Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – traffic stop – officer
who responded to scene of a pool party where it appeared Petitioner had
consumed alcohol failed to articulate a reason to stop Petitioner – it is not
unlawful to consume alcohol – Petitioner did not commit a traffic infraction
nor was driving behavior erratic - Petition granted. Pecorelli v. Dept. of
Highway Safety and Motor Vehicles, No. 05-0076AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
CHRISTOPHER J. PECORELLI,
vs. Appeal No. 05-0076AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
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.
Petitioner, Christopher J. Pecorelli (Pecorelli), seeks review of the Final
Order of License Suspension, entered August 26, 2005, in which the Respondent,
Department of Highway Safety and Motor Vehicles (Department), suspended
Pecorelli’s driving privilege for a period of one year for driving under the
influence. In reviewing the Final Order
and the administrative action taken by the Department, this Court must
determine whether Pecorelli was afforded procedural due process, whether the
essential requirements of law were observed, and whether the Department’s
findings and judgment are 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 July 6, 2005, at approximately 2:00 p.m., Officer Hole and Office Smyth, of the Clearwater Police Department, were dispatched to an apartment complex in reference to a fight in the pool area. When they arrived at the complex, the officers found a group of five people in the pool area. The officers spoke with the individuals and they stated they were having a small party. The group was in the process of cleaning up the pool area. Officer Hole noted that there were bottles of beer lying around, a cooler filled with ice and more beer, and an open 12-pack of beer. While speaking with the group, Officer Hole noted that it was apparent that all five individuals had been drinking based on their visual appearance, demeanor, and behavior. The group left the pool area and went into an apartment in the complex. Officer Hole and Officer Smyth left the area, eventually ending up near the entrance of the apartment complex.
Approximately 20 minutes later, Officer Hole observed a white vehicle pulling out of the complex and the driver appeared to be one of the persons at the party. Officer Hole pulled his vehicle out of the parking lot and went after the vehicle. Officer Hole pulled up beside the vehicle and positively identified the driver as one who was at the party. Officer Hole initiated a traffic stop. Upon making contact with the driver, identified as Pecorelli, Officer Hole detected several signs of impairment, including that he had the strong odor of alcohol on his breath, his eyes were bloodshot and watery, his pupils were dilated, and his face was flushed. Pecorelli performed poorly on the field sobriety tests and refused to take the subsequent breath test. After a formal review hearing, Pecorelli’s license suspension was upheld for refusing to take the breath test.
Before this Court, Pecorelli argues that the license suspension should have been set aside for three reasons: (1) the law enforcement oath form was not properly executed because it does not identify the attesting officer; (2) the refusal affidavit is invalid pursuant to Florida Statutes, § 322.2615, and; (3) there was not probable cause to initiate a traffic stop. In addressing the first two issues, the Court finds that there is competent substantial evidence in the record to support the finding that Pecorelli refused to take the breath test. While the Police Officer Oath Form is defective in that the space intended to identify the investigating officer is blank, the form is signed by both Officer Hole and Officer Smyth such that the hearing officer could logically conclude that Officer Hole, who issued the citation for the DUI and completed the Arrest Narrative, was the individual swearing to the truthfulness of his report. See e.g. Department of Highway Safety and Motor Vehicles v. Perry, 751 So.2d 1277, 1280 (Fla. 5th DCA 2000)(explaining that document signed by breath technician, that was not sworn to or notarized, did not satisfy the affidavit requirement but was still evidence that the hearing officer could consider in determining whether driver refused breath test).
The Court finds that the Refusal
Affidavit is valid since it was properly notarized. As stated on the form, the affidavit must be
either notarized or attested to by an
officer; there is no requirement that the affidavit be notarized and attested to by an officer. This is in contrast to the facts of State
v. Johnston, 553 So.2d 730, 732-33 (Fla. 2d DCA 1989), cited by Pecorelli
in support of his argument, wherein the officer’s statement was not sworn to by
either a Notary Public or an officer. Further,
although the Refusal Affidavit was not timely submitted to the Department
within 5 days after the arrest, the Department is authorized to consider any
evidence submitted at or prior to the hearing.
addressing the third issue, the Court finds that there is not competent substantial
evidence to support the suspension of Pecorelli’s license as the traffic stop
was unlawful. “A person may not be
detained even momentarily without reasonable, objective grounds.” See Woods v. State, 890 So.2d
559, 561 (
Court finds that Officer Hole failed to articulate reasonable, objective
grounds for detaining Pecorelli. It is
not unlawful to consume alcohol. While Officer Hole observed that large
quantities of beer had been consumed in the pool area and that it was apparent
the five individuals had been drinking based on their visual appearance,
demeanor, and behavior, Officer Hole did not see Pecorelli drinking, nor state
that Pecorelli appeared intoxicated.
Mere suspicion that Pecorelli may have been driving under the influence
of alcohol is not enough to support a traffic stop under these facts. See Popple v. State, 626 So.2d
185, 186 (
the Court finds that there is nothing in the record to show that Pecorelli had
committed a traffic infraction, nor that his driving behavior was erratic or
created a safety concern to himself or others.
See e.g. Jordan v. State, 831 So.2d 1241, 1243 (
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order of License Suspension is quashed.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
LAUREN C. LAUGHLIN JAMES R. CASE
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
J. Kevin Hayslett, Esquire
Carlos J. Raurell, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews
 In lieu of having a form notarized by a Notary Public, Florida Statutes, § 117.10, provides that law enforcement officers are authorized to administer oaths when engaged in the performance of official duties. However, an officer may not notarize his or her own signature.
 While it is unlawful for an individual under 21 years old to consume alcohol, Officer Hole did not discover that Pecorelli was underage until after the traffic stop.