Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted.  Nefe  v. Department of Highway Safety and Motor Vehicles, No: 51-2003-CA-2236ES (Fla. 6th Cir. App. Ct. November 21, 2004). 











vs.                                                                    Case No: 51-2003-CA-2236-ES











            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, EUNICE L. NEFE, (Nefe), seeks review of the Final Order of License Suspension, entered July 8, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Nefe's driving privilege was properly suspended for a period of eighteen 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 May 31, 2003, at approximately 7:36 p.m., Deputy Pittman of the Pasco County Sheriff’s Office, observed a vehicle pull right of the right line twice and left of the left line once.  Deputy Pittman activated his emergency equipment and initiated a traffic stop. Upon making contact with Nefe, Deputy Pittman  smelled the odor of alcohol and observed that her eyes were bloodshot and glassy.  Nefe agreed to a Field Sobriety Test.  Her performance indicated further clues of impairment and she was arrested for DUI. Nefe refused to take a breath test after being read Implied Consent.

            Nefe argues that the Department erred in sustaining her license suspension as Deputy Pittman lacked probable cause to initiate a lawful traffic stop.  This Court agrees.  Florida Statutes, § 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.”  This statute “recognizes that it is not practicable, perhaps not even possible, for a motorist to maintain a single lane at all times and that the crucial concern is safety rather than precision.”  See Jordan v. State, 831 So.2d 1241, 1243 (Fla. 5th DCA 2002); see also Crooks v. State, 710 So.2d 1041, 1043 (Fla. 2d DCA 1998)(holding that a violation of statute requiring motorists to drive within clearly marked lanes requires evidence that the driver’s conduct created a reasonable safety concern).

            There is no evidence in the record that Nefe's vehicle created a safety concern for others.  Further, the record is void of any evidence that Deputy Pittman suspected that Nefe was driving under the influence or that Deputy Pittman conducted the traffic stop to determine whether Nefe 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 the driver is not committing a separate traffic offense); see also Roberts v. State, 732 So.2d 1127 (Fla. 4th DCA 1999)(same).  In comparing the facts of this case with other cases addressing this issue, the Court finds that Nefe's driving pattern was not “erratic” to support a lawful investigatory stop.  See id.

            The Florida Supreme Court in Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So. 2d 1171 (Fla. 2004), explained that the correct test to be applied by the Circuit Court in reviewing such administrative action is “whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.”  In applying this test to the facts of this case and the applicable case law as cited above, the only evidence presented to the hearing officer concerning the traffic stop was Deputy Pittman's Incident Report. The Court finds that the Incident Report is silent as to whether other traffic was affected or that other cars had to take evasive action.  Accordingly, the Court finds that there was not an objectively reasonable basis for Deputy Pittman to conduct a traffic stop as there is no competent or substantial evidence that Nefe's vehicular movements created any danger to himself or other traffic.  See e.g. Jordan, 831 So.2d at 1243; Crooks, 710 So.2d at 1043; Nicholas, 857 So.2d at 982 (concluding that stop was unlawful where officer acknowledged that he observed the driver for a very short period of time and the driver did not interfere with any other traffic).  Lastly, in Dobrin the Court upheld the trial court’s finding that the stop could not be upheld based upon the need to investigate the unusual driving because the officer did not say he thought the driver might be impaired.  The same is true in the instant case.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order is quashed. 

            DONE AND ORDERED in Chambers, at New Port Richey, PascoCounty, Florida this ________ day of November 2004.




                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge





                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge



Copies furnished to;


A.R. Mander, III, Esq.



Carlos J. Raurell, Esq.

Department of Highway

Safety and Motor Vehicles