Written by attorney Jose Luis Calvo

Erratic Driving and Probable Cause: Was Your Fort Myers DUI Arrest Lawful?

In the State of Florida, like in all states, law enforcement needs probable cause to pull you over. Probable cause can be speeding, running a red light, or being involved in a car accident. However, if law enforcement believes a driver may be impaired by drugs or alcohol, they only need reasonable suspicion to pull your car over and conduct a DUI investigation. Reasonable suspicion does not have to be a citationable act on the part of the driver. A common misconception of the law is that mere swerving within someone’s lane of travel could rise to the level of reasonable suspicion for purposes of a DUI stop.

A common challenge to a DUI arrest and prosecution is the reason for the initial traffic stop. An experienced Fort Myers DUI defense lawyer will always file a motion to suppress alleging that the facts in the police report do not support a valid traffic stop if the events leading up to the stop and reason for the stop are legally or factually questionable.

When this type of a motion is filed in court, the court must follow an objective standard test to determine whether a reasonable officer would have conducted a stop (Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed. 2d 89, 1996). The leading case describing a lack of objective evidence on which to stop the defendant’s vehicle after officers observed the defendant drive his car over the right line on at least three occasions is Crooks v. State, 710 So.2d 1041 (Fla. 2DCA 1998). Florida case law contains many similar cases where courts have revealed that minor weaving over a short distance does not give law enforcement probable cause or reasonable suspicion to conduct a traffic stop.

The 17th Judicial Circuit rejected the State’s arguments after proper stop was conducted by a Florida Highway Patrol Trooper observing a driver traveling on the Turnpike at 1:30 a.m. The driver was allegedly weaving within his lane and tires crossing the lane divider by about a foot over a two mile stretch (State v. Gonzales, 5 Fla. L. Weekly Supp. 661, Fla. 17th Jud. Cir. 1998). The circuit court upheld the trial court’s granting of a motion to suppress finding the officer lacked probable cause or reasonable suspicion to stop the automobile for a traffic infraction. Similarly, the court in the case of Bell v. State of Florida DHSMV, 9 Fla. L. Supp. 354 (Fla. 7th Jud. Cir. 2002), heard testimony the defendant began tapping his brakes, stopping and going, and traveling down the center of the road where he would have been in another vehicle’s path of travel. The defendant then made an erratic swerve to the left and then drove back down the middle of the road. The court held this driving pattern did not demonstrate a pattern of impairment. Moreover, the court found that the evidence failed to support a conclusion that defendant’s driving was so erratic to establish a founded suspicion to validate a stop by the officer for suspected DUI. The 7th Circuit granted Bell’s Petition for Writ of Certiorari and overturned the hearing officer’s ruling.

In the Fourth Circuit of Florida, another case in point with similar circumstances is reported. The defendant was observed weaving from lane to lane for a span of four to five blocks. The court held “the pattern was not so erratic or unusual so as to provide a reasonable well-founded and articulable suspicion that the defendant was driving while impaired or in need of assistance." State v. Littlejohn, 10 Fla. L. Weekly Supp. 111 (Fla. 4th Jud. Cir. 2002).

The Court in Holz v. State of Florida DHSMV, recounts the defendant drifting to the left of the lane, crossing the lane divider, and then quickly jerked back to the right; the defendant later crossed a curb line. The court quashed a hearing officer’s decision sustaining the defendant’s license suspension finding this action does not show any objective indication of impairment. 9 Fla. L. Weekly Supp. 592 (Fla. 18th Jud. Cir. 2001). The Seventh Circuit found no reasonable suspicion to initiate a traffic stop when an officer testified he observed the vehicle weaving, cross twice over the center line about a foot and observed driving for about one minute over a distance of 1/8 mile. State v. Garman, 7 Fla. L. Weekly Supp. 45 (Fla. 7th Jud. Cir. 1999).

Erratic driving does not always give rise to suspicion of DUI. “The suspect’s driving pattern must be so atypical that it reasonably suggests to an officer that the driver is impaired after the officer exercises reasonable caution against misinterpretation." State v. Townley, 6 Fla. L. Weekly Supp. 531 (Fla. 9th Jud. Cir. 1999). (Circuit court affirmed trial court’s granting of motion to suppress where officer testified defendant straddled a solid white line on the left hand side of the merge lane for 200 feet before completing the merge and shortly thereafter drifted from the center lane three feet into the outside lane; 15-20 seconds later, the vehicle drifted one foot into the left lane for approximately 50 feet.) The Seventh Circuit granted a motion to suppress holding susceptible to innocent explanations including fatigue, momentary distraction and being lost. State v. Bader, 5 Fla. L. Weekly Supp. 782 (Fla 7th Jud. Cir. 1998).

The Fifteenth Circuit went further, concluding “[the] Court will not grant police officers a blanket authority to conduct investigatory stops for DUI by virtue of a “well being check" on motorists who simply are lost, unfamiliar with the vicinity, or pose no danger to surrounding traffic." State v. Crawford, 9 Fla. L. Weekly Supp. 562 (Fla. 15th Jud. Cir. 2002). In this case the officer testified he observed the defendant traveling 25 mph in a 45 mph zone, abruptly applying his brakes on two separate occasions, drifting within the lane of travel, hugging the right side of the lane, and moving from the extreme right side of the lane to the left side of the lane. The officer stopped the defendant based on suspicion the defendant was showing signs of impairment or was perhaps ill. The Circuit Court granted a motion to suppress finding the court must utilize an objective analysis in order to avoid justifying a stop based merely on the law enforcement officer’s saying he or she suspected impairment. The Court stated it must objectively analyze all such testimony as part of its duty to apply the law fairly and uniformly.

It is imperative for law enforcement and the prosecution of DUI to be challenged when the stops are questionable. Failure to do so will eventually eradicate our fourth amendment rights of living free from unlawful search and seizures from the state.

Additional resources provided by the author

At Calvo & Calvo, Attorneys at Law, the criminal defense legal team provides exceptional services and professional advice for individuals accused of a crime in the Fort Myers area. Whether you are facing charged of arson, burglary, drug crimes, DUI, federal charges, felony crimes, fraud, juvenile crimes, murder, sex crimes, traffic tickets, weapons charges or an immigration crime, the firm may be your key to a favorable outcome. The Fort Myers criminal defense lawyers at their office strive to protect the rights of their clients and advocate their best interests, in and out of the court room. By taking advantage of their innovative and creative defense strategies, you may find yourself facing lessened or dropped charges altogether. For more information on the services that the firm provides, contact a Fort Myers criminal defense attorney at their office today!

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