IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
STATE OF
Appellant,
v.
SANDRA MARIE KUHN, CASE NO: 0503611CFAES
Appellee, Lower No: 05534188WTWS
___________________________/
Appeal from Honorable Debra Roberts
Michael J. Harris, Esq., A.S.A.
Attorney for Appellant
Robert D. Eckard, Esq.
Attorney for Appellee
ORDER AND OPINION
This
matter came before the court on the State's appeal from an order granting
defendant's Motion to Suppress entered by the Pasco County Court. This court has jurisdiction.
The defendant was charged by citation with Driving Under the Influence. The defendant moved to suppress evidence of the detention, arrest, and refusal to take a breath test because he claimed the detention and investigation were unlawful.
At
the hearing, Officer Justin Case testified that he has been working in law
enforcement for four years. He was on
patrol on January 30, 2005, traveling eastbound on
He testified that when he first made contact with the driver, he noticed "a strong odor of alcohol right away. She did have like watery eyes. [He] did notice there was an open beer bottle on the floorboard of the vehicle between her feet." Case testified he pulled the vehicle over "for failure to stop at a stop sign" and did write a citation for it.
On cross examination, Case stated that he called Officer Jay while he was standing by the defendant's car; "[a]s soon as [he] had the strong odor and an open container, . . . and observations of her with the watery eyes." He testified that he smelled the odor of alcohol on the defendant's breath while she was speaking. Case testified that he did not call Officer Jay based on the smell of alcohol alone, it was based on the odor, the watery eyes, and the open container between her legs. He called the other officer because he handles the DUI investigations. Case testified that he believed the bottle was a glass bottle of an alcohol, but did not see the label to know specifically what kind. He did not take the bottle into evidence.
Officer Jay testified that he has been an officer for six and a half years and is now in the patrol unit in charge of all the 'traffic stuff.' He testified that he was called to a scene on January 30, 2005, at approximately 2:00 a.m. Jay explained that when he arrived, he made contact with Officer Case who advised him that he stopped the defendant's car for running a stop sign. Case asked Jay if he would conduct a DUI investigation at which point Case told him that he smelled a strong odor of alcohol and the defendant had slurred speech. Jay testified that upon making contact with the defendant, he started speaking to her. She was sitting in the driver's seat and had slurred speech, watery eyes, and the odor of alcohol was coming from her breath. He testified that he advised the defendant that he smelled a strong odor of alcohol at which point she advised she was coming from a friend's house and she drank several beers. At that point, he asked her if she would submit to field sobriety tests. Her response was "Fuck you, asshole." He testified that after she was arrested, he observed an open Budweiser beer that was cold on the driver's side floorboard. On cross examination he testified that he remembered a dazed expression on the defendant's face. Jay testified that when defendant exited the vehicle she was swaying.
The Court took it under advisement. In an order granting the defendant's motion to suppress, the court made the following findings:
"1. On or about January 30, 2005 at approximately 2:00 a.m., Officer Case observed the Defendant's vehicle failed to stop at a stop sign. After approaching the vehicle he smelled a strong odor of alcoholic beverage, observed the Defendant's watery eyes and an open container on the floorboard of the vehicle between the Defendant's feet. He did not read the label on the bottle. He then called an officer to conduct a DUI investigation.
2. Officer Jay arrived on the scene to conduct the DUI investigation. No evidence was introduced regarding the time period between the stop and Officer Jay's arrival. Officer Jay has been employed as an officer of the New Port Richey Police Department for six and one half years, the last two being the primary DUI investigator. According to Officer Jay, Officer Case advised him a strong odor of alcohol was emanating from the vehicle; the Defendant had slurred speech and watery eyes. Officer Jay did not observe the open container of beer until after the Defendant was out of the vehicle. Officer case did not testify the Defendant's speech was slurred or that he advised Officer Jay that the Defendant's speech was slurred.
The defendant argues at the time of the stop there was no evidence of impairment and that the odor of alcohol and watery eyes did not rise to the level of reasonable suspicion of criminal activity to justify a DUI investigation. The Defendant does not challenge the stop but the detention to conduct the DUI investigation. The State argues the odor of alcohol, open container, watery eyes and running the stop sign were enough factors to conduct a DUI investigation.
The Court agrees with the Defendant that under the facts of this case Officer Case did not have a reasonable suspicion of impairment. Therefore, the detention to conduct the DUI investigation was unlawful. . . . "
A ruling on a motion to suppress presents a mixed
question of law and fact. Ornelas
v.
IT IS THEREFORE
ORDERED that the judgment is REVERSED.
DONE AND ORDERED in Chambers at New Port Richey,
________________________
Primary Appellate Judge
____________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
Judge Debra Roberts
Michael J. Harris, Esq., A.S.A
Robert D. Eckard, Esq.