IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,

            Appellant,

vs.                                                                   Appeal No. CRC 00-21824 CFANO

KRIS REDMOND KOSTER,

            Appellee.

_________________________________/

Opinion filed September 24, 2001.

Appeal from Order on Motion to Suppress Pinellas County Court

County Judge Stephen O. Rushing

W. Bradley Burnette, Esq.
Assistant State Attorney
Attorney for Appellant

Wm. Newt Hudson, Esq.
Attorney for Appellee

 

ORDER AND OPINION

            THIS MATTER is before the Court on the State’s appeal from the trial court’s Order Suppressing Evidence.  After reviewing the briefs and record, this court reverses the trial court’s decision.

“Appellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial court's application of the law to the facts.”  Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000).

On August 30, 2000, Officer Lee with the Clearwater Police Department observed the defendant driving his vehicle “substantially bad” on the Memorial Causeway, effected a traffic stop and arrested the defendant for reckless driving.  At the time of the arrest, Officer Lee felt that the defendant was under the influence of alcohol, but because of safety concerns due to the high traffic volume waited until the defendant was transported to the police station before conducting a DUI investigation.  At the station, field sobriety tests were conducted, implied consent was read, and the defendant refused to submit to a breath test.

The defendant stipulated he was under lawful arrest for reckless driving on the date of this incident and that there were indications that he was under the influence of alcohol, but not to the extent of impairment. 

The defendant filed a Motion in Limine, later recharacterized by the court as a Motion to Suppress, in which the defendant argued that there was no lawful basis to request him to submit to a breath test since he was never placed under arrest for a violation of Sec. 316.193 Florida Statutes (1999) (DUI) prior to the request.  Therefore, defendant argues, the request and any refusal of the defendant to submit to the same should not be admitted into evidence.

The State responded by arguing that by employing the plain and ordinary meaning of the wording of Sec. 316.1932(1)(a) Florida Statutes (1999), a person is not required to be under arrest for DUI.  Rather, the State claimed there are two elements that must be shown for the request for and administration of a breath test to be valid and admissible.  First, that the person be lawfully arrested for any offense.  Second, that the offense must have occurred while the person was driving a motor vehicle while under the influence of alcohol.  The State argues that the defendant’s stipulations show that both of elements have been met.

In its Order Suppressing Evidence, the trial court stated that it was persuaded by the court’s reasoning in State v. Songer, 4 Fla. L. Weekly Supp. 331 (Volusia Cty. Ct. 1996).  In that case the court held that the term “ . . .. lawfully arrested for any offense. . .” should be interpreted to mean any offense related to Driving Under the Influence.  The court further found “persuasive the argument that the above referenced language should be interpreted as set forth above by virtue of the fact that under Sec. 322.2615(7) Florida Statutes (1999), dealing with an administrative review hearing to determine whether sufficient cause exists to sustain, amend or invalidate a suspension of an individuals driving privileges for either a refusal to submit to a breath, blood, or urine test, or for driving with an unlawful blood alcohol level, the scope of review shall include the issue of whether the person was placed under lawful arrest for a violation of s. 316.193.”

The issue presented by the State on appeal is whether the trial court erred in its interpretation of Sec. 316.1932(1)(a) Florida Statutes (1999) and in suppressing the request for the defendant to submit to a breath test and the defendant’s subsequent refusal when the defendant was lawfully arrested and there were indications that the defendant was under the influence of alcohol.  By giving the statutory words in question their plain and ordinary meaning (See Green v. State, 604 So.2d 471 (Fla. 1992)) we agree with the State and find that the trial court erred.

The relevant portion of the Implied Consent Statute reads:

“Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical or physical testing … if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances or controlled substances.  The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.”  Fla. Stat. Sec. 316.1932(1)(a)(2000)

Upon our reading of the statute, we do not find that the term “lawfully arrested for any offense” should be interpreted to mean any offense related to driving under the influence in violation of Section 316.193.  Instead, the statute clearly reads “any offense”.  The defendant was lawfully arrested for reckless driving, a fact to which the defendant stipulated. If the legislature intended “lawfully arrested for any offense” to be DUI, they could have easily written it as such. 

The statute further requires that the law enforcement officer “has reasonable cause to believe such person was driving or in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.”  The defendant stipulated that there were indications that the defendant was under the influence.  It is not necessary that actual impairment be shown to trigger the statute.

Accordingly, a plain reading of the Implied Consent law indicates that a lawful arrest for an alleged violation of the reckless driving statute together with reasonable cause on the part of the arresting officer to believe the arrestee at the time he was driving was under the influence of alcohol effectively triggers the breath testing provisions of the statute.  It is therefore

ORDERED AND ADJUDGED that the trial court’s Order Suppressing Evidence is reversed. This cause is remanded for further proceedings consistent with this opinion.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 24th day of September, 2001.

 

__________________________
NANCY MOATE LEY
Circuit Judge
Primary Appellate Judge

__________________________
W. DOUGLAS BAIRD
Circuit Judge

___________________________
R. TIMOTHY PETERS
Circuit Judge

 

                                                           

Copies furnished to:

W. Bradley Burnette
Assistant State Attorney

Wm. Newt Hudson, Esq.
23 West Tarpon Avenue
Tarpon Springs, 34689

Senior Staff Attorney