Don’t Drive on the Wrong Side of the Road (Duh)

On January 18, 2019, the Second DCA issued a ground-breaking opinion that driving on the wrong side of the road is sufficient probable cause for a law enforcement officer to conduct a stop of a motor vehicle. The prior statement should be read as dripping with sarcasm. However, I will issue a tip of the hat to the trial attorney who somehow convinced the trial judge that a stop on that basis was illegal and that all evidence of a DUI should be tossed. Without his or her artful lawyering, we wouldn’t have this gem of scholarly legal work.

The Facts of State v. Boston

My assumption is that Mr. Boston was facing a felony DUI for having committed prior DUIs. Normally, a DUI is handled in county court and any appeal is to the circuit court. Since this appeal was to the Second District Court of Appeal, it’s a fairly safe bet that this wasn’t Mr. Boston’s first experience in litigation over a DUI.

With that said, here are the facts from State v. Boston: “On an early spring morning in Indian Rocks Beach, Deputy Matthew Schultheis saw Mr. Boston drive northbound through an intersection’s green light and continue into the southbound side of the road. Deputy Schultheis testified that Mr. Boston drove his vehicle on the wrong side of the road for about one-hundred feet before returning to the proper lane. There were no other vehicles on the road, nor were any pedestrians present. Deputy Schultheis stopped Mr. Boston and noticed signs of impairment, including slurred speech, an unsteady gait, and the odor of alcohol. The State charged Mr. Boston with felony driving under the influence.”

Because of the felony DUI, Mr. Boston was facing up to, at least, 5 years in Florida State Prison. A typical DUI is a misdemeanor, punishable by up to 364 days in county jail if there was an accident and less jail time without an accident.

Trial Court’s Logic

The trial court did what any criminal defense lawyer would want a trial judge to do; it looked beyond whether a traffic law had been violated and looked to whether the driver’s actions were reasonable under the circumstances. The Court noted that Mr. Boston quickly corrected from being on the wrong side of the road, that no other traffic was effected, and that the traffic pattern in the area was confusing. As such, the officer shouldn’t have pulled over the driver.

Correction by the Appellate Court

Here’s an accurate statement of the law by the DCA regarding traffic stops in Florida (internal citations omitted):

“An examination of the validity of a traffic stop under the Fourth Amendment . . . requires courts to determine whether the stop was reasonable. Thus, we must assess “whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop. In “applying the objective test, generally the only determination to be made is whether probable cause existed for the stop in question.

The constitutional validity of a traffic stop depends on purely objective criteria. The objective test asks only whether any probable cause for the stop existed, making the subjective knowledge, motivation, or intention of the individual officer involved wholly irrelevant. H

As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The test is whether a police officer could have stopped the vehicle for a traffic violation. On at least one occasion, we have reversed a suppression order based on a driver’s failure to stop at a stop sign, regardless of the officer’s subjective suspicions.”

As such, the only relevant inquiry is whether the driver violated a traffic law. The DCA found that Mr. Boston drove on the wrong side of the road in contravention to Fla. Stat. 316.081. Therefore, the deputy had an objective basis and probable cause to conduct the traffic stop. No evidence obtained subsequent to the stop should have been suppressed.

Some Creative Lawyering to Find the Deep Pocket

By: Adam L. Bantner, II

A well-honed skill of any successful plaintiff’s attorney is the ability to find the money, i.e., to sue the party that has the greatest ability to get your client the greatest recovery for his or her injuries. In the typical case, it is the insurance company as most individuals simply aren’t worth that much (financially speaking, of course). The median household income of an American household in 2016 was just $11,100.

Sometimes, when damages are great, insurance is relatively low, and the at-fault driver is broke, an attorney will need to get creative to find the money. A 2018 case out of Palm Beach County illustrates this need.

Seminole Lakes Homeowners’ Association, Inc. v. Esnard

Seminole Lakes is not unlike many communities in Hillsborough County like FishHawk, Riverhills, Buckhorn, etc. It’s a deed restricted community that disallowed vehicles from parking anywhere other than the owner’s driveway or garage. However, since there was a shortage of available parking, it decided to allow owners to park on the street despite a provision of Royal Palm Beach Code that prohibit any parking that impedes the flow of traffic.

The Esnards were travelling to their home one evening and came upon a section of the roadway where, because of vehicles being parked on both sides of the road, only one vehicle could pass through at any given time. While the Esnards were waiting for a vehicle to clear this section so that they may continue on their way home, they were struck in the rear by another driver, Upshur.

While Upshur was clearly negligent by causing the accident, one can only assume that he lacked sufficient insurance or resources to fully compensate the Esnards for the injuries that they suffered from the accident. As such, the Esnards’ attorney decided to sue Seminole Lakes Homeowners’ Association as well under a theory that it was negligent and proximately caused the Esnards’ damages by permitting homeowners and their guests to park on both sides of the community’s streets contrary to its governing documents. They trial judge allowed the case to proceed under this theory and the jury came back in favor of the Esnards finding Upshur 70% at fault and Seminole Lakes 30% at fault. They found the money!

Appellate Court Reverses Trial Court

However, this victory would be short-lived as the Fourth DCA ruled that a directed verdict should have been entered in favor of Seminole Lakes.
“While the vehicles parked on the side of the street caused traffic to slow or even stop, it cannot be said that this was a proximate cause of the Esnards’ damages. It is within common experience while driving on the streets of Florida to encounter traffic that is slowed or stopped for any number of reasons. The law requires every driver to maintain a safe distance from the traffic in front of them to avoid rear-end collisions…In light of all of the evidence, including the lack of any prior incidents of this nature, and the general conditions of this residential neighborhood, we hold that Upshur’s negligence was not reasonably foreseeable by Seminole Lakes, and the failure to enforce its parking rules was not the proximate cause of the Esnards’ injuries.”

As a trial attorney, you have to admire the willingness to advance such a novel legal theory in hopes of getting their clients the best recovery possible.

Requirements of a Suspect Lineup

By: Adam L. Bantner, II

Identification of a suspect as the person who committed the crime by a victim of that crime or witness to that crime is some of the most powerful evidence that the State can present when seeking a conviction. However, misidentification of a suspect is one of the leading causes of wrongful convictions. As such, Florida law imposes several requirements upon law enforcement officers when asking a witness/victim to identify the person who committed the crime through a lineup procedure.

Fla. Stat. 92.70

In 2017, the Florida legislature passed Fla. Stat. 92.70 in hopes of minimizing misidentifications. It applies to both live lineups and photo lineups. Because a suggestion, whether intentional or not, by the administrator as to the “correct” person is the primary evil to be avoided, the law does its best to ensure that the person administering the lineup is a neutral without knowledge of the target suspect in the lineup.

Specifically, the statute requires:

  1. An independent administrator or other neutral procedure,
  2. Instructions to the witness, and
  3. A signed acknowledgment by the witness.

Independent Administrator and Alternative Procedures

Again, the goal of the law is to prevent improper suggestion by the administrator to the person making the identification as to whom to select. Therefore, the law recognizes several approved procedures while also giving validity to any procedure that utilizes a neutral administrator and which is not otherwise impermissibly suggestive. The statute allows:

  1. The lineup must be conducted by an independent administrator. However, in lieu of using an independent administrator, a law enforcement agency may conduct a photo lineup eyewitness identification procedure using an alternative method specified in subparagraph 1., subparagraph 2., or subparagraph 3. Any alternative method must be carefully structured to achieve neutral administration and to prevent the lineup administrator from knowing which photograph is being presented to the eyewitness during the identification procedure. Alternative methods may include any of the following:
  2. An automated computer program that can automatically administer the photo lineup directly to an eyewitness and prevent the lineup administrator from seeing which photograph the eyewitness is viewing until after the procedure is completed.
  3. A procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the lineup administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is completed.
  4. Any other procedure that achieves neutral administration and prevents the lineup administrator from knowing which photograph is being presented to the eyewitness during the identification procedure.

Instructions to the Witness

Furthermore, the law requires that the witness be given certain instructions to further minimize the chances of a misidentification. Essentially, it tries to achieve this by informing the witness that it’s okay to not select a suspect. The required disclosure states:

  1. The perpetrator might or might not be in the lineup
  2. The lineup administrator does not know the suspect’s identity
  3. The eyewitness should not feel compelled to make an identification
  4. It is as important to exclude innocent persons as it is to identify the perpetrator
  5. The investigation will continue with or without an identification.

Acknowledgment by Witness

Lastly, Fla. Stat. 92.70 requires the witness to sign an acknowledgment that
he or she received a copy of the lineup instructions. If the eyewitness refuses to sign a document acknowledging receipt of the instructions, the lineup administrator must document the refusal of the eyewitness to sign a document acknowledging receipt of the instructions, and the lineup administrator must sign the acknowledgment document himself or herself.

What if the Procedures Weren’t Followed?

This is where having a board certified criminal trial law attorney comes in handy. If the procedures weren’t followed, your criminal defense attorney should file a Motion to Suppress the identification. Should the identification be suppressed, the State will be unable to have the witness identify the suspect in court unless there is another independent basis for the identification.

If you’ve been arrested or otherwise charged with a crime, call The Bantner Firm today for your free consultation! 813.397.3965. You want Your Community Lawyer on your side!