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 real indication as to the length of time in which the observations took place or the distance involved-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. Wideman v.  Department of Highway Safety and Motor Vehicles, No:51-2005-CA-1440ES (Fla. 6th Cir. App. Ct. August 11, 2005).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, STATE OF FLORIDA

APPELLATE DIVISION

 

 

 

SCOTT A. WIDEMAN,   

                        Petitioner,

v.

 

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,                        Case No: 51-2005-CA-1440ES/P

                        Respondent.

________________________________/

 

 A.R. Mander, III, Esq.

Attorney for Petitioner

 

Jason Helfont, Esq.

Attorney for Respondent

 

. ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response to Petition for Writ of Certiorari.  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, Scott A. Wideman, seeks review of the Final Order of License Suspension, entered April 26, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Wideman'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). 

            After being arrested for refusing to take a breath test, petitioner requested a formal review hearing.  The hearing was conducted upon the review of the reports of a law enforcement officer.  There was no live testimony. The record consisted of: the traffic citation, complaint affidavit, uniform probable cause affidavit, uniform alcohol influence report, Pasco County Sheriff's Office Alcohol/Drug Influence Report,  driver's license teletype,  Pasco County Sheriff's Office Multipurpose Form, Property Receipt and Refusal Affidavit. The hearing officer found that petitioner was lawfully arrested for DUI and found that his driving privileges was properly suspended. Petitioner filed a petition for writ of certiorari seeking to quash the order suspending his driving privileges.  

 

Two of the documents provided statements:

 

[1] The Complaint Affidavit was written by Deputy Shaw which stated: 

            [On March 20, 2005, at 1:49 a.m.] Deputy Raymer stopped the defendant who was operating a 1999 GMC. . .  after observing it acting suspicious in the area of a perimeter in which several units were looking for a fleeing suspect.  Deputy Raymer also observed the defendant drive off the roadway and then conducted the traffic stop. Upon my arrival I detected the odor of alcohol coming from the defendant and he advised that he had drank six or eight beers.  The defendant agreed to submit to a field sobriety test and did poorly and was arrested for DUI.  I read the defendant implied consent and he stated he would not take the breath test.  Upon checking his driver's license history I was advised that the defendant had a prior refusal to submit to a breath test.  The defendant was placed under the arrest for the refusal charge.   

 

[2] The Alcohol/Drug Influence Report was written by Deputy Shaw which stated: 

            Deputy Raymer was on a perimeter post while we were doing a K-9 track for a suspect in the area of SR 54 and Ryals Road.  Deputy Raymer observed the defendant driving slow past the scene and turn right back around.  Deputy Raymer also observed the defendant  drive off the roadway and conducted a traffic stop.  It should be noted the fleeing suspect had a cell [phone]  with him and was trying to get someone to pick him up.  Upon my contact I could smell the alcohol coming from the defendant.  He told me he had 6 or 8 beers at home and then went to drop someone off on SR 54. Defendant said he would not take a breath test because he could beat the reason for the traffic stop.

 

With regard to the stop, the hearing officer made the following findings:

            On March 20, 2005, at approximately 1:49 a.m., Deputy Raymer of the Pasco County Sheriff's Office was working a perimeter post in a search area.  Deputy Raymer observed a vehicle drive slowly past the scene, and then turn around and come back to the area.  Deputy Raymer conducted a traffic stop after observing the vehicle's suspicious behavior and also driving off the road.  . . .  Attorney Sotomayor made a motion to invalidate the administrative suspension, arguing that there was no probable cause for the stop.  This motion is denied. . . . The arresting officer did have probable cause to believe that you were driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.

 

            Wideman argues argues that Department erred in sustaining his license suspension as Deputy Raymer 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 Wideman's vehicle created a safety concern for others.  Further, the record is void of any evidence that Deputy Raymer  suspected that Wideman was driving under the influence or that Deputy Raymer  conducted the traffic stop to determine whether Wideman 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).  Particularly troubling in this case is the fact that while Deputy Raymer alleges that the petitioner "drove off the roadway", there is no real indication as to the length of time in which the observations took place or the distance involved.  Thus, in comparing the facts of this case with other cases addressing this issue, the Court finds that Wideman'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, 2004 WL 306051 (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 a Complaint Affidavit and an Alcohol/Drug Influence Report written by Deputy Shaw.  The Court finds that both reports are 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 Raymer  to conduct a traffic stop as there is no competent or substantial evidence that Widemans'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, Pasco County, Florida this ________ day of August, 2005.

 

                                                                                    _______________________

                                                                                    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.

Jason Helfant, Esq.