County Criminal Court: CRIMINAL LAW DUI traffic stop driving slower than the posted speed limit and drifting within lane is not considered an 'erratic' driving pattern from which to support a lawful investigatory stop-no evidence officer suspected defendant was impaired or that he was concerned for other traffic -- Order affirmed. State v. Gray, No. 0302706CFAES (Fla. 6th Cir. App. Ct. November 22, 2004).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

STATE OF FLORIDA,

Appellant,

 

vs. Appeal No: 0302706CFAES

 

RODNEY IAN GRAY,

Appellee.

____________________________/

 

Opinion filed _________________________.

 

Appeal from an order in Pasco County Court

 

County Judge Robert Cole

 

W. Todd Smith

Office of the State Attorney

 

Joy K. Goodyear

Office of the Public Defender

 

ORDER

 

This matter came before the court on appellant's appeal from a judgment entered by the Pasco County Court. The appellant has failed to demonstrate in the record any error in the trial court's decision. Therefore the judgment of the trial court is affirmed.

Gray was arrested and charged with Driving Under the Influence. Thereafter, Gray filed a motion to suppress the stop. At the hearing, the trooper did not appear but the parties stipulated to the facts and went forward with argument. The stipulated facts were that Trooper Johnson observed defendant's vehicle traveling thirty miles an hour in a posted fifty mile an hour zone, and drifting within his lane. There were no other vehicles on the road. Trooper Johnson put on his overhead lights and conducted a stop of defendant. Upon making contact with the Defendant Trooper Johnson noticed a strong odor of alcohol coming from the defendant as he spoke and observed the defendant's eyes were bloodshot and glassy. Defendant was arrested for DUI.

After argument, the trial court granted appellee's motion to suppress finding that the defendant's driving below the speed limit and weaving within his own lane does not give rise to reasonable suspicion that the defendant was impaired. This Court agrees. Florida Statutes, Section 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. "Section 316.089 is similar to section 316.155, Florida Statutes (1995), governing the use of turn signals, in that a violation does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern." See State v. Riley, 638 So.2d 507 (Fla.1994). There is no evidence in the record that Gray's vehicle created a safety concern for others. Crooks v. State, 710 So. 2d 1041, 1043 (Fla. 2d DCA 1998).

Further, the record is void of any evidence that Trooper Johnson suspected that Gray was driving under the influence or that Johnson conducted the traffic stop in this case to determine whether Gray 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 he is not committing a separate traffic offense; see also Roberts v. State, 732 So. 2d 1127(Fla. 4th DCA 1999)(same). The only evidence in this case are the stipulated facts; these facts only indicate that Gray was driving slower than the posted speed limit and drifting within his lane. In comparing the facts of this case with other cases addressing this issue, the Court finds that Gray's driving pattern was not "erratic" to support a lawful investigatory stop. See Roberts, Nicholas, supra.

IT IS THEREFORE ORDERED that the judgment is affirmed.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of October, 2004.

_________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

__________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

Copies to:

W. Todd Smith

Office of the State Attorney

 

Joy K. Goodyear

Office of the Public Defender