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.  Stowell v. Dept. of Highway Safety and Motor Vehicles, No. 04-0002AP-88B (Fla. 6th Cir. App. Ct. March 23, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

RICHARD ROBERT STOWELL,

                        Petitioner,

 

vs.                                                                                               Appeal No. 04-000002AP-88B

                                                                                                   UCN522004AP000002XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

 

ORDER GRANTING 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 granted as set forth below.

            The Petitioner, Richard Robert Stowell (Stowell), seeks review of the Final Order of License Suspension, entered December 12, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Stowell’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 October 4, 2003, at 11:48 p.m., Deputy Gerretz, of the Pinellas County Sheriff’s Office, observed a vehicle weaving within its lane and drive off the roadway.  The vehicle continued to weave and drive on and over the solid white line.  Deputy Gerretz then conducted a traffic stop.  Upon making contact with Stowell, Deputy Gerretz smelled the odor of alcohol and noticed several other signs of impairment, including that Stowell’s speech was slurred and that his eyes were bloodshot and watery.  Stowell failed the subsequent field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .087g/210L and .088g/210L.  Deputy Gerretz also issued a citation to Stowell for failure to maintain a single lane in violation of Florida Statutes, § 316.089(1).

            Stowell argues that Department erred in sustaining his license suspension as Deputy Gerretz lacked probable cause to initiate a lawful traffic stop.  This Court agrees.  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 Stowell’s vehicle created a safety concern for others.  Further, the record is void of any evidence that Deputy Gerretz suspected that Stowell was driving under the influence or that Deputy Gerretz conducted the traffic stop to determine whether Stowell 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 Stowell’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 Deputy Gerretz’s Incident Report. [1]   The Court finds that the Incident Report is silent as to whether other traffic was affected or that other cars had to take evasive action.  Accordingly, the Court finds that there was not an objectively reasonable basis for Deputy Gerretz to conduct a traffic stop as there is no competent or substantial evidence that Stowell’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).  Lastly, 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 Petition for Writ of Certiorari is granted and the Final Order is quashed. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of March 2004.

 

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

 

 

 

Copies furnished to:

 

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL  33765

 

Heather Rose Cramer, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, #230

Lake Worth, FL  33467

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762



[1] The Court notes that the Appendix does not include a transcript of the hearing as designated in the index.  However, the Court finds this omission harmless in that neither the Petitioner nor the Respondent cite to the transcript in support of their respective arguments.  Further, the hearing officer’s findings of fact mirror Deputy Gerretz’s Incident Report and are undisputed.