County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — The trial court properly found that the officer had probable cause to arrest Appellant for driving under the influence.  Trial court’s order denying Appellant’s motion to suppress affirmed.  Jimmy Gasper v. State of Florida, No. CRC09-003596-CFAES (Fla. 6th Cir. App. Ct. August 25, 2010).

 

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

 

JIMMY GASPER,     

                    Appellant,

                                                                      UCN:            512009CF003596A000ES

v.                                                                   Appeal No:   09-03596CFAES

                                                                      Lower No:    08-9389XAUTES

 

STATE OF FLORIDA,                                    

                    Appellee.                                             

________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole

 

Frank D. L. Winstead, Esq. 

for Appellant

 

Kenneth V. Compton, A.S.A. 

for Appellee

 

 

 

 

ORDER AND OPINION

 

          Appellant appeals a county court order denying his Motion to Suppress.  We find that the trial court properly found that the officer had probable cause to arrest Appellant for driving under the influence.  This Court affirms the trial court’s order.

 

 

FACTUAL BACKGROUND

On the night of June 8, 2008, Appellant and his friend were repairing Appellant’s truck.  They managed to get the truck running and wanted to see if they could keep the engine going.  Appellant drove it down the road for a trial run.  When the truck stalled, Appellant got out and ran beside it.  Appellant lost control of the truck and tried to stop it by hanging on to it as it was rolling away.  The truck sideswiped a pole before crashing into a fence.  About four to five minutes had elapsed between the time it stalled out and hit the fence.  After it crashed, the truck would no longer start.  They pushed the truck back, hooked a chain to it, and moved it away from the fence.   

Trooper Christopher J. Kraus was dispatched to the crash scene.  When he arrived, Appellant was outside his truck, which was in the middle of the road.  The truck had minor damage around its bumper.  Appellant had slurred speech, poor balance, alcohol on his breath, and bloodshot eyes.  Appellant was swaying, then would lean or sit on the tailgate of his truck.  Appellant admitted he was the driver and had consumed a quart of beer. 

          Trooper Kraus told Appellant that he had completed his crash investigation and that he was going to start a DUI investigation.  Appellant consented to field sobriety exercises.  Appellant did poorly on the HGN.  On the finger-to-nose exercise, Appellant failed to return his arm to his side, missed the tip of his nose with his index finger, and used the wrong hand.  After the field sobriety exercises, Trooper Kraus read Appellant his Miranda rights and told Appellant that he was being placed under arrest.  Appellant was charged with Driving While Under the Influence of Alcohol and careless driving. 

          Appellant filed a motion to suppress on October 7, 2008.  In that motion, Appellant argued that the HGN test, the field sobriety test, and the breath test should be suppressed because the officer did not have probable cause to believe that Appellant was driving the vehicle.  A hearing was held on the motion, on December 16, 2008, before the Honorable Robert P. Cole.  A written order denying Appellant’s motion to suppress was entered on January 12, 2009.  The order stated that the officer had reasonable suspicion to believe Appellant had driven the car to the scene; witnesses put Appellant behind the wheel; and the officer had probable cause to arrest. 

Appellant subsequently pleaded no contest to the charges, but reserved the right to appeal the denial of his motion to suppress.  On June 19, 2009, he was adjudicated guilty on the DUI charge and placed on probation for one year; the careless driving charge was dismissed.  Appellant filed a timely notice of appeal, on June 24, 2009.

 

LAW AND ANALYSIS

          It is well established that a misdemeanor must be committed within an officer’s presence.  Florida Statute 316.645, however, authorizes an officer who arrives at the scene of a traffic crash to arrest any driver after investigating and developing probable cause to charge DUI.  See DHSMV v. Williams, 937 So. 2d 815, 817 (Fla. 1st DCA 2006).  In this case, the officer who investigated the traffic crash involving Appellant clearly had probable cause to arrest Appellant for driving under the influence. 

          Trooper Kraus was dispatched to the scene to investigate the crash involving Appellant.  The trooper determined from independent witnesses that Appellant was driving the truck.  When the it stalled, Appellant got out of the truck and ran alongside it.  Appellant unsuccessfully tried to stop the runaway truck by hanging onto it before it crashed into a fence.  Appellant also admitted to driving the truck.  Therefore, Trooper Kraus had sufficient probable cause to determine that Appellant was driving.       

Trooper Kraus also had sufficient probable cause to conclude that Appellant was intoxicated.  At the hearing, Trooper Kraus further testified about the personal observations he made concerning Appellant.  Appellant displayed the classic signs of intoxication: slurred speech, poor balance, alcohol on his breath, and bloodshot eyes.  Appellant swayed when standing and needed to lean or sit on the tailgate of his truck.  In addition, Appellant did poorly on the field sobriety exercises.  Significantly, in the finger-to-nose exercise, Appellant missed the tip of his nose with his index finger, used the wrong hand, and failed to return his arm to his side.  Appellant was unquestionably under the influence.  Based on independent investigation, Trooper Kraus had sufficient probable cause to arrest Appellant for driving under the influence. 

Appellant challenges that the incident involving his truck constituted a traffic crash, as he was not in control of the vehicle at the time of the crash.  We disagree.  The incident involving Appellant and his truck was a continuous chain of events.  As Judge Cole aptly opined, the truck “got there somehow.”  The fact that the truck crashed into the fence makes it a traffic crash, even if Appellant was not behind the wheel at the time of the collision.  Although the truck may have stalled, it was nonetheless in motion on the roadway as Appellant was trying to control the vehicle (albeit unsuccessfully).  Under these facts, Appellant and his truck were involved in a traffic crash.

The trial court properly denied Appellant’s motion to suppress.  The officer had sufficient probable cause to arrest Appellant for driving under the influence, and section 316.645 gave Trooper Kraus that authority.  The trial court’s factual findings were based upon substantial, competent evidence.  Therefore, it is

 

 

ORDERED AND ADJUDGED that the order denying Appellant’s motion to suppress is hereby AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 25th day of August 2010.

 

          Original order entered on August 25, 2010 by Circuit Judges Stanley R. Mills and Daniel D. Diskey.

 

 

DISSENT

          Respectfully, I dissent.  An officer who investigates a traffic crash may arrest the driver of the vehicle involved in the crash when the officer has reasonable and probable grounds to believe that the person was driving under the influence based upon his personal investigation. § 316.645, Fla. Stat. (2009).  The term “traffic” means "[p]edestrians, ridden or herded animals, and vehicles, streetcars, and other conveyances either singly or together while using any street or highway for purposes of travel."  § 316.003(57), Fla. Stat. (2009) (emphasis added).  Under a strict interpretation of the law, the officer did not have authority to arrest Appellant since he was not actually involved in a traffic crash, nor did he witness Appellant driving the truck while intoxicated.    

          Florida Statute 316.645 is in derogation of common law and must be strictly construed.  Therefore, the term “traffic crash” must be read narrowly to include only those things which are clearly within the meaning of the statute.  Appellant’s truck was not being used for the purposes of travel—it was not operable, not occupied, and not under the actual control of anyone when it crashed.  The truck had left the street or highway before it collided with the fence off the roadway.  Moreover, the truck did not come into contact with anything which could be considered “traffic.”  Therefore, under these circumstances, Appellant’s motion to suppress should have been granted.   

 

 

Original dissent entered on August 25, 2010 by W. Lowell Bray, Jr.

 

Motion for Rehearing denied on November 15, 2010.