Can An Officer Make A DUI Stop Based On Observations Made Before The Driver Gets Behind The Wheel? Florida Court Says Yes

Posted by Richard Lawson | Oct 06, 2017 | 0 Comments

What grounds does a law enforcement officer need to stop a suspected drunk driver? Are observations made prior to the driver ever getting behind the wheel enough? That is the question that a Florida appellate court recently grappled with.

Hermeen Jacobson, the defendant, was out at the Azalea Lounge one evening when she was observed by a police officer who had come to the location in order "to investigate a potential vehicle accident." The officer inspected the defendant's vehicle but determined that the damage was already there. In addition, the officer “observed that the [defendant] was ‘extremely intoxicated.'” The defendant did not get into her vehicle and the officer “warned her that if he saw her driving, she would be arrested for DUI.” The defendant returned to the lounge, but the officer decided to stay nearby.

According to the court, the officer “observed the [defendant] walk toward her car on two occasions, but turned around when she saw the officer's patrol car.” The officer left on another call but about an hour later returned to the lounge for "the sole purpose of checking up on the appellant.” The officer found the defendant leaving in her vehicle. He followed her and “admitted that the [defendant] was obeying all traffic laws and was not driving erratically.” However, the officer decided to pull the defendant over when he saw she was headed for the interstate because he was concerned about her traveling at higher speeds based on his earlier observations. According to the court, “[t]he officer admitted that his stop was based on his previous contact with the [defendant].” The officer stated that “[h]e knew it takes several hours for alcohol to get out of the blood stream” and that he believed she was still intoxicated.

When he stopped the defendant, “the officer observed that [she] was still extremely intoxicated, had slurred speech, red and glassy eyes, and emitted a strong odor of alcohol.” However, the defendant refused to complete any field sobriety tests and also refused a breath test. She was also found with cocaine and drug paraphernalia in her pocket.

The defendant filed a motion arguing that “the evidence seized as a result of the traffic stop” should be suppressed as “the stop was illegal because she did not break any traffic laws and was not driving erratically.” In addition, she contended that “the stop was unsupported by a founded suspicion of criminal activity, namely because the officer's observations of her intoxication during the first encounter was not corroborated by any field sobriety exercises.” The trial court denied her motion.

The appellate court stated that because the officer hadn't seen the defendant break any traffic laws, “the stop had to be based on the officer's founded suspicion that she was driving under the influence.” In order to determine reasonable suspicion the court must look at the “totality of the circumstances” to decide “whether an officer has a reasonable or well-founded suspicion to justify an investigatory stop.” The court stated that the officer's founded suspicion arose from a rather unusual set of circumstances as it was based, not on erratic driving, but on the officer's personal observations “that the [defendant] was extremely intoxicated approximately one hour prior to observing her driving.” The court further stated that “[h]is training and experience led him to conclude that it would have been impossible for the [defendant] to have sobered up within the hour.” The court found that “the officer's stop was justified out of his belief that the appellant was impaired and his concern for the safety of the public.” The court concluded that under “the totality of the circumstances, the officer had a founded suspicion” that the defendant was driving while impaired “and was a potential danger to the public to justify an investigatory stop.” The court then affirmed the trial court's decision on the defendant's motion to suppress.

The lesson here is simple: If an officer knows through observation you are intoxicated, confronts you about your intoxication when he or she sees that you are attempting to get behind a wheel, and advises you not to drive, your response should be: don't drive. Find another safe way home. If the officer is watching you, he or she can pull you over -- given certain qualifiable circumstances -- for a traffic stop based on previous suspicion.

If you have been charged with a DUI, contact Georgia DUI Attorney Richard Lawson today to discuss your case. ​We never assume a person is guilty just because they have been charged. Do not face severe Georgia DUI Penalties without first calling our office. We are available 24/7. 

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