Motion to Suppress in Florida DUI Cases
If evidence was illegally seized, the DUI defense attorney can file a motion to suppress that evidence. The motion to suppress can allege a violation of the Florida Constitution, the U.S. Constitution, or some statutory provision.
The legal arguments in the motion to suppress depend on the specific facts in the case. Issues for the motion to suppress might include:
- No legal cause for the initial stop of the vehicle, the request to exit the vehicle, the request to search, or the request to participate in FSEs;
- No probable cause for the arrest;
- Failure to follow the established procedures in performing a roadblock (or checkpoint stop) of the vehicle;
- Failure to give Miranda warnings;
- Coercing a confession;
- In a breath test case, any violation of the 20-minute observation period before conducting the breath test;
- Problems with the maintenance, inspection, or calibration of the breath test machine;
- Showing that the officer did not preserve evidence, including a videotape of your driving pattern, performance on the roadside tests, or alleged refusal; and/or
- Showing that your implied consent warnings were not correctly given, thereby making any mention of your alleged “refusal” inadmissible.
By filing and litigating a motion to suppress or exclude, your DUI defense attorney can fight to dismantle the prosecutor’s case one piece of evidence at a time. If evidence is excluded, the prosecutor’s chances for a successful prosecution can drop dramatically. As a result, the negotiations often get better.
Sample Motion to Suppress
IN THE CIRCUIT/COUNTY COURT ________ JUDICIAL CIRCUIT,
IN AND FOR ________ COUNTY, FLORIDA
STATE OF FLORIDA, CASE NO.:
vs.
__________________,
Defendant.
______________________________/
Defendant’s Motion to Suppress Unlawfully Obtained Evidence
Pursuant to Rule 3.190, Fla. R. Crim. P., the 4th Amendment of the U.S. Constitution and Article 1, Section 12 of the Florida Constitution, §901.151, Fla.Stat. (2011), and all other applicable provisions of the Federal and State Constitutions, Defendant, _________ (hereinafter ________), moves this Court to suppress all tangible and intangible evidence as set forth herein, including without limitation, any observations of __________, his refusal to perform physical exercises roadside, any and all statements he may have made including his refusal to submit to a chemical test, his identity as the driver of the vehicle and any and all other evidence stemming from his illegal detention.
Statement of Facts
In preparing this Motion, defense counsel relies on the “Probable Cause” arrest report prepared by the arresting officer, ___ [ insert officer’s name, title, and badge number]__ attached as Exhibit “A”, as the statement of pertinent facts supporting the stop, detention, and arrest of ______ for driving under the influence in violation of Fla. Stat. § 316.193. Further, this sworn document was forwarded to the Department of Highway Safety and Motor Vehicles in support of an administrative suspension of _________’s driver’s license.
In summary, ________ was stopped on __[date]__ at __[time] at or near __[exact location___. The officer conducting the stop was ___ [ insert officer’s name, title, and badge number]____. Other officers involved in the stop, detention, or arrest include ___ [ insert officer’s name, title, and badge number]____ who took the following actions: _________.
[[insert facts concerning the reason for the stop, any search of the vehicle, how the detention was prolonged, the request to exit the vehicle, the request to participate in FSE, the arrest, and any post-arrest request for a chemical test of blood, breath or urine]].
This Motion follows.
Presumptions and Burdens of Proof
The defendant’s warrantless detention, search, and arrest are presumptively unconstitutional. The State has the burden of establishing that the warrantless detention was lawful, see e.g., Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000), Sunby v. State, 845 So.2d 1006 (Fla. 5th DCA 2003), Maurer v. State, 668 So.2d 1077 (Fla. 5th DCA 2003), and also that the warrantless search and arrest were lawful, see State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000) and Dooley v. State, 501 So.2d 18, (Fla. 5th DCA 1987). The Court is not required to accept the police officer’s version of the facts. Id. Should the State rely on “consent” to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548- 49 (1968) and Schneckloth v. Bustamante, 412 U.S. 218,228 (1973). This burden must be met by the “greater weight of the evidence.” Jorgenson v. State, 714 So.2d 423 (Fla. 1998).
No Reasonable Suspicion to Detain
Detaining a driver longer than necessary to issue a citation requires reasonable suspicion of criminal activity. Cresswell v. State, 564 So.2d 480 (Fla. 1990). A reasonable suspicion exists when an officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant a detention. State v. Quinn, 41 So.3d 1011 (Fla. 5th DCA 2010), citing Terry v. Ohio, 392 U.S. 1 (1968).
For better or worse, the law does not prohibit drinking and then driving; rather, it makes illegal “impaired driving.” There is no question that law enforcement, smelling alcohol, can reasonably infer someone has been drinking. The question is one of impairment. Law enforcement must be able to articulate a reasonable suspicion the driver is impaired, otherwise the driver may not be detained longer than necessary to issue a citation. Absent reasonable suspicion, further detention is illegal and all evidence derived from an illegal detention should be excluded. Florida Courts have routinely held, without more than an odor of alcohol, a detention “on suspicion of dui” is unlawful.
No Probable Cause to Arrest
Based on the totality of circumstances, Deputy Zeigler did not have sufficient probable cause to arrest Mr. Stephenson for DUI; “probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in [his] system.” State v. Kliphouse, 771 So. 2d 16, 29 (Fla. 4th DCA 2000).
Application of the Exclusionary Rule
The State may not use the fruits of the unlawful conduct by its agents, including any physical or intangible evidence obtained thereby, and all such evidence must be suppressed. See Wells v. State, 975 So. 2d 1235, 1238 (Fla. 4th DCA 2008) (“Under the ‘fruit of the poisonous tree’ doctrine, the exclusionary rule bars the admission at trial of physical evidence … obtained directly or indirectly through the exploitation of the police illegality.”); Etheridge v. US., 380 F.2d 804,808 (5th Cir. 1967); and also Wong Sun v. US., 371 U.S. 471, 83 S. Ct. 407 (1963).
[[insert attorney’s signature line]]
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice has been furnished by hand delivery to the Office of the State Attorney, _________, on this ___ date of ____.
[insert attorney’s signature line]]
