COUNTY CRIMINAL COURT: CRIMINAL LAW Ė Breath/Urine/Blood Test Ė Defendantís asking for a blood test instead of a breath test is not the same as asking for and independent blood test. Judgment and sentence affirmed. Butler v. State, No. CRC 05-31 APANO, (Fla. 6th Cir.App.Ct. Feb. 28, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

DENNIS E. BUTLER

 

††††††††††† Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-31 APANO

UCN522005AP000031XXXXCR

STATE OF FLORIDA

 

††††††††††† 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 defendantís 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 defendantís 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. See State v. Weingarten, No. CRC (Fla. 6th Cir. Ct. Oct. 10. 1998) and cases cited therein. A defendant has no right to a particular method of evidence gathering. The cases cited by the defendant are only applicable to situations where evidence is either lost or destroyed, it has no application to the situation in the case at bar where there was no evidence gathered.

††††††††††† The third issue is the defendantís 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 (Fla. 2d DCA 1997). Once the officer told the defendant his choice was to take the breath test or not, the defendantís confusion seemed to disappear. He took the breath test and never asked for an independent blood test. If the defendant never asked for an independent blood test, then the police are faultless for not facilitating an independent blood test. The defendantís motion to suppress was properly denied.

††††††††††† 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, 2006.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene H. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

cc:††††††† State Attorney

 

††††††††††† Judge Overton

 

††††††††††† Debra Moss, Esq.