IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
JACQUELINE ORTIZ, Case No: 0506403CFAES
ORDER AND OPINION
THIS MATTER is before the Court on the State of
testified that he has been employed by the Pasco County Sheriff’s Office since
October 2000 and prior to that was a
Carmen testified that he conducted a traffic stop on the vehicle “[t]o check the welfare, to make sure the driver wasn’t falling asleep, sick, or impaired.” The deputy explained that when he stopped the defendant he explained to her that the reason she was stopped was because he noticed that she wasn’t maintaining a single lane and she drifted into the shoulder twice.
The trial court entered an order granting the defendant’s motion to suppress. The trial court found that the deputy observed the defendant make a U-turn and head southbound. He then followed the vehicle and observed the vehicle swerve with its right tires going over the right shoulder line. The court also found that the deputy’s articulated reason for the stop was to check the welfare of the driver whom the deputy though might be falling asleep or intoxicated. Finally, the trial court found that the deputy had conducted over one thousand DUI investigations.
The trial court concluded “[b]ased on the facts of this case and after considering the totality of the circumstances, this Court agrees with the defense that the deputy lacked probable cause or reasonable suspicion to stop the defendant’s vehicle.” The court cited DHSMV v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992), State v. Davidson, 744 So. 2d 1180 (Fla. 2d DCA 1999) and State v. Christiansen, Case No. CRC04-00663CFAES (6th Circuit Court, April 2005).
The State argues
that the stop was justified after the observation of an erratic driving pattern
which included both right side tires of the vehicle crossing the shoulder line
two times within a short period of time, coupled with the belief that the
driver may be sick, tired or impaired. This Court agrees. As argued by the
State, the stop of a vehicle weaving within its own lane is justified even
without rising to the level of an infraction, to determine if the operator is
under the influence of alcohol or drugs or just having mechanical
problems. Bailey v. State, 319
So. 2d 22 (
This Court finds that the trial court misinterpreted Christiansen. The arresting officer in Christiansen never indicated that he made the stop based on anything other than what he perceived to be probable cause for a DUI arrest. The officer did not say he was concerned about a possible health issue on the part of the driver or possible vehicle malfunctions. Thus, the officer had no suspicion other than DUI, and the driving was insufficient to establish a founded suspicion of DUI. Under those facts, this Court ruled in favor of the defendant. However, there was a companion case to Christiansen; State v. Murphy, which it appears the trial court may have overlooked. In Murphy, the officer attempted to explain the basis of the stop, but the trial court prevented him from testifying. This Court specifically remanded for further fact finding to determine the critical facts as to exactly why the officer stopped the defendant. Although the driving may not establish a founded suspicion to stop for DUI in the instant case, the officer testified that he was concerned about other matters, specifically, “to check the welfare, to make sure the driver wasn’t falling asleep, sick, or impaired.” Thus, unlike Christiansen, the officer was justified in conducting the stop.
IT IS THEREFORE ORDERED that the decision of the trial court is REVERSED.
DONE AND ORDERED in Chambers at New
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
County Judge Debra Roberts
Neil O’Brien, Esq. A.S.A.
Kenneth W. Lockwood, Esq. A.P.D.
v. State, 319 So. 2d 22 (
 Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999)(police officer can stop vehicle based on founded suspicion that driver is under the influence, even where driver is not committing separate traffic offense.) .