Our firm has been retained by JOHN DOE to represent him on his pending DUI charge. We are requesting the DUI charge be nolle prossed based on the 2nd DCA case, Danielewicz, as well as Mr. Doe’s performance on FSEs and .00 BAC.
On the night of March 12th, JOHN DOE was asleep in his legally parked car, with the engine running and the air conditioning on. This is not illegal. The Second District has directly and unambiguously ruled that a police officer’s observation of a defendant apparently asleep behind the wheel in a legally parked car with the engine running is insufficient to establish a well-founded suspicion that the person was about to become involved in criminal activity so as to justify an investigative stop.
In Danielewicz, an officer pulled into a business parking lot and observed the Defendant asleep in the car, with the car on. The officer witnessed no infraction occurring and did not observe anything wrong with the car. The Defense for Ms. Danielewicz filed a motion to suppress evidence of a DUI based on an illegal traffic stop, and, on appeal, the 2nd DCA granted the motion citing the officer had no reason to believe that a crime had taken place, or was about to take place, and thus the stop was unlawful.
In the present situation, the community safety officers who initiated the stop surrounded JOHN DOE vehicle and ordered him to roll down his windows. This is clearly a traffic stop because no reasonable person would feel free to leave, but the officer had no reason to believe that JOHN DOE had committed or was about to commit a crime, thus making the stop illegal.
Further, it should be noted that after the officers made contact with JOHN DOE, he was polite, asked intelligent questions about his rights and responsibilities, did not exhibit signs of impairment, did not have slurred speech, performed well on the FSEs, and blew .00 on the BAC. The COBAN videos clearly show this, despite the officer’s attestation and exaggeration of poor performance on FSEs.
It would be an uphill battle for the State to prove, beyond a reasonable doubt, that JOHN DOE was guilty of DUI. He is clearly not intoxicated and the BAC supports that.
THE CASE WAS NOLLE PROSSED IN PINELLAS COUNTY MEANING DISMISSED.
