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Motion To Supress – Field Sobriety Exercises

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, Deputy G.’s testimony regarding the speed of the defendant’s vehicle, any written or oral statements by the Defendant, the Defendant’s refusal to perform Field Sobriety Exercises (“FSE”), the results of the Implied Consent procedures, and the results of the breathalyzer test, and in support thereof, states as follows:

Facts


1. The client was arrested on May 10, for Driving Under the Influence (“DUI”). Arrest Report.
2. Deputy Sheriffs G., P., and S. of the Clay County Sheriff’s Office were involved in the arrest of the client, and testified at a Department of Motor Vehicles (“DMV) Formal Review Hearing (“Hearing”) on June 16.
3. At 9:54 p.m. on May 10, Clay County deputies were dispatched to the area of Blanding Boulevard and County Road 221. Arrest Report.
4. Deputy G. observed the client driving northbound on Blanding Boulevard in a silver Chevrolet. Arrest Report.
5. Deputy G. got directly behind the vehicle and followed it on Blanding Boulevard for approximately 2.2 miles. Tr. at 17 -18.
6. When he first got behind the vehicle, Deputy G. observed it weaving within its lane. Tr. at 18. The vehicle was not touching the lines, affecting other traffic, or endangering pedestrians. Tr. at 18-19.
7. Deputy G. stated that during the 2.2 miles he followed the vehicle, he observed it weave or swerve outside its lane a total of four to six times. He stated the vehicle went over the fog line two or three times, and over the center line two or three times. Tr. at 20. The vehicle’s actions of going over the lines did not affect other traffic or endanger anyone. Id.
8. The speed limit on Blanding Boulevard was 45 miles per hour. Deputy G. stated the vehicle did not maintain a steady speed, and varied its speed between 30 and 50 miles per hour. Tr. at 19. He stated he based that speed estimation on his own vehicle’s speedometer. However, he also stated his vehicle had not been calibrated, so he cannot use it as a speedometer, and cannot use it for pacing or radar. Tr. at 22.
9. Because it was dark outside, Deputy G. could not see the inside of the vehicle, and could not tell what the driver was doing inside his vehicle. Tr. at 21.
10. Deputy G. stopped the client for weaving and not maintaining a steady speed. Arrest Report.
11. Deputy G. stated he activated his blue lights at the intersection of Blanding Boulevard and Baxley Road. He observed the client slow down and maintain a steady speed, but he did not stop right away. Tr. at 22.
12. Deputy P. was following behind Deputy G. in his vehicle. He but did not observe the client’s driving pattern. Tr. at 34.
13. Deputy P. activated his car’s video system, which also has a timer. The video shows that Deputy G. activated his blue lights at 1:06 minutes, the client activated his right blinker at 1:35 minutes, and turned onto Coppergate Road, and immediately stopped on the side of the road at 1:40 minutes (34 seconds after the officer activated his blue lights). Video Recording.
14. No driving infractions or weaving are apparent on the video. Video Recording.
15. Deputy G. and Deputy P. stopped behind the client on Coppergate Road. Video Recording.
16. Deputy G. approached the client’s vehicle, and explained his reasons for stopping the client. The client apologized and explained he was texting. Tr. at 22.
17. The client provided his driver’s license without incident. Tr. at 25.
18. Deputy G. stated he detected a strong odor of alcohol coming from the client’s breath, which got stronger while he was speaking with him. Tr. at 25.
19. Deputy G. stated the client’s eyes were “slightly bloodshot and watery.” Id.
20. Deputy P. initially approached the passenger side of the vehicle. Tr. at 35.
21. After speaking to Deputy G., Deputy P. approached the driver’s side of the vehicle. He stated that while talking to the client, he noticed an odor of alcoholic beverage, bloodshot eyes, and slurred speech. Tr. at 37.
22. Deputy G. noticed a bottle of tequila in the back seat of the vehicle. The client stated the bottle was unopened, and had been there. Video Recording
23. The client stated he had consumed a little bit of tequila and less than one beer. Video Recording. The client did not say when he had consumed those beverages. Tr. at 41-42.
24. The client also said he had a Certified Driver’s License (“CDL”). Tr. at 42.
25. Deputy P. requested that the client exit his vehicle. Arrest Report and Video Recording.
26. Deputy P. testified that at the time he asked the client to exit his vehicle, he had a reasonable suspicion the client was impaired, but did not have probable cause to arrest him. Tr. at 43.
27. Deputy P. stated the client used the door for support as he exited his vehicle, and he observed him to be unsteady on his feet and unable to walk straight, as he walked around to the rear of the vehicle. Tr. at 43-44.
28. On the video, the client does not appear to be unsteady or unable to walk straight as he walks around to the rear of the vehicle. Video Recording.
29. The deputy asked the client if he was taking any drugs, and the client stated he was not. Video Recording.
30. Deputy P.’s read the client his Miranda warnings via card. Tr. at 44.
31. Deputy P.’s again asked the client how much he had to drink, and the client again explained he was texting. Video Recording.
32. The client then said he had “one minor shot.” Video Recording.
33. When questioned further, the client said: “I am legally drunk, I have a CDL, .03 is legally drunk.” Video Recording.
34. When the deputy asked him if he was a .03, or higher, the client stated he was higher, and then clarified to say he might be a .04 or .05. Video Recording.
35. When Deputy P. asked how impaired he was, on a scale of 1 to 10, the client stated 2 or 3, and then offered to call a taxi. Video Recording.
36. Deputy P. testified that throughout the investigation, the client’s ability to understand was good. Tr. at 45-46.
37. He also testified that the client had no unusual actions, such as hiccupping, belching, vomiting, fighting, crying, or laughing. Tr. at 46.
38. Deputy P. requested that the client perform FSE, “to determine your level of impairment.” Video Recording.
39. The client asked, “What happens if I’m not [impaired]?” The deputy misunderstood his question, and responded by saying, “If you refuse, I would have to base my decision on your driving and what I see here.” Video Recording.
40. The client asked, “What’s a field sobriety exercise?” Deputy P. responded: “There are three. I’m not going to go into them with you right now, I just need to know, are you going to participate? Video Recording.
41. The client said he would participate in FSE. Video Recording.
42. Deputy P. then told him he was going to “load you up in my car” and go somewhere safer to perform the FSE. Video Recording.
43. The client began asking more questions about the FSE, and explained again that he was texting, which caused him to swerve. Deputy P. stated he was not going to give more explanation about the FSE, until they had moved to another location. Video Recording.
44. The client asked what would happen if he failed the test. The deputy told him he would go to jail. The deputy stated if he passed, he would “come back over here, and probably call somebody to come pick you up.” Video Recording.
45. The client asked what would happen if he refused to perform FSE. The deputy stated it would be used against him in court, and he would have to base his decision about impairment on his observations up until this point. Video Recording.
46. Deputy P. asked again if the client wanted to participate in FSE. This time, the client said he did not want to participate in FSE. Video Recording.
47. The deputy told the client to turn around and place his hands behind his back. Video Recording.
48. The client then immediately said he would perform the FSE. The deputy told him it was too late. The client offered several times to perform FSE, but the deputy refused to administer the FSE. Video Recording.
49. Deputy P. arrested the client for DUI, placed him in handcuffs, and placed him in his patrol vehicle. Arrest Report.
50. After the arrest, Deputy P. wrote a traffic citation for failure to maintain lane.

MEMORANDUM OF LAW

B. 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 or she 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. Deputy G. 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.
Furthermore, the client did not commit any traffic offenses to justify the stop. He was cited for a violation of Section 316.089, Fla. Stat., but the client did not commit that traffic infraction. Deputy G. testified he saw his tires going over the fog line two or three times, and over the center line two or three times. However, he also testified that the client’s actions did not affect other traffic or create a safety concern for anyone else. Tr. At 20. Therefore, pursuant to Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), the client was not in violation of the statute, and a stop based on a violation of this statute was illegal.
The Florida Administrative Code 15B-2.011 and § 315.1905, Fla. Stat., provide that mechanical devices used by officers to calculate the speed of other vehicles must be calibrated every six (6) months. The speed limit on Blanding Boulevard was 45 miles per hour. The deputy testified that the client’s speed varied between 30 miles per hour and 50 miles per hour. Deputy G. stated he used his speedometer to pace the client’s vehicle, but admitted his speedometer had not been calibrated, as required.
Therefore, any testimony regarding the client’s speed should be suppressed, and a stop based on a violation of the speed limit (or varying speeds) is unlawful. Feller v. Dept. Of Highway Safety and Motor Vehicles, 17 FLW Supp. 1863b (Fla. 4th Jud. Cir. 2009).

C. No Reasonable Suspicion for Detention

After he was stopped, the client was detained for a DUI investigation, without reasonable suspicion. 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 client was driving under the influence.
The officers’ observations did not provide reasonable suspicion that the client “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 his 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 officers 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. 5th DCA 2002). In order to justify a longer detention, an officer must have a reasonable suspicion of criminal activity. Id. Because the officers 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 officers should not have detained the defendant longer than was necessary to write a traffic citation, because they did not have a reasonable suspicion of criminal activity.

D. 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 is unlawful, and any evidence recovered thereafter must be suppressed.
Deputy P., by his own admission, did not have probable cause to arrest the client for DUI. He stated that at the time he asked the client to exit his vehicle, he had a reasonable suspicion he was impaired, but he did not have probable cause to arrest him for DUI. Tr. at 43. According to the deputy’s own testimony, the observations made by himself and others of the client’s driving pattern and his demeanor inside the vehicle did not provide probable cause to arrest the client’s for DUI.
Therefore, probable cause for an arrest had to develop after the client exited the vehicle. However, the deputy’s observations after the client exited the vehicle could not have provided probable cause for an arrest for DUI.

The only additional observations made by the officer after the client exited the vehicle were as follows:
1. The client used his car door for support. However, as a truck driver, the client is trained to always brace himself by grabbing his door for support to get out of his vehicle. This is habit for him in any vehicle he exits.
2. The officer stated he was unsteady on his feet, or not walking straight as he walked around his vehicle. However this is not apparent in the video. Additionally, the client had been driving for over an hour, and it is not uncommon for people to be stiff when exiting a vehicle after sitting for a long period of time.
3. The client stated he was legally drunk, because he believed his blood alcohol was over a .03 (the legal limit for a driver with a CDL, if they are driving a commercial vehicle – which the client was not). However, he did not state he was over the legal limit of .08, because when asked, the client stated his blood alcohol was likely a .04 or .05.
4. After exiting the vehicle, the client admitted to drinking more than he had originally stated while inside the vehicle. However, according to the video recording, the client admitted to “a little bit of tequila and a beer” while inside the vehicle, and “a larger shot of tequila and less than a beer,” after he exited the vehicle. The statement outside of the car was only slightly different then the one made inside the car.
5. The client stated on a scale of impairment of 1 to 10, he was a 2 or 3.
6. The client initially agreed to perform FSE. He then began asked questions about the FSE, and wanted specific explanations about the exercises. His questions were deemed “arguing” by the deputy. However, these questions are not indicative of impairment. The client then stated he would not perform the exercises. The officer placed him in handcuffs, and then the client said he would perform them. However the officer said it was too late, and would not administer FSE.
7. Importantly, Deputy P. explicitly told the client, seconds before he arrested him, that if he passed the FSE, he would bring him back to his car, and call someone to come get him.

The officer testified he did not have probable cause for a DUI arrest when the client exited the vehicle. The additional observations by the officer after the client exited the vehicle, as outlined above, did not rise to the level of probable cause for a DUI arrest. Therefore, the arrest of the client was illegal, and the fruits of the illegal arrest, including the results of the breathalyzer test, must be suppressed.

E. Refusal to Perform FSE – Inadmissible

As outlined above, the client initially agreed to perform FSE, but after asking questions about the exercises (which the deputy refused to answer), he said he would not perform FSE. The deputy placed him in handcuffs, and the client immediately, and repeatedly, stated he would perform FSE. The officer refused to administer FSE, saying it was too late.
In Larmer v. Dept. of Highway Safety and Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988), a driver arrested for DUI initially refused to take a breathalyzer test. However, within a few minutes after his initial refusal, while in the presence of the officers, he retracted his refusal, and asked to take the breathalyzer test. Id. at 942. The court held that the driver should have been permitted to take the breathalyzer test, and the penalties for a refusal should not have been imposed. The court stated:
Here, as in the cited cases, petitioner’s retraction of his initial refusal came moments after that refusal, while petitioner was continuously in the presence of the police officers, and in circumstances where no inconvenience would result by permitting him immediately thereafter to take the test and would produce the evidence that is the object and intent of Florida’s Implied Consent Law.

Id. at 944.
Here, although the test and resulting evidence is different, the circumstances and principles are the same. The client refused FSE, and within minutes, while continuously in the presence of the deputies, and in circumstances where no inconvenience would result in permitting him to take the test, he retracted his refusal and asked to take the test. Those FSE would produce evidence that is the object of Florida law. Therefore, the officer should have administered FSE.
Under Florida Law, the consequence, or penalty, for refusal to submit to FSE is that the refusal is admissible in court, as consciousness of guilt. State v. Taylor, 648 So.2d 701, 705 (Fla. 1995). Under these circumstances, as in Larmer, the penalty for refusing FSE (admissibility at trial of the refusal) should not be imposed against the client, and evidence of his refusal should be suppressed.

F. Conclusion

The officers did not have reasonable suspicion of criminal activity probable cause to justify stopping or detaining the client for a DUI investigation, nor did they have probable cause to arrest the client for DUI. Therefore, any and all evidence seized and/or obtained from the client, including the officers’ observations, Deputy G.’s testimony regarding the speed of the defendant’s vehicle, the Defendant’s refusal to perform Field Sobriety Exercises (“FSE”), any written or oral statements by the defendant, 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, detention, and arrest.