1. In State of Flordia vs. J.B., St. Lucie County Case No.: 56-2009-CT-1925A, J.B. was charged with DUI. If convicted, given J.B.’s driving history, he would without doubt have been sentenced to a substantial amount of time in jail. The facts: On May 24, 2009, J.B. was southbound on U.S. Highway 1 shortly after midnight. A Florida Highway Patrol Trooper pulled in behind J.B., and noted that he was “weaving”, and that he maintained his bright lights on in the face of opposing traffic. Based on his observations, the trooper activated his overhead lights and siren, and initiated a traffic stop. The trooper, upon approaching J.B.’s car, “smelled a strong odor of an alcoholic beverage emitting from the passenger compartment of the vehicle.” He asked J.B. whether or not he had been drinking, and J.B. responded that he “had a few”. Based on those observations, the trooper asked J.B. to perform some “field sobriety tests”. J.B. agreed, and the trooper noted the following:
- 1. That J.B. failed the Horizontal Gaze Nystagmus” (HGN) test.
- 2. That on the “one legged stand” (OLS) test, J.B. “swayed back and forth” , and put his foot down after counting only until 11, (as opposed to the required count of 30).
- 3. On the “walk and turn” test, J.B. used his arms to assist in balance [which is prohibited by the instructions], and took the wrong number of steps.
- 4. That J.B.’s speech was “mumbling”, “slurred” and “stuttering”. His “dexterity” was “unsure” and “fumbled”. While exiting his vehicle, J.B. was “slow” and “swaying”. While walking on the roadside, J.B. was “slow” and “stumbling”, and that while standing, J.B. was “leaning” and “swaying”.
- 5. The trooper requested J.B. to take a breath test, and J.B. blew a .135 and a .136 on the Intoxylizer 8000 breeth testing machine. [Florida’s blood alcohol limit is established by law at .08—so J.B.’s blood alcohol content was nearly twice the legal limit.
Knowing that he needed serious, competent, experienced legal help, J.B. retained JJK & Associates, LLC. Attorney Jay Kirschner filed a motion to suppress all of the evidence against J.B. The officer’s observations of his behaviors; the performance on the fst’s; the results of the breathtest. Kirschner’s theory was that the trooper had insufficient “probable cause” to justify the traffic stop. A hearing was held on August 13, 2009, where the trooper testified to the events described above. On cross examination, Kirschner questioned the trooper closely about exactly what his observations of J.B.’s driving patterns were, and then argued to the judge that the reasons supplied by the officer did not justify initiating a traffic stop. The Judge agreed, and granted the Motion to Suppress, which effectively “threw out” all of the State’s evidence. The State initially claimed they would appeal the Judge’s ruling, but on September 8, 2009, they filed their “Nolle Prosequi” [dismissal] of the charge of DUI agains J.B. Moral of the tale? Even bad facts, with a bad breath test, can sometimes lead to great results—-with the right counsel on board.
