County Criminal Court:  CRIMINAL LAW – Traffic Stop – based on totality of circumstances, coupled with officer’s training and experience, officer had requisite founded suspicion of criminal activity to conduct a DUI stop – defendant was observed driving carelessly – evidence supported officer’s testimony that he believed driver was impaired - trial court’s denial of motion to suppress DUI evidence must be affirmed -- Order affirmed.  Patel v. State, No. 03-00092 APANO (Fla. 6th Cir. App. Ct. Sept. 23, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

SHIVAS HARISH PATEL,

                        Appellant,

 

vs.                                                                                            Appeal No. CRC 03-00092 APANO

                                                                                                UCN522003AP000092XXXXCR

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Judgment of Guilt

Judge William Overton

 

Frank W. McDermott, Esquire

Attorney for Appellant

 

Daniel N. Pawuk, Assistant State Attorney

Attorney for Appellee

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Shivas H. Patel (Patel), from the Judgment of Guilt for DUI, entered December 9, 2003.  Patel entered a plea of no contest after the trial court denied his motion to suppress DUI evidence in which Patel argued that the traffic stop was unlawful.  Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the judgment as set forth below.

            The record shows that on April 22, 2003, at approximately 2:00 a.m., Officer Cook, of the St. Petersburg Police Department, was stopped at a red traffic light with two vehicles ahead of him.  When the light turned green, Cook noticed that the first vehicle, driven by Patel, did not move for about 5 seconds, prompting the second vehicle to sound its horn.  Officer Cook observed Patel “basically lay on the gas causing the tires to spin, chirp, break free from the pavement and subsequently cause the vehicle to wind up in a fishtail type motion.”  Officer Cook also observed Patel’s vehicle spin its tires the width of the intersection, approximately 20 feet, [1] then accelerate over the causeway bridge.  Officer Cook conducted a traffic stop as he suspected Patel may be driving under the influence.  Upon making contact with Patel, Officer Cook observed signs of impairment and initiated a DUI investigation.  Cook failed the subsequent field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .145 and .145.  No other citations were issued.   

            On appeal, Patel argues that the trial court erred in denying his motion to suppress the DUI evidence because Officer Cook lacked a reasonable suspicion of criminal activity or probable cause that Patel had committed a traffic violation.  In interpreting the evidence in a manner most favorable to sustaining the trial court’s ruling and in applying a de novo review of the application of law to the facts, the Court finds that the trial court’s ruling must be sustained.  See Nicholas v. State, 857 So.2d 980, 981 (Fla. 4th DCA 2003).  The Court finds that based on the totality of the circumstances, coupled with Officer Cook’s experience and training, Officer Cook had the requisite founded suspicion of DUI to conduct a lawful traffic stop.  See Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999)(enumerating factors to be considered by the officer prior to conducting a traffic stop are: time of day, the day of the week, the location, the physical appearance of the suspect, the behavior of the suspect, the appearance and manner of operation of any vehicle involved and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge); Department of Highways Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(same). 

            Further, Officer Cook testified that based on his observations of Patel’s “careless” driving behavior and the time of night, “right after bars were closing,” he believed Patel might be driving under the influence.  Compare with Dobrin v. Department of Highway Safety and Motor Vehicles, 874 So.2d 1171, 1174 (Fla. 2004)(upholding circuit court’s finding that traffic stop was not lawful as there was no evidence officer thought driver was impaired); see also Tooke v. State, Appeal No. CRC 03-00030 CFANO (Fla. 6th Cir. App. Ct. Feb. 6, 2004)(affirming trial court’s denial of defendant’s motion to suppress when officer testified that he feared driver was impaired and expressed safety concern for other drivers).  The Court also finds that, unlike Nicholas, the primary case relied upon by Patel in support of his argument that the stop was unlawful, Patel’s driving behavior did interfere with other traffic; Patel remained stopped at the green light prompting the second vehicle to sound its horn after which Patel accelerated and fishtailed through the intersection.  Although there was conflicting testimony presented as to whether or how far Patel’s vehicle fishtailed, it was the responsibility of the trial court to weigh the credibility of the testimony and resolve conflicting evidence.  See Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998).  Accordingly, the Court finds that there is competent substantial evidence to support the trial court’s ruling.

 

 

 

 

 

 

 

            Therefore, it is, 

            ORDERED AND ADJUDGED that the Judgment of Guilt is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of September 2004.

 

 

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

 

 

 

Copies furnished to:

Judge William Overton

 

Frank W. McDermott, Esquire

7116-A Gulf Boulevard

St. Pete Beach, FL  33706

 

Daniel N. Pawuk, Assistant State Attorney

 



[1] See Record, page 40.