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 (Fla. 6th Cir. App. Ct. Feb. 12, 2004).










vs.                                                                                               Appeal No. 03-5024AP-88A










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


            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 (Fla. 4th DCA 2003).  There is no statutory definition of erratic driving and it is necessarily determined on a case by case basis.  Id.

            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 Clearwater, Pinellas County, Florida this ________ day of February 2004.



                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division


Copies furnished to:


Sean B. Kelley, Esquire

13620 49th Street North, Suite 201

Clearwater, FL  33762


Heather Rose Cramer, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, #230

Lake Worth, FL  33467


Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610