Here is a sample Motion to Dismiss where the court threw out a Gainesville DUI Charge. If you have questions about a DUI Charge in Gainesville Alachua County Visit Gainesville DUI Attorney Lawyer here http://gainesvilleattorneylawyer.com/ or call us. Below is a sample Motion to Dismiss where the court threw out a Gainesville DUI Charge:
IN AND FOR ALACHUA COUNTY, STATE OF FLORIDA
CRIMINAL DIVISION
STATE OF FLORIDA,
Plaintiff,
vs.
XXXXXXXXXXXXX, DIVISION: III
Defendant.
__________________________________/
MOTION TO SUPPRESS AND DISMISS
COMES
NOW, Defendant, XXXXXXXXXXXXX, by and through the undersigned attorney, and
pursuant to Rules 3.19(h)(4) and 3.190(c)(4) of the Florida Rules of Criminal
Procedure, moves to suppress any and all purported evidence seized and
statements obtained in the instant case, and to dismiss the instant charges,
and as grounds in support thereof, states as follows:
1.
This
case involves an investigation by the Gainesville Police Department that occurred
around 2:03 a.m. on May 3, 2013.
2.
Officer
Mazlaghani conducted a stop for careless driving and speeding too fast for
conditions.
3.
After
Officer Mazlaghani wrote the citation for careless driving. Officer Hall arrived shortly thereafter and expressed
her concern that the Defendant “possibly showed signs of impairment.” Hall is not sure if there is an odor of an
alcoholic beverage.
4.
At
this point, Officer Mazlaghani calls Officer Koprowski to the scene.[1]
5.
When
Officer Koprowski arrived on scene, he questioned Officer Mazlaghani about the
basis for the stop and the clues of impairment. Officer Mazlaghani conveyed to
Officer Koprowski that he did not notice an odor of alcoholic beverage emitting
from the Defendant’s breathe, nor did the Defendant show the “typical signs of
impairment like swaying and staggering.”
6.
Officer
Koprowski then questioned Officer Hall about the clues of impairment. Officer
Hall responded, “I don’t know if I could smell alcohol, I thought I could a
little bit.” She further stated that the Defendant would not listen, was being
argumentative, but stated, “I don’t know if he is just being rude.” Officer
Hall also conveyed to Officer Koprowski that the Defendant admitted to taking
Adderall and being buzzed. This was
merely an indication that he was under the influence.
7.
Neither
Officer Mazlaghani nor Officer Hall noted blood shot, watery eyes, slurred
speech, or unsteadiness in balance.
8.
All
evidence should be suppressed because the state has failed to prove that the Officers
had reasonable suspicion to detain the Defendant for DUI and to request that
Defendant perform field sobriety exercises.
MEMORANDUM OF LAW
To request field sobriety exercises, an
officer must have a reasonable suspicion that the driver is impaired State
v. Ameqrane, 39 So. 3d 339, 341 (Fla. 2d DCA 2010). Reasonable suspicion
must be more than a mere hunch and is to be judged on the totality of the
circumstances viewed in light of the officer's experience and specialized
training Wallace v. State, 8 So. 3d 492, 494 (Fla 5th DCA 2009). The
totality of circumstances is to be considered on an objectively reasonable
basis Dobrin v. Florida Dept of Highway Safety & Motor Vehicles, 874
So. 2d 1171, 1174 (Fla 2004).
The
odor of alcohol, in and of itself, does not create reasonable suspicion of
impairment. Meghan Umble-Vita v. State of
Florida, 20 Fla. L. Weekly Supp. 484a (18th Cir. 2013) In Meghan Umble-Vita, the Court held that
the defendant’s admission that she had several drinks might add suspicion, but
the officer said only that the defendant admitted to drinking “earlier,” with
no indication as to when or how much. Id.
It is not illegal to consume a drink and then drive, only to drive while
impaired. Id. The late hour is a
factor which courts can consider, but by itself, is very weak to support
suspicion of impairment. Id. The
Court concluded that the factors in this case did not reach a level of
suspicion beyond that of a hunch and therefore the Motion to Suppress was
granted. Id. Here, two officers cannot even agree on
whether there is an odor of an alcoholic beverage on XXXXXXXXXXXXX’s breathe.
In
State of Florida vs. Andres Steven
Stackhouse, 20Fla. L. Weekly Supp. 431a (7th Cir., 2012) the
deputy smelled a slight odor of alcohol coming from the vehicle, he observed
the Defendant had a dazed expression and red eyes. There was no evidence of
slurred speech, unsteadiness with his balance, difficulty securing license or
any bad driving other than exceeding the speed limit by 11 MPH. Id. The Court found that under these
circumstances there was not reasonable suspicion to conduct a DUI investigation. Id. The Court therefore, granted
Defendant’s Motion to Suppress.
Like
Meghan Umble-Vita and Andres Steven Stackhouse, there was no
reasonable suspicion to conduct a DUI investigation in the present case. Officer
Mazlaghani conveyed to Officer Koprowski that he did not notice an odor of
alcoholic beverage emitting from the Defendant’s breathe, nor did the Defendant
show the “typical signs of impairment like swaying and staggering.” Officer
Koprowski then questioned Officer Hall about the clues of impairment. Officer
Hall responded, “I don’t know if I could smell alcohol, I thought I could a
little bit.” She further stated that the Defendant was being argumentative, but
stated, “I don’t know if he is just being rude.” Neither Officer Mazlaghani nor Officer Hall noted blood shot,
watery eyes, slurred speech, or unsteadiness in balance. Although the Defendant
allegedly admitted to taking an Adderall, that in itself is not enough. It is
not illegal to take Adderall and drive, only to drive while impaired. Like Meghan Umble-Vita, the defendant’s
admission that she had several drinks might add suspicion, but the officer said
only that the defendant admitted to drinking “earlier,” with no indication as
to when or how much. Id. It is not
illegal to consume a drink and then drive, only to drive while impaired. Id.
Based
on the totality of the circumstances, the Deputies did not have reasonable
suspicion to conduct a DUI investigation. As such, all evidence obtained during
and subsequent to the field sobriety exercises should be suppressed.
WHEREFORE, Defendant, XXXXXXXXXXXXX,
respectfully requests this Honorable Court to suppress and all purported
evidence seized and statements obtained in the instant case and dismiss the
instant charges because the State will have no evidence upon which to proceed.
SWORN AFFIDAVIT
Under penalties of perjury, I declare
that I have read the foregoing Affidavit and the facts stated in it are true.
Date:
_______________ _________________________
XXXXXXXXXXXXX
SWORN
TO AND SUBSCRIBED before me this ___ day of ______________ 2013, by XXXXXXXXXXXXX,
who is personally known to me or who produced ______________________ as
identification.
_________________________
NOTARY
PUBLIC
CERTIFICATE OF SERVICE
I
HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by regular U.S. mail to: Office of the State Attorney, 120 W
University Ave, Gainesville, FL 32601, and original to Alachua County Clerk of
Court, 220 S. Main St., Gainesville, FL 32601 on this 9th day of July, 2013.
MICHAEL P. MADDUX, P.A.
___________________________________
Jennifer
M. Salter
Florida
Bar Number: 85487
Attorney
for Defendant
1601
NW 80th Blvd. Gainesville,
Florida 32606
Phone:
(352) 333-0144
Facsimile:
(813) 253-2553
jsalter@madduxattorneys.com
[1]
The incident was recorded on Officer Koprowski’s in car video system.
Bullet Points for Winning DUI Dismissal Argument:
Length of Detention:
· A stop of an automobile for a traffic violation must be limited to the time required to write the citation, unless there is a reasonable suspicion for a lengthier detention
· Reasonable suspicion justifying a detention beyond the needed time to issue a traffic citation must be based on articulable facts that criminal activity is occurring.
State of FL v. Main, 11 Fla.L.Weekly Supp. 828C (6th Cir. Pinellas County, 2004)
· Officer stopped Def for speeding, did not detect any odor of alcohol nor detect any other signs indicative of DUI
· Officer completed citation and re-approached the Def. At this time noticed the odor of alcohol coming from vehicle, and slurred speech and conducted FSE
· Court
Officer did not have reasonable suspicion to believe that def had committed a crime to detain him any longer than that which was required to issue him the citation.
Def should have been allowed to leave after he received the citation.
Here, no signs of impairment until citation is completed.
Akmakjian v. State of FL, 15 Fla. L. Weekly Supp. 978b (17th Cir. Broward County, 2008)
· Officer pulled over Def for speeding and crossing over the line; he immediately has suspicion of DUI; observed red, watery eyes, flushed face, strong odor of alcohol, and slurred speech, Def admission to have 4 drinks
· Officer requested DUI Officer to respond while he wrote the traffic citations.
· Officer completed citations prior to DUI Officer’s arrival
· There was a 17 minute delay
· Court held 17 minute delay was ok because there was reasonable suspicion justifying detention beyond the needed time to issue a traffic citation.
Odor of alcohol, glossy blood shot eyes and slurred speech.
· Here, prior to the completion of the written citation there is absolutely no clues of impairment. Any alleged clues came after Officer Mazlaghani finished writing the citation.
· Therefore, any further detention is illegal.
Bullet Points for Winning DUI Dismissal Argument:
Length of Detention:
· A stop of an automobile for a traffic violation must be limited to the time required to write the citation, unless there is a reasonable suspicion for a lengthier detention
· Reasonable suspicion justifying a detention beyond the needed time to issue a traffic citation must be based on articulable facts that criminal activity is occurring.
State of FL v. Main, 11 Fla.L.Weekly Supp. 828C (6th Cir. Pinellas County, 2004)
· Officer stopped Def for speeding, did not detect any odor of alcohol nor detect any other signs indicative of DUI
· Officer completed citation and re-approached the Def. At this time noticed the odor of alcohol coming from vehicle, and slurred speech and conducted FSE
· Court
Officer did not have reasonable suspicion to believe that def had committed a crime to detain him any longer than that which was required to issue him the citation.
Def should have been allowed to leave after he received the citation.
Here, no signs of impairment until citation is completed.
Akmakjian v. State of FL, 15 Fla. L. Weekly Supp. 978b (17th Cir. Broward County, 2008)
· Officer pulled over Def for speeding and crossing over the line; he immediately has suspicion of DUI; observed red, watery eyes, flushed face, strong odor of alcohol, and slurred speech, Def admission to have 4 drinks
· Officer requested DUI Officer to respond while he wrote the traffic citations.
· Officer completed citations prior to DUI Officer’s arrival
· There was a 17 minute delay
· Court held 17 minute delay was ok because there was reasonable suspicion justifying detention beyond the needed time to issue a traffic citation.
Odor of alcohol, glossy blood shot eyes and slurred speech.
· Here, prior to the completion of the written citation there is absolutely no clues of impairment. Any alleged clues came after Officer Mazlaghani finished writing the citation.
· Therefore, any further detention is illegal.
