County Criminal Court: CRIMINAL LAW - DUI - State did not establish the corpus delicti where there were no witnesses to the accident, no one who saw the defendant driving, and the only evidence placing the defendant behind the wheel was his own testimony. Mere proximity to the location of the accident is insufficient. Order granting defendantís motion to dismiss affirmed. State v. Wuteska, No. CRC 05-75 APANO, (Fla. 6th Cir. App.Ct. September 25, 2006).









††††††††††† Appellant,

Appeal No. CRC 05-75 APANO







††††††††††† Appellee.




Opinion filed _________________.



Appeal from a decision of the

Pinellas County Court

County Judge William H. Overton


John Mulvihill, Esq.

Assistant State Attorney


Lynda Barack, Esq.

Attorney for appellee




††††††††††† (J. Morris)


††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order of the Pinellas County Court granting the defendantís motion to dismiss. After reviewing the briefs and record, this Court affirms the decision of the trial court.

††††††††††† A deputy arrived at an accident scene and observed a truck that was off the road with the rear end in some hedges. The deputy saw the defendant sitting about two to five feet away from the truck. There was no one else in the area. The defendant told the deputy that he had been at the Green Iguana bar down the road and had driven to where the accident happened. The defendant was ultimately arrested for DUI. He filed a motion to dismiss, and the trial court granted it. The State is seeking review of that order.

††††††††††† The application of the corpus delicti rule acts to save the defendant in this case. That rule, briefly stated, is that before a confession or a statement against interest may be introduced into evidence, there must be some evidence produced showing that a crime has been committed. In this case there were no witnesses to the accident, and there was no one who actually saw the defendant driving the truck. The only evidence that the defendant was driving was the defendantís admission. Under the corpus delicti rule, the admission of the defendant in a DUI case may not be received into evidence until it can be established by other evidence that a motor vehicle was driven, and that the driver was under the influence. Burks v. State, 613 So.2d 441 (Fla. 1993).

For practical purposes, what the State must show in this case is some evidence, other than the defendantís own confession, that he was driving the truck. The burden of showing this other evidence is on the State, but the State may use circumstantial evidence. Esler v. State, 915 So.2d 637 (Fla. 2d 2005). Often in these one-vehicle accidents, proof that the vehicle was owned by the defendant is sufficient. In the case at bar, however, there was no such proof --- the truck was registered to someone else. The State is left with two arguments.††

††††††††††† First, the State argues that there was sufficient evidence to show the defendant was driving the truck because the defendant was the only person at the scene and was sitting so close to the truck. The mere fact that the defendant is in close proximity to the vehicle is insufficient as a matter of law. See Farley v. City of Tallahassee, 243 So.2d 161 (Fla. 1st DCA 1971)(reversed on other grounds by J.B. v. State, 689 So.2d 360 (Fla. 1st DCA 1997); State v. Joiner, 17 Fla. Supp. 84 (Fla. 11th Cir.Ct. 1961).

The Stateís second argument is that when the deputy, because of the bad weather, told the defendant he could wait inside the truck for the investigation to be completed, the defendant sat in the driverís seat. The State contends that the defendantís act of sitting in the driverís seat when told he could sit inside the truck demonstrated ďownershipĒ of the truck. Although this case is very close, this Court cannot say that the State met its burden in this case. The evidence is too thin to conclude that by selecting the driverís seat instead of the passenger or back seat (if they were accessible) the defendant was claiming any type of dominion or control over the truck. This is especially true because the deputy told the defendant to get into the truck.

This Court agrees with the trial court that the State failed to establish the corpus delicti in this case because it did not establish by other evidence that the defendant was the driver of the truck. Without such evidence, the defendantís admission would not be admissible, and there would be nothing to establish that the defendant was DUI. Therefore, the trial court was correct to grant the defendantís motion to dismiss.

††††††††††† IT IS THEREFORE ORDERED that the order granting the defendantís motion to

dismiss is affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of September, 2006.


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

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

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




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

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

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




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

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

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

cc: †††††† State Attorney


††††††††††† Lynda Barack, Esq.


††††††††††† Judge Overton