Criminal Court: CRIMINAL LAW – DUI – traffic stop – The court found that the state did not meet its burden
in proving that the investigatory stop was justified; and also found that the weaving within the lane
was not coupled with any other suspicious activity; when sitting as the trier
of fact, the trial judge has the "superior
vantage point to see and hear the witnesses and judge
their credibility.” . Affirmed. State v.
Patton, Case 0704819CFAWS, (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
v. Appeal No: 0704819CFAWS
Lower No: 07851MMAWS
MICHAEL SIMON PATTON,
County Judge Candy VanDercar
Neil P. O’Brien, Esq. A.S.A.
Attorney for Appellant
Randall C. Grantham, Esq.
Attorney for Appellee
ORDER AND OPINION
Appellee was charged with Driving Under the Influence and Driving with an Expired Drivers License. Appellee was also charged with Possession of Marijuana, Possession of Drug Paraphernalia, and Possession of Drugs without Prescription. The appellee filed a motion to suppress, and after an evidentiary hearing, the trial judge granted appelleee’s motion. This Court affirms the decision of the trial court.
At the suppression
hearing, Deputy Bell testified that he received a report from an anonymous
citizen in regards to a driver on the roadway who appeared to have problems
operating his motor vehicle. He testified that the tip came in that it was in
the area of State Road 54 around Little Road and that is where he responded to.
The tip indicated that it was a Ford SUV-type vehicle.
The trial court granted the Motion to Suppress, finding that “the magnitude of the ‘weaving’ as seen on the video, was of a much lesser degree, and of a lesser frequency, than that described in the Officer’s testimony. The defendant’s ‘weaving’ was gradual, occurred only in three or four times within 40 seconds, and in no way affected the safety and driving of other motorists.” The court found that “the defendant’s driving was not of a type that would provide the ‘founded suspicion’ necessary to cause one to believe that the defendant was driving under the influence, having vehicle malfunctions or having a possible health issue.” The court found that the state did not meet its burden in proving that the investigatory stop was justified. The court also found that the weaving within the lane was not coupled with any other suspicious activity, such as a variation in the speed of the vehicle.
However, during his testimony, Deputy Bell explained that there was a portion that wasn’t on video in which appellant had his blinker on before he could get his camera to activate. He also stated that “the same driving patterns that [he] observed when he had his blinker on were evidence in the video, they were weaving within his lane.” He further explained, that before the video appellee was actually to the inside of the fog line on two occasions. He testified that when he went on the outside of his lane, there was other traffic in danger and that is when he deemed that there was a problem whether it be medical or other. He testified that when he was crossing into that lane, there was other traffic affected by that move. The county court chose to disregard the officer’s testimony. This court finds that the trial court did not error.
When sitting as
the trier of fact, the trial judge has the
"superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State, 721 So.2d
1155, 1159 (Fla.1998), cert. denied, 526
ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED.
DONE AND ORDERED in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Neil P. O’Brien, Esq. A.S.A
Randall C. Grantham, Esq.
County Court Judges