Breath Test Suppressed

Dec 20, 2023

Online Reference: FLWSUPP 3108BARC

Criminal law — Driving under influence — Evidence — Breath test — Substantial compliance with administrative rules — Twenty-minute observation period — Breath test results are inadmissible where officer stepped outside of police vehicle holding defendant for one and a half minutes during twenty-minute observation period, and officer was not in position to maintain close and continuous observation of defendant from outside vehicle

STATE OF FLORIDA, v. ROBERT JAMES BARCUS, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. A779YKE. UCN Case No. 522023CT000415000APC. October 12, 2023. Diane Croff, Judge. Counsel: J. Kevin Hayslett, for Defendant.

ORDER GRANTING DEFENDANT’S

MOTION TO SUPPRESS

THIS CAUSE comes before the Court on the Defendant’s Motion to Suppress. On October 11, 2023, the Court conducted a hearing on the motion. The Court, having considered the testimony of witnesses, argument of counsel, and relevant law, makes the following findings of fact and conclusion of law:

1. On January 4, 2023, the Defendant was placed under arrest for DUI and transported to the Central Breath Testing facility where he provided breath samples of .183/.186.

2. The twenty-minute observation period required by Florida Administrative Code Rule 11D-8.007(3) (2022) began at 2:20 a.m. and the breath test was administered at 2:49 a.m.

3. During this observation period, at approximately 2:31 a.m., the arresting officer stepped out of his cruiser for approximately a minute and a half, during which time the Defendant was left alone in the vehicle with all the doors shut and windows rolled up.

4. Once the officer stepped out of his vehicle, he was no longer in a position to maintain close and continuous observation of the Defendant and it would have been impossible for him to have detected any belching or regurgitation during this time.

5. Because the Defendant was not under proper observation for a portion of the required twenty minutes, the State is unable to prove substantial compliance with Rule 11D-8007(3) and the breath test results are therefore inadmissible.

WHEREFORE, it is ordered and adjudged that the Defendant’s motion to suppress is hereby GRANTED and the State is prohibited from introducing the results of the breath test.

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