Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – traffic stop for careless driving was lawful – competent substantial evidence in the record to find driver’s behavior posed a safety risk to others – driver was observed “power braking” several times behind a stopped vehicle – reasonable to infer that stopped vehicle accelerate at a high rate of speed to avoid collision – officer had sufficient facts to establish driver was not operating truck in a careful and prudent manner --Petition denied.  Murray  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0037AP-88B (6th Cir. App. Ct. August 24, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MILES MURRAY,

                        Petitioner,

vs.                                                                                               Appeal No. 04-0037AP-88B

                                                                                                   UCN522004AP000037XXXXCV

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 and the Response.  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, Miles Murray (Murray), seeks review of the Final Order of License Suspension, entered April 1, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Murray’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 February 21, 2004, at approximately 2:17 a.m., Officer Newell and Officer Arkovich, of the St. Petersburg Police Department, conducted a traffic stop of Murray’s vehicle after the officers heard tires squealing and then observed Murray’s vehicle  “power braking” (described as accelerating the vehicle and hitting the brakes) in excess of four times while stopped at an intersection, approximately ten feet behind an Acura.  When the light turned green, the Acura accelerated at a high rate of speed and drove north.  Murray’s vehicle continued power braking, spinning the rear tires of the vehicle, for six to ten seconds and then drove off at a high rate of speed.  Due to the high rate of speed, a traffic stop of Murray’s vehicle was initiated approximately 18 blocks north of where it was first observed.  Upon making contact with Murray, Officer Egult, who conducted the DUI investigation, noticed several other signs of impairment; Murray also admitted he had consumed “one shot of Jager Miester and twelve beers.”  Murray failed the subsequent field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .163g/210L, .185g/210L and .184/210L.  Murray was also cited for careless driving.

            Murray argues that the Department’s Final Order is contrary to the essential requirements of law in that the order is based upon evidence that was the fruit of an illegal traffic stop for careless driving.  In support of his argument, Murray cites to the recent decision of Accomando v. Department of Highway Safety and Motor Vehicles, No. 03-5064AP-88B (Fla. 6th Cir. App. Ct. Feb. 19, 2004), in which this Court, sitting in its appellate capacity, held that the traffic stop for “unsafe start from a parked/stopped position” was unlawful.  In Accomando, the driver was observed speeding from a parking lot, squealing its tires and fish-tailing as it pulled into the northbound lane of traffic.  The Court found that Florida Statutes, § 316.154, starting a parked vehicle, was similar to § 316.089, driving in a single lane, and § 316.155, governing the use of turn signals, in that safety, not precision, is the primary concern.  In quashing the Department’s order, the Court concluded that there was no evidence that Accomado’s driving behavior created a safety concern or that other cars on the road were endangered.

            In this case, the applicable statute is Florida Statutes, § 316.1925(1), careless driving, which states,

[a]ny person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. (e.a.).

 

Just as the statutes cited above, § 316.1925, is also primarily concerned with safety, not precision.  However, unlike Accomando, there is competent substantial evidence in the record to find that Murray’s driving behavior did pose a safety risk to others.  Murray was power braking

within ten feet of another vehicle while both vehicles were stopped.  That means that he was repeatedly depressing the brake pedal and gas pedal at the same time.  It is a reasonable inference that such behavior could result in loss of control of the truck and impact with the Accura.  Certainly, the driver of the Accura appears to have shared these concerns since the driver accelerated at a high rate of speed.  It is a reasonable inference that the Accura driver did that to avoid the apparent danger poised by the truck.  The officer needed only probable cause to conduct a traffic stop for careless driving.  See 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”). 

Certainly, the officer had sufficient facts to establish that the truck was not being operated in “a careful and prudent manner . . . so as not to endanger the life, limb, or property of any person.” 

            Therefore, the Court finds that under the totality of these facts the traffic stop was lawful.  Compare with Donaldson v. State, 803 So.2d 856 (Fla. 4th DCA 2002)(finding traffic stop was unlawful when officer only observed vehicle pull out of parking lot with tires squealing and no other cars were endangered); see also Parsons v. State, 825 So.2d 406, 409 (Fla. 2d DCA 2002)(stating that a court should consider all facts known to police at the time of the investigatory stop such as time, location, suspect’s physical behavior or anything unusual the suggests criminal activity); State v. Russell, 659 So.2d 465, 467 (Fla. 3d DCA 1995)(same).   This finding adheres to the recent Florida Supreme Court decision of Dobrin v. Dept. of Highway Safety and Motor Vehicles, 874 So.2d 1171 (Fla. 2004), in which the Court held that “[t]he correct test to be applied is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.”  As set forth above, the Court finds that the officers had an objectively reasonable basis for conducting a traffic stop as Murray’s driving behavior posed a safety risk to others on the road.   Therefore, the Court will not reweigh the evidence nor substitute its judgment for that of the hearing officer. See Dept. of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)

            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 August 2004.

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

Copies furnished to:

 

Sean B. Kelley, Esquire

13620 49th Street North, Suite 201

Clearwater, FL  33762

 

Carlos J. Raurell, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762