Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – sobriety checkpoint – lack
of competent substantial evidence that the Sobriety Checkpoint Plan was
complied with – checkpoint started at 12:30 a.m. but driver was arrested for
DUI at 12:35 a.m. – initial driver contact and field sobriety tests necessarily
take longer than 5 minutes --Petition granted.
Schreiber v. Dept. of Highway Safety and Motor Vehicles, No. 04-0078AP-88A
(
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
KRISTYN SCHREIBER,
Petitioner,
vs. Appeal No. 04-0078AP-88A
UCN522004AP000078XXXXCV
STATE OF
OF HIGHWAY SAFETY AND MOTOR VEHICLES,
BUREAU OF DRIVER IMPROVEMENT,
Respondent.
____________________________________________/
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, Kristyn Schreiber (Schreiber), seeks review of the Final Order of
License Suspension, entered October 1, 2004, in which the hearing officer for
the Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Schreiber’s driving privilege was properly suspended for a period
of six months for driving under the influence (DUI). In reviewing the Order and the administrative
action taken by the Department, this Court must determine whether Schreiber was
afforded procedural due process, whether the essential requirements of law were
observed, and whether the Department’s findings and judgment are supported by
competent substantial evidence. See
Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d
1069, 1073 (
The
record shows that on July 10, 2004, Deputy Kindle, of the Pinellas County
Sheriff’s Office, made contact with Schreiber at a DUI checkpoint located at
the Ugly Duckling Credit Corporation,
Before this Court, Schreiber raises several arguments, primarily that the Department failed to follow the law and afford Schreiber due process by upholding the license suspension when there was a lack of evidence before the hearing officer that the traffic stop complied with the Sobriety Checkpoint Plan (Plan) utilized by the Pinellas County Sherriff’s Office in this case. Specifically, Schreiber argues that there was a lack of evidence in the Plan, and/or a lack of evidence that the Plan was followed, as to vehicle number specification, the hours of operation and advertisement, officers’ duties, proper lighting and sufficient warning, and that the checkpoint was necessary to combat impaired drivers as opposed to less intrusive means. Schreiber also argues that there was a lack of evidence that Schreiber was in actual physical control of a motor vehicle and that the breath test results affidavit was insufficient.
In
addressing these issues, the Court finds that only one has merit, that the
traffic stop was not conducted during hours of the checkpoint operation as
stated in the Plan. As set forth by the
Florida Supreme Court, advance written guidelines are required before the police
may conduct a roadblock. See Campbell
v. State, 679 So.2d 1168, 1170 (
The
guidelines should also establish procedures for proper lighting and sufficient
warning on the roadway in advance of the checkpoint, law enforcement should be
easily identifiable, and the intrusion upon motorists and length of detention
should be kept to a minimum. See Jones,
483 So.2d at 439. The Florida Supreme
Court stressed that the written guidelines do not necessarily fail if each
criteria isn’t covered. See id. Rather, guidelines must be reviewed as a
whole on a case-by-case basis to determine the plan’s sufficiency. See id.
Under the facts of this case, the Court finds that the Plan itself is sufficient when viewed as a whole. While the Plan fails to enumerate specific guidelines for proper lighting and sufficient warning to advancing motorists, the Plan repeatedly stresses maintaining a safe checkpoint area, requires all participating officers to wear the police uniform, and a reflective vest. Further, the Court notes that the Plan calls for “site preparations” at the designated checkpoint, Ugly Duckling Credit Corporation, a business that presumably has outdoor lighting. The Court finds that the remaining pertinent criteria, as enumerated above, are adequately set forth in the 11-page Plan.
The
problem in this case is not with the Plan itself, but rather the lack of
competent substantial evidence before the hearing officer that the Plan was
complied with in conducting the traffic stop of Schreiber. Competent substantial evidence is evidence
“sufficiently relevant and material that a reasonable mind would accept it as
adequate to support the conclusion reached.”
See Department of Highway Safety and Motor Vehicles v. Trimble,
821 So.2d 1084, 1087 (
In so finding, the Court declines to address the issue of whether the Department must provide evidence, in the form of an affidavit or otherwise, that the Plan was adhered to in other respects, i.e. that Schreiber’s vehicle was the 3rd vehicle stopped.[2] Accordingly, the Court finds that certiorari relief must be granted. Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is granted and the
Final Order of License Suspension is quashed.
DONE
AND ORDERED in Chambers, at
_____________________________
JOHN
A. SCHAEFER
Circuit Judge, Appellate Division
_____________________________ _____________________________
LAUREN
C. LAUGHLIN JAMES
R. CASE
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
J. Kevin Hayslett, Esquire
Heather Rose Cramer, Assistant General Counsel
Bureau of Administrative Reviews
[1]
Schreiber included only one page of the 3-page Incident Report, admitted as
exhibit DDL 6, in its Appendix and that the Department failed to include an
appendix entirely. As each party is
responsible for preparing an appendix with those portions of the record deemed
necessary to an understanding of the issues presented, the Court can only
presume that the entire Incident Report is not pertinent to this Court’s
review. See
[2] The Court notes that the Plan did call for an After-Action Report to be completed by the Checkpoint Commander. However, this document was not admitted into evidence in the proceedings below.