Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – invalid sign – although “no right turn on red” sign was invalid, officer still articulated a lawful basis for stop – Petitioner failed to come to a complete stop before entering the intersection in violation of Florida Statutes, § 316.075(c)(1) - Petition denied. Phillips v. Dept. of Highway Safety and Motor Vehicles, No. 05-0077AP-88B (Fla. 6th Cir. App. Ct. Feb. 14, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DONALD L. PHILLIPS, JR.,

                                    Petitioner,

vs.                                                                                               Appeal No. 05-0077AP-88B

                                                                                                   UCN522005AP000077XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                                    Respondent.

____________________________________________/

 

 

ORDER DENYING 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 denied as set forth below.

            The Petitioner, Donald L. Phillips (Phillips), 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 Phillips 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 Phillip’s 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 May 26, 2005, Officer Tran, of the Largo Police Department, conducted a traffic stop of Phillips after observing his vehicle make a right hand turn where a “no right turn on red” sign was posted.  Upon making contact with Phillips, Officer Tran noticed several signs of impairment, including that Phillips had the odor of alcohol, that his eyes were bloodshot and watery, and that his balance was poor.  Officer Martens, of the same agency, arrived to conduct a DUI investigation.  Phillips performed poorly on the field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .206g/210L and .218g/210L.  Officer Tran also issued a citation to Phillips for running a red light in violation of Florida Statutes, § 316.074(1).[1]  After a formal review hearing, Phillips’ license suspension for DUI was sustained.

            On appeal, Phillips argues that the hearing officer erred in sustaining his license suspension as the traffic sign, upon which the traffic stop was premised, was invalid resulting in an unlawful traffic stop.  In reviewing this issue, the Court finds that the undisputed testimony during the hearing established that the subject “no right turn on red” sign was invalid and has since been removed from that location.  Further, the traffic citation issued to Phillips for the unlawful turn has likewise been invalidated. 

            However, Officer Tran’s undisputed testimony during the formal review hearing was that Phillips’ vehicle slowed down, but never came to a complete stop:  “There was a sign posted, ‘no turn on red,’ so with the fact that the vehicle did not stop and proceeded through the intersection while the light was red, I then . . . conducted the traffic stop.”  Hence, notwithstanding the unlawfulness of the sign, Officer Tran still had a lawful basis to conduct the traffic stop since Phillips violated Florida Statutes, § 316.075(c)(1),[2] which requires a vehicle to come to a complete stop before entering the intersection with a red stop light.  See e.g. State v. Robinson, 756 So.2d 249, 250 (Fla. 5th DCA 2000)(finding that officer’s unrefuted testimony that driver failed to stop at clearly marked stop line in violation of statute was sufficient to support traffic stop based on probable cause that driver had committed traffic infraction).  Under these facts, the Court finds that certiorari relief must be denied.

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

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of February 2006.

 

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

 

Copies furnished to:

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL  34625

 

Jason Helfant, 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] The section states:  “The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter, unless otherwise directed by a police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter.”

[2] In pertinent part, this section states:  “Vehicular traffic facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until a green indication is shown.”