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,
Appellant
vs. Case No: 51-2003-CA-2236-ES
STATE OF
OF HIGHWAY SAFETY AND MOTOR
VEHICLES, DIVISION OF DRIVER LICENSES
Appellee.
___________________/
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.
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 (
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 (
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
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,
______________________
Primary Appellate Judge
__________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to;
A.R. Mander, III, Esq.
Carlos J. Raurell, Esq.
Department of Highway
Safety and Motor Vehicles