IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 02-9322CI-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari (Petition), the Amended Response, and the Amended Reply. Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Amended Petition must be granted as set forth below.
Petitioner, Thomas Roth (Roth), seeks review of the Final Order of License
Suspension, entered October 29, 2002, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Roth’s driving privilege was properly suspended for a period of
six months for driving under the influence (DUI). In reviewing the Department’s order, this
Court must determine (1) whether procedural due process had been accorded, (2)
whether the essential requirements of law had been observed, and (3) whether
the administrative findings and judgment were supported by competent
substantial evidence. See Vichich
v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
The record shows that on August 2, 2002, at 1:35 a.m., Officer William Kenna, of the Treasure Island Police Department, was traveling behind Roth’s vehicle when he observed the vehicle weaving back and forth in his lane of travel at approximately 35 m.p.h., which was the speed limit. Traffic in both directions was moderate. Officer Kenna followed Roth’s vehicle for several blocks during which time he observed the vehicle cross the centerline, then the white lane divider, and then the centerline again, each time crossing over approximately one foot for about 2 seconds. Officer Kenna then conducted a traffic stop. Upon making contact with Roth, Officer Kenna smelled the odor of alcohol and noticed several other signs of impairment, including that Roth’s speech was slurred and that his eyes were red and glassy. Roth failed the subsequent field sobriety tests and was arrested for DUI. The results of the breath tests showed an unlawful breath alcohol level of .159g/210L and .170g/210L. Officer Kenna also issued a citation to Roth for failure to maintain a single lane.
Roth raises four issues in his
Amended Petition, only one of which has merit.
That is, whether the Department departed from the essential requirements
of law by failing to invalidate Roth’s suspension because the stop of his
vehicle was unlawful and in violation of the Fourth Amendment. Florida Statutes, § 316.089(1), states that
“[a] vehicle shall be driven as nearly as practicable entirely within a single
lane and shall not be moved from such lane until the driver has first
ascertained that such movement can be made with safety.” This statute “recognizes that it is not practicable,
perhaps not even possible, for a motorist to maintain a single lane at all
times and that the crucial concern is safety rather than precision.” See Jordan v. State, 831 So.2d
1241, 1243 (
There is no evidence in the record that Roth’s vehicle created a safety concern for others. Further, the record is void of any evidence that Officer Kenna suspected that Roth was driving under the influence or that Officer Kenna conducted the traffic stop to determine whether Roth was ill or tired. See Nicholas v. State, 857 So.2d 980 (Fla. 4th DCA 2003)(stating that a police officer can stop a driver based on a foundation suspicion that the driver is under the influence, even where the driver is not committing a separate traffic offense); see also Roberts v. State, 732 So.2d 1127 (Fla. 4th DCA 1999)(same). In comparing the facts of this case with other cases addressing this issue, the Court finds that Roth’s driving pattern was not “erratic” to support a lawful investigatory stop. See id.
Recently, the Florida Supreme Court in Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 2004 WL 306051 (Fla. 2004), explained that the correct test to be applied by the Circuit Court in reviewing such administrative action is “whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.” In applying this test to the facts of this case and the applicable case law as cited above, the only evidence presented to the hearing officer concerning the traffic stop was Officer Kenna’s Incident Report and his testimony at the formal review hearing. The Court finds that the Incident Report is silent as to whether other traffic was affected and, further, that the testimony of Officer Kenna provides that he observed Roth’s vehicle for “just a few seconds” and that no other cars had to take evasive action. Accordingly, the Court finds that there was not an objectively reasonable basis for Officer Kenna to conduct a traffic stop as there is no competent or substantial evidence that Roth’s vehicular movements created any danger to himself or other traffic. See e.g. Jordan, 831 So.2d at 1243; Crooks, 710 So.2d at 1043; Nicholas, 857 So.2d at 982 (concluding that stop was unlawful where officer acknowledged that he observed the driver for a very short period of time and the driver did not interfere with any other traffic).
Additionally, in Dobrin the Court upheld the trial court’s finding that the stop could not be upheld based upon the need to investigate the unusual driving because the officer did not say he thought the driver might be impaired. The same is true in the instant case.
Therefore, it is,
ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is granted and the Final Order is quashed.
AND ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Eilam Isaak, Esquire
Rhonda F. Goodman, Assistant General Counsel
Bureau of Driver Improvement