Court: CRIMINAL LAW –DUI – Stop not justified where police saw defendant
commit traffic offense on private property (apartment complex) where State
failed to show complex generally open to traffic, and complex and police did
not have a written agreement allowing police to enforce traffic laws. Judgment and
sentence reversed. Nemeth v. State, No. CRC 05-89 APANO, (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
ALENA J. NEMETH
v. Appeal No. CRC 05-89 APANO
Opinion filed _________________.
Appeal from a judgment
and sentence entered by
County Judge John Carballo
J. Kevin Hayslett, Esq.
Attorney for appellant
Dawn Henrichon, Esq.
Assistant State Attorney
ORDER AND OPINION
MATTER is before the Court on the defendant, Alena J. Nemeth’s, appeal from a
judgment and sentence entered against her by the
trial court’s ruling on a motion to suppress is a mixed question of law and
fact. A reviewing court must accept the trial court’s findings of fact in an
order on a motion to suppress, as long as those findings are supported by the
record. However, a suppression order that turns on an issue of law or the
application of the facts to the law is subject to a de novo standard of review. Ornelas v. State, 517
The defendant contends that her motion to suppress should have been granted because the police should not have stopped her vehicle. At approximately 1:30 A.M., a deputy saw the defendant driving in the parking lot of an apartment complex for a short distance, reversing, and then pulling into a parking spot. The defendant was operating the vehicle without its headlights illuminated. The deputy stopped the vehicle from moving, and the defendant was ultimately arrested for DUI and driving without headlights. Usually, the police may stop an individual for driving without the headlights being illuminated because it is a violation of §316.217 of the Florida Statutes. In this case, however, the defendant contends that the stop was improper because the deputy did not have jurisdiction to enforce traffic laws on private property.
Pursuant to §316.006(3)(b):
A county may exercise jurisdiction over any private road or roads, or over any limited access road or roads owned or controlled by a special district, located within its boundaries if the county and party or parties owning or controlling such road or roads provide, by written agreement approved by the governing body of the municipality, for county traffic control jurisdiction over the road or roads encompassed by such agreement … .
The State agrees that the apartment complex and the county do not have such an agreement. Thus, the State must look elsewhere to find jurisdiction for the police to enforce the traffic laws.
Pursuant to §316.640 of the Florida Statutes, the police have jurisdiction to enforce traffic laws on all streets and highways “wherever the public has the right to travel by motor vehicle.” The State contends that the trial court was correct when it ruled, apparently as a matter of law, that the apartment complex was a “street or highway” under the definition of §316.003(53). This Court disagrees.
§316.003(53)(a) defines a “street or highway” as: “The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.” There was no evidence presented one way or the other to show that this particular apartment complex was “open to the use of the public for purposes of vehicular traffic.” It is the State’s burden to demonstrate by evidence that it was; and a review of the transcript clearly shows that the State made no effort to meet its burden. Without any evidence to support its ruling, the trial court’s decision was in error.
State cites the case of Zink v. State, 448 So.2d 1196 (Fla. 1st
DCA 1984), which held that the DUI statute applied to driving on private
property. There is a distinction, however, between enforcing a DUI statute and
a traffic statute. The DUI statute, §316.193(1), specifically makes it unlawful
for a person to be DUI “within the state.” The statute does not just apply to
DUI on the public streets or highways. In addition, as noted in Daly v.
Turning back to the case at bar, if the deputy had observed a DUI or a non-traffic criminal offense in the apartment parking lot, then he had jurisdiction to make the stop. At that point, the deputy could conduct a criminal investigation, including one for DUI, based upon his observations at the scene. Alternatively, if the apartment complex and the county had a written agreement, then the deputy could enforce the traffic laws in the apartment parking lot. Since none of the circumstances is present in this case, the deputy did not have jurisdiction to make the traffic stop.
IT IS THEREFORE ORDERED that the judgment and sentence is reversed.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene H. Sullivan
cc: State Attorney
J. Kevin Hayslett, Esq.