The first issue considered in any DUI case is whether a legal basis existed for the initial stop or detention. Lawful contacts include, but are not limited to:
- a traffic stop related to a violation of Florida law;
- contact at a Comprehensive Roadside Safety Checkpoint;
- contact at a Driver License or Vehicle Safety Inspection Checkpoint;
- contact at the site of a traffic crash; or
- a consensual encounter with the driver; or
- la welfare check under the community caretaker function.
The second issue is whether the officer prolonged the detention for too long after the stop. Before an officer can detain a driver for longer than what is necessary to write a traffic citation, he must have reasonable suspicion to believe the defendant has committed, is committing, or is about to commit a crime Fla Stat § 901.151(2).
The courts have previously held that although certain characteristics could be attributed to being impaired by alcohol, without observation that driver was actually impaired, reasonable suspicion may not exist. State v. Scott, 17 Fla. L. Weekly Supp. 1075a (Fla. 9th Cir. Ct. 2010).
DUI Defense Attorney for Stop Issues in Tampa, FL
If your DUI case involves a possible bad stop or prolonged detention, then contact an experienced criminal defense attorney at Sammis Law Firm. We focus exclusively on criminal defense with an emphasis on DUI defense in the Tampa Bay area.
Our main office is located in downtown Tampa, FL. Our second office is located in New Port Richey in Pasco County, across from the courthouse at the West Pasco Judicial Center.
Call 813-250-0500 to discuss your case.
Legality of the Investigatory Stop
An investigatory stop is permitted even without a traffic violation so long as the stop is supported by a reasonable suspicion of impairment, unfitness, or vehicle defects. Esteen v. State, 503 So.2d 356, 358 (Fla. 5th DCA 1987). In State v. Vinci, 146 So.3d 1255, 1258-59 (Fla. 2d DCA 2014), the court found that “[i]n order to effect a valid stop for DUI, the officer need only have a ‘founded suspicion’ of criminal activity.”
In State v. Davidson, 744 So. 2d 1180, 1180-1181 (Fla. 2d DCA 1999), the court reversed an order granting a motion to suppress where evidence of abnormal driving, albeit not amounting to a traffic violation, justified a stop based on reasonable suspicion of impairment.
In Yanes v. State, 877 So.2d 25, 26-27 (Fla. 5th DCA 2004), the court held that a police officer’s observation of vehicle crossing fog line three times in space of one mile provided reasonable suspicion sufficient to justify vehicle stop, irrespective of whether anyone was endangered by such conduct, where nature of vehicle’s abnormal movement caused officer to suspect that driver was impaired or otherwise unfit to drive. Indeed, “[t]he Courts of this State have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or DUI in situations less suspicious than that required for other types of criminal behavior.” Department of Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992)
In Bailey v. State, 319 So. 2d 22, 26 (Fla. 1975), the court reasoned that: “[b]ecause of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation.”
In State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5th DCA 2005), the court reversed an order granting motion to suppress and observing that a law enforcement officer may conduct an investigatory stop even in the absence of a traffic infraction when the vehicle is being operated in an unusual manner.
When Erratic Driving Establishes Reasonable Suspicion for a Stop
The courts have found that erratic driving is sometimes enough to establish a reasonable suspicion for a stop include:
- Roberts v. State, 732 So. 2d 1127, 1128 (Fla. 4th DCA 1999) – continuous weaving within lane;
- Yanes v. State, 877 So. 2d 25, 26-27 (Fla. 5th DCA 2004 – crossing fog line three times within a mile;
- State v. Carillo, 506 So. 2d 495 (Fla. 5th DCA 1987 – weaving within lane;
- State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999 – driving below speed limit on highway and drifting in and out of lane;
- State v. Thomas, 21 Fla. L. Weekly Supp. 1099a (Fla. Brevard Cty. Ct., May 14, 2014) – denying a motion to suppress where defendant driving 10-15 mph below speed limit, crossing center line and fog line on several occasions, and moved into turn lane without signaling;
- Brown v. State, 595 So. 2d 270 (Fla. 2d DCA 1992), affirming trial court’s order denying a motion to suppress where the stopping officer observed the defendant weaving within his own lane and on several occasions slowing to 45 mph before accelerating to 55 mph);
- State v. Bean,12 Fla, L. Weekly Supp. 610b (Fla. 6th Cir. Ct., Appellate, March 4, 2005) – reversing trial court’s order granting a motion to suppress where the law enforcement officer, based upon her training and experience, suspected that the driver was ill or impaired after observing for some time the defendant drift in and out of her lane and, at one point, almost strike a curb.
Legality of a Welfare Check
In Greider v. State, 977 So.2d 789, 792 (Fla. 2d DCA 2008), the court recognized that the officer’s making initial contact with driver of car who was lawfully parked late at night in a park was an appropriate welfare check where the officer testified he was concerned because towels were obscuring the car’s windows.
In Dep’t of Highway Safety & Motor Vehicles v. Luttrell, 983 So.2d 1215, 1217 (Fla. 5th DCA 2008), the court concluded that the officer’s making contact with the driver of parked car supported “a finding of a consensual encounter” and that “[t]he officer was not required to negate each and every possible act or circumstance that might transform a consensual encounter into an investigatory stop.”
Unreasonably Long Detention at Scene
In many DUI cases, the criminal defense attorney will argue that the defendant was detained at the scene for an unreasonably long period of time. The unreasonableness of the detention is grounds to suppress any evidence gathered by any law enforcement officer after the illegal detention began.
While a traffic stop must not last longer than the time necessary to write the citation, reasonable suspicion of criminal activity can justify continued detention. State v. Banfield, 614 So.2d 551 (Fla. 2d DCA 1993), citing Cresswell v. State, 564 So.2d 480 (Fla.1990).
The reasonable suspicion must be based on articulable facts. Cresswell, 564 So.2d at 481. Whether a reasonable suspicion exists depends on the totality of the circumstances.
Even if none of the facts standing alone would give rise to a reasonable suspicion, those same facts, when considered as a whole by an experienced officer, can justify a brief detention. Freeman, 559 So.2d at 296-97.
The definition of “brief” depends on the facts of a given case. Some cases require more detailed and/or time-consuming investigation than others.
The court, when analyzing whether a detention is unreasonable under the Fourth Amendment, must necessarily balance the driver’s interest in going about his business with the State’s compelling interest in ensuring that an impaired driver is not a danger to himself or to members of the motoring and pedestrian public.
In State v. Teamer, 151 So.3d 421 (Fla. 2013), the court found that reasonableness depends upon a balance between the public interest and the individual’s right to personal security free from interference by law enforcement officers.
Bad Stop for Failure to Maintain a Single Lane
Section 316.089(1), Florida Statutes (2015), provides in relevant part that
[w]henever any roadway has been divided into two or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
The Florida appellate courts have refused to find a violation of this statute where a driver’s failure to maintain a single lane did not endanger himself or herself or anyone else.
For example, in Crooks, 710 So. 2d at 1043, the court explained that a violation of section 316.089 “does not occur in isolation, but requires evidence that the driver’s conduct created a reasonable safety concern” and thus reversing appellant’s conviction where there was no evidence how far into the right-hand emergency lane appellant drove on three occasions and where there was no objective evidence that appellant failed to ascertain that his movements could be made with safety.
In Hurd, 958 So. 2d at 603, the court found that the “failure to maintain a single lane alone cannot establish probable cause when the action is done safely.”
While a driver’s failure to maintain a single lane, coupled with a suspicion of impairment, unfitness, or vehicle defects, can give rise to probable cause for purposes of a traffic stop, if there is no testimony that such circumstances existed in the case, then the criminal defense attorney can argue that a bad stop occurred in violation of the Fourth Amendment of the U.S. Constitution.
For example, in Jordan v. State, 831 So. 2d 1241, 1243 (Fla. 5th DCA 2002), the court held that a traffic stop was unlawful where officer’s testimony established that no other vehicles were in danger due to appellant’s failure to maintain single lane and where there was no testimony that appellant was intoxicated or otherwise impaired or that he had been driving erratically.
In State v. Davidson, 744 So. 2d 1180, 1181 (Fla. 2d DCA 1999), the court concluded that a deputy’s observations of appellant maintaining low speeds and continually drifting across the line and jerking vehicle in opposite direction provided deputy with founded suspicion to conduct traffic stop where actions were consistent with those of an impaired driver.
In Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992), the court recognized that that “a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.”
If the officer conducting the stop testifies that the saw the vehicle cross a solid white line on multiple occasions, that may not be a sufficient basis for the stop if the officers acknowledged:
- no other traffic was impacted;
- no bicycles were no the street if a bike lane was present;
- the officer not see any pedestrians affected;
- the officer had no basis to assume that the driver was under any impairment at that time.
In other words, if there is no evidence that the driver’s crossing the white line on one or more occasion created a reasonable safety concern, the stopping officer did not have probable cause to believe that the driver violated section 316.089(1).
Consequently, the traffic stop could not be justified on that basis, and we must next determine whether an investigatory stop was warranted based on any other information.
This article was last updated on Friday, September 13, 2019.