NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JAMES SANTO FALVO, JR.
v.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 06-74 APANO
Opinion filed ________________.
Appeal from a judgment and sentence
imposed by the Pinellas County Court
County Court Judge John Carassas
J. Kevin Hayslett, Esquire
Attorney for appellant
C. Marie King, Esquire
Assistant State Attorney
ORDER AND OPINION
††††††††††† THIS MATTER is before the Court on the defendant, James Santo Falvo, Jr;s, appeal from a judgment and sentence imposed by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.
††††††††††† The defendant entered a no contest plea to DUI charges. He reserved the right to appeal the denial of his motion to suppress. He claims the initial stop was improper.
††††††††††† At approximately 6 A.M. the Florida Highway Patrol received information that a car was stopped on the shoulder/emergency lane of Interstate 275 near an exit ramp, with the driver passed out behind the wheel. When the trooper arrived on the scene it was still dark. The trooper activated his lights, pulled behind the defendantís vehicle, and got out of his vehicle to investigate. He found the defendantís car was running, and the defendant appeared to be passed out behind the driverís wheel. The car had a flat tire. A couple of minutes later, another trooper arrived. At this point the defendant was apparently still passed out, with his head actually on the steering wheel. The two troopers attempted to awaken the defendant by banging on the driverís side window several times. The troopers did this for a while, but the defendant failed to awaken. Concerned for the defendantís safety, the troopers opened the car door. It took some more time for the troopers to awaken the defendant. They had to raise their voices, grab his arm, and vigorously shake him. As soon as the troopers opened the door, they smelled alcohol. The defendant was ultimately arrested for DUI.
defendant claims that the troopers had no reason to approach him. There was,
however, testimony from the troopers that a major part of their job entails
stopping at disabled vehicles on the Interstate to see if they need assistance.
And the troopers noted that the defendantís car had a flat tire. Moreover, as
noted by one of the troopers, it is illegal to park on an Interstate ---
except, as pointed out by the defendant in his brief, for emergency purposes.
This is an accurate statement of the law. See ß316.1945(1)(a)(11),
defendant faults one of the troopers for activating his lights and parking his
vehicle behind him. Although this argument does not need to be addressed given
this Courtís decision in the previous paragraph, the argument will be briefly addressed.
The defendantís claim has no merit based upon this Courtís decision in Roosa
v. State, No. CRC 06-50 APANO, (
††††††††††† Next, the defendant contends the troopers were at fault for opening his car door.
It is unclear, however, exactly what the defendant expected the troopers to do. They tried repeatedly to awaken him, but were unsuccessful. Leaving him there to ďsleepĒ while on the Interstate, in the dark, with the car running, would have been negligent --- to both the defendant and other motorists. †Moreover, the troopers were concerned that he might be ill because he could not awaken despite their repeated efforts. Under these circumstances, the troopers were correct to open the car door and attempt to awaken the defendant. To expect them to do otherwise would be unreasonable. In addition, as this Court has previously ruled, the troopers had ample justification to investigate the matter because the defendant was either illegally parked or involved in an emergency situation. The trial court properly denied the defendantís motion to suppress.
††††††††††† IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.
††††††††††† ORDERED at
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† Linda R. Allan
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Circuit Court Judge
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† R. Timothy Peters†
†††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††Circuit Court Judge
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††† John A. Schaefer
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††† Circuit Court Judge
cc:††††††† J. Kevin Hayslett, Esquire
††††††††††† Office of the State Attorney
††††††††††† Honorable John Carassas