vs.                                                                                            Appeal No. 01-2805-CI-88A





                Upon consideration of the Amended Petition for a Writ of Certiorari and the Response thereto, the Court finds that the Petition for a Writ of Certiorari should be denied.

            Officer Franklin Fleming testified that he was performing surveillance for possible drug activity and gathering information on automobile license tags on December 22, 2000, at approximately 12.00 a.m.  Officer Fleming saw Petitioner come to a traffic light that was red.  Petitioner did not come to a complete stop, but it was sufficient enough that Officer Fleming did not issue a violation.  When he ran Petitioner's tag, the color on the vehicle did not match the information that he received.  Officer Fleming followed the Petitioner and instituted a traffic stop because the color of the Lexus that Petitioner was driving did not match the registration information that he was getting from his computer.  When Officer Fleming asked Petitioner for his driver's license and vehicle registration, the Petitioner had no trouble finding and producing them.  The Petitioner's registration indicated that the Lexus was a rebuilt vehicle.  While talking with the Petitioner, Officer Fleming noticed the odor of alcohol on his breath and asked Petitioner to step out of his vehicle.  Officer Fleming testified that when Petitioner stepped out of his vehicle, Petitioner leaned against the side of the vehicle and appeared somewhat unsteady, and Petitioner had glassy eyes that were bloodshot.  Petitioner told Officer Fleming that he had a drink, but he did not feel that he was intoxicated.  Officer Fleming stated that he thought the Petitioner was possibly impaired.  Officer Fleming requested Officer White from a DUI squad.    While they were waiting for Officer White, the Petitioner showed Officer Fleming how he and his brother had rebuilt the car.  Officer Fleming said that he had no trouble understanding Petitioner and Petitioner was not stumbling or falling as they walked around the vehicle. 

            Officer Christopher White testified that when he arrived, Petitioner was already out of his car.  While Officer White was talking to the Petitioner, he noticed a strong odor of alcohol.  Officer White stated that he tried to give Petitioner the Horizontal Gaze Nystagmus test, but Petitioner would not follow the stimulus all the way out, so Officer White gave the Petitioner a score of four.  Officer White and the Petitioner had to cross a small drainage ditch to a bank parking lot to do the field sobriety tests.  Officer White stated that Petitioner had a little problem crossing the ditch and a one to two-foot grassy rise to the parking lot, but Petitioner did not fall down.  Petitioner refused to take field sobriety tests and a breath test. 

            Officer White's Case Report was admitted into evidence at the hearing.  In his report, Officer White stated that he noticed a strong odor of alcohol coming from the Petitioner while he was talking to him.  Officer White asked the Petitioner if he had been drinking and Petitioner said, "Yes."  Officer White also noticed that Petitioner's eyes were bloodshot, watery and glassy.

            The standard of review in the circuit court to certiorari review of an administrative agency action is (1) whether the agency action afforded the parties procedural due process; (2) whether the essential requirements of law were observed; and (3) whether the agency action is supported by competent substantial evidence.  State Dept. of Highway Safety and Motor Vehicles v. Haskins, 752 So. 2d 625 (Fla. 2d DCA 1999).  Petitioner argues that the essential requirements of law were not observed and that the agency action is not supported by competent substantial evidence.

            Petitioner argues that the suspension of the driver's license constitutes the deprivation of a constitutionally protected property interest.  In Thornhill v. Kirkman, 62 So. 2d 740, 742 (Fla. 1953), the Florida Supreme Court stated that an automobile driver's license is a privilege, which is subject to suspension or revocation for cause.  There is no property interest in possessing a driver's license.  Lite v. State, 617 So. 2d 1058 (Fla. 1993).

            Petitioner next argues that the stop was illegal because it was profiling.  Officer Fleming's initial stop was legal because the color of the Lexus that Petitioner was driving did not match the registration information that Officer Fleming was getting from his computer.  That is not profiling.  In addition, Petitioner is a white man.  In Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998), Mr. Crooks was stopped without any objective basis to stop him.  The appellate court surmised that Mr. Crooks was stopped because he was a 46-year-old United States citizen of Jamaican heritage who wore his hair in a Rastafarian style.  In other words, Mr. Crooks appeared to be a black man.  The deputy did not think Mr. Crooks was intoxicated or otherwise impaired.

            In this case, Officer Fleming saw a Lexus that did not match the automobile registration information for the license tag on the Lexus.  That is an objective basis that provides probable cause to stop the Lexus.  Holland v. State, 696 So. 2d 757 (Fla. 1997).  In Holland v. State, the Florida Supreme Court stated that Florida courts must conform to the United States Supreme Court's interpretation of the search and seizure guarantees of the United States Constitution when interpreting the guarantees of the United States and Florida Constitutions.  The record must be reviewed under the objective test of Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

            Petitioner argues the hearing officer's order departs from the essential requirements of law because Officer White did not have probable cause to arrest Petitioner for driving under the influence of alcohol to the extent his normal faculties were impaired.  Petitioner argues that the violation must have been committed in the presence of the arresting officer for the arrest to be legal.  Under the fellow officer rule, Officer White had authority to make the arrest based on Officer Fleming's observations and report.  State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990); State of Florida Dept. of Highway Safety & Motor Vehicles v. Porter, 26 Fla. L. Weekly, D1161a (Fla. 2d DCA May 4, 2001).  While Officer White did not see Petitioner driving, Officer Fleming did.  In addition Officer Fleming called Officer White for the specific purpose of conducting the sobriety tests.  Moreover, Officer White made his own observations of the Petitioner including the odor of alcohol, and watery, bloodshot eyes.  Petitioner refused to take the field sobriety tests.  Officer White testified that he told the Petitioner that refusing to take the field sobriety tests could be used against him, that the field sobriety tests were there to show whether he was impaired or not, and that Petitioner was throwing away his opportunity to show that he was not impaired.  Petitioner's refusal to take the field sobriety tests is relevant to show consciousness of guilt.  State v. Taylor, 648 So. 2d 701 (Fla. 1995).  The hearing officer had substantial competent evidence that Officer White had probable cause to arrest Petitioner for driving under the influence of alcohol to the extent his normal faculties were impaired.

            Finally, the Petitioner argues that the hearing officer erred as a matter of law when he determined that the Petitioner refused to submit to a breath test.  Petitioner argues that since there was no lawful arrest, there was no lawful refusal.  Petitioner's premise that there was no lawful arrest has failed; therefore, the Petitioner's conclusion fails.  It is      

            ORDERED that the Petition for a Writ of Certiorari is denied.

            DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, on this 1st day of August 2001.

Circuit Judge, Appellate Division


Copies Furnished To:

Robert D. Eckard, Esquire
777 Alderman Road
Palm Harbor, FL 34683
Attorney for Petitioner

Rhonda M. Diamond Esquire
Assistant General Counsel
Dept. of Hwy. Safety & Motor Vehicles
2515 West Flagler Street
Miami, FL 33135
Attorney for Respondent