County Criminal 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 (Fla. 6th Cir. App. Ct May 10, 2006).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

STATE OF FLORIDA,                                                          Case No. 055356CFAES

                                                            Lower No. 053089XAGTWS

Appellant,      

v.

 

CHRISTOPHER EXLER,      

 

Appellee.

____________________________________/

 

Appeal from 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. Fla. R. App. P. 9.030(c).   We reverse the decision of the trial court.   

            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[1] 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." [2] [3]

            A ruling on a motion to suppress presents a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Deference is given to the trial court's factual findings, but the application of the law to the facts is reviewed de novo. Id. at 699, 116 S.Ct. 1657.  In this case, the appellee was stopped for speeding.   Once appellee was pulled over, the officer approached the vehicle and noticed a strong odor of alcohol.  At this point, the officer asked the appellee to exit the vehicle. The observation of a traffic infraction alone gives law enforcement lawful grounds to have a driver exit his vehicle.  Pennsylvania v. Mimms, 434 U.S. 106 (1977). State v. Hernandez, 718 So. 2d 833 (Fla. 3d DCA 1998).  Once he exited, the officer smelled the odor of alcohol coming directly from his breath and noticed he had bloodshot, watery eyes and was swaying.  At this point, the officer had reasonable suspicion that appellee was driving under the influence.  Therefore, the officer was entitled to further investigate whether or not he had probable cause for arrest.  State v. Taylor, 648 So. 2d 701 (Fla. 1995). 

           

            IT IS THEREFORE ORDERED that the judgment is REVERSED.  

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  May,  2006.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Judge Debra Roberts

Michael J. Harris, Esq., A.S.A

Robert D. Eckard, Esq.


[1] 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.

[2] The court cited State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000).  A careful reading of Kliphouse reveals that the decision addresses the issue of  whether or not police may obtain an involuntary forcible blood extraction from an unconscious driver where the only evidence is the odor of alcohol.   The court in Kliphouse determined that the mere odor of alcohol on the breath of unconscious driver, who was determined not to have caused or contributed to the accident, did not furnish probable cause for a forced blood draw. Here the issue was whether or not there was reasonable suspicion to conduct a DUI investigation on a driver who was not unconscious and the odor of alcohol was detected during a stop for speeding. State v. Taylor, 648 So. 701 (Fla. 1995).

[3] This Court also distinguishes this case from State v. Main, 11 Fla. Law Weekly Supp. 828c (Pinellas County Court 2004), cited by defendant.  In Main, defendant was stopped for speeding.  The officer testified that upon approaching the defendant he did not detect any odor of an alcoholic beverage nor did he detect anything else indicative of a DUI. After the officer completed the speeding citation he re-approached the defendant who was still seated in his vehicle and gave him the citation.  It was only at that time, after his investigation was complete and the citation issued, that he noticed an odor of alcohol and the began a DUI investigation. That is not what we have here.  In this case,  the officer testified that during his initial investigation for speeding, he detected the smell of alcohol. His investigation was not complete and the citation was not issued when he began a DUI investigation.  This Court finds that if the officer would have been remiss in his duties if he did not investigate the odor of alcohol coming from the defendant's vehicle.