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 (Fla. 6th Cir.App.Ct. February 7, 2008).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

 

MICHAEL KIM JOHNSON,                                     Appeal No: 074042CFAES

                        Appellant,                                             Case No: 07506713WTES     

                                                                                   

v.

 

 

STATE OF FLORIDA,                                                                    

                        Appellee.

_____________________/    

 

Judge William Sestak

 

Robert W. Attridge, Jr., Esq.

for Appellant.

 

William K. Joseph, Esq.

for Appellee.

 

 

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 limits of Dade City.  He explained that Powerline Road and Bird Road were not within his jurisdiction. On that date, he had been requested to take a dispatcher home and dropped her off  at her residence which is further north of Powerline Road. He was returning to the city when he came into contact with the appellant. Stone testified that he observed a vehicle located at the intersection of Powerline Line Road and Bird Road, with the vehicle’s driver’s side tires on the asphalt pavement area, and also partially blocking Bird Road. Officer Stone observed that the vehicle’s lights were on and that there was a subject slumped over towards the door area. Officer Stone then made contact with the vehicle.

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 (Fla. 6th Cir. App. Ct.  February 2, 2007) Petition for Writ of Certiorari denied, Carbone v. State, 2D07-901 (Fla. 2d DCA 2007) (officer entitled to stop defendant outside his jurisdiction for a beach of the peace where officer had objective reasons to suspect the defendant was driving under the influence).

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 (Fla. 9th Cir. Sept. 27, 2002), which found defendant in actual physical control “since the truck did not drive to C & W’s parking lot by itself, and it did not park itself inappropriately in the middle of C & W’s driveway, the only reasonable inference under the circumstances is the petitioner drove drunk.” 

Finally, 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.  Phoenix v. State, 455 So. 2d 1024 (Fla. 1984). Here, Officer Stone was not acting in his capacity as a police officer when he detained the appellant following his observations leading him to believe the appellant was driving under the influence.  Officer  Stone was acting in his capacity as a citizen in effectuating a “citizen’s arrest.”  As Officer Stone’s testimony indicates,  before he made any contact with the driver he requested a Pasco County Sheriff’s Deputy respond to the scene. His remaining actions were that of a citizen and not meant to elicit any evidence that a regular citizen could not obtain. Instead, the appellant was arrested by Deputy Chittum of the Pasco County Sheriff’s Office following an independent investigation that included field sobriety exercises and a breathalyzer.  

IT IS THEREFORE ORDERED that the Order of the trial court is AFFIRMED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of __________, 2008.  

 

                                                                        ________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

Robert A. Attridge, Jr., Esq.

William K.Joseph, Esq. ASA

County Court Judges