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.  Kurdziel v. Department of Highway Safety and Motor Vehicles, No: 51-2004-CA-0178WSP (Fla. 6th Cir. App. Ct. October 18, 2004).








JAMES P. KURDZIEL,          


vs.                                                                    Case No: 51-2004-CA-0178 WSP











            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, James P. Kurdziel, (Kurdziel), seeks review of the Final Order of License Suspension, entered December 23, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Kurdziel'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 Court finds only the first issue raised by petitioner, that the officer lacked probable cause to conduct the stop, has merit.

            The record shows that on September 21, 2003, Officer Kay testified that he observed petitioner's vehicle swerving in and out of the lane crossing the median slightly. He testified that he followed the petitioner's vehicle for approximately a half of a mile to two thirds of a mile and  observed petitioner weave significantly outside his lane of travel.  He explained that the tires were over the line two or three times. 

            Upon making contact with Kurdziel, Officer Kay smelled the odor of alcohol  and noticed six additional clues of impairment.  Deputy Carmen responded and upon contact with Kurdziel detected the very strong odor of an alcoholic beverage, slurred speech and bloodshot glassy eyes.  Carmen testified that when he asked Kurdziel what he had to drink, he first responded that he did not have anything and then later admitted that he had three beers. Carmen also observed a cold  half a can of beer in the console.  Finally Carmen testified that Kurdziel performed poorly on the field sobriety test. Kurdziel refused to submit to a breath test.

            Kurdziel argues that the Department erred in sustaining his license suspension as Officer Kay lacked probable cause to initiate a lawful traffic stop.  This Court agrees.  Florida Statutes, Section 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.”  The 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).   There is no evidence in the record that Kurdziel's vehicle created a safety concern for others.  "Section 316.089 is similar to section 316.155, Florida Statutes (1995), governing the use of turn signals, in that a violation does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern."  See State v. Riley, 638 So.2d 507 (Fla.1994). No such evidence exists in this case. Crooks v. State, 710 So. 2d 1041, 1043 (Fla. 2d DCA 1998). 

            Further, the record is void of any evidence that Officer Kay suspected that Kurdziel was driving under the influence or that Kay conducted the traffic stop in this case to determine whether Kurdziel 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 he is not committing a separate traffic offense: see also Roberts v. State, 732 So. 2d 1127(Fla. 4th DCA 1999)(same).  Specifically, at the hearing, the following exchange took place:

COUNSEL FOR PETITIONER:   . . . Based upon your experience and training, what conclusion--what facts justify the conclusion that this vehicle is--is--there 's impairment, there's drunk--I mean other than you see some weaving--but the conclusion of impairment, what --what facts . . . before the stop?


OFFICER KAY:  Before the stop I observed the vehicle.  It's not necessarily that they're impaired.  It's that there is a problem,  whether it be physical, whether it be fumbling with a phone, a fight in the car--it's hard to see in that vehicle - - or medical condition.  We ascertain what their condition is at that point.  It's not necessarily this person is intoxicated. . . . It could be why they're crossing the line.  Basically the stop is for the fact that they're failing to maintain a single lane due to such reason that--to be [sic] ascertained once we stop the vehicle.  


(P.A. 8-Transcript of Officer Kay's testimony at p. 48).  Thus, there is no evidence in this case that Officer Kay pulled Kurdziel's vehicle over because he suspected this driver was ill, tired, or driving under the influence.  The only evidence in this case is what facts Officer Kay relies on generally, when conducting a stop; there was no evidence as to why he pulled this specific vehicle over.  In comparing the facts of this case with other cases addressing this issue, the Court finds that Kurdziel's driving  pattern was not "erratic" to support a lawful investigatory stop.  See Roberts, Nicholas, supra.

Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED.

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of  October  2004.




                                                                                     W. Lowell Bray, Circuit Judge



Copies furnished to:

Robert D. Eckard, Esquire

Carlos Raurell, Esquire