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Woman Who Tested Clean Sues Gulfport, Officer Over DUI Bust

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: July 9, 2008

Updated: 07/09/2008 05:37 pm

TAMPA – A woman who says she was charged with drunken driving after blowing 0.0 twice on a breath test and having a clean urine test has sued Gulfport, accusing a police officer of violating her civil rights.

Paulette Bourke had been at a restaurant called Backfin Blue where she had consumed two sips of wine before letting her sister, Lynn Frevert, finish the glass because she was driving, according to the lawsuit, first filed in Pinellas County but transferred by the city to federal court in Tampa on Tuesday afternoon.

About 11:30 p.m. May 29, 2004, Bourke was driving on 49th Street near Eighth Avenue when Officer Joshua D. Stone pulled her over for driving under the speed limit, making a wide turn and driving close to the right curb, according to the lawsuit.

Stone told Bourke he smelled alcohol and asked her whether she had been drinking. Bourke said that although she typically didn't drink, she had a couple of sips of wine from a glass her sister had ordered for her, the suit states.

Stone had Bourke do a field sobriety test but didn't let her wear her glasses, which made her "extremely nervous and made it more difficult for her to perform" the test, the suit states.

Stone told Bourke she failed the test and that she would have to submit to a breath test. She was taken to the Pinellas County Sheriff's Office, where she submitted to the test twice, both times showing results of 0.00 blood alcohol, the suit states.

"Stone was not willing to accept the fact that the plaintiff was not intoxicated or under the influence, and further required that she submit to a urine test, which also resulted in the complete absence of alcohol and drugs in Ms. Bourke's system," the lawsuit states.

"In spite of the absence of any evidence whatsoever, the defendant, Officer Stone, made a direct file of charges and the plaintiff was arrested for driving under the influence of alcoholic Beverages," the suit states.

The state attorney's office dismissed all charges two months later.

Attorney John Makholm, who is representing the city and the officer, said, "The police department had probable cause for the arrest of Ms. Bourke. … The existence of probable cause is an absolute bar to the claim of false arrest."

Lt. Howard Coombs of the Gulfport Police Department said he was present for Bourke's arrest. "The probable cause for that stop was just careless driving," he said. "She was weaving all over the road. She failed to maintain a single lane of traffic. That's the reason the stop happened."

The arrest was a result of the combination of Bourke's driving, her performance on the field sobriety test and Stone's observations of Bourke's actions, Coombs said. "All those factor in."

Bourke's attorney, T. Patton Youngblood Jr., said his client, who was 57 years old at the time of the arrest, works as a bagger at Publix. "She lives a very docile, humble, quiet life, just minds her own business," he said. "It shook her up pretty bad."

He said Bourke was driving slowly because she was worried about other drivers over the Memorial Day weekend. "She's never been arrested in her life."

Makholm said he transferred the case to federal court because of the federal civil rights issues it raised.

"I believe federal issues should be heard in federal court," he said.

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