Petition
for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway
Safety and Motor Vehicles: DRIVER’S LICENSES – traffic stop – from the
totality of the facts and circumstances, officer had founded suspicion to
justify traffic stop – driver stopped his vehicle several car lengths behind
stop bar and left his lane of travel several times. Petition denied. Pharo v. Dept. of Highway
Safety and Motor Vehicles, No. 03-5024AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
GENE R. PHARO,
Petitioner,
vs.
Appeal No. 03-5024AP-88A
UCN522003AP005024XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
Respondent.
____________________________________________/
THIS CAUSE came before
the Court on the Petition for Writ of Certiorari, the Response and the Reply.
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, Gene R. Pharo (Pharo), seeks review of the Final Order
of License Suspension, entered June 19, 2003, in which the hearing officer
for the Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Pharo’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 (
On appeal, Pharo argues that the hearing officer erred in sustaining his license suspension, as the traffic stop was not supported by a reasonable articulable suspicion of criminal activity or by the observation of a traffic infraction. The record shows that Trooper Palese, of the Florida Highway Patrol, conducted a traffic stop of Pharo’s vehicle for failure to maintain a single lane. Trooper Palese first observed Pharo’s vehicle when it was stopped in the right travel lane several car lengths back from the stop bar. Thereafter, Trooper Palese pulled behind Pharo’s vehicle and observed the vehicle leave its lane several times. Trooper Palese conducted a traffic stop, after which Trooper Palese observed signs of impairment. Pharo failed the subsequent field sobriety tests and was arrested for DUI. The results of the breath tests showed an unlawful breath alcohol level of .125g/210L and .126g/210L.
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.” Although the 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,”
a driver may nevertheless be stopped for erratic driving behavior.
See Nicholas v. State, 857 So.2d 980 (
Under the facts of this case, the Court finds that Pharo’s driving behavior of stopping his vehicle several car lengths from the stop bar, coupled with Pharo leaving his lane of travel several times, provided the requisite founded suspicion to conduct a lawful traffic stop. See id. at 981 (stating that a police officer can stop a driver based on a founded suspicion that the driver is under the influence, even where the driver is not committing a separate traffic offense); see also Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992)(holding that officer had founded suspicion justifying stop of motorist for DUI based on observing the motorist appear to be using lane markers to position his vehicle and abruptly slowing from 55 miles per hour and then accelerating rapidly). Thereafter, from the totality of the facts and circumstances, Trooper Palese was able to develop probable cause to arrest Pharo for DUI. See id. at 1352 (finding that probable cause needed to arrest or to suspend a license for DUI may be based upon evidence obtained during standard procedures following a valid traffic stop); see also Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(providing that probable cause exists “where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed”).
Accordingly, the Court finds that there
is competent substantial evidence to support hearing officer’s conclusion
that the traffic stop was lawful and that there was probable cause to arrest
Pharo for DUI. Further, the Court finds
that the essential requirements of law were observed and that Pharo was afforded
procedural due process by the Department in the proceedings below. Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is denied.
DONE AND
ORDERED in Chambers, at
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Sean B. Kelley, Esquire
Heather Rose Cramer, Assist. General Counsel
Bureau of Driver Improvement