County Criminal Court: Criminal
Law – Search and Seizure – Stop – Stop of defendant was proper where officer
saw the defendant being escorted out of bar, saw him staggering and stumbling
and appearing intoxicated, and then saw him get into a car -- even though the
officer did not smell alcohol. Judgment and sentence affirmed. Sterbenz v.
State, No. CRC 03-11 APANO, (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 03-00011 APANO
Opinion filed ______________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge William Overton
J.S. Lucas Fleming, Esq.
Attorney for appellant
Katherine Scott, Esq.
Assistant State Attorney
THIS MATTER is before the Court on Kenneth Sterbenz’s appeal from a judgment and sentence entered by the Pinellas County Court. The defendant pleaded no contest to DUI charges, preserving his right to appeal the trial court’s denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the judgment and sentence.
Approximately 1:00 A.M., a police officer at Baywalk noticed the defendant being escorted from a bar by two bar employees. The officer noticed that the defendant was staggering, stumbling, leaning to the left as he walked, and appeared to be intoxicated. The officer approached the defendant and offered to obtain a cab for him. The defendant replied that he did not need a cab because he was going to walk home. The officer observed the defendant walk away, get into a vehicle and begin to drive off. At that point the officer made the stop. The defendant contends that the officer did not have sufficient information to make the stop because the officer did not smell alcohol, did not hear slurred speech, and did not see bloodshot or watery eyes on the defendant.
Although the written order denying the defendant’s motion did not recite all of this information, there is nothing in the record to conclude that the trial court rejected in any way the officer’s testimony. This Court is permitted to rely upon that testimony in addition to the facts set forth in the written order. The pertinent facts are that two bar employees were escorting the defendant out of the bar at approximately 1:00 A.M. He appeared to be intoxicated and was staggering, stumbling, and leaning. In addition, he told the officer he would not be driving, but then went directly to a vehicle and began to drive. All of those facts, taken together, lead this Court to conclude that the officer had reasonable suspicion that the defendant was impaired and driving under the influence. All of the classic signs of impairment do not need to be present in order for the police to reasonably suspect an individual is DUI. See e.g., Mendez v. State, 678 So.2d 388 (Fla. 4th DCA 1996). Under the circumstances of this case, the traffic stop was proper. Therefore, the trial court properly denied the defendant’s motion to suppress.
The other two issues raised by the defendant have no merit. The officer who conducted the DUI investigation testified that when he was called to conduct the DUI investigation he was finishing up another investigation, and that it took him about twenty minutes to drive from North St.Petersburg to downtown St.Petersburg where the defendant was to be investigated. A twenty-five to thirty minute delay while waiting for the DUI unit to arrive is not an unreasonable detention.
defendant also argues that his consent to the breath test was not voluntary
because the officer did not draw a distinction between the suspension of the
Implied consent is a creature of statute.
According to the statute, the officer has no duty to advise the accused of the
provisions of implied consent unless the individual refuses to take a breath
test. See e.g., State v. Gunn, 408 So.2d 647 (Fla. 4th DCA
1981). If the officer does advise the accused of the provisions of implied
consent and the accused consents, there may be limitations to the admissibility
of the results if the officer misstates the law. In the case at bar though, the
officer complied with the legislative intent by reading the language of the
statute, and there were no misstatements of the law. The officer is not
required to do more. The fact that the defendant had an
IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene S. Sullivan
cc: State Attorney
J.S. Lucas Fleming, Esq.