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Nagel v. State12/27/2000
ON REMAND FROM THE SUPREME COURT
The supreme court quashed this court's decision in Nagel v. State, 739 So. 2d 1242 (Fla. 4th DCA 1999), and remanded for further proceedings in light of its opinion in Goodwin v. State, 751 So. 2d 537 (Fla. 1999). On remand, we reverse appellant's conviction for driving under the influence (DUI).
Appellant was charged by information with possession of a schedule IV substance, Darvocet, and DUI, arising out of an incident that occurred on April 12, 1998. Appellant pled not guilty to the charges and a three day trial commenced. At trial, the state presented the testimony of the arresting officer, an officer that assisted in appellant's arrest, a Breathalyzer technician, and a chemist, as well as a videotape of appellant after his arrest. Appellant testified in his own defense. Officer Crowell, the arresting officer, testified that he observed appellant make a wide turn as he was leaving Dunkin Donuts in the early morning hours of April 12, 1998. He stated that he followed appellant and pulled him over because appellant's pick-up truck failed to stay in one lane and crossed the divider four times. Officer Crowell further testified that appellant's eyes were bloodshot and glassy, he smelled of alcohol, his speech sounded very slurred, and he stumbled and staggered to the rear of his truck, where he leaned against the vehicle. When Officer Crowell requested that appellant perform the walk-and-turn exercise, the officer testified that appellant was very unsteady, swaying tremendously, as if he would fall and injure himself. Officer Crowell stated that for appellant's safety he did not request other field sobriety tests. Officer Crowell added that there was no doubt in his mind that appellant was under the influence.
Officer Crowell's observations and conclusions were corroborated by Officer Tawil, who assisted Officer Crowell in the traffic stop. Officer Tawil testified that he "could smell the odor of an unknown alcoholic beverage coming from [appellant's] person." He also testified that appellant's speech was slurred, he had bloodshot eyes, he was having trouble standing, his feet appeared to be heavy, as he walked, and he was dragging. Officer Tawil concluded that appellant appeared to be under the influence of alcohol. Officer Tawil further testified that, as he approached appellant's truck, he observed a gun in plain view. At this point, appellant was handcuffed, his truck was searched, and a clear film canister of six pink pills, later identified as Darvocet, were found in the truck. Thereafter, appellant was taken to jail where the police learned that he had a valid permit for the gun.
Javier Forteza, a Breathalyzer technician with the Palm Beach Sheriff's Office, videotaped appellant at the jail. He testified that appellant had bloodshot eyes and slurred speech. He also testified that appellant smelled of alcohol, was swaying and sluggish, but did not stumble or require assistance. He further testified that appellant refused to take the Breathalyzer test.
Appellant testified that he awoke at 4:30 a.m. for work, came home around 2:30 p.m., and returned to work around 6:30 p.m. on April 11, 1998. He explained that he took a Valium at approximately 6:00 p.m. and had a rum and Coke at about 7:30 p.m. Some time after 2:00 a.m. on April 12, appellant said that he left work and drove to a Dunkin Donuts, where he got something to eat. He claims that he was "dog-tired" at this point. He said he used mouthwash after he left the restaurant to get rid of the taste in his mouth from the food. He also admitted that he "could have" made a wide turn from the parking lot, he "probably did go across the white line" into the other lane,
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