Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – officer had objective reason to conduct traffic stop – officer observed that vehicle was forced to take evasive action due to Petitioner’s driving behavior – hearing officer charged with resolving time discrepancies between breath test affidavit and arrest affidavit as to when Petitioner was arrested  - Petition denied. Rodriguez v. Dept. of Highway Safety and Motor Vehicles, No. 05-0097AP-88B (Fla. 6th Cir. App. Ct. March 7, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

JASON R. RODRIGUEZ,

                                    Petitioner,

vs.                                                                                               Appeal No. 05-0097AP-88B

                                                                                                   UCN522005AP000097XXXXCV

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, Jason R. Rodriguez (Rodriguez), seeks review of the Final Order of License Suspension, entered November 4, 2005, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), suspended Rodriguez’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 Rodriguez 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 September 16, 2005, at approximately 2:17 a.m., Officer Weaver, of the Pinellas Park Police Department, was traveling northbound on 66th Street when he observed a Ford Mustang in the median lane drift into the center lane and then return to the median lane.  Officer Weaver followed the Mustang through the intersection of 66th Street and and 102nd Avenue North when he again observed the vehicle drift into the center lane, this time causing a white pick-up truck to slow down to prevent from being hit.  Officer Weaver conducted a traffic stop and made contact with the driver, identified as Rodriguez.  Upon making contact with Rodriguez, Officer Weaver detected several signs of impairment, including that Rodriguez had the odor of alcohol, slurred speech, and his eyes were watery and bloodshot.  Rodriguez failed the field sobriety tests and was arrested for DUI.  Rodriguez refused to take the breath test.  In addition to issuing Rodriguez a DUI citation, Officer Weaver issued Rodriguez a citation for careless driving.  After a formal review hearing, Rodriguez’s license suspension was upheld for refusing to take the breath test.

            Before this Court, Rodriguez argues that the license suspension should have been set aside because there was not a lawful basis to conduct a traffic stop and that there was insufficient evidence of a refusal due to time discrepancies between the breath test affidavit and the arrest affidavit.  In reviewing the first issue, the Court finds that Officer Weaver had an objectively reasonable basis for conducting a traffic stop.  See Dobrin v. Dept. of Highway Safety and Motor Vehicles, 874 So.2d 1171, 1174 (Fla. 2004)(stating that the test to be applied by the circuit court in conducting certiorari review is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop).  It is undisputed that Officer Weaver observed that the white pick-up truck was forced to take evasive action to avoid being struck by Rodriguez.  Hence, Officer Weaver had probable cause to conduct a traffic stop of Rodriguez for his failure to operate his vehicle in a careful and prudent manner, in violation of Florida Statutes, § 316.1925, careless driving.  See Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(explaining that probable cause exists where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, are sufficient for a reasonable man to reach the conclusion that an offense has been committed); see also Murray v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 187 (Fla. 6th Cir. App. Ct. Aug. 24, 2004)(denying certiorari relief where record showed that driver, who was stopped for careless driving, was “power braking” causing another vehicle to take evasive action).

            In addressing the second issue, the Court finds that there are time discrepancies between the breath test affidavit and the arrest affidavit as to when Rodriguez was arrested and when he refused to take the breath test.  Officer Weaver acknowledged those discrepancies during the formal review hearing and clarified the relevant times.  The Court finds that the hearing officer, as the trier of fact, was charged with resolving any conflicts in the evidence.  The Court cannot reweigh the evidence nor substitute its judgment for that of the hearing officer.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).

            Therefore, it is,

            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 March 2006.

 

                                                            ______________________________

                                                            LAUREN LAUGHLIN

                                                            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

 

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