November 2011 Updates. Part I

STACHURA  v. STATE, DHSMV, 18 Fla. L. Weekly Supp. 1073a (15th Jud. Cir., Aug 25, 2011) – Defendant seeks review of the suspension of his driver’s license based upon his refusal to submit to a breath test. Defendant argues that the suspension should be quashed because the law enforcement officer who requested the breath test did not suspect that Stachura was under the influence of alcohol.

The Deputy Sheriff specifically stated that based upon his observations:

I did not suspect alcohol but rather drugs, particularly a CNS depression due to his above-mentioned indicators such as being very drowsy, dazed, disoriented, and extremely uncoordinated. Again, it should be noted that I did not suspect ETOH1 since I did not observe any odors of alcohol.

The Court is to strictly interpret Florida’s implied consent laws. State v. Demoya, 380 So. 2d 505 (Fla. 3d DCA 1980). The Implied Consent Law clearly states that the consent to a breath test is for the purpose of determining the alcoholic content of the driver’s breath. The Implied Consent Law further states that the law enforcement officer requesting the breath test must have reasonable cause to believe the driver was under the influence of alcoholic beverages.

It is clear from the record that the Stachura’s license was suspended based solely upon his refusal to submit to a breath test, despite the fact that the law enforcement officer who requested the test did not suspect that Stachura was under the influence of alcohol. Based upon the foregoing, the Petition for Writ of Certiorari is hereby GRANTED and the order of suspension is QUASHED.

RIVERO vs. STATE, 18 Fla. L. Weekly Supp. 1075b (11th Jud. Cir., Aug 23, 2011) – The Defendant appeals a final judgment from a finding of guilt, a withhold of adjudication and a restitution order following a bench trial.
The Defendant was charged by information with criminal mischief, causing damage of $200 or less to a motor vehicle a second degree misdemeanor. A bench trial was held and the Defendant was found guilty and adjudication withheld. The court ordered an amount of $100 as partial restitution “to hire an expert.”
On appeal, the Defendant asserts that the trial court erred in conducting a bench trial in the absence of any written or oral waiver by the Defendant of her right to a jury trial – The trial court misapplied the burden of proof in requiring the Defendant to present evidence of her innocence – Imposing restitution of $100 in the absence of competent evidence.
The trial court’s announcement that this was a “minor crime” incorrectly construed the charge as a petty offense precluding a jury trial. The Florida Constitution recognizes the right to a trial by jury in those cases “in which the right was recognized at the time of the adoption of the State’s first Constitution.” State v. Webb, 335 So. 2d 826 (Fla. 1976). The Supreme Court of Florida has expressly recognized that criminal mischief is a malem in se crime, indictable at common law. As such, a defendant has a right under our U.S. and Florida Constitutions to a jury trial. Reed v. State, 470 So. 2d 1382 (Fla. 1985).
A defendant may waive his/her constitutional right to a jury trial either in writing or orally. However, the record must contain a sufficient showing that the waiver was knowingly, intelligently and voluntarily made. State v. Upton, 658 So.2d 86(Fla. 1995) [20 Fla. L. Weekly S387a]; Tucker v. State, 559 So. 2d 218 (Fla. 1990). The record fails to disclose a written waiver of the Defendant’s right to a jury trial. Equally absent is an in-court colloquy regarding the Defendant’s waiver of a jury trial. Absent a valid waiver of the Defendant’s fundamental right to a jury trial, the error cannot be deemed harmless or considered a procedural right that has been waived.
Because we find that the trial court committed reversible error requiring a new trial, we do not need to address the claim of improper shifting of the burden of proof to the Defendant. As restitution must again be addressed during a retrial, we also address that issue here. No evidence was presented during the trial on the issue of damages, nor was a restitution hearing held after trial. The court simply ruled that the victim would require at least one hundred dollars ($100) to secure an expert to testify on damages at a future restitution hearing. This was error. Substantial competent evidence must be presented to justify an award of restitution. Koile v. State, 902 So. 2d 822 (Fla. 5 DCA 2005) [30 Fla. L. Weekly D168a]. Such an award must be based upon evidence of actual losses incurred by the victim due to the defendant’s criminal conduct. Glaubius v. State, 688 So. 2d 913 (Fla. 1997) [22 Fla. L. Weekly S83c]. The final judgment is reversed and the matter remanded to the trial court for a new trial.

CHOI vs. STATE, 18 Fla. L. Weekly Supp. 1076b (17th Jud. Cir., Aug 5, 2011) – Defendant appeals the Court’s denial of his motion to suppress predicated upon lack of probable cause for the traffic citation of improper backing and his judgment and sentence for DUI blood alcohol above 0.20.
On the morning of January 25, 2009 a Law Enforcement Officer [LEO] of the Sunrise Police Department was standing near a marked police car which was parallel parked to the curb. At approximately 12:22 a.m. Defendant attempted to back his vehicle out of a parking spot which was perpendicular to the police car. At the hearing on the Motion to Suppress LEO testified that the Defendant backed his vehicle to within an inch or half an inch of the officer’s police vehicle. The officer testified that he screamed and slapped the back of the Defendant’s vehicle to get him to stop. The officer then directed the Defendant back to his parking spot. The Defendant was subsequently arrested for DUI blood alcohol above 0.20, driving under the influence and cited for improper backing.
The predicate for the DUI arrest was the improper backing citation. Defendant moved to suppress based upon the lack of probable cause for the issuance of the traffic citation. The underlying facts in this case are virtually indistinguishable from the facts in Nelson v. State, 922 So.2d 447 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D794a]. In Nelson the defendant was parked in a parking area of an apartment complex that connected to an alley. The police officer started to proceed through the alley with his vehicle. The officer stopped to see if the defendant’s vehicle was going to exit. The defendant’s vehicle did not and the officer proceeded. At that point the defendant’s vehicle started to back up. The officer stopped his vehicle suddenly and activated his emergency lights. Id. at 449. The issue in Nelson, as well as here, was whether the defendant “interfered with other traffic” in violation of section 316.1985 (1).
The trial court specifically noted there was “no traffic here. He’s parked”. Based on the trial court’s factual finding of “no traffic here” there can be no violation of section 316.1985 (1) since there was no traffic with which to interfere. Accordingly, there was no probable cause for the vehicle stop; the stop was invalid. Since the stop was invalid the trial court erred in denying the motion to suppress. See Nelson at 450. The judgment and sentence are reversed.

STATE v. DICKEY, 18 Fla. L. Weekly Supp. 1077b (17th Jud. Cir., Jul 28, 2011) – THIS CAUSE comes before the Court, sitting in its appellate capacity, upon Appellant’s timely appeal of the trial court’s non-final order granting Defendant/Appellee’s motion to suppress. The motion contended that any evidence obtained by the police officer was obtained as a result of an unlawful stop of the defendant’s vehicle.
The officer observed that once the Appellee reached the intersection, the traffic light remained green and the Appellee did not move for possibly a few seconds to make the right turn while there was another vehicle behind him. The one vehicle behind the Appellee started honking and the Appellee proceeded to make the right turn. The Officer had positioned his patrol vehicle behind the Appellee’s vehicle to conduct a traffic stop. The Officer observed that as the Appellee made the right turn, Appellee’s headlights were turned off. The Officer proceeded to make a right turn behind the Appellee’s vehicle and activated his emergency lights to conduct a traffic stop. The Appellee proceeded to pull into a Wal-Mart parking lot about 200 to 300 feet away. As the Appellee was pulling into the Wal-Mart parking lot, his lights came on. Once the Appellee’s vehicle came to a complete stop, the Officer approached the Appellee’s vehicle and asked the Appellee for his license, registration and insurance. As the officer approached the vehicle, he noticed that the left rear tire was flat. The Officer stated that he was not sure how long the Appellee’s headlights were off and admitted that they could have been off for half a second.
Appellant’s sole point on appeal is that the trial court erred in granting Appellee’s motion to suppress, where the police officer had reasonable suspicion to believe that the Appellee, driving after midnight without headlights, violated the traffic laws.
The Florida Supreme Court has recognized that a police officer, in order to conduct a lawful traffic stop, must have at least an articulable and reasonable suspicion that either the vehicle or an occupant is otherwise subject to seizure for violation of law. Hilton v. State, 961 So.2d 284, 294 (Fla. 2007) [32 Fla. L. Weekly S401a]. “While reasonable suspicion is a less demanding standard than probable cause . . . the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Id. A court determining whether an officer had reasonable suspicion of criminal activity must look at the totality of the circumstances. Id. The totality of the circumstances analysis requires that, “[b]ased upon the whole picture . . . detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 418 (1981). Thus, the correct test to determine the validity of a traffic stop is “[w]hether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.” Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So. 2d 1171, 1174 (Fla. 2004) [29 Fla. L. Weekly S80a]; See Whren v. United States, 517 U.S. 806, 813 (1996) (the reasonableness of a traffic stop depends solely on the validity of the basis asserted by the officer involved in the stop). Based on the evidence presented in the court below, this Court finds no error in the trial court’s finding that Officer Escobar did not have the requisite reasonable suspicion to perform the traffic stop. First, there were no actions on the part of Appellee that would have raised a reasonable concern for his safety or create a presumption that he might be sick. As it relates to the driving without lights for a short period of time, the Officer himself admitted that the lights could have been off for half a second. The enforcement of the law has to be reasonable within the totality of the circumstances. As such, this court does not find error in the trial court’s determination that the Officer did not develop reasonable suspicion that a criminal offense had been committed when the Appellee was driving without lights for possibly half a second, even when combined with the slow driving pattern.
While the Appellant further contends that Appellee’s slow driving pattern impeded traffic, which created another factor to justify the traffic stop, this Court disagrees. The Officer admitted that he observed the Appellee’s slow driving pattern as he was approaching the right turning lane, and there was only one vehicle behind the Appellee when he stopped at the intersection. The totality of the circumstances indicates that there was nothing unusual about a car driving below the speed limit. Appellee was approaching an intersection where he stopped for a short period of time and proceeded to complete the turn as another vehicle honked at him. It was reasonable for the Appellee to approach an intersection in which he was planning to make a turn at a reduced speed. Furthermore, the Appellee did not impede any traffic because there was only one vehicle behind the Appellee who was able to continue as soon as the Appellee’s vehicle completed the turn.
ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion to suppress is hereby AFFIRMED.

CHERRY v. DHSMV, 18 Fla. L. Weekly Supp. 1079b (9th Jud. Cir., Aug 23, 2011) – Petitioner timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (“Department”) Final Order of License Suspension. In the Petition for Writ of Certiorari, Petitioner argues the following: 1) The arresting law enforcement officer [LEO] never advised her that her failure to submit to the field sobriety exercises would be used against her thus, creating a “safe harbor” situation. LEO used the field sobriety exercise refusal as part of his factual basis to arrest Petitioner. Because Petitioner was in a safe harbor situation, her refusal to submit to the field sobriety exercises did not provide an adequate basis, rising to a probable cause level, to arrest her; 2) Under the totality of the circumstances, when making the arrest, LEO did not have probable cause to believe that Petitioner was driving or in actual control of a motor vehicle while impaired; 3) When Petitioner requested her attorney and requested a blood test, LEO improperly read the “Hoch” form, per Hoch v. State, 500 So. 2d 597 (Fla. 3d DCA 1986); 4) When Petitioner requested a blood test, she was not provided with assistance as required under section 316.1932(1)(f)3., Florida Statutes; 5) Petitioner did not refuse to take the breath-alcohol test because she provided two breath samples as evidenced by the video tape; and 6) Petitioner was denied her right to counsel. From review of the court record, this Court finds, as stated below, that Petitioner’s arguments IV and V are clearly with merit and dispositive as to the other arguments.
Petitioner cites the case Unruh v. State, 669 So. 2d 242 (Fla. 1996) [21 Fla. L. Weekly S104a] where the Florida Supreme Court held that law enforcement officers are required to render reasonable assistance in helping motorists arrested for driving under the influence to obtain an independent blood test upon request. The Department argues that before Petitioner had the right to request a voluntary blood test, she was required first to submit to the breath-alcohol test. According to the Department, Petitioner’s failure to provide valid samples resulted in a refusal to submit to the breath-alcohol test and thus barred her from obtaining a blood test.
This Court reviewed the video at the DUI testing center where Petitioner repeatedly requested a blood test and was not provided with any assistance from the LEO, the breath technician, or anyone at the DUI testing center such as providing her with telephone access to make arrangements for the test. Further, this Court finds that the Department’s response to this argument is without merit because competent substantial evidence is lacking that Petitioner refused to submit to the breath-alcohol test as addressed in argument V of her Petition.  The Supreme Court of Georgia in Burson v. Collier, 226 Ga. 427; 175 S.E. 2d 660 (Ga. 1970) held that suspending a person’s driver’s license greatly hinders that person’s use and enjoyment of an item of that person’s personal property and thus, the statute providing the authority for the license suspension should be strictly construed. When statutes do not explain what constitutes a “complete” breath-alcohol test, a showing that a person did not complete the test (within the judgment of the operator) is not evidence of a refusal to submit to a breath-alcohol test within contemplation of the statute. To consider this information as evidence, would provide the operator with an unfettered right to determine what is and what is not a complete test. Burson, 175 S.E. 2d at 662.
In the instant case, the applicable Florida statutes under chapters 316 and 322 do not explain what constitutes a “complete” breath-alcohol test. The breath technician and the LEO decided to determine an “implied refusal” after the second breath-alcohol test time frame. The Department’s argument that the samples are invalid solely because Petitioner did not perform the test to the breath technician’s satisfaction is not persuasive. To apply the Department’s argument could open the door to a pattern of providing breath technicians and law enforcement officers with unrestrained power when determining what is and what is not a complete test. Therefore, a showing that Petitioner did not complete the test (within the judgment of the breath technician) should not be considered as evidence of a refusal to submit to a breath-alcohol test within contemplation of the statutes. Accordingly, the Department failed to meet its burden as to the required element under section 322.2615(7)(b)2., Florida Statutes, because it did not show by a preponderance of the evidence that Petitioner’s driver’s license was suspended because she refused to submit to the breath-alcohol test after being requested to do so by the law enforcement officer.
Based upon the court record, this Court concurs with Petitioner’s arguments IV and V and finds that the hearing officer’s decision to sustain Petitioner’s license suspension departed from the essential requirements of the law and was not based on competent substantial evidence. Petition for Writ of Certiorari is GRANTED and the hearing officer’s Final Order of License Suspension is QUASHED.

Eric J Dirga, PA

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: