19 Fla. L. Weekly Supp. 373a
Online Reference: FLWSUPP 1905BRANCriminal law — Driving under influence — Speeding — Search and seizure — Field sobriety exercises — Neither odor of alcohol emanating from vehicle and defendant’s person, observation of “slightly” bloodshot eyes after officer removed defendant from vehicle, nor fact that defendant was driving at an estimated speed of 46 mph in a 35-mph zone provided the reasonable suspicion necessary to justify requesting that defendant perform field sobriety exercises — Motion to suppress granted
STATE OF FLORIDA, vs. CARL BRANTLEY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 11-38059-MMAES. August 31, 2011. David B. Beck, Judge.
ORDER
THIS CAUSE having come to be heard on the Defendant’s Motion to Suppress and the Court having heard the testimony of Officer Joseph B. Hunchard, New Smyrna Beach Police Department, arguments of counsel, reviewed decisional law and being otherwise advised in the premises finds:
Defendant was arrested on May 10, 2011 and charged with Driving under the Influence and Speeding. The Defendants motion seeks to suppress all evidence obtained as a result of his arrest; Defendant asserts as grounds that the Officer had no reasonable suspicion of driving under the influence in order to arrest the Defendant.
The Defendant was southbound on Ridgewood Avenue (US 1) in New Smyrna Beach at approximately 9:48 p.m. Officer Hunchard was performing stationary traffic enforcement and observed the Defendant’s vehicle traveling toward him at a speed estimated to be 46 M.P.H. an hour in a 35 M.P.H. hour zone. He immediately pulled out and conducted a traffic stop on, the Defendant. The Officer’s testimony was that he pulled behind the Defendant at a red light and as the Defendant accelerated from the red light he straddled two lanes of traffic. His testimony was contradicted by a review of Composite Exhibit 1, the dashboard cam disc. Upon making the stop and contacting the Defendant the Officer noted an order of alcohol emanating from “his person” and the vehicle. He asked the Defendant for his license registration and insurance. The Officer testified that the Defendant provided the license and insurance directly, but struggled for perhaps up to two minutes before finding his registration. Again, Composite Exhibit 1 contradicted this testimony Defendant upon request produced the registration in a matter of 5 to 20 seconds. The Officer then returned to his patrol car and spent approximately 8 ½ minutes writing a speeding ticket and checking the Defendants driving record. He then re-approached, the Defendants vehicle and asked him to get out. Exhibit I indicated the Officer wanted to give the Defendant a ticket because he wanted to “check his eyes”. Defendant accompanied the Officer back to the patrol vehicle were Officer Hunchard performed the HGN test. Officer Hunchard is not qualified as a DRE, nor has he performed enough tests to allow testimony regarding any of the HGN results. However based upon the HGN Officer Hunchard then determined that he had sufficient probable cause to proceed to other Field Sobriety Tests. Based upon the results of those tests he felt the Defendant was under the influence placed him under arrest and transported him to the New Smyrna Beach Police Department. He read the Defendant Florida Implied Consent and asked him to provide a breath sample which Defendant declined.
The Defendant asserts that the evidence should be suppressed because the Officer did not have a reasonable suspicion to believe That the Defendant was under the influence.
The State counters based on the evidence presented that there was sufficient evidence and the motion should be denied.
In this case, the Court agrees with the Defendant. In order for an Officer to request that a driver submit to Field Sobriety Tests he must have reasonable suspicion that the individual is driving under the influence. (State v. Taylor, 752 So.2d 701 (Fla. 1995). See also, Department of Highway and Motor Vehicles v. Haskins, 75 So.2d 625 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2730a]; State v. Brown, 725 So.2d 441 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D368a], 625 (Fla. 2nd DCA 1999,); Department of Highway Safety and Motor Vehicles v. Guthrie, 662 So.2d 404 (Fla. 1st DCA 1995) [20 Fla. L. Weekly D2480b]. See also Origi v. State 912 So.2d 69 (4 DCA 2005) [30 Fla. L. Weekly D2302a]; State v. Knuth 18 Fla. L. Weekly Supp for 470a (7th circuit, Volusia County 2011). A reasonable suspicion is one which has a factual foundation in the circumstances observed by the officer . . . . interpreted in the light of the officer’s knowledge and experience. See Taylor, Origi. In this case, there was as “odor of alcohol” emanating from the person and vehicle. The officer noted “slightly”, bloodshot eyes after (emphasis added) he had removed the defendant from the vehicle. The only other fact for the officer to base his suspicion on was an estimated speed of 46 in a 35 M.P.H. posted zone which by his testimony could vary by as much is 5 mph. There was no other evidence to support Officer Hunchards suspicion. As such, the Court concludes that there was insufficient evidence to support a reasonable suspicion that the Defendant was under the influence and should be required to perform FSEs. See Taylor, Origi, Knuth.
Therefore, the Defendants Motion to Suppress is GRANTED.
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