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Criminal law -- Driving under influence -- Search and seizure -- Detention -- Where defendant who was stopped for speeding responded to request to stop upon seeing emergency lights, produced documents in ordinary manner and was allowed to drive vehicle to nearby location for further investigation, and only indicia of impairment initially noted by trooper was speeding and odor of alcohol, trooper did not have reasonable suspicion for DUI investigation -- Motion to suppress is granted

STATE OF FLORIDA, Plaintiff, v. STEVEN M. LEONARD, Defendant. County Court, 16th Judicial Circuit in and for Monroe County, Middle Keys Criminal Division. Case No. 2010-CT-640-M. October 20, 2011. Honorable Ruth Becker, Judge. Counsel: Michael Litrenta, Assistant State Attorney, Marathon, for Plaintiff. Donald C. Barrett, Attorney at Law, Key West, for Defendant.

Order Granting Defendant's Motion To Suppress

This matter came before the Court after hearing October 20, 2011, and the Court having heard testimony, arguments of counsel, and reviewing applicable law, finds as follows:

Introduction

Defendant argues that after the stop of his car for speeding, there was no reasonable suspicion of impairment sufficient to warrant an investigation for Driving Under the Influence (DUI).

Facts

At approximately 7:30 p.m., August 25, 2010, Florida Highway Patrol Trooper Marcos Diaz, observed Defendant driving at a high rate of speed on the Seven Mile Bridge in Monroe County, Florida. The Trooper turned to follow the car, and conducted a traffic stop at the ?southern? end of the Bridge. At the time Trooper Diaz spoke with Defendant, the driver and sole occupant (other than a small dog), he noticed a strong odor of an alcoholic beverage about the facial area of the Defendant. While not immediately locating his registration, the Defendant was able to provide that document, as well as his license and proof of insurance in a manner that was ?nothing out of the ordinary.?

Trooper Diaz made no mention of any other indicia of impairment in his Arrest Affidavit, nor upon questioning under oath at his deposition on January 5, 2011. Trooper Diaz did testify that in his Alcohol Influence Report, completed later in the evening, he noted mumbled speech and bloodshot, watery eyes.

The Defendant made no statements concerning consumption of alcoholic beverages.

Additionally, it was indicated that the Defendant expressed concerns to the Trooper about the location of the stop. The Trooper allowed the Defendant to drive his car to another location, albeit nearby, for further investigation.

Trooper Diaz did candidly admit that he was rather inexperienced at the time of the stop. He testified that his omission of certain facts may have been the result of that inexperience.

Application of Law and Conclusions

Defendant argues that speeding and the odor of an alcoholic beverage, standing alone, do not constitute sufficient reasonable suspicion for a DUI investigation.

The State argues that as in Origi v. State, 912 So.2d 69 (4DCA2005) [30 Fla. L. Weekly D2302a], and State v. Amerqrane, 39 So.3d 339 (2DCA2010) [35 Fla. L. Weekly D1148b], there was a sufficient basis for the DUI investigation. In Origi, the Defendant was driving 90 miles per hour (mph) in a 60 mph zone. He did not immediately respond to the emergency lights, and passed an exit before stopping on the shoulder of the road. At the time of the stop, the officer testified that he smelled an odor of alcoholic beverage and saw bloodshot, watery, glassy eyes. The Defendant was seen staggering and using the door as a brace to get out of the vehicle. He swayed side-to-side, and his speech was noticeably slurred.

In Amerqrane, the Defendant was seen speeding at around 4 o'clock in the morning. When stopped, the officer observed alcohol on the Defendant's breath, and noticed his eyes to be bloodshot and glassy. The Defendant admitted that he had consumed alcohol. He also performed the Horizontal Gaze Nystagmus exercise, with results indicating consumption of ?quite a bit? of alcohol.

The Defendant cites several cases in support of his argument, and distinguishes those cited by the State. Defendant argues that in all cases cited, there were additional factors not present in the case at bar. Yet, in all cases cited, the Courts found no basis for law enforcement to conduct a DUI investigation.

In State v. Amanda Sue Scott, 17 Fla. L. Weekly Supp. 1075a, January 6, 2010, Defendant was stopped for speeding. She produced her documents without incident. The officer testified that he detected the odor of alcohol, glassy, red eyes, but no slurred speech. She admitted consuming two beers and a glass of wine. No infractions other than speeding were observed.

The trial court in Scott concluded that there was no evidence of impairment by alcohol. Rather, the court found that the officer did not testify to any observations indicating impairment, as opposed to consumption, of alcohol. The Circuit Court in Scott upheld the trial court's granting of the motion to suppress.

The other cases cited by Defendant are State v. Leach, 11 Fla. L. Weekly Supp. 669c; State v. Negron, 15 Fla. L. Weekly Supp. 727a; State v. Littlefield, 13 Fla. L. Weekly Supp. 1000a; State v. Medina-Moya, 11 Fla. L. Weekly Supp. 309a; and State v. Knuth, 18 Fla. L. Weekly Supp. 470a.

The Court is persuaded by the arguments of the Defendant and the authorities cited. In this case, the Defendant was stopped for speeding at about 7:30 p.m. on an August evening. He responded to the Troopers request to stop upon seeing the emergency lights of the police car. He produced his documents in a manner indicated to be nothing out of the ordinary. He was also allowed to drive his car to a nearby location for further investigation. Trooper Diaz did not testify to initially noting any indicia of impairment, other than speeding and the odor of an alcoholic beverage.

It is therefore Ordered and Adjudged that Defendant's Motion to Suppress is granted.