The criminal defense attorneys at Lyons, Snyder & Collin routinely file Motions to Suppress in cases of Driving While Under the Influence (DUI). A Broward County Judge granted the following Motion suppressing the defendant’s breath test result in a recent DUI case. The Court found that law enforcement did not properly administer the Florida Implied Consent Warnings. As a result, the State Attorney’s Office reduced the charges from Driving While Under the Influence to Reckless Driving. The names have been changed for privacy purposes. The spacing may have become distoreted when copying the Motion to Supress to the website.
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
STATE OF FLORIDA, Case No.: ———–
Plaintiff, Judge: ———–
FIRST AMENDED MOTION TO SUPPRES
COMES NOW the Defendant, by and through his undersigned attorney pursuant to Rules 3.190(h),(i), Florida Rules of Criminal Procedure, and moves this Honorable Court to suppress all evidence stemming from the illegal arrest of the Defendant and as grounds in support of said motion states as follows:
- On February 6, 2011, at about 1:58 A.M., Officer ++++++ observed Mr. ******, a fifty-eight year old man, driving a 1997 Ford Explorer near 2400 NW 19th Street, Fort Lauderdale, FL.
- Officer ++++++ allegedly observed Mr. ******’s vehicle, “Swerve in and out of the left through lane to the right, nearly striking [Officer ++++++’s] marked police vehicle”.
- The probable cause affidavit authored by Officer ++++++ suggests that Officer ++++++ was either attempting to pass Mr. ******’ s vehicle or driving parallel to Mr. ******’s vehicle when Mr. ****** allegedly swerved into Officer ++++++’s lane of traffic.
- The probable cause affidavit does not indicate whether Mr. ******’s action affected any other vehicular traffic, notwithstanding Officer ++++++.
- Based on Mr. ******’s action, Officer ++++++ effectuated a traffic stop on Mr. ******’s vehicle. 
- Subsequently, Officer ++++++ arrested Mr. ****** for Driving While Under the Influence. 
- While at the Breath Alcohol Testing Facility, Officer ++++++ and CSA ^^^^^^^^ misrepresented and/or misstated Mr. ******’s rights under the Implied Consent law, Florida Statute 322.2615. As a result of such misrepresentations and/or misstatements, Mr. ****** provided a breath sample. 
- Officer ++++++ did not cite Mr. ****** for committing any other traffic infractions (moving violations). One would assume that Officer ++++++ would have issued Mr. ****** citation(s) for committing additional traffic infraction(s) (moving violations) (i.e. speeding, failure to use turn signal, etc.), if applicable. 
- The probable cause affidavit is devoid of any facts that indicate Officer ++++++ was concerned that Mr. ****** was ill, tired, or driving while under the influence prior to making contact with Mr. ******.
- Additionally, the probable cause affidavit fails to suggest that Officer ++++++ observed Mr. ****** driving in an erratic or unusual manner (i.e. sudden speed changes, jerking movements, continuous weaving, crossing fog line(s), etc.).
Memorandum of Law
Officer ++++++’s actions in this case must be scrutinized carefully in light of the Constitutional requirements which must be adhered to when there is any search and seizure by a State official. Officer ++++++’s actions in this matter does not pass constitutional muster because he did not have probable cause to stop Mr. ******’s vehicle for any traffic infraction.
In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court of the United States held that the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual involved. Although Whren and its progeny have stood for the position that an officer’s reason(s) to initiate a stop are immaterial and such a stop is reasonable when the officer has probable cause to believe that a traffic violation has occurred, it is still necessary to consider the officer’s motivations and scrutinize their credibility to ensure that the traffic violation actually occurred. The objective test in determining the constitutional validity of a traffic stop asks only whether any probable cause for the stop existed, making the subjective knowledge, motivation or intention of the individual officer involved wholly irrelevant. Id.
When one turns to the facts of the present case, one cannot come to the conclusion that under the totality of the circumstances, any reasonable officer would have stopped Mr. ******’s vehicle for any traffic violation.
Fla. Stat. 316.074(1) – Obedience to and Required Traffic Devices
The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter, unless otherwise directed by a police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter.
As Fla. Stat. 316.074(1), provides very little guidance as to what constitutes a violation of the law, I will instead support my argument that Mr. ****** did not violate any traffic violation by citing to Fla. Stat. 316.089(1).
Fla. Stat. 316.089(1) – Driving on Roadways Laned for Traffic
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) 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.
Reasonableness of Officer ++++++’s Explanation for Effectuating
Traffic Stop on Mr. ******’s Vehicle
Officer ++++++ allegedly observed Mr. ******’s vehicle “swerve in and out of the left through lane to the right, nearly striking [Officer ++++++’s] marked police vehicle”. This would suggest that Officer ++++++ was either attempting to pass Mr. ******’ s vehicle or was driving parallel to Mr. ******’s vehicle when Mr. ****** allegedly swerved his vehicle into Officer ++++++’s lane of traffic.
Provided that Officer ++++++ was concerned that Mr. ****** was ill, tired, or driving while under the influence or if Mr. ****** was driving in an erratic or unusual manner (i.e. sudden speed changes, jerking movements, continuous weaving, crossing fog lines, etc.), Officer ++++++ would not have placed himself in a position where he needed to take “evasive action” to avoid a collision, as mentioned in the probable cause affidavit. Common sense would dictate that if Officer ++++++ had any suspicion that Mr. ****** was driving under the influence [Officer ++++++] would have placed his vehicle behind Mr. ******’s vehicle, not to the right of Mr. ******’s vehicle, possibly in a “blind spot”, on a sparsely traveled road, during the early morning hours.
Analysis Concerning Failure to Maintain a Single Lane
This Honorable Court has undoubtedly heard hundreds, if not thousands, of Motions to Suppress concerning the issue of whether law enforcement’s observations of an individual “weaving and/or swerving within a single lane” constitutes a valid basis for a traffic stop. The Fourth District has held previously that the failure to maintain a single lane, alone, may, under appropriate circumstances, establish probable cause. See Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA, 1999). Such circumstances, however, were not met in this case. Most critically, there was no indication, suggestion, or basis for Officer ++++++ to suspect that Mr. ****** was intoxicated or impaired based on his driving pattern. See Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA, 1998). As mentioned previously, if Officer ++++++ believed Mr. ****** was intoxicated or impaired, Officer ++++++ would not have attempted to pass or drive parallel to Mr. ******’s vehicle.
As recently stated by the Fourth District Court of Appeal in Hurd v. State, 958 So.2d 600, 603 (Fla. 4th DCA, 2007), “the failure to maintain a single lane alone cannot establish probable cause when the action is done safely.” Similar to the police officer in Hurd, Officer ++++++ will testify that he was following closely behind (or directly parallel) to Mr. ******’s vehicle when he observed the aforementioned traffic violation. Id. The Hurd Court held those facts insufficient to warrant a reasonable belief that any other vehicular traffic had been affected by the failure to maintain a single lane, and did not give rise to a reasonable suspicion of impairment.
In State v. Schulze, 15 Fla. L. Weekly Supp. 725b (2008), relying on a similar fact pattern, the Twelfth Judicial Circuit held that law enforcement did not have reasonable suspicion to effectuate a traffic stop on Mr. Schulze’s vehicle.
In Schulze, Deputy Roman, during late night hours, was following Mr. Schulze’s vehicle by a distance of 2-3 car lengths. Id. Deputy Roman attempted to pass Mr. Schultz’s vehicle on the right. Id. As he did so, Deputy Roman observed Mr. Schulze’s vehicle “briefly cross over the lane dividing marks in the road and into the right lane.” Id. Mr. Schulze’s action caused Deputy Roman concern that the driver of the vehicle may be impaired. Id. Deputy Roman stated that is was possible that other reason(s) existed for the lane change by Mr. Schulze’s vehicle and that no other vehicles were affected by Mr. Schulze’s lane change. Id. Based on these observations, Deputy Roman initiated a traffic stop and eventually arrested Mr. Schulze for driving while under the influence. Id.
The Schulze Court, citing to Crooks and Hurd, held that there was no reasonable suspicion on the part of Deputy Roman to warrant a traffic stop and granted Mr. Schulze’s Motion to Suppress.
Misstatement of Implied Consent
While at the Breath Alcohol Testing Facility, Officer ++++++, in the presence of CSA Harnandan, read Mr. ****** the statutorily required Implied Consent warnings. Prior to submitting to a breath test, Mr. ****** requested some clarity as to his rights under the warnings. The following exchange between Mr. ******, Officer ++++++ and CSA Harnandan was memorialized on video.
Mr. ******: “What are my rights, I am not familiar with this procedure?” … “What happens if I submit to a breathalyzer”… “If I don’t submit [to a breathalyzer] my license is suspended for a year, what happens if I do submit [ to a breathalyzer?]”
CSA ^^^^^^^: “If this is your first time, you will get a hardship license.”
Mr. ******: “That doesn’t sound fair at all … If I don’t submit to a breathalyzer my license is automatically suspended for a year – how am I suppose to get to work?”
CSA ^^^^^^^: “If you submit to the breath test, you are entitled to apply for a hardship license to get to work.”
Mr. ******: “If that’s my only option, I guess so, I have to do that; I have to get to work.” … “It looks like I’ll have to submit to the test according to what you’re telling me”… “If I don’t submit to a breathalyzer my license is automatically suspended for a year … I can’t contest that?”
Officer ++++++: “No, sir, [you can’t contest that].”
Mr. ******: “There’s no taking it to Court?”
Officer ++++++: “There is Court proceedings, but shall you refuse, your privileges will be suspended for one year.”
Mr. ******: “Unless it is decided by the Court that that’s not correct?
Officer ++++++: Even if you’re found not guilty your license will be suspended for a one year for failure to refuse to submit to a breath test [automatic].”
Mr. ******: “I guess I’ll have to submit to a breathalyzer.”
There is little more damaging evidence that can be used against a DUI accused than the incriminating results of a chemical breath test. In order for such an incriminating act of a driver to be admissible in evidence, it must be shown that the proposed act was made voluntarily. State v. Foreman, 10 Fla. L. Weekly Supp 47a (Fla. 11th Judicial Circuit, 2002).  In this instance, Mr. ****** did not voluntarily submit to a breath test as law enforcement coerced Mr. ****** to provide a breath sample by misstating and/or misrepresenting the law.
As witnessed in the video, Mr. ****** was obviously hesitant to submit to a breath test.
Mr. ****** asked law enforcement questions to further understand the rights he would be giving up by submitting to a breath test. To overcome Mr. ******’s hesitance, law enforcement advised Mr. ****** that [Mr. ******] would lose his license for one year if he refused to take the breath test and that he could not contest the suspension. Law enforcement also advised Mr. ****** that he would be entitled to a hardship license only if he submits to a breath test.
Officer ++++++’s statement to Mr. ****** that he would lose his driver’s license for one year and that he could not contest the suspension is an erroneous statement of the law and subjects the breath test to suppression.  State v. Dennis, 12 Fla. L. Weekly Supp 569b (Fla. 6th Judicial Circuit, 2005); State v. Foreman, 10 Fla. L. Weekly Supp 47a (Fla. 11th Judicial Circuit, 2002).
Similar to the Defendants in Dennis and Foremen, Mr. ****** based his decision to submit to a breath test on law enforcement’s erroneous statement that a driver could only obtain a hardship license if they submitted to a breath test. Numerous Circuits throughout Florida have held that when [law enforcement] misrepresents and/or misstates the Implied Consent warnings, the Court should suppress the results of the breath test as the Defendant did not voluntarily submit to the test. See State v. Staney, 653 So.2d 422, 430 (Fla. 3rd DCA, 1995); See also State v. Burnett, 536 So.2d 375 (Fla. 2nd DCA, 1988); State v. Foremen; State v. Dennis, State v. Cox, 9 Fla. L. Weekly Supp 634a (Fla. 16th Judicial Circuit, 2002)(If the law is misstated by law enforcement thereby providing misinformation to the Defendant about his rights under the Implied Consent Law, it cannot be said that the Defendant voluntarily submitted to a breath test); State v. Davis, 11. Fla. L. Weekly Supp. 658b (Fla. 14th Judicial Circuit, 2004).
As Officer ++++++ will be unable to point to any additional indicia of impairment commonly associated in conjunction with an individual’s failure to maintain a single lane during an investigation of driving while under the influence (i.e. sudden speed changes, jerking movements, continuous weaving, crossing fog line(s), etc.), this Honorable Court should conclude that under the totality of the circumstances, Deputy ++++++ should not have effectuated a stop on Mr. ******’s vehicle At an absolute minimum, Deputy ++++++ should have placed his vehicle behind Mr. ******’s vehicle for further observation to support or quell any subjective fears that Mr. ****** was driving while under the influence.
Where a motorist is stopped for an alleged traffic code violation that subsequently proves not to be a violation of any traffic law, or where there was not probable cause of a traffic infraction, the evidence seized following such stop should be suppressed. Hurd at 604. As Mr. ******’s driving pattern was not in violation of Fla. Stat. 316.074 (or Fla. Stat. 316.089), the fruits there from must be suppressed. Wong Sun v. U.S. 371 U.S. 471 (1963).
Assuming arguendo that Officer ++++++ legally stopped Mr. ******’s vehicle, this Honorable Court should suppress the results of the breath test, as Mr. ******’s consent to submit to the breath test was not obtained voluntarily.
WHEREFORE, the defendant respectfully requests this Honorable Court to grant the undersigned counsel’s motion to suppress.
Philip M. Snyder, Esq.
Attorney for Defendant
Lyons, Snyder & Collin, P.A.
312 S.E. 17th Street, 3rd Floor
Fort Lauderdale, FL 33301
 Officer ++++++ issued Mr. ****** a citation for Fla. Stat. 316.074(1) – Disobey Traffic Control Device, Lane Markers. Fla. Stat. 316.074 (1). Of note, Fla. Stat. 316.074(1) is correctly titled as “Obedience to and Required Traffic Control Devices”.
 Of note, Officer ++++++ lengthy probable cause affidavit describing Mr. ****** impairment is materially contradicted by Broward Sheriff’s Office C.S.A ^^^^^^ Alcohol Influence Report and the DUI Video taken at the B.A.T. facility after Mr. ******arrest.
 Mr. ****** provided breath results of .082/.083.
 Officer ++++++ did cite Mr. ****** for Expired Driver’s License, Fla. Stat. 322.03(5) and No Proof of Valid Insurance, Fla. Stat. 316.646(1).
 State v. Langsford, 816 So.2d 136 (Fla. 4th DCA, 2002) (It is the established law of this state that Florida’s implied consent statute impose, in certain respects, higher standards on police conduct in obtaining breath urine, and blood sample from a Defendant in a DUI case than those required by the Fourth Amendment.
 Florida Statute 322.2615(1)(b) states in part that a driver may request an informal or formal review to contest the suspension within ten (10) days after the arrest or issuance of the suspension notice. A driver may request a formal or informal review to contest the suspension regardless of whether the driver provides a breath sample. Additionally, a driver who refuses to provide a breath sample is still eligible to apply for a hardship license.