Every DUI police report reads the same, a distinct odor of alcohol, slurred speech or thick tongued speech, bloodshot watery eyes... and on and on.  Here is proof that an audio wave file can HELP PROVE YOUR INNOCENCE.  Here is a story about an attorney from Las Vegas visiting his girlfriend in Miami for their baby shower.   He left two messages on her phone after he forgot the security code for the entrance to here apartment coomplex and fell asleep in his car.  

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Where defendant, who was found sleeping in properly parked vehicle, exhibited no signs of impairment, there was no legal reason for DUI arrest -- Stop and seizure of defendant was unlawful where police activated police lights before approaching vehicle and developing any reasonable grounds to believe defendant was involved in any criminal behavior -- No merit to argument that police were acting in community caretaker role where there is no evidence of such intent, and fact that officer drove off after first seeing parked vehicle and only stopped on second pass belies any genuine concern for defendant's well-being

STATE OF FLORIDA, Plaintiff, vs. JASON TRAUTH, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Traffic Division. Case No. 290063-X, 7419-ENO. December 7, 2007. Maria D. Ortiz, Judge. Counsel: Isadora Velazquez-Rivas, Assistant State Attorney. Michael A. Catalano, for Defendant.

THIS CAUSE having come to be heard upon the Defendant's Motion to suppress evidence for bad stop and no grounds to arrest and the Court having taken testimony and received evidence and the State having been represented by Assistant State Attorney Isadora Velazquez-Rivas and the Defendant having been represented by Attorney Michael A. Catalano and the court otherwise being fully advised in the premises rules as follows:

1. The Motion is hereby granted as to both grounds.

2. The court hereby makes the following finding of facts:

a. The Defendant lives in Las Vegas and was in Miami to attend a baby shower in honor of the child he and his girlfriend were expecting.

b. He took many of the baby shower gifts to his girlfriend's apartment on 2500 block of N.E. 136 Street in North Miami, Florida shortly after midnight on March 3rd, 2007.

c. The street is a very quiet residential neighborhood with houses and apartment buildings on both sides of the road.

d. The Defendant could not get into the apartment as a code was required for entry and his cell phone had a dead battery so, he could not reach his girlfriend to get the code. He then decided to simply wait in his rental car for her to arrive. The Defendant was very tired as he had just completed taking the Nevada Bar exam and had traveled all night to get to south Florida.

e. The Defendant then parked his rental Jeep Liberty on the grassy median in front of the apartment building and fell asleep in the car. He was not slumped over the wheel.

f. The car lights were off but, the motor was running, the car was in neutral and the back driver's side window was open.

g. About 3 hours later, Officer Hollant of the North Miami Police Department drove by and saw the car in question on the grassy median. He ran the tag to see if it was stolen. It was not. He then drove around the block and came back to the car and this time decided to investigate. The officer must have seen the Defendant in the car as the Defendant is about 6þ7þ tall and weighs over 275 lbs.

h. At the time the officer made the second pass by the car, he had no information that the car was stolen or any calls or complaints about the car in question. The Officer admitted that he knew of nothing illegal taking place in the car but, wanted to check it out to see if it was possibly a stolen car that had not yet been reported.

i. Officer Hollant then called in for a back up and two other officers arrived. The first back up officer was Officer Holst. The second back up officer was Officer Raines. At least two of the police cars were then parked behind the Defendant's car with red and blue police lights circulating. No one is sure if the third officer used his police lights. In any event, the police lights were activated before the police even approached the car to check it out.

j. As the first back up officer arrived, he and Officer Hollant both approached the car and saw the Defendant in the front seat drivers sleeping. They also heard him snoring.

k. Officer Hollant then ordered the Defendant to wake up and exit the car.

l. The Defendant is a former Assistant Broward and Monroe County Public Defender and tried to explain to the police that he was a lawyer and was simply waiting for his girlfriend to come home and let him in and that he had done nothing wrong.

m. Officer Hollant then took the Defendant's driver's license and ran it on the computer. There he found information about the Defendant's previous DUI case. In that case, the Defendant was charged with DUI and acquitted of DUI in February 2004. The officer then asked the Defendant if he had a prior DUI. The Defendant told him he did but, he was acquitted.

n. The officer then started a DUI investigation by asking the Defendant to perform physical sobriety exercises. The Defendant refused and said that there were no grounds to even ask for such exercises.

o. There is a conflict in the testimony about any possible alcohol impairment. Two officers, Hollant and Raines, testified that they thought he was impaired and the other officer, Holst, said he could not give an opinion that he was under the influence of alcohol. Although Officer Hollant was the main investigator, all three officers were with the Defendant for at least 30 minutes and all were able to testify about his demeanor, appearance and his actions.

p. Two officers testified that the Defendant had very noticeable slurred speech and that it was “thick tongued.”

q. The State attempted to show that the car was illegally parked but, the testimony was to the contrary. No officer could say there were any signs that said that parking was illegal at the place in question. The Defendant said that he parked in a place that was legal and proper.

r. For some reason, Officer Hollant also wrote a citation for careless driving, creating a hazard and cited F.S. 316.1925(1). The undisputed facts of this matter show that there is absolutely no evidence that the Defendant drove “carelessly” or that he created any type of “hazard.”

s. The State then rested.

t. The Defendant testified and explained that he was legally parked and that the place where he parked the car was the only legal and proper place to park in that area.

u. The Defendant swore that he had not consumed any alcohol for many hours before the arrest and that he was not impaired at all.

v. When the Defendant was taken to the police station, Officer Hollant was kind enough to allow him to attempt to call his girlfriend and let her know where he was. The Defendant either used the officer's cell phone or the police phone.

w. The Defendant left two voice messages for his girlfriend and both were played in open court. The messages were saved on a “wave” file and were introduced into evidence.

x. The audio is clear. There is no hint or trace of any slurred speech or thick tongued speech. This evidence is in direct conflict with the testimony of the officers.

3. The court finds as a matter of fact that the testimony of the Defendant is more credible than the testimony of the officers and that the Defendant was not impaired and should not have been arrested. There was no legal reason to make a DUI arrest based on the facts found by this Honorable Court. See State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000).

4. Additionally, the court finds that the stop and seizure in this matter was illegal. There is nothing illegal about sleeping in a properly parked car. Sites v. State, 582 So. 2d 813 (Fla. 4th DCA 1991) and Danielewicz v. State, 730 So. 2d 363 (Fla. 2nd DCA 1999). The police activated their police lights before they had any reasonable grounds to believe the Defendant or the Defendant's car was involved in any past, present or future criminal behavior contrary to F.S. 901.151.

5. A reasonable citizen would expect that he or she was not free to leave upon seeing a police car behind his or her car with red and blue police lights circulating. Koppelman v. State, 876 So. 2d 618 (Fla. 4th DCA 2004), Errickson v. State, 855 So. 2d 700 (Fla. 4th DCA 2003) and Newkirk v. State, 32 Fla. L. Weekly D2223 (Fla. 2nd DCA Sept. 19, 2007).

6. The State argued that the police were acting as community caretakers but, never presented any evidence to show that the officer had any such intent or that they even knew they had such a duty. If the officers had a genuine concern for the well being of the Defendant, they would have never left him there after seeing the car the first time, drove around the block and then checked him out on the second pass by the car. The court rejects that argument on both factual and legal grounds.

Conclusion:

The motion to suppress is hereby granted on both grounds.

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STATE v. JASON BRADY TRAUTH, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Traffic Division. Case No. 7419ENO. December 18, 2007.

þ Whereas the above defendant in this case entered a plea of no plea to the offense of CARELESS DRIVING in violation of Florida Statute 316.1925(1) and the case was dismissed by this court.

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STATE v. JASON BRADY TRAUTH, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Traffic Division. Case No. 290063X. December 18, 2007.

þ Whereas the above defendant in this case entered a plea of no plea to the offense of DRIVING UNDER THE INFLUENCE in violation of Florida Statute 316.193(1) and the case was dismissed -- SAO request by this court.