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).
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: 512009CF000764A000ES
v. Case No: CRC09-00764-CFAES
Lower No: 08-8950XAUTES
RICHARD JASON KIRKENDALL, JR.,
Appellee.
_________________________________/
Appeal
from Pasco County Court
County
Judge Robert P. Cole
Kevin
Paul, A.S.A.
for Appellant
Todd Thurow, A.P.D.
for Appellee
ORDER
AND OPINION
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.
FACTUAL BACKGROUND
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.
LAW
AND ANALYSIS
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.