County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress —Field sobriety tests should not be suppressed based upon their reliability.  Trial court’s order granting motion to suppress is reversed.  Richard Kirkendall v. State of Florida, No. CRC09-00764-CFAES (Fla. 6th Cir. App. Ct. March 4, 2010).












                                                                                    UCN:              512009CF000764A000ES

v.                                                                                 Case No:      CRC09-00764-CFAES

                                                                                    Lower No:    08-8950XAUTES



RICHARD JASON KIRKENDALL, JR.,                                     




Appeal from Pasco County Court


County Judge Robert P. Cole


Kevin Paul, A.S.A.

for Appellant


Todd Thurow, A.P.D.

for Appellee





            Appellant appeals a county court order granting Appellee’s Motion to Suppress.  The issue on appeal is whether field sobriety exercises should be suppressed based upon their reliability.  We find that they should not.  This Court reverses the trial court’s order as set forth below.



On September 21, 2008, at about 7:15 p.m., Trooper Michael Jarabek responded to a vehicular crash involving Appellee.  As Trooper Jarabek was investigating, Appellee appeared to be under the influence of some type of drug.  Appellee was disoriented, confused, and incoherent.  When asked questions, Appellee mumbled and took a long time to answer.  In addition, Appellee’s pupils were constricted; he was pale and physically unbalanced.  Under the totality of the circumstances and his training and experience, Trooper Jarabek believed that Appellee was under the influence of some type of drug despite any possible injuries.     

After investigating the crash, Trooper Jarabek advised Appellee that he was beginning a criminal investigation to determine whether Appellee was under the influence.  Trooper Jarabek asked Appellee if he would be willing to submit to some field sobriety exercises, to which Appellee consented.  The first test was the HGN, of which Appellee had two out of the six clues.  On the walk and turn test, Appellee performed poorly overall.  Appellee could not keep his balance during the instructions, raised his arms for balance during the test, stepped off on the line, stopped walking, and missed heel-to-toe.  Appellee stated that he could perform the one-leg stand; however, he could never get past three thousand without losing his balance and putting his foot down.  Trooper Jarabek allowed Appellee to attempt the one-leg stand several times, but without success.  During the testing, Trooper Jarabek considered that Appellee may have had a head injury, but still believed that drugs had a factor in his performance.  Trooper Jarabek placed Appellee under arrest for Driving Under the Influence.    

Appellee filed a motion to suppress, which was granted by the trial court.  The trial court found that the field sobriety tests were unreliable.  As such, the trial court concluded that there was no probable cause to arrest Appellee for DUI.  The State appeals the granting of the motion to suppress.   





A trial court's ruling on a motion to suppress presents a mixed question of law and fact. Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998).  A trial court's ruling on a motion to suppress is presumptively correct and will be upheld if supported by the record.  Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007); State v. Shuttleworth, 927 So. 2d 975, 978 (Fla. 2d DCA 2006).  An appellate court is bound by the lower court's factual findings if they are supported by competent, substantial evidence. Cuervo, at 160.  However, the trial court's application of the law to the facts is reviewed under the de novo standard.  Williams v. State, 769 So. 2d 404, 406 (Fla. 2d DCA 2000).

In this case, the trial court misapplied the law by suppressing the field sobriety exercises as unreliable.  There is no admissibility requirement that the observations of psychomotor field sobriety exercises be reliable.  Lay observations of such exercises are admissible because they are relevant.  State v. Meador, 674 So. 2d 826, 831 (Fla. 4th DCA 1996); Williams v. State, 710 So. 2d 24, 33 (Fla. 3d DCA 1998).  As long as these exercises are not characterized in such a way that overly emphasizes their significance, they are held to be more probative than prejudicial.  Meador, at 832. 

It is well-settled that the credibility, bias or prejudice of witnesses who testify, as well as the weight to be given their testimony and the evidence presented, are a matter for the consideration of and determination by the jury. Slavin v. Kay, 108 So. 2d 462, 467-68 (Fla. 1958).  In a DUI case with a possible medical explanation for poor performance on field sobriety exercises, an alternate explanation goes to the weight of the evidence, not the admissibility.  Godwin v. State, 9 Fla. L. Weekly Supp. 725 (Fla. 4th Cir. Ct. 2002).  Such relevant evidence is admissible if its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.  § 90.403, Fla. Stat. (2008).  In this case, there was sufficient probative value to support its admission.

The trial court’s finding that the field sobriety exercises were unreliable was not supported by substantial, competent evidence.  Notwithstanding any injury that Appellee may have had, none of the evidence indicated that the field sobriety exercises were unreliable for determining the cause of Appellee’s impairment.  Instead, Trooper Jarabek’s consistent testimony that Appellee appeared impaired during the exercises and that Appellee’s demeanor was predominately caused by some drug, was never refuted.  Moreover, nothing in the record indicated that Appellee’s possible injuries affected Appellee’s performance of the exercises.  Appellant told the officer he could perform the one-leg stand, made multiple attempts without success, and never mentioned that his physical condition was an issue.  Since the officer’s testimony was consistent, and the trial court never raised issues about his credibility, the substantial, competent evidence should not have been disregarded.  It is improper to conclude that an injury per se renders field sobriety exercises unreliable.  Therefore, it is


ORDERED AND ADJUDGED that the order granting Appellee’s motion to suppress is hereby REVERSED, and this case is REMANDED for proceedings consistent with this opinion.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 4th day of March 2010.


Original order entered on March 4, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.