Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – officer observed driver’s head bobbing up and down, but observed no traffic infraction or safety concern - when officer ordered driver to stop vehicle, detention occurred – officer did not articulate reasonable, objective grounds for the detention - Petition granted. Stenmark v. Dept. of Highway Safety and Motor Vehicles, No. 05-0051AP-88B (Fla. 6th Cir. App. Ct. Nov. 9, 2005).










vs.                                                                                               Appeal No. 05-0051AP-88B










            THIS CAUSE came before the Court on the 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 granted as set forth below.

            The Petitioner, Deborah Stenmark (Stenmark), seeks review of the Final Order of License Suspension, entered June 10, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Stenmark’s driving privilege was properly suspended for a period of six months for driving under the influence (DUI).  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Stenmark 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).

            After a formal review hearing in which the hearing officer considered documents generated at the time of Stenmark’s arrest and the testimony of one witness, Stenmark, the hearing officer made the following findings of fact:

On April 23, 2005, at approximately 1:55 a.m., Officer Martens, of the Largo Police Department, pulled up next to Deborah Stenmark who was stopped in the left turn lane at the intersection of US Highway 19 and East Bay Drive.  Office Martens observed Ms. Stenmark’s head bobbing up and down and then fall forward as if she passed out.  Officer Martens exited his vehicle and made contact with Ms. Stenmark, who was still passed out.  Officer Martens reached into the vehicle in an attempt to turn it off.  Ms. Stenmark woke-up and the vehicle began to drift forward.  Officer Martens ordered the vehicle to stop.


Upon making contact with Ms. Stenmark, Officer Martens observed food scattered around her, including food in her lap and she appeared disoriented.  Officer Martens detected a distinct odor of alcoholic beverage coming from her breath, slurred speech and bloodshot watery eyes.  Ms. Stenmark was very unsteady on her feet, almost falling backwards, and would not perform Field Sobriety Exercises.


Officer Martens arrested Ms. Stenmark for DUI and transported her to the Largo Police Department.  Ms. Stenmark submitted to a breath test with results of .101 and .101.  Ms. Stenmark’s privilege to drive was suspended for driving with an unlawful alcohol level.


Ms. Stenmark testified at the formal review that she has [sic] just pulled out of a Taco Bell approximately 30 feet from where she had stopped.  A drink and taco spilled into her lap and she was picking up the food off the floor and watching for the light to turn green, causing her head to go up and down.  The light turned green and she began to move when she hear [sic] a man yelling at her to stop.  When she realized it was a police officer she stopped and he reached in and took the keys.  She testified that she did not pass out or fall asleep.


The hearing officer denied Stenmark’s motion to invalidate the license suspension due to a lack of probable cause to conduct the traffic stop. 

            The sole argument before this Court is that the license suspension should have been invalidated due to a lack of probable cause by Officer Martens to conduct a traffic stop of Stenmark.  This Court agrees that there is not competent substantial evidence in the record to support the traffic stop under the facts presented in this case.  Initially, the Court finds that once Officer Martens ordered Stenmark to stop her vehicle, a detention had occurred.  See Woods v. State, 890 So.2d 559, 561 (Fla. 5th DCA 2005)(stating that “[a] person is detained within the meaning of the Fourth Amendment if a reasonable person would not feel free to terminate the encounter, given the totality of the circumstances”).  “A person may not be detained even momentarily without reasonable, objective grounds.”  Id.  As explained by the Florida Supreme Court in Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So.2d 1171, 1174 (Fla. 2004), the test to be applied by this Court on certiorari review is whether the detaining officer had an objectively reasonable basis for making the stop based on the record evidence.

            The Court finds that Officer Martens failed to articulate reasonable, objective grounds for detaining Stenmark.  While it appears that Officer Martens was concerned about Stenmark’s well-being, stating in his Narrative that Stenmark appeared to have “passed out,” Stenmark’s undisputed testimony was that she was trying to pick up her spilled food and then started to move forward once the light turned green.  The Court finds that since the actions of Stenmark are susceptible of being interpreted as innocent conduct, Officer Martens needed to articulate additional facts before he could validly conduct a traffic stop.  See Danielwicz v. State, 730 So.2d 363, 362 (Fla. 2d DCA 1999)(explaining that since driver’s behavior of sleeping in her car was susceptible of being interpreted as innocent conduct, the police officer needed additional factors before he could conduct valid stop).  While Stenmark was not in a parking lot, she was lawfully stopped and properly moved her vehicle when the light turned green.  Thus, Danielwicz applies. 

            Further, the Court finds that there is nothing in the record to show that Officer Martens suspected Stenmark of driving under the influence at the time of the detention, that Stenmark had committed a traffic infraction, nor that her driving behavior was erratic or created a safety concern to herself or others.  See e.g. Jordan v. State, 831 So.2d 1241, 1243 (Fla. 5th DCA 2002)(concluding that traffic stop was unlawful when the record was insufficient to establish that vehicular movements created danger to other traffic and there was no evidence that indicating that driver was intoxicated or otherwise impaired); Crooks v. State, 710 So.2d 1041, 1043 (Fla. 2d DCA 1998)(same); compare with State, Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992)(finding that traffic stop was lawful when officer observed erratic driving behavior and was concerned that driver was impaired or vehicle was malfunctioning); Bailey v. State, 319 So.2d 22, 26 (Fla. 1975)(same).  Since the traffic stop was unlawful, evidence obtained after the stop was improperly considered by the hearing officer.  See Popple v. State, 626 So.2d 185, 188 (Fla. 1993).  Hence, the Court finds that the Final Order of License Suspension must be quashed as there is not competent substantial evidence in the record to support the traffic stop of Stenmark.  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 St. Petersburg, Pinellas County, Florida this ________ day of November 2005.





                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division






_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Divison



Copies furnished to:


J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL  33765


Jason Helfant, Assistant 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