NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
DENNIS E. BUTLER
Appellant,
v. Appeal No. CRC 05-31 APANO
UCN522005AP000031XXXXCR
STATE OF
Appellee.
_________________________________/
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge William Overton
Debra Moss,Esq.
Attorney for appellee
C. Marie King, Esq.
Assistant State Attorney
ORDER AND OPINION
(J. Demers)
THIS MATTER is before the Court on the defendant’s appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence. The defendant pleaded no contest to DUI charges. He reserved his right to appeal the denial of his motion to suppress.
The defendant raises three issues: (1) that the police did not have any justification to make the stop; (2) that the police improperly failed to videotape the stop; and (3) that the police did not facilitate his request for an independent blood test as required. None of the issues raised are persuasive.
A police officer observed the defendant weaving a bit outside his lane --- both the left and right wheels crossed the lines. The officer observed the defendant for about two and a half miles. During that time, the officer saw the defendant drift outside his lane, then abruptly move back into the lane. The officer also saw the defendant make a large, looping right turn, and come to an abrupt halt to avoid a collision with a tractor trailer. This erratic driving was sufficient to justify a stop of the defendant’s vehicle. See Bailey v. State, 319 So.2d 22 (Fla. 1975)(because of the dangers inherent to our modern vehicular mode of life, the police may be justified in stopping a vehicle to determine the reason for its unusual operation); Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992)(a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine if the driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior); State v. Davidson, 744 So.2d 1180 (Fla. 2d DCA 1999)(police observation of defendant driving significantly below speed limit and drifting in and out of lane warranted stop); Ndow v. State, 864 So.2d 1248 (Fla. 5th DCA 2004)(if police observe motor vehicle being operated in unusual manner, there might be justification for stop even when no traffic infraction seen or citation given).
The
failure of the police to videotape the circumstances surrounding the stop does
not support suppression of the evidence.
The third issue is the defendant’s assertion that the police failed to facilitate his request for an independent blood test. The record, however, reflects that the defendant did not ask for an independent blood test. The officer asked the defendant to take a breath test, but the defendant asked for a blood test instead of a breath test. The officer correctly stated that he was offering a breath test at that time. The officer again asked the defendant to take a breath test, and the defendant agreed and took the breath test. He did not ask for a blood test after that.
It appears that
the defendant was confused about his options. A review of the record shows that
the defendant believed he was able to take a blood test without taking the
breath test. That is not an option. Suspects may take a blood test in addition
to the breath test, but they are not entitled to take a blood test instead of
the breath test. See Department of Highway Safety and Motor Vehicles v.
Green, 702 So.2d 584 (
IT
IS THEREFORE ORDERED that the judgment and sentence are affirmed. DONE
AND ORDERED in Chambers at
___________________________
David A. Demers
Circuit Judge
___________________________
Robert J. Morris, Jr.
Circuit Judge
___________________________
Irene H. Sullivan
Circuit Judge
cc: State Attorney
Judge Overton
Debra Moss, Esq.