the client asked to speak with a lawyer on five occasions (although he was arrested in the middle of his sentence when he asked the fifth time). Officer B. incorrectly testified that the client had refused to do the FSTs. To the contrary, the video is quite clear (as further confirmed in Exhibit B hereto) that the client never refused. Rather, he simply told him he did not want to do so “until I speak with my attorney.”
11. Worse yet, Officer B. testified he improperly informed the client that his refusal to do the FST test was in violation of the [implied consent law], as reflected on his [the client’s] driver’s license. Officer B. agreed that the implied consent law only applies to breath and blood tests, and not to any requirement that drivers have to do FSTs. They do not. Thus, he misled him about his alleged driver’s license responsibility to take FSTs.
12. At that point, Officer B. boldly stated he could “lie” to people, and that he had done so to the client. This bold and brazen testimony by Officer B. further confirms he made an improper and petulant arrest, without probable cause, and did so out of anger – because a citizen dared invoke the Constitutional rights that he [Officer B.] believes are ridiculous, and un-Constitutional, and the videotape shows him getting mad at the client for seeking to invoke his Constitutional rights – just as he got mad at undersigned counsel when discussing Miranda rights.
13. However, Office B. is incorrect, in believing he can “lie” to citizens about the law. An officer cannot misstate the law or misinform the individual about his or her rights. Similarly, the results of the sobriety tests are inadmissible where the officer tells the defendant that his license would be suspended if he refused to do the FST exercises.
14. Further evidence of the precipitous and petulant arrest effected by Officer B. is demonstrated by the times on the FST video. The video reflects an arrest at 2:22:41 a.m. Ex. A. As can be seen, that is a mere 1 minute and 4 seconds after the Miranda rights were administered. Indeed, it was less than two minutes after Officer B required Client to exit his vehicle. No officer could claim that was a fair time period to conduct a DUI investigation. Rather, it is reflective of Officer B’s strident nature, his disdain for the Constitution, and his anger at Client for asking to confer with a lawyer before taking the FSTs, or answering any questions – just as Officer B had advised him he was entitled to do.
15. The conduct of Client after his arrest further confirms the lack of probable cause for the arrest. The videotape reflects how cooperative he was with the officers. During their efforts to search him, when asked if he had anything in his pockets that would cause Officer B to get cut or stabbed, he promptly advised him that was not the case, and volunteered he had car keys in his pocket. Exhibits A and B. Clearly Client was alert enough to comprehend what Officer B was doing – and help him. Moreover, as noted, the jail video (Exhibits C and D) reflects Client was not impaired.
In summary, the initial stop was unlawful – both factually and legally – such that all further evidence acquired by the officers must be suppressed, and cannot be used in support of a prosecution. Even if that were not so, reasonable suspicion to require Client to exit his vehicle did not exist. Lastly, there was not sufficient probable cause to arrest him for DUI. Instead, an overbearing officer, who has no respect for the Constitution, or for the rights of citizens or drivers, conducted a precipitous arrest in less than two minutes after requiring Client to exit his vehicle, and a mere one minute and four seconds after he completed informing Client of his Miranda rights. That was an angry petulant arrest – not based on probable cause.
WHEREFORE, the defendant respectfully requests the Court to enter an order suppressing all evidence obtained as a result of the stop, detention, and arrest.