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, (Fla. 6th Cir.App.Ct. March 4, 2005).











Appeal No. CRC 03-00011 APANO

v.                                                                                                       UCN522003AP000011XXXXCR








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




            (J. Demers)


            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.

            The 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 defendant’s Florida license and his Illinois license. Thus, the defendant claims he did not know if his Illinois license would be suspended also. That makes no difference. By accepting the privilege of driving in Florida the defendant impliedly consented to submit to a breath test if there was probable cause to believe he was driving under the influence of alcohol.

 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 Illinois driver’s license and was not informed about the possible consequences to that license did not render his consent to take the breath test coerced.


IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2005.




                                                                                    David A. Demers

                                                                                    Circuit Judge






                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge






                                                                                    Irene S. Sullivan

                                                                                    Circuit Judge


cc:   State Attorney


        J.S. Lucas Fleming, Esq.


        Judge Overton