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DUI Investigation on Wrong Side of Street Prompts Suppression of Evidence

Mattos v. State, 4D15-4366 (Fla. 4th DCA Aug. 24, 2016)

DUIRecently, a Miramar, Florida police officer encountered a driver who had passed out in the driver’s seat of his car with the ignition on, the vehicle in drive, and his foot on the brake. This occurred around 11 a.m. in the middle of the three westbound lanes on Pembroke Road near 69th Avenue, and the idling car presented a danger to other drivers.

The officer reached into the car, put it in park, turned off the ignition, and woke up the sleeping driver, whose eyes were bloodshot and glassy and whose breath reeked of alcohol. The driver told the officer where he was going, but the places he named were to the east and the car had been heading west. When the officer asked the driver to get out of the car, the driver was unsteady and confused and kept asking why he was stopped. (Hey, I get grumpy too when someone wakes me up from my nap.) The officer took the driver to a breath alcohol testing facility, where the driver refused to give a breath sample.

The only problem, as far as the Miramar officer goes, is that the westbound lanes of Pembroke Road at that location are not within the jurisdiction of the Miramar police, but are in the jurisdiction of the Pembroke Pines police. (Miramar has the eastbound lanes.) So the officer was outside his jurisdiction, and the driver’s attorney argued in the trial court that the evidence should be suppressed for that very reason. The trial court denied the motion to suppress, finding that there was a breach of the peace, which gave rise to an exception to the rule that an officer may not make an arrest outside his jurisdiction. At common law, a private citizen may arrest a person who commits a breach of the peace in the citizen’s presence.

In Mattos v. State, the Fourth District agreed with the trial court that the driver’s conduct qualified as a “breach of the peace,” defined by the court as “a generic term including all violations of the public peace, order or decorum.” The court reasoned that it would strain credulity to argue that a driver who has passed out in the middle of a busy street with his engine running, his car in drive, and his foot on the brake was not a threat to the safety and order of the public. Thus, the officer, although he was outside his jurisdiction, had the same right as an ordinary citizen to make a citizen’s arrest when he observed a breach of the peace.

But the Fourth District held that when the officer conducted a DUI investigation and transported the driver to a breath alcohol testing facility, he was exercising his authority as a police officer, since ordinary citizens do not have any such authority. Therefore, the court held that any evidence acquired once the officer started acting “under color of law,” such as the driver’s refusal of the breath test, had to be suppressed because the officer was outside his jurisdiction. The case was thus affirmed in part, reversed in part, and remanded for further proceedings.

My take: The driver will still most likely lose at trial. The officer can testify to what he saw before he acted under color of law, just as a private citizen may do. And what he saw was plenty to convict for DUI – the driver’s glassy, bloodshot eyes, the smell of alcohol on his breath, his unsteadiness, his confusion, his disorientation, and, most significantly, his having passed out in the middle of a busy street with his foot on the brake and the engine running. One does not need a breath or blood test to convict a driver of DUI when there is sufficient circumstantial evidence of his impairment by alcohol. See § 316.193(1), Fla. Stat. I think the state has sufficient evidence in this case. Kudos to the Miramar officer (Andrew Pedrero, by name) for averting accident and injury by getting the drunken driver off the road.

–Tom Regnier, August 28, 2016

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Tom Regnier Appeals, P.A. | 786-319-4810
1580 Sawgrass Corporate Parkway, Suite 130
Sunrise, FL 33323

Florida Bar Number: 660000

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