County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — Appellee’s behavior at the accident scene provided the officer with adequate probable cause to arrest.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. James Carl McKay, No. CRC10-001092-CFAES (Fla. 6th Cir. App. Ct. April 21, 2011).

 

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 PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,     

                        Appellant,

 

                                                                        UCN:              512010CF001092A000ES

v.                                                                     Case No:       CRC1001092CFAES

                                                                        Lower No:    09-0582XBZTEA

 

 

JAMES CARL McKAY,                                         

                        Appellee.                                                      

_____________________________/

Appeal from Pasco County Court

County Judge Robert P. Cole

 

Kenneth V. Compton, A.S.A.

for Appellant

 

Todd Thurow, A.P.D.

for Appellee

 

 

 

ORDER AND OPINION

 

            The State appeals the trial court’s order granting Appellee’s motion to suppress.  The State asserts that Appellee’s behavior at the scene of the accident provided the officer with adequate probable cause to arrest.  We agree.  Therefore, this Court reverses the trial court’s order as set forth below.

 

FACTUAL BACKGROUND

On March 2, 2009, Appellee was issued a traffic citation charging him with DUI.  Appellee filed a motion to suppress the field sobriety exercises and his refusal to take a blood or urine test.  At the February 9, 2010 hearing on the motion to suppress, Trooper Michael Meier testified that he responded to a traffic crash at 2:30 in the afternoon at Boyette Road and Bainwood Lane in Wesley Chapel.  Two cars appeared to have been involved in a head-on collision. 

Appellee was walking side to side from the east side to the west side of the road.  Appellee was on his feet nearly the entire time.  There was a lack of any kind evidence of alcoholic beverages.  Appellee’s cheeks were flushed, pupils were dilated, eyelids were heavy, and eyes were a little bloodshot.  His eye movements were limited to what the neck would provide in that Appellee moved his head instead of just his eyes to see.  Appellee’s speech was “a little mumbly and slurry.” 

Trooper Meier had to instruct Appellee several times for him to understand.  Appellee appeared to understand, but then would do what he wanted anyway.  Several times, Trooper Meier had to pull Appellee out of traffic because he would walk in front of oncoming cars of which Appellee was unaware.  He was slow and clumsy reaching for his wallet; his documents fell out on the floor.  After these observations, Trooper Meier believed that a further investigation for impairment was warranted.  He explained to Appellee that he was switching from conducting a crash investigation to a criminal investigation for DUI at 3:05 p.m. 

Trooper Meier asked Appellee to perform field sobriety exercises.  The results of the HGN were inconclusive.  Appellee offered his breath a couple of times, but Trooper Meier explained that it was not necessary since he did not think that Appellee was under the influence of alcohol.  Appellee did not say that he had any injuries, just that his head hurt.  On the one-leg stand, Appellee did relatively poorly.  Since Appellee did poorly on one leg, Trooper Meier allowed Appellee to try on the other leg.  Appellee held his arms out like an airplane, leaned far to one side, and was unsteady.  He could not keep his foot up for longer than the count of two.  His heel came down about six times, as he dropped it every two counts.  On the walk-and-turn test, Trooper Meier demonstrated it to Appellee two or three times.  Appellee did not have any questions as to how to perform it, even after Trooper Meier told him to feel free to ask and he would explain it again.  Appellee missed his heel to toe every time.  He had trouble keeping balance and used his arms.  Appellee started twice after Trooper Meier told him not to begin until after all the instructions.  Trooper Meier allowed Appellee to repeat the exercise again without his sandals to rule out whether his sandals were contributing to his poor performance.  Appellee still could not do it.  He did not do nine steps in his sandals, and then miscounted altogether on the way back.  Appellee miscounted while barefoot by counting 18 times one way and 20 times on the way back.  Trooper Meier would rate Appellee’s performance on the walk and turn as poor.  All the exercises were performed with his arms out.   

Trooper Meier read Miranda warnings to Appellee at 3:15 p.m.  Appellee claimed that he was not on any medications.  Appellee admitted he was the driver in the crash.  He persistently kept trying to have another man change the car’s tire so it could be driven away.  Trooper Meier was going to have the car towed due to its condition.  The car’s tire was the least of its problems, as it sustained substantial damage. 

Based on Trooper Meier’s experience with traffic crashes and head injuries, Appellee’s conduct was not consistent with a head injury.  Usually someone with a head injury will not feel anything right away.  A couple hours after the crash, they will start feeling the effects and may not be able to stand.  Appellee was dazed, but knew that he had gotten into an accident.  

Once Trooper Meier was confident that Appellee was impaired, he placed him under arrest.  He read Implied Consent to Appellee for a urine test.  Appellee agreed and did not have any questions about what was read to him.  There was some redness on Appellee’s forehead, which would be consistent with a frontal hit.  Appellee’s windshield was damaged.  Appellee only commented that he had a headache.  Appellee had refused medical treatment from EMS two and a half hours prior.  There was no blood on Appellee.  As a precautionary measure, Trooper Meier took Appellee to Pasco Regional to get a medical clearance, which the doctor gave.  The form said that Appellee had a head contusion, but no neurological defect.  Trooper Meier was never able to get urine from Appellee.  He asked him several times at the hospital, but Appellee said that he could not go.  Trooper Meier offered him some water and tried to take him to the restroom.  Appellee still would not produce any urine by 5:27 p.m.

The trial court granted Appellee’s motion to suppress, on February 22, 2010.  The State filed a timely notice of appeal two days later.

 

   

LAW AND ANALYSIS

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).  Our review presents a mixed question of law and fact.  Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998).  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, Appellee’s behavior at the scene of the accident provided the officer with sufficient probable cause to arrest Appellee for DUI.  Trooper Meier testified that although he did not suspect alcohol use, Appellee mumbled, had bloodshot eyes, was confused, and repeatedly attempted to dart across a busy street.  Although Trooper Meier had sufficient probable cause to arrest Appellee with these observations, Appellee’s field sobriety exercises further corroborated the belief that Appellee was under the influence.  Appellee was unable to balance himself on either leg or walk in a straight line.  Nothing in the record indicated that Appellee had an injury that impaired him during the exercises or caused his unusual behavior.  Trooper Meier testified that Appellee’s conduct was not consistent with a head injury.  Even if Appellee had any injury, which would have explained or contributed to his behavior, that alternative explanation would go to the weight of the evidence, not its admissibility.

The trial court improperly granted Appellee’s motion to suppress.  It is clear that Trooper Meier had sufficient probable cause to arrest Appellee.  This Court, however, agrees with the trial court’s written order in that Appellee’s refusal to give urine after his arrest and reading of implied consent are admissible.  This Court also agrees that the probative value of the urine taken hours after the crash is admissible, as it goes to the weight rather than admissibility of the evidence.  The motion to suppress should have been denied as to any fruits of the arrest.  It is therefore,

 

ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion to suppress is hereby REVERSED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 21st day of April 2011.

 

Original order entered on April 21, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.