Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:DRIVERíS LICENSES Ė Traffic Stop Ė Lawful Arrest - officer had reasonable suspicion to conduct traffic stop when driver was speeding 114 mph in a 65 mph zone Ė probable cause to arrest for DUI was developed after traffic stop Ė officer smelled odor of alcohol, petitioner stated he had been drinking and HGN check revealed signs of impairment Ė no support for argument that petitioner was misinformed about implied consent --Petition denied.Stern v. Dept. of Highway Safety and Motor Vehicles, No. 04-0012AP-88A (Fla. 6th Cir. App. Ct. June 8, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

CARSTEN STERN,

††††††††††††††††††††††† Petitioner,

vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Appeal No. 04-000012AP-88A

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† UCN522004AP000012XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

††††††††††††††††††††††† Respondent.

____________________________________________/

 

 

ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI

††††††††††† THIS CAUSE came before the Court on the Amended 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, Carsten Stern (Stern), seeks review of the Final Order of License Suspension, entered January 8, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Sternís driving privilege was properly suspended for a period of one year for driving under the influence (DUI).In reviewing the Departmentís 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 November 7, 2003, at approximately 3:17 a.m., Trooper Kelley, conducted a traffic stop of Sternís vehicle after Trooper Kelley clocked the vehicle traveling at 114 mph in a 65 mph speed limit zone.Trooper Kelley requested Stern to exit the vehicle and to produce his driverís license, at which time Trooper Kelley smelled the odor of alcohol.In response to questioning, Stern stated he had a couple of drinks.Trooper Kelley then performed a Horizontal Gaze Nystagmus evaluation upon Stern and noticed several signs of impairment.Stern failed the subsequent field sobriety tests and was arrested for DUI.After being read the implied consent warning, Stern refused to take the breath test.In addition to the DUI, Trooper Kelley issued citations for speeding and for driving with an expired tag.††††

††††††††††† Stern argues that the Departmentís failure to invalidate his license suspension departs from the essential requirements of law because the stop of his vehicle was unlawful, Trooper Kelley lacked reasonable suspicion to investigate Stern for DUI, and Stern was given misinformation related to the implied consent warning.The Court finds that the Final Order must be sustained.First, 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 Trooper Kelley had the requisite suspicion to conduct the traffic stop.

 

††††††††††† Second, the record supports the hearing officerís finding that there was probable cause to arrest Stern for DUI.After Stern was stopped for driving well over the posted speed limit, Trooper Kelley smelled the odor of alcohol, Stern stated that he had a couple of drinks, and the HGN check of Sternís eyes revealed several signs of impairment.Hence, Trooper Kelley had the requisite reasonable suspicion to request Stern to perform field sobriety tests from which Trooper Kelley could develop probable cause to arrest Stern for DUI.See Department of Highway Safety and Motor Vehicles v. Haskins, 752 So.2d 625, 627 (Fla. 2d DCA 1999)(stating that officer could stop driver and request that driver perform field sobriety tests based on reasonable suspicion that crime of driving while intoxicated was being committed); State v. Carrillo, 506 So.2d 495, 496 (Fla. 5th DCA 1987)(finding that officer may establish probable cause for DUI arrest through investigation).

††††††††††† Lastly, the Court finds that there is no support for Sternís argument that he was misinformed regarding the implied consent warning for the breath test.Indeed, as testified by Trooper Kelley, Stern was read the implied consent but refused to take the breath test because ďhis attorney always told him not to take it.ĒTherefore, the 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).Accordingly, it is therefore,

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

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

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† DAVID A. DEMERS

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge, Appellate Division

Copies furnished to:

 

Eilam Isaak, Esquire

4021 North Armenia Avenue, Suite 200

Tampa, FL33607

 

Carlos J. Raurell, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL33762