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 (Fla. 6th Cir. App. Ct. April 26, 2005).










vs.                                                                                               Appeal No. 04-0078AP-88A










            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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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, 6225 Ulmerton Road, Clearwater, Florida.  Schreiber’s vehicle was directed into Deputy Kindle’s contact lane by Deputy Langlais.  Deputy Kindle observed several signs of impairment, including that Schreiber’s eyes were bloodshot and watery, her speech was slurred, and that a distinct odor of alcohol emanated from the vehicle.  Schreiber admitted to having a couple of drinks.  Schreiber failed the field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .147g/210L and .158g/210L. 

            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 (Fla. 1996)(reaffirming its view expressed State v. Jones, 483 So.2d 433 (Fla. 1986)).  The purpose of written guidelines is to prevent unbridled police discretion.  See id.  “Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles.” Id. 

            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 (Fla. 1st DCA 2002)(citing DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)).  The Plan states that the checkpoint was to begin at 12:30 a.m. and end at 3:30 a.m. on July 10, 2004.  The Arrest Affidavit and Incident Report[1] completed by Deputy Kindle, provide that Schreiber was placed under arrest at 12:35 a.m. after she failed the field sobriety tests.  Deputy Kindle was not called to testify and there is no other evidence to refute the time of arrest.  Without estimating how long the initial driver contact and subsequent field sobriety tests might take, the Court finds that such an exchange would necessarily take longer than 5 minutes.  Hence, without reweighing the evidence, the Court finds that Schreiber was stopped before 12:30 a.m. in violation of the Plan.

            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 Clearwater, Pinellas County, Florida this ________ day of April 2005.



                                                     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

250 North Belcher Road, Suite 102

Clearwater, FL  34625


Heather Rose Cramer, Assistant General Counsel

6801 Lake Worth Road, #230

Lake Worth, FL  33467


Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762

[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 Fla. R. App. P. Rule 9.220(a).

[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.