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 (Fla. 6th Cir. App. Ct. Feb. 15, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

CHRISTOPHER J. PECORELLI,

                                    Petitioner,

 

vs.                                                                                               Appeal No. 05-0076AP-88A

                                                                                                   UCN522005AP000076XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                                    Respondent.

____________________________________________/

 

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI 

            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, 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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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.[1]  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.  See Fla. Stat. 322.2615(2).

            In 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 (Fla. 5th DCA 2005).  As explained by the Florida Supreme Court in Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So.2d 1171, 1174 (Fla. 2004), the test to be applied by this Court on certiorari review is whether the detaining officer had an objectively reasonable basis for making the stop based on the record evidence.

            The Court finds that Officer Hole failed to articulate reasonable, objective grounds for detaining Pecorelli.  It is not unlawful to consume alcohol.[2]  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 (Fla. 1993). 

            Further, 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 (Fla. 5th DCA 2002)(concluding that traffic stop was unlawful when the record was insufficient to establish that vehicular movements created danger to other traffic and there was no evidence indicating that driver was intoxicated or otherwise impaired); Crooks v. State, 710 So.2d 1041, 1043 (Fla. 2d DCA 1998)(same); compare with State, Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992)(finding that traffic stop was lawful when officer observed erratic driving behavior and was concerned that driver was impaired or vehicle was malfunctioning).  Since the traffic stop was unlawful, evidence obtained after the stop was improperly considered by the hearing officer.  See Popple, 626 So.2d at 185.  Hence, the Court finds that certiorari relief must be granted.  

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order of License Suspension is quashed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2006.

 

                                                      _______________________________

                                                      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

250 North Belcher Road, Suite 102

Clearwater, FL  34625

 

Carlos J. Raurell, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762



[1] 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.

 

[2] 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.