
    CITY OF MIAMI BEACH v. ROCKFELD.
    Circuit Court, Dade County, Criminal Appeal.
    July 12, 1957.
    Eli Breger and Harvey J. St. John, both of Miami Beach, for appellant.
    Joseph A. Wanick and Wilson C. McGee, both of Miami Beach, for appellee.
   MARSHALL C. WISEHEART, Circuit Judge.

Appellant was convicted in the city court of the city of Miami Beach on the charge of driving while under the influence of alcohol.

The testimony of the police officer is as follows—

Officer, did you have a chance to observe Mr. Rockfeld at that time? —Yes.
Did you have occasion to smell his breath? — Yes, sir.
What odor, if anything, did you detect? — It was an alcoholic odor.
Did you have occasion to see him walk at that time? — Yes, sir.
How did he walk? — It appeared to be normal, under the conditions.
Did you hear him talk at that time? — Yes.
What was the manner of his speech? — Normal, I would say.

The doctor who observed the appellant at the police station testified in part as follows—

Will you tell us what those tests were and what the results were? —I asked him if he had diabetes or if he takes insulin and he said no. He had a small cut on his right hand. He said he had ten or twelve hours’ sleep the night previously. His breath had a faint alcoholic odor. His face was flushed. His clothes were orderly. His attitude was polite and cooperative. His eyes were dilated, his balance, walking and turning, was sure. The finger-to-nose test, right and left, were both sure. His speech was slurred.

Considering all the testimony in the record, and even though the drunkometer test registered 0.15, it falls far short of proof of the charge. The judgment of the city court is therefore reversed. Costs are assessed against the appellee.  