IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN
AND
APPELLATE
DIVISION
SHIVAS HARISH PATEL,
Appellant,
vs.
Appeal No. CRC 03-00092 APANO
UCN522003AP000092XXXXCR
STATE OF
Appellee.
____________________________________/
Opinion
filed ________________________
Appeal
from Judgment of Guilt
Judge
William Overton
Frank
W. McDermott, Esquire
Attorney
for Appellant
Daniel
N. Pawuk, Assistant State Attorney
Attorney
for Appellee
THIS CAUSE came before the Court on appeal, filed by Shivas H. Patel (Patel), from the Judgment of Guilt for DUI, entered December 9, 2003. Patel entered a plea of no contest after the trial court denied his motion to suppress DUI evidence in which Patel argued that the traffic stop was unlawful. Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the judgment as set forth below.
The record shows that on April 22, 2003, at approximately 2:00 a.m., Officer Cook, of the St. Petersburg Police Department, was stopped at a red traffic light with two vehicles ahead of him. When the light turned green, Cook noticed that the first vehicle, driven by Patel, did not move for about 5 seconds, prompting the second vehicle to sound its horn. Officer Cook observed Patel “basically lay on the gas causing the tires to spin, chirp, break free from the pavement and subsequently cause the vehicle to wind up in a fishtail type motion.” Officer Cook also observed Patel’s vehicle spin its tires the width of the intersection, approximately 20 feet, [1] then accelerate over the causeway bridge. Officer Cook conducted a traffic stop as he suspected Patel may be driving under the influence. Upon making contact with Patel, Officer Cook observed signs of impairment and initiated a DUI investigation. Cook failed the subsequent field sobriety tests and was arrested for DUI. The results of the breath tests showed an unlawful breath alcohol level of .145 and .145. No other citations were issued.
On appeal, Patel argues that the trial court erred in
denying his motion to suppress the DUI evidence because Officer Cook lacked
a reasonable suspicion of criminal activity or probable cause that Patel had
committed a traffic violation. In interpreting
the evidence in a manner most favorable to sustaining the trial court’s ruling
and in applying a de novo review of the application of law to the facts, the
Court finds that the trial court’s ruling must be sustained.
See Nicholas v. State, 857 So.2d 980, 981 (
Further, Officer Cook testified that based on his observations of Patel’s “careless” driving behavior and the time of night, “right after bars were closing,” he believed Patel might be driving under the influence. Compare with Dobrin v. Department of Highway Safety and Motor Vehicles, 874 So.2d 1171, 1174 (Fla. 2004)(upholding circuit court’s finding that traffic stop was not lawful as there was no evidence officer thought driver was impaired); see also Tooke v. State, Appeal No. CRC 03-00030 CFANO (Fla. 6th Cir. App. Ct. Feb. 6, 2004)(affirming trial court’s denial of defendant’s motion to suppress when officer testified that he feared driver was impaired and expressed safety concern for other drivers). The Court also finds that, unlike Nicholas, the primary case relied upon by Patel in support of his argument that the stop was unlawful, Patel’s driving behavior did interfere with other traffic; Patel remained stopped at the green light prompting the second vehicle to sound its horn after which Patel accelerated and fishtailed through the intersection. Although there was conflicting testimony presented as to whether or how far Patel’s vehicle fishtailed, it was the responsibility of the trial court to weigh the credibility of the testimony and resolve conflicting evidence. See Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998). Accordingly, the Court finds that there is competent substantial evidence to support the trial court’s ruling.
Therefore, it is,
ORDERED AND ADJUDGED that the Judgment of
Guilt is affirmed.
DONE AND ORDERED in Chambers, at
___________________________________
ROBERT J. MORRIS, JR.
Circuit Judge
___________________________________
IRENE SULLIVAN
Circuit Judge
___________________________________
DAVID A. DEMERS
Circuit Judge
Copies furnished to:
Judge William Overton
Frank W. McDermott, Esquire
St. Pete
Daniel N. Pawuk, Assistant State Attorney