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In the matter of Shively vs. State, the 2nd District Court of Appeal ruled as follows: The district court affirmed the defendant's judgment and sentence of probation, finding no mistake in the trial court's denial of the defendant's motion to suppress evidence of field sobriety exercises after the defendant pleaded no contest to DUI, driving while license suspended, in addition to possession of cocaine. The defendant reserved the right to appeal the denial of his dispositive motion to suppress. An off-duty sheriff's deputy was working as a security officer for a parking garage late at night. A garage employee called the police officer to help the defendant, who was in his car at the exit. The police officer saw that defendant was having trouble placing a parking token into the machine to raise the gate. The officer suspected that the defendant was drunk. He appeared confused, his eyes were bloodshot, and his speech was slurred. Vehicles coming down the garage exit ramp were backing up behind his vehicle.  The officer diverted other vehicles then instructed defendant to back out of the exit lane and pull over beside the garage wall where he wouldn't impede traffic. Defendant did so. He exited his vehicle, staggered, and leaned against the car. The officer smelled the odor of alcohol. The police officer took defendant to the bottom of the ramp and requested help from a police DUI unit. After conducting field sobriety exercises, the police arrested the defendant for a DUI and driving with a suspended license. The arresting officers discovered cocaine in his pocket during a search incident to arrest. The defendant argued that the police lacked reasonable suspicion to direct him to back out of the exit lane and pull over to the wall. He contended he was seized illegally because he did not feel free to leave. The district court agreed with the trial court that the officer didn't seize defendant. The district court observed the incident occurred late at night when local entertainment venues were being closing, there was a mass exodus of cars from the parking garage, and the officer was providing security. Defendant's lack of ability to operate a token machine and leave the garage impeded the traffic flow. This, alone, was a legitimate basis for the police officer to instruct him to move his vehicle. The court held the police officer correctly exercised a community caretaking function. The defendant voluntarily exited his car, stumbled, and smelled of alcohol. These circumstances precipitated his arrest. The district court held that, even if the officer.s direction to the defendant to move his vehicle was deemed an investigative stop, the police officer's actions were permitted. This case summary is provided to you by Broward County DUI Attorney Michael Dye. For more information, please contact Mr. Dye at (954)745-5848 OR visit the firm website by clicking here: dui law.
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