Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted.  Roth v. Dept. of Highway Safety and Motor Vehicles, No. 02-9322CI-88B (Fla. 6th Cir. App. Ct. Feb. 26, 2004).

 

 


IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

THOMAS ROTH,

                        Petitioner,

 

vs.                                                                                               Appeal No. 02-9322CI-88B

                                                                                                   UCN522003CA009322XXCICI

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

 

ORDER GRANTING AMENDED PETITION FOR WRIT OF CERTIORARI 

            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.

            The 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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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 (Fla. 5th DCA 2002); see also Crooks v. State, 710 So.2d 1041, 1043 (Fla. 2d DCA 1998)(holding that a violation of statute requiring motorists to drive within clearly marked lanes requires evidence that the driver’s conduct created a reasonable safety concern).

            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. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2004.

 

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Eilam Isaak, Esquire

4021 North Armenia, Suite 200

Tampa, FL  33607

 

Rhonda F. Goodman, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610