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Sleeping it Off Under the Influence ?

Posted by attorney Jonathan Blecher

Pulling off to the side of the road? That could still have you end up in jail. The issue in most of these types of cases is whether the police had well-founded suspicion to make an investigatory stop.

Here are some excerpts from an article I wrote on this topic:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approachingan individual on the street or in a public place, by asking him if he is willing toanswer some questions if the person is willing to listen, or by offering evidence in acriminal prosecution his voluntary answers to such questions...The person approached, however, need not answer any question put to him, indeed he may decline to answer and simply go on his way.Florida v. Royer, 460 U.S. 491 at 497-98 (1983).

Nothing in the circumstances of a Defendant in his lawfully parked car suggests any illegal activity is taking place. Legally parked cars do not give police officers a basis for detaining or searching persons.State v. Popple, 626 So. 2d 185 (Fla. 1993);Danielewicz v. State, 730 So.2d 363 (2DCA 1999);Sites v. State, 582 So.2d 813 (2DCA 1991);Brown v. State, 577 So.2d 708 (2DCA 1991).Additionally, even flight upon observation of a police officer in a high crime area does not constitute reasonable suspicion for making an investigatory stop.Ippolito v State, 789 So.2d 423 (4DCA 2001);Grant v. State, 596 So.2d 98 (2DCA 1992).

The fruits of the unlawful conduct of the officer, that is, either physical or intangible evidence secured thereby, would be inadmissible in any proceeding against the defendant. Etheridge v. United States, 380 F. 2d 804, 808 (U.S. DCA 5th Cir. 1967). Seealso: Wong Sun v. United States, 371 U.S. 47, 83, S. Ct. 407 (1963).

More specifically, the lawfulness of an arrest is a pre-requisite to the admission of any breath test results. F.S. 316.1932(1)(a)1.a. The lawfulness of an arrest remains within the scope of a hearing officer’s review, notwithstanding the 2006 amendment to Section 322.2615. If a hearing officer is to uphold a license suspension, due process requires a finding that a breath was incidental to a lawful arrest. Fialla v. DHMSV, 2007-30048-CICI ( 7th Judicial Circuit, June 20, 2006).

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