Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – although officer did not get a tag number and was unable to identify driver, record supports finding that vehicle stopped was the same one observed speeding through intersection a short time before -- Petition denied.  Meisman v. Dept. of Highway Safety and Motor Vehicles, No. 04-0004AP-88A (Fla. 6th Cir. App. Ct. April 28, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

TRAVIS GRANT MEISMAN,

                        Petitioner,

 

vs.                                                                                               Appeal No. 04-000004AP-88A

                                                                                                   UCN522004AP000004XXXXCV

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, 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, Travis Grant Meisman (Meisman), seeks review of the Final Order of License Suspension, entered December 13, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Meisman’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 12, 2003, at approximately 2:30 a.m., Officer Osarczuk and Officer Brockew, of the Tarpon Springs Police Department, were on a traffic stop of another vehicle when they heard a loud sound of an engine accelerating.  Officer Brockew testified that it “sounded like a train.”  Both officers turned to see a “brand-new,” white, H2 Hummer go through the intersection of Tarpon Avenue and Safford Avenue, approximately 100 yards away.  Both officers observed the Hummer go through the intersection at a high rate of speed, become airborne at the dip in the intersection with all four wheels leaving the ground, land, and then continue on.  Officer Osarczuk visually estimated that the vehicle was traveling at 70 mph in a 35 mph posted speed zone.  The officers terminated the traffic stop they were on and went in different directions in pursuit of the Hummer.   

            As testified by Officer Brockew, “a short while later” Officer Osarczuk informed Officer Brockew that he had spotted what he believed to be the same vehicle.  Officer Osarczuk observed a white H2 Hummer still running parked along a street and conducted a traffic stop for reckless driving.  Upon approach of the vehicle, Officer Osarczuk smelled the odor of alcohol and noticed several other signs of impairment.  Meisman did not comply with Officer Osarczuk’s request for his driver’s license and registration.  In response to questioning from Officer Osarcsuk, Meisman stated that he was going 70 mph on Tarpon Avenue.  Officer Osarcsuk observed a Budweiswer bottle was in plain view and Meisman stated that he had four Bud Light beers before going to the club and four “Hynoptics” while at the club.  Meisman refused to perform the field sobriety tests and was arrested for DUI.  The results of the Meisman’s breath tests showed an unlawful breath alcohol level of .197g/210L and .212g/210L.  In addition to the DUI, Officer Osarczuk issued citations for reckless driving and open container of alcohol beverage.  

            The sole issue raised by Meisman is whether Officer Osarczuk had reasonable suspicion to believe Meisman was intoxicated based upon the earlier observation of a similar vehicle speeding through an intersection.  Meisman argues that because Officer Osarczuk could not verify the driver’s identity of the Hummer as the individual driving through the Tarpon Avenue intersection until after initiating the traffic stop, Officer Osarczuk lacked the requisite suspicion to conduct the stop.  In support of this argument, Meisman speculates that “a good 5 to 10 minutes” lapsed before the Hummer was located.

            The Court finds that the Final Order must be sustained.  Initially, the Court reiterates the well-settled law that an officer need only have a reasonable suspicion in order to conduct a traffic stop and to administer field sobriety tests.  See Parsons v. State, 825 So.2d 406, 409 (Fla. 2d DCA 2002)(setting forth factors to be considered by a court in determining whether a traffic stop is justified); see also State v. Russell, 659 So.2d 465, 467 (Fla. 3d DCA 1995)(same); 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)  It is clear, under the facts of this case, that Officer Osarczuk had the requisite suspicion to conduct the traffic stop.  Indeed, Meisman does not dispute that he was speeding or driving in a reckless manner.

            Further, even though Officer Osarczuk did not get a tag number and was unable to identify the driver until after the traffic stop was initiated, the record supports Officer Osarczuk’s determination that it was the same vehicle observed a short time earlier speeding through the intersection.  Officer Osarczuk testified that, upon observing the Hummer, his conversation with Officer Brockew to go look for the vehicle was “very quick” and that he got into his patrol car in pursuit of the Hummer.  Officer Osarczuk then traveled a “short distance” before locating the Hummer.  In reaching the conclusion that it was the same vehicle, Officer Osarczuk testified that “there’s not too many 2003 H-2 Hummers driving around.”  Upon further inquiry, Officer Osarczuk said the vehicle was a “brand-new,” “pristine” vehicle and that “there’s not too many of them around in that area.”  The Court finds that based on the totality of the circumstances, including the length of time and distance from the intersection to the traffic stop, coupled with the specificity and uniqueness of the vehicle involved, Officer Osarczuk had the requisite suspicion to conduct a traffic stop.  See e.g. Russell, 659 So.2d at 467; compare with Hunter v. State, 660 So.2d 244, 249 (Fla. 1995)(setting forth the relevant factors in assessing the legitimacy of a BOLO traffic stop).  Therefore, Court will not substitute its judgment for that of the hearing officer.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). 

            Therefore, it is,

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

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of April 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, Suite 230

Lake Worth, FL  33467

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762