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 (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
EUNICE L. NEFE,
vs. Case No: 51-2003-CA-2236-ES
OF HIGHWAY SAFETY AND MOTOR
VEHICLES, DIVISION OF DRIVER LICENSES
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
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.
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 (
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.
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 (
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.
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
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to;
A.R. Mander, III, Esq.
Carlos J. Raurell, Esq.
Department of Highway
Safety and Motor Vehicles