County Criminal Court: CRIMINAL LAW – DUI -That the appellant was
found asleep behind the wheel on a “desolate” roadway is not persuasive in
showing that the appellant’s actions did not constitute a breach of the peace.-appellant
was the only person in the car the only reasonable inference is that the
appellant drove drunk. The ‘color of office’ doctrine only applies to prevent
law enforcement officials from using the power of their office to observe
unlawful activity or gain access to evidence not available to a private citizen.
Affirmed. Johnson v. State, Case 074042CFAES (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
MICHAEL KIM JOHNSON, Appeal No: 074042CFAES
Appellant, Case No: 07506713WTES
Judge William Sestak
Robert W. Attridge, Jr., Esq.
William K. Joseph, Esq.
ORDER AND OPINION
The appellant was arrested on February 25, 2007 for DUI. Appellant filed a Motion to Suppress and a hearing on the motion was held on June 28, 2007. The trial court denied appellant’s Motion to Suppress and appellant seeks review. The Order of the trial Court is affirmed.
At the hearing, Officer Stone testified that on February 27, 2007, he
was working as a Dade City Police Officer and had jurisdiction in the city
Stone testified that when he approached the vehicle, the driver’s side window was up. He testified that while walking up to the vehicle, he could smell a strong odor of alcohol and observed what appeared to be a liquid that had been spilt down the driver’s side of the truck. Officer Stone attempted to make contact with the driver and after receiving no response, contacted the sheriffs office requesting a deputy respond to the location for a possible DUI investigation. After he was advised that a deputy had been dispatched, he went back up to the vehicle. He could see that appellant, who was behind the wheel, was still breathing. After receiving no response, he opened appellant’s door. He attempted to make contact again. Stone testified that appellant was very groggy. He wouldn’t wake up right away and then fell back asleep again. At that point, after smelling a rather strong odor of alcohol coming from the vehicle, the officer removed the key from the vehicle, which was still running. Stone explained that he actually had to give him what’s known as a sternum rub to wake him up. Stone then identified himself as a law enforcement officer and engaged him in a conversation awaiting the arrival of Deputy Chittum.
Deputy Chittum testified that after coming into contact with the appellant, he conducted his own investigation, which led him to believe the appellant was under the influence. Following his investigation, Chittum placed the appellant under arrest.
The trial court found that Officer Stone was justified in reaching in the appellant’s vehicle, “in effect, seizing him by taking the keys to the vehicle,” and cited State v. Furr, 723 So. 2d 842 (1st DCA 1999).
In Furr, the court held that “the standard applied to an extra-jurisdictional police arrest is the same as that applied to a citizen’s arrest.” 723 So. 2d 842 (1st DCA 1999). The court in Edwards v. State, explained the standard for a citizen’s arrest, “[a] private citizen may arrest a person who in the citizen’s presence commits a felony or breach of the peace, or felony having occurred, the citizen believes this person committed it.” 462 So. 2d 581 (Fla. 4th DCA 1985),
It is well settled
that driving under the influence is a breach of the peace. In Edwards, the court held that a drunk driver at the
wheel of a killing machine that is going all over the road and scaring
on-coming drivers to death is an apt illustration of breach of the peace. In Furr, the court held that the defendant had
committed a breach of the peace by driving under the influence and the court rejected
the defendant’s argument that “drunk driving on a less traveled stretch of
rural roadway is not a breach of the peace. See also, State v. Carbone, 0600797CFAES (
Here, the evidence indicates that at the time, Officer Stone observed the appellant’s vehicle on the side of the roadway, partially obstructing the intersecting roadway with the engine running, the headlights on and the driver slumped over in the driver’s seat. Stone approached the vehicle and noticed the smell of alcohol emitting from the side of the vehicle. Based on his observations, Officer Stone could reasonably conclude that the defendant was in actual physical control of the motor vehicle and was under the influence of alcohol, and could effectuate a valid citizen’s arrest.
That the appellant
was found asleep behind the wheel on a “desolate” roadway is not persuasive in
showing that the appellant’s actions did not constitute a breach of the peace.
As the appellant was the only person in the car the only reasonable inference
is that the appellant drove drunk. See Fox v. DHSMV, 9 Fla. L. Weekly
Supp. 733 (
appellant’s argument that Officer Stone was acting under ‘color of office’ is
without merit. The ‘color of office’ doctrine only applies to prevent law
enforcement officials from using the power of their office to observe unlawful
activity or gain access to evidence not available to a private citizen.
IT IS THEREFORE ORDERED that the Order of the trial court is AFFIRMED.
DONE AND ORDERED
in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Robert A. Attridge, Jr., Esq.
William K.Joseph, Esq. ASA
County Court Judges