Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – Fellow Officer Rule – officer need only have a reasonable suspicion in order to conduct a traffic stop – officer conducted traffic stop after observing Petitioner speeding and drifting in lane and believed Petitioner to be ill, tired, or under the influence – intoxilyzer officer was qualified to administer breath test under fellow officer rule -- Petition denied.  Park  v. Dept. of Highway Safety and Motor Vehicles, No. 03-5014AP-88B (Fla. 6th Cir. App. Ct. Feb. 5, 2004).

 

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

KEVIN PARK,

                        Petitioner,

 

vs.                                                                                               Appeal No. 03-5014AP-88B

                                                                                                   UCN522003AP005014XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Kevin Park (Park), seeks review of the Final Order of License Suspension, entered May 21, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Park’s driving privilege was properly suspended for a period of one year 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 March 18, 2003, at approximately 12:56 a.m., Sergeant Bentley, of the St. Pete Beach Police Department, observed Park’s vehicle accelerate at a fast rate.  Sergeant Bentley was able to place the vehicle traveling up to 55 mph in a 40 mph zone.  Sergeant Bentley also observed Park’s vehicle drift out of its lane to the left and partially into the median.  Believing the driver to be ill, tired or under the influence of alcohol and/or controlled substances, Sergeant Bentley conducted a traffic stop.  Upon making contact with Park, Sergeant Bentley smelled the odor of alcohol and noticed several other signs of impairment, including that Park’s speech was slurred and that his eyes were red and glassy.  Sergeant Bentley then requested Park to perform field sobriety tests, which he failed.  Park refused to submit to a breath test.

            First, the Court finds that the initial traffic stop was lawful.  An officer need only have a reasonable suspicion in order to conduct a traffic stop and to administer field sobriety tests.  See State v. Taylor, 648 So.2d 701, 703 (Fla. 1995)(finding that officer could have reasonable suspicion that a DUI was being committed since he observed the defendant traveling at a high rate of speed and, after exiting the vehicle, staggering, and exhibiting slurred speech, watery and bloodshot eyes, and the strong odor of alcohol); see also Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992).  Second, once Park failed the field sobriety tests, Sergeant Bentley had probable cause to arrest Park for DUI.  See id.  Lastly, the Court finds that Officer Hollenbeck, the intoxilyzer officer, was qualified to request Park to take the breath test and advise Park of the implied consent warning.  See Smith v. State, 719 So.2d 1018 (Fla. 3d DCA 1998)(explaining the application of the “fellow officer rule”).  Indeed, the record reflects that Sergeant Bentley participated in the administration of the breath test as he signed both the Breath Test Result Affidavit and the Affidavit of Refusal. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 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