County Criminal Court : CRIMINAL LAW --- DUI --- Trial court erred in granting motion to dismiss because information given to police by third party witness and the officerís own observations of the defendantís physical characteristics and behavior were sufficient to justify a DUI investigation without resorting to information given by the defendant during the accident investigation. Order granting motion to suppress denied. State v. Walker, No. CRC 06-85 APANO ( Fla. 6th Cir. App. Ct. April 3, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

††††††††††† Appellant,

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 06-85 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522006AP000085XXXXCR

v.

 

MARC EASTON WALKER

 

††††††††††† Appellee.

__________________________/

 

Opinion filed _________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge John Carassas

 

Wesley C. Dicus,

Certified Legal Intern and

Kendall Davidson, Esq.

Assistant State Attorney

 

J. Kevin Hayslett, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

††††††††††† (J. Demers)

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from a decision of the Pinellas County Court granting the defendantís motion to suppress. After reviewing the briefs and record, this Court reverses the order because the officer had probable cause to make an arrest.††††††††††††††††

††††††††††† Sometime after 10 at night, a couple (the Hollys) were watching television when they heard a sudden loud noise from their front yard. Mrs. Holly went out to see what the noise was, and saw that someone (the defendant) had driven off the road and crashed into the mailbox, flower pots, and garbage bags in her front yard. The driver then backed his Porsche out of the yard and began to leave the scene. Mrs. Holly shouted at the defendant: ďWhere are you going?Ē And the defendant put his head out of his car window and said: ďIíll be right back.Ē When the defendant put his head out his window to respond, Mrs. Holly was able to see him because he was illuminated by a streetlight. The defendant drove away very slowly and without his headlights on.

††††††††††† The defendant returned to the scene a short time later, but was driven by his wife in a different car. Mrs. Holly was certain that the man who returned to the scene was the same person who drove off earlier in the Porsche. When the defendant returned and spoke with Mrs. Holly, she noticed a very strong odor of alcoholic beverages on him. It also appeared that his balance was wobbly. The defendant admitted to Mrs. Holly that he had crashed his Porsche into her mailbox and had earlier left the scene.

††††††††††† When two deputies arrived to investigate, Mrs. Holly told them what she had observed. One of the deputies observed the defendant had slurred speech, red, watery eyes, swayed while standing, leaned against a vehicle for support, and had a strong odor of alcohol coming from him. Believing that the defendant was DUI, the deputy had the defendant perform field sobriety exercises, which he failed. Post-Miranda, the defendant admitted that he lost control of his Porsche and it crashed into the mailbox. He also admitted drinking before he started driving the Porsche.

††††††††††† The deputy asked the defendant if he could see the Porsche, and the defendant agreed to take the deputy to his house to see it. At the defendantís house, the deputy saw the Porsche in the garage, and noticed that although the damage was slight it was consistent with having run over the mailbox. While in the garage, the defendantís wife entered and told the deputy that her husband did not drink any alcoholic beverages after he left the scene of the accident earlier that night. The defendant was then arrested for DUI.

††††††††††† It is unclear exactly why the trial court granted the defendantís motion to suppress. Based upon these facts, however, there was ample justification for the deputies to arrest the defendant.

††††††††††† Law enforcement may arrest an individual if, during the investigation of a traffic accident, they develop probable cause to believe the individual was DUI. See ß316.645 and State v. Sawyer, 905 So.2d 232 (Fla. 2d DCA 2005). That is what happened in the case at bar.

††††††††††† The trial court may have believed that any admissions the defendant made to the deputies were inadmissible because of the accident report privilege. But there was sufficient evidence that the defendant was DUI without using his statements. The deputiesí observations of the defendantís physical traits and demeanor were admissible; and alone would provide sufficient reason to detain the defendant for a DUI investigation. See State v. Cino, 931 So.2d 164 (Fla. 5th DCA 2006). In addition, in Cino the appellate court ruled that the accident report privilege did not bar the State from using statements made to law enforcement during the traffic investigation by persons other than the defendant. In the case at bar, the information obtain by the deputies from Mrs. Holly alone provided sufficient justification for the arrest.

††††††††††† In summary, there was sufficient evidence to justify the initial detention and subsequent arrest of the defendant. Accordingly, the motion to suppress should have been denied.

††††††††††† IT IS THEREFORE ORDERED that this Court reverses the order granting the defendantís motion to suppress, and this case is remanded to the trial court for action consistent with this Order and Opinion.

††††††††††† DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of April, 2008.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Joseph A. Bulone

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

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

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Cynthia J. Newton

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Court Judge

cc:††††††† Office of the State Attorney

 

††††††††††† Honorable John Carassas

 

††††††††††† J. Kevin Hayslett, Esquire