County Criminal Court: CRIMINAL LAW - DUI - traffic stop –  open bottle of Jack Daniels and appellant’s statements to police officer provided reasonable suspicion to further investigate whether or not defendant was driving under the influence. Order affirmed.  Andrews v. State,  CRC0602306CFAES (Fla. 6th Cir. App. Ct October 5, 2006).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

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

APPELLATE DIVISION

 

HAROLD ANDREWS,  

                        Appellant,

v.

 

STATE OF FLORIDA,                                               Case No: 0602306CFAES

                        Appellee.

________________________/

 

Appeal from Pasco County Court

Judge Robert Cole

 

Robert D. Eckard, Esq.

for Appellant

 

Ken McIntyre, A.S.A.

for appellee     

 

ORDER AND OPINION

Appellant was arrested for and charged with Driving Under the Influence at 1:20 a.m. on September 11, 2005. Appellant filed a Motion to Suppress in which he argued that although there was a lawful stop, there was no evidence to support a DUI investigation.  The trial court denied appellant's motion to suppress after a hearing.  This Court affirms the decision of the trial court

At the hearing, Deputy Sickles testified that he has been employed by the  Pasco County Sheriff’s Office for twelve years. He was on patrol the evening of September 11, 2005, when he came into contact with appellant. He explained that while driving north on 41, he observed a red or maroon F250 pickup truck in the right lane “swerving to where it came out into the four lanes of Dale Mabry and the 41 junction.”  He further explained:

[h]e went over into the right lane of 41 and then swerved back over to the left lane of 41. And then—he did that three times.  And the last time there was a car in the far right—the far right lane that switched over to the far right lane to avoid hitting him.  Then he went back over to the turn lane; it was a left turn lane but in the right lane because it was two lanes.  I conducted a traffic stop at that point. 

 

The officer was asked about the “other vehicle” to the right of the appellant’s and the officer explained that vehicle was in the second lane from the right.  The officer acknowledged that appellant’s vehicle left his lane completely and went in the direction of the second vehicle.  When asked what action that second vehicle took, the officer testified that the second vehicle went over to the far right lane.  It was at that point that the officer conducted the traffic stop.  He testified that when he approached the vehicle he asked appellant for his license and appellant provided his license to him.  He also testified that he saw an open bottle of Jack Daniels in the vehicle.  When asked if appellant said anything to him when he approached, Sickles stated “[f]irst, he said he didn’t need a DUI.  And, second, I asked him when he stopped drinking, and he said when I pulled him over.” The officer then testified that he asked appellant to take the three field sobriety tests.

            On cross examination, Deputy Sickles testified that while following appellant, he was about three or four cars behind him.  The deputy testified that when appellant changed lanes, he did not signal.  The deputy acknowledged that he did not include that in his report

            The court denied the motion, finding sufficient evidence to indicate that Mr. Andrews was impaired or there were indicators of impairment to allow the deputy to further investigate and detain him for a DUI investigation. The appellant entered a plea of nolo contendere and reserved his right to appeal. [1]

 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, there is no dispute that the officer conducted a valid traffic stop.  The issue raised by appellant is  that the deputy did not have founded suspicion to investigate for DUI.  First, this Court would point out that the issue is not clearly raised in the Motion to Suppress.  However, even if it had been, this Court finds the evidence sufficient to justify further detention.  Specifically, once appellee was pulled over, the officer approached the vehicle and noticed an open bottle of Jack Daniels.  The deputy testified  that the appellant told him he did not need a DUI and that he stopped drinking when the officer pulled him over. 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).  The officer was also entitled to ask the appellee to step out of the car in order to further investigate. Id.

 

IT IS THEREFORE ORDERED that the judgment is affirmed.

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

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Robert D. Eckard, Esq.

Office of the State Attorney

 



[1] There is a complaint affidavit in the file, which reads,  in part, “I could smell a strong odor of an alcoholic beverage on the Def.  I observed an open bottle of Jack Daniels on the center consol.”  In the Answer Brief, the state uses the affidavit to bolster their case; however, the  affidavit is not in evidence and therefore, should not have been relied upon.