County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress - implied consent warning/probable cause for arrest – trial court did not err in denying motion to suppress – officer informed driver of consequences for refusing breath or urine test - State need not prove that driver understood implied consent warning – observation of driver speeding and failing to maintain single lane coupled with blood shot, watery eyes, odor of alcohol, “fumbling around” for insurance papers, subsequent admission to drinking, and failure to perform adequately on field sobriety tests were sufficient to form probable cause for arrest – Order and conviction affirmed.  Rubio v. State, No. 02-09213 (Fla. 6th Cir. App. Ct. April 28, 2003).








vs.                                                                               APPEAL NO:  CRC02-09213CFANO






Opinion filed April _____, 2003.


Appeal from a decision of the

County Court for Pinellas County;

William H. Overton, Judge.


David R. Gemmer, Esquire

Attorney for Appellant.


Shawn R.H. Smith, Esquire

Assistant State Attorney.



Rubio appeals from the trial court’s order denying his dispositive motion to suppress.  He raises two issues on this appeal.  First, he argues that he did not understand the implied consent warnings.  Second, he argues that the trial judge used the wrong standard to determine whether the arrest was legal.  We affirm.

In the lower court, Rubio pleaded no contest to driving under the influence (DUI) after the trial judge denied his motion to suppress.  He was sentenced to one year probation; his sentence was stayed pending resolution of this appeal.  The trial judge denied Rubio’s motion to suppress, finding in part that it was unnecessary for the State to prove that the defendant understood the implied consent warnings before the breath test was administered.  The trial judge also found that the circumstances – Rubio’s erratic driving at an excessive speed, the odor of alcohol, his watery and blood shot eyes, and his poor performance on the field sobriety tests (FST) – were sufficient to meet the State’s burden of founded suspicion.

We agree with the trial judge that under the circumstances here, the State need not prove that Rubio understood the implied consent warnings.  Although law enforcement has no statutory obligation to inform a driver that he or she has a right to refuse a breath or urine test, law enforcement must inform the driver of the consequences for refusing.  See e.g., State v. Nguyen, 5 Fla. L. Weekly Supp. 53b (Fla. Hills. Cir. Ct. Sept. 15, 1997).  Here, the implied consent warnings were read in their entirety.  Rubio then signed the form, after which he voluntarily submitted to the breath test.  Because Rubio submitted to the breath test, the State need not show that he understood the warnings.  Pardo v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983).  The failure to understand the warnings does not justify suppression of the breath test results.  State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA 1981); State v. Buttner, 2 Fla. L. Weekly Supp. 382 (Fla. Palm Beach Cty. Ct. Aug. 3, 1994).

In terms of the arrest, the trial judge ruled that the circumstances were “sufficient to overcome the State’s burden of founded suspicion, which certainly is a lot less burden than beyond and to the exclusion of every reasonable doubt.”   A reasonable or founded suspicion is the standard to be used in determining if the initial traffic stop was valid.  Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).  Conversely, probable cause is the standard to determine if the ensuing arrest was valid.  Id.  Although the trial judge, in ruling on the validity of the arrest, orally announced the wrong standard, there is sufficient evidence here to justify Rubio’s arrest under a probable cause standard.  Caso v. State, 524 So. 2d 422, 424 (Fla. 1988).

The facts presented to the trial judge on the motion to suppress were as follows.  Upon initiating a traffic stop for speeding and failing to maintain a single lane, the arresting officer, Patrol Sergeant Ashby, observed that Rubio had blood shot and watery eyes, as well as an odor of alcohol about him.  Upon being prompted by Sergeant Ashby, Rubio “fumbled around” for his driver’s license and insurance papers.  He then admitted that he had been drinking.  Subsequently, Sergeant Ashby administered several FST’s, which were videotaped.  The horizontal gaze nystagmus, the walk and turn, the one leg stand, and the finger to nose tests were all administered.  According to Sergeant Ashby, Rubio performed poorly on all of these FST’s.  Based on our review of the record, we find that these factors are sufficient to justify Rubio’s arrest under a probable cause standard.  Department of Highway Safety and Motor Vehicles v. Smith, 687 So. 2d 30, 31-32 (Fla. 1st DCA 1997) (quoting City of Jacksonville v. Alexander, 487 So. 2d 1144, 1146 (Fla. 1st DCA 1986)).




DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.



                                                                                    JOHN A. SCHAEFER, Circuit Judge





                                                                                    W. DOUGLAS BAIRD, Circuit Judge





                                                                                     NANCY MOATE LEY, Circuit Judge


cc:        David R. Gemmer, Esquire

            State Attorney’s Office