County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - jury heard evidence that the appellant had various drugs in his system; although appellant argued that he was tired and that this was a reasonable hypothesis of innocence,  evidence that a defendant was driving, had controlled substances in a urine test which could cause impairment combined with a low or no alcohol level, and was observed to be impaired at the scene after the driving is sufficient to establish a case of Driving Under the Influence-.the state established a prima facie case of the charged offense prior to resting and as a result, the appellant's motion for judgment of acquittal was properly denied.  Additionally, state's argument that the defense "just didn't add up"  was pure rebuttal.  Neither this statement nor any other statement made by the state shifted the burden of proof -Order affirmed. Broco v. State, CRC0405631CFAES, (Fla. 6th Cir. App. Ct. October 31, 2005).











v.                                                                                             Case No: 0405631CFAES

                                                                                                Lower No: CTC049542DAQTWS





Appeal from verdict, judgment and sentence Pasco County Court


County Judge Marc H. Salton


Curtis M. Crider, Esq.

Attorney for Appellant


Michael J. Harris, Esq.,  ASA

Attorney for Appellee




            This matter came before the court on defendant's appeal from a  judgment and sentence entered by the Pasco County Court.  Appellant claims that the trial court committed reversible error by denying his motion for judgment of acquittal and by allowing the state to shift the burden in closing argument.  This court has jurisdiction. Fla. R. App. P. 9.030(c).   This Court, having reviewed the briefs, the record, and being otherwise fully advised, finds that the order of the trial court should be affirmed.

            On July 3, 2004, the appellant was arrested for Driving Under the Influence.  He entered a not guilty plea and demanded a jury trial.   At trial, Deputy Joseph Liddick testified that he saw defendant's car on State Road 54 at approximately 9:04 P.M. on July 3rd. He explained that there was "medium traffic"; there were no cars between his patrol car and the defendant's car but there was 'periodic' oncoming traffic.  Liddick testified that he observed the defendant driving erratic.  He explained:

                        [t]he car weaved out of the lane a few times where I first noticed it.  I thought the                                   vehicle was turning off because it slowed down to almost ten miles an hour, went                                   back up to sixty miles an hour, back down to twenty, up to fifty-five.  It was very                            erratic.  The car, two or actually three times, went into the oncoming lane.  Two                          of the times got jerked back into the lane.  I conducted a traffic stop at that time.


Liddick testified that there did not appear to be any reason for the defendant's changing speeds and there were no traffic lights.  Liddick also testified that two oncoming vehicles "actually had to avoid the Defendant.  One had to apply its brakes until the Defendant's vehicle got into the proper lane.  The other one actually moved over to the side of the road to avoid the Defendant's vehicle."  Liddick stated that he has seen similar driving patterns during DUI investigations and a few times "with somebody who was sick or incapacitated in some way."

            The deputy stated that he pulled the defendant over.  He approached him and asked for his driver's license and registration.  The deputy stated "[h]e appeared very incoherent at the time.  I noticed his eyes were bloodshot and glassy, very slow; looked lethargic and he appeared to be under the influence of some sort of drug or alcohol."  Liddick testified that defendant's speech was very slow and slurred and that he had a problem putting words together. However, Liddick testified that he did not smell any odor of any type of substance.  When asked if he had seen or heard similar types of speech, Liddick stated that he had "[t]housands of times; every ody in those circumstances with people.  When asked what types of circumstances he had heard that type of speech he replied "[u]nder the influence of drugs or alcohol." The deputy was asked if he stayed with the defendant long enough to form any opinion as to whether he was under the influence of something and the deputy replied "[y]es.  I believed he was under the influence of drugs or alcohol."

            On cross examination the deputy acknowledged that he did not know defendant or the way he normally talks, walks,  or drives.  He also acknowledged that he did not know how defendant does those things after he has been on the road for several hours. Liddick also acknowledged that he has observed similar driving patterns on someone who has either been sick or incapacitated but someone who is extremely tired.  Liddick was asked if there was any video to show the jury but he testified that there was not.

            Sergeant Jackson testified that he responded to the traffic stop. He spoke with Deputy Liddick to see what he had observed then asked the defendant to step out of the vehicle "because there was a possibility that he was impaired." He asked the defendant whether he was on any medications or had any type of injuries, and the defendant replied that he had taken Loraset and Loratabs earlier that day for back pain. He said he had a back injury. Jackson testified that defendant's speech was slurred and his eyes were red, bloodshot, glassy type looking and that  his pupils were dilated.  He stated that these were indicators that he needed to investigate further.  At that time, Jackson asked him to step out of the car.  Jackson testified that he was unsteady on his feet, he was swaying. He explained he was standing still and sway an inch or two all directions, front and back and side to side.  Jackson also testified that when defendant walked he was 'kind of staggering'  and was not really walking in a straight line, he kind of 'bobbled' back and forth. Jackson testified that these were all indicators of impairment. At that time, Jackson asked defendant to take a filed sobriety test to which defendant agreed. Jackson explained, with the regard to the walk and turn test, at first, the defendant did not keep his balance.  Defendant also missed his toes four times going forward and two times going backwards. As for the amount of steps, defendant was told to walk nine forwards and nine backwards but he went ten forwards and nineteen backwards and Jackson testified that he had to stop him otherwise they would have ended up in the swamp. Defendant then performed the one leg stand which he did perform correctly. However, the defendant performed poorly on all six finger to nose tests; he missed his nose all six times and every time he would touch his nose, he would open his eyes.  Jackson explained that defendant's performance was so poor that he did not feel comfortable with him driving a motor vehicle that night and thought he was impaired so Jackson arrested him for driving under the influence.  Jackson testified the arrest was the result of his driving, as explained by Liddick, the fact that he was unsteady on his feet, slurred speech, his eyes and then the results on the field sobriety test.  After the arrest he was transported to the Land O' Lakes Jail at which time he read him implied consent and defendant agreed to take a breath test.  Jackson testified that the results of the breath test were "zero, zero, zero." The sergeant explained that that meant that there was no alcohol in his system.  After the breath test  Jackson requested he take a urine test and defendant agreed. 

            Jackson spoke with the defendant at the jail and he admitted that he had one beer at about 4:30 or 5:00 pm. Jackson stated that in this case, this was not a close call, the defendant  was impaired.  He said "[f]or lack of a better word, he was out there.  He was totally gone."  Jackson explained that if it was a close call, he could have not arrested defendant and had someone else drive vehicle. 

            On cross examination, Jackson acknowledged that he did not know defendant and did not know how he normally walks, talks, or drives or the effects being tired would have on his ability to perform those functions. On redirect, the deputy stated that there was no doubt in his mind that defendant was impaired.

            Daniel Richardson testified that he works as a toxicologist at the Florida Department of Law Enforcement.  He testified that he performed an analysis of defendant's urine and found it contained Alprazolam (Xanax) .  He explained that Alprazolam is a central nervous system depressant that may have effects similar to the effects of alcohol. He testified that it could impair a person's motor skills.  He testified that he also found marijuana in the sample.  Richardson testified that marijuana can have a lot of different effects some of which may be similar to the effects of alcohol, like drowsiness. When asked if using marijuana had any effects on the eyes, Richardson testified that it may cause the eyes to get red, glassy, bloodshot and watery.  It could also cause dilation of the pupils.  Richardson also testified that there was cocaine in the sample.  He explained that cocaine is a stimulant but it also has a "crash side" where it tends to have a  more depressant effect which may adversely affect motor skills. He also stated that cocaine could dilate the pupils. Richardson testified that this sample contained a chemical which is produced when a person uses both cocaine and alcohol.  Additionally, Richardson testified that the sample contained Oxycodone, a pain medication.  He explained that this drug is also a central nervous system depressant.  Finally, he testified that the sample contained Hydrocodone (Vicodin or Loratabs) used to treat pain, which is also a central nervous system depressant. Richardson testified that use of these substances could be consistent with difficulty driving. He explained:

             you have got a lot of central nervous system depressants here or things that can act as   depressants.  . . . When you throw a whole bunch of drugs in the mix there, it's hard to          say exactly what might be happening but all of them can cause motor impairment,           judgment impairment; all of those sorts of things that are typical effects very similar to             alcohol in terms of what the central nervous system depressants can do.


 Richardson also acknowledged that all of these drugs together would be consistent with making someone tired; could cause a person not to be able to balance; could cause swaying or staggering; could cause slurred or slow speech; and could cause someone to have problems understanding or following instructions.  He further testified that with regard to the substance in his system which evidenced use of cocaine and use of alcohol, it shows that they were both in his system at the same time so he consumed them in at least a similar time. He also acknowledged that if someone were to consume cocaine and alcohol and enough time went by for the alcohol to leave the body, that would be consistent with being on the crash side of cocaine.

            On cross examination Richardson testified that he never quantified the substances found in the defendant's urine. He further testified that although he could not provide an exact time of the use of the drugs, he could give a time frame in which he would expect to see those in the urine.  Counsel asked "[y]ou can't tell this jury for sure that anything detected in his urine was actually affecting his normal faculties the day he was pulled over?" and Richardson responded "I would expect several of these to not be identifiable in the urine for more than a day so during that same day sometime I would expect some of these drugs at least to be having some effect." However, he said he was not able to say whether or not it was affecting his faculties at the time he was driving.

            On redirect, Richardson testified that these were not trace amounts of the drugs.  He explained that he does not quantify the amount of substances in the urine in a 'case like this'.  He explained that a urine sample is different from a blood sample because a blood sample tells you what is going on in that person's body at that moment in time. A urine sample has been collected over [x] number of hours from the last time they voided their bladder and drugs are concentrated in the urine as they are filtered by the kidney. He explained that it wouldn't have any bearing on what he could or could not say about when they were taken or anything else.  Richardson explained that he could give a time frame as to when each drug was taken.  He testified that with regard to the Alprazolam, he would expect to be able to detect it in a urine sample from anywhere from up to a day to maybe even three days in some people.  With regard to Oxycodone and Hydrocodone, he  would expect to be able to detect those somewhere up to about twenty four hours.  He explained that generally, marijuana would be detected for about twenty five days. As far as cocaine, he stated that it is generally detectible in urine for up to twelve hours maybe even twenty four hours.

            On recross, Richardson acknowledged that just because a certain substance is detected in someone's urine, it does not necessarily mean that they are affected by it at that point in time when they actually give the urine.

            The state rested and the defense made a motion for judgment of acquittal based on the fact that the state did not prove that the specific substances found in defendant's urine was affecting defendant's normal faculties. The defense argued that nothing is taken from defendant's blood to quantify exactly what is currently in his blood stream affecting his central nervous system.  Therefore, defense argued that the state could not exclude every reasonable hypothesis of innocence that perhaps defendants conduct was caused by something other than what was found in his urine, such as being sick, tired and maybe perhaps suffering from mental illness at the time he was carted away to jail. The defense cited to two cases in which although drivers both had more serious indicators of impairment, each blew  a "zero, zero, zero" on the breath test and both refused a urine test. In each case, the court granted a judgment of acquittal.

            The judge agreed that he too would not have let either of those two cases go to a jury because there was no alcohol and no evidence of controlled substances and each driver could be under the influence of a non controlled substance.  However, the judge distinguished this case on the fact that here there is a urine test which contained multiple controlled substances. The judge noted that the sample did not contain trace amounts, but detectible amounts that are consistent according to the testimony of the lab technician and the officers. Thus, the court found that with the defendant's actions as observed by the officer's, the state clearly established a prima facie case. 

            Counsel attempted to argue that this was conduct equally consistent with someone not impaired and that the lab analyst could not say for sure that these substances affected the defendant.  However, the judge said:

            I think the jury can draw reasonable conclusions based on that testimony and the           multitude of different drugs that were in his system that he was affected by those drugs        and obviously you can attempt to counter that, but that is clearly a jury question at this      point. The motion will be denied.


            The defense called Allison Kapantais to the stand.  She testified that she was the defendant's girlfriend and was with him on July 3rd.  She stated that he went to visit her at her at around 4:00  or 5:00 P.M.  that day and then she and her sister drove around with defendant trying to find a hotel for him to stay at. She stated that he was acting fine that day "except that he was really tired from driving all day." She testified that his speech was "[r]egular like he always talks", his ability to stand was "perfect" and that "he is a good driver except that that day he was really tired."  Counsel asked Kapantais why defendant was pulled over.  She stated that she was in the back seat and her sister was in the front seat. She was asked if she had any idea as to why he was pulled over 'in her own mind.' She said "[h]e was really tired so he was kind of driving like--he was like going pretty slow and then he'd speed up a little bit" probably from thirty to fifty miles per hour. She testified that the car was pulled over and defendant was asked to step outside and perform tests. She stated that she ". . . thought he was doing pretty good because [she] was watching him the whole time and he wasn't stumbling or anything."  She stated he was able to keep his balance and she never saw him sway. She testified that she was with defendant for two hours prior to the stop and did not observe him consume any alcohol, Oxycodone, Hydrocodone, cocaine or marijuana.  Counsel asked "[f]rom someone who knows Mr. Broco, would you say he was impaired that night by any controlled substances or beer?" and she replied that he was not.

            On cross examination the witness said she saw him for the first time around 6:00 or 7:00 P.M. She testified that she was not sure where they were pulled over because she just moved to the area.  The state asked "[t]here is no hotels in that area; are there?" and she replied "No." She also acknowledged that the stop occurred around 9:00 P.M. and it was dark out.  She acknowledged that she did not have a flashlight. She testified that defendant did not drive into the other side of the road.

            The appellant testified that he lived in Jacksonville and left his house at about 8:00 A.M. that morning. He stated that he stopped in Ocala to see a friend and then drove to New Port Richey. He testified that he was on the road for five to six hours that day. He testified that he came into contact with Kapantais and her sister at approximately 5:00 or 6:00 that afternoon.  He explained that when he got to her house, they just "hung out" and went swimming.  He testified that after that, he went to go look for a hotel room. He stated that at about 8:00 P.M. he drove down 19 looking for a hotel. He testified that this was his first time in the area.  The defendant testified that he did not know why he was pulled over that night; although he testified that he was tired.  He said "I was going like fifty and I would drop back down to like forty-five.  I was doing that."  He testified that he was doing that because he was tired. The defendant admitted that swerved off the road one or two times. He said "[i]t was a construction around there.  I am not too familiar with that area.  It was very dark and I was also very fatigued, tired." He testified that he was pulled over and the officer explained why he was stopped.  He waited about five minutes for the second officer to arrive and then performed the tests. The defendant testified that he performed the tests perfectly but after they were completed the officer asked him to do it again.  He then testified that he was arrested. He explained that he took a breathalyzer and blew "triple zeroes." He then provided a urine sample.  When asked how Alpralozam  was in his urine he replied "I don't recall." when asked about the cocaine in his urine he stated "Thursdsay night before I got pulled over" which was two days before.  When asked about the marijuana he said "[t]wo weeks before."  As far as the Oxycodone and Hydrocodone he testified that he took those at about 7:00 in the morning explaining that he took a Loratab for his back pain.  The defendant testified that the Loratabs had absolutely no effect on his ability to drive that night. He also testified that cocaine, marijuana, Hydrocodone or Oxycodone had absolutely no effect on his faculties that night.  When asked what effects, if any, the combination of these drugs had on him at the time he was pulled over, he replied "[a]bsolutely one hundred percent none at all." He went on to state that he was not impaired that night.

            On cross examination the defendant stated that was not feeling the effects of any drugs that night.  He admitted that he did change speed and he went off the road just a couple of times. He stated he did not recall going into oncoming traffic. He admitted that when he took cocaine he was also drinking alcohol. He denied that he had a beer earlier in the day.

            The defense rested and renewed the motion for judgment of acquittal stating "[r]ight now it doesn't exclude every reasonable hypothesis of innocence."    

            During closing argument , the prosecutor (referring to the drugs in the urine and defendant's behavior ) stated:

                        . . .  [a]ll of  them are consistent and that is the only reasonable explanation for his                      behavior; was he was on drugs.  Now the defense of that does not do enough to                           show that this is not a provable case. This case has been proven and the Defense                                  just didn't add up. You have the defendant and his girlfriend and they didn't even                            have all he same things. . .



            Appellant argues that the motion for judgment of acquittal should have been granted because the toxicologist could not testify whether or not the drugs found in his urine affected him at the time he was driving or when the defendant took them. This Court  finds that the trial court did not error in denying appellant's Motion for Judgment of Acquittal. A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Orme v. State, 677 So.2d 258, 262 (Fla.1996).   In this case, the jury heard evidence that the appellant had various drugs in his system.  Although the appellant argues that he was tired and that this was a reasonable hypothesis of innocence,  evidence that a defendant was driving, had controlled substances in a urine test which could cause impairment combined with a low or no alcohol level, and was observed to be impaired at the scene after the driving is sufficient to establish a case of Driving Under the Influence. See State v. McClain, 525 So. 2d 420, 423 (Fla. 1988); Hoffman v. State, 743 So. 2d 130 (Fla. 4th DCA 1999).  Accordingly,  the issue of whether or not appellant was under the influence during the time he was driving is a question of fact for the jury to determine.   

            Appellant also argues that by stating "the defense just didn't add up", the prosecutor impermissibly shifted the burden of proof.  However, review of the record reveals that the appellant and his girlfriend testified to facts completely contrary to the state's witnesses, essentially claiming that the evidence was false.  This Court finds that the state's argument that the defense "just didn't add up"  was pure rebuttal.  Neither this statement nor any other statement made by the state shifted the burden of proof.  Stancle v. State, 854 So. 2d 228 (Fla. 4th DCA 2003).  It is therefore,

            ORDERED AND ADJUDGED that the judgment and sentence of the trial court be affirmed.


DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of October,   2005.



                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge





                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge


Copies furnished to:

Honorable Marc H. Salton

Curtis M. Crider, Esq.

Michael J. Harris, Assistant State Attorney