Court: CRIMINAL LAW – DUI – traffic stop –the observation of a traffic infraction alone gives law
enforcement lawful grounds to have a driver exit his vehicle; smell of alcohol
coming from breath, bloodshot watery eyes and swaying provides reasonable
suspicion to further investigate whether or not defendant was driving under the
influence. Order reversed. State v. Exler, No. 05-5356CFAES (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Lower No. 053089XAGTWS
Appeal from Debra Roberts
Michael J. Harris, Esq., A.S.A
Attorney for Appellant
Robert D. Eckard, Esq.
Attorney for Appellee
ORDER AND OPINION
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 arrest and refusal to take a breath test because he claimed the detention and investigation were unlawful.
At the hearing, Trooper Nieman testified that at approximately 2:00 a.m., while riding along with Trooper Hollis (his field training officer), he observed the defendant speeding on U.S. 19. Nieman stated that he initiated a traffic stop and pulled the defendant over in the parking lot east of U.S. 19 on State Road 54. The trooper explained that when he approached the vehicle he noticed that there was a passenger in the car. Nieman started interviewing the driver on whether or not he knew why he was pulled over and the driver stated that he did not know. At that point, Nieman told defendant he was speeding. About two minutes into the conversation, Nieman smelled alcohol in the vehicle. Nieman stated that he could not tell where specifically in the vehicle the smell was coming from. Nieman testified that he had the defendant exit the vehicle in order to conduct field sobriety exercises. After defendant exited the vehicle, Nieman spoke to him and asked him if he would perform the field sobriety exercises. Nieman testified ". . . at which time I did smell the odor coming directly from his breath." He then testified that the defendant had bloodshot, watery eyes, but spoke clearly. When asked how his balance was before he did the field sobriety test, Nieman testified "[h]e was swaying a little. It wasn't perfect." He testified that in his experience it was consistent with someone under the influence. Trooper Nieman stated that he had asked the defendant how much he had to drink and the defendant told him he had two beers. At some point, the defendant agreed to perform the field sobriety tasks but according to Nieman he performed poorly. At the end of the field sobriety tasks, he arrested the defendant.
Trooper Hollis testified that he has worked as a Highway Patrol Officer for 6 and 1/2 years. He testified that he was in the vehicle with Trooper Nieman that evening when the defendant was stopped for unlawful speeding. He testified that Nieman exited his vehicle and approached the driver's side. Hollis testified that because there were two occupants of the vehicle, he went to the passenger side of the defendant's car. He stated ". . .I looked in the passenger side, and I walk[ed] over behind Trooper Nieman while he was talking to defendant. I could smell an odor of alcoholic beverage coming from the vehicle from the interior of it, but there were two people in the vehicle, so I didn't know where it was coming from." He testified that Nieman 'came back' to him and asked if he smelled the odor of alcoholic beverage and Hollis advised him that he did. He then stated "[h]owever, I advised him there were two people in the car; that you need to have the person exit the vehicle." Hollis explained that this is done to give the driver the benefit of the doubt if maybe the passenger may have been intoxicated and they were smelling the odor from the passenger and not the driver. He testified "[s]o I advised him to have him exit the vehicle--the driver exit the vehicle and check the driver out away from the vehicle." When asked what he observed when the defendant exited the vehicle, he stated "I observed him just swaying . . . swaying while standing still. . . .in a noticeable way." He stated the swaying indicated one of the signs of impairment. Hollis was then asked if he observed anything other than the swaying before the field sobriety tasks and he stated "I noticed an odor of alcoholic beverage upon the defendant's breath."
The trial court granted the Motion to Suppress finding that Trooper Nieman had no reasonable suspicion to believe that the defendant had committed a crime when he asked defendant to exit the vehicle. The court stated "[t]he mere odor of alcohol coming from the interior of the vehicle occupied by two persons is insufficient to believe the Defendant was driving under the influence to the extent his normal faculties were impaired."  
A ruling on a motion to suppress presents a mixed
question of law and fact. Ornelas
IT IS THEREFORE ORDERED that the judgment is REVERSED.
DONE AND ORDERED in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Judge Debra Roberts
Michael J. Harris, Esq., A.S.A
Robert D. Eckard, Esq.
 Trooper Nieman was new to the Highway Patrol, but had been on active duty with the Coast Guard for ten years in a law enforcement position.
 The court cited State v. Kliphouse, 771 So. 2d
 This Court also distinguishes this case from State
v. Main, 11