Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – off-duty officer – citizen’s arrest – off-duty officer lawfully arrested driver, acting as a private citizen, when driver was threatening the public safety by being passed out behind the wheel of running vehicle stopped in the middle of the road obstructing traffic - Petition denied. Whitney v. Dept. of Highway Safety and Motor Vehicles, No. 06-0056AP-88B (Fla. 6th Cir. App. Ct. March 30, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JOSHUA M. WHITNEY,

                                    Petitioner,

 

 

vs.                                                                                               Appeal No. 06-0056AP-88B

                                                                                                   UCN522006AP000056XXXXCV

 

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, Joshua M. Whitney (Whitney), seeks review of the Final Order of License Suspension, entered August 10, 2006, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), suspended Whitney’s driving privilege for a period of twelve months for driving under the influence.  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Whitney 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). Whitney does not argue that he was denied due process so the Court need not address that prong. 

After a formal review hearing, the hearing officer made the following findings of fact:

 

On July 7, 2006, Officer W. Shaw of the Tarpon Springs Police Department drove up to a vehicle stopped in the roadway, obstructing traffic, with the driver passed out behind the wheel.

 

Trooper M. Vaughn was dispatched to the scene and found the driver, Joshua Whitney, still behind the wheel.  Upon making contact with the driver, the trooper detected a strong odor of an alcoholic beverage and the driver’s speech was slurred.  The driver was asked to exit the vehicle and perform standard field sobriety tests which he did but performed poorly.

 

The driver was placed under arrest for DUI and transported to jail.  The driver was asked to submit to a lawful breath test and refused.  The driver was read implied consent but continued to refuse a lawful breath test. 

 

The record further shows that Officer Shaw was off-duty and outside of his jurisdiction when he observed Whitney’s vehicle stopped in the outside lane of traffic.  The vehicle was obstructing traffic and creating a traffic hazard.  Officer Shaw approached the vehicle and observed the vehicle running, in drive, with Whitney passed out in the driver’s seat and his foot on the brake.  Officer Shaw put the vehicle in park, secured the vehicle keys, and called the Florida Highway Patrol.  Trooper Vaughn arrived and conducted field sobriety tests which resulted in Whitney’s arrest for DUI.

            Counsel for Whitney moved to invalidate the license suspension based on the lack of probable cause for the arrest and that the arrest affidavit was not properly attested to.  The hearing officer denied the motions and sustained Whitney’s DUI license suspension for a period of one year. 

Before this Court, Whitney argues that the Department’s license suspension departs from the essential requirements of law and is not supported by competent substantial evidence as Officer Shaw did not have the authority to conduct a traffic stop outside of his jurisdiction and that, under these facts, the fellow-officer rule did not apply to allow Trooper Vaughn to rely on Officer Shaw’s observations.  In reviewing these issues, the Court initially finds that since Officer Shaw was outside his jurisdiction, his arrest power was no greater than a private citizen.  See Phoenix v. State, 455 So.2d 1024, 1025 (Fla. 1984); see also Schachter v. State, 338 So.2d 269, 269 (Fla. 3d DCA 1976).  A police officer, as a private citizen, may arrest a person who in the officer’s presence commits a felony or a breach of the peace.  See State v. Furr, 723 So.2d 842, 844 (Fla. 1st DCA 1998); see also Steiner v. State, 690 So.2d 706, 708 (Fla. 4th DCA 1997).  Driving while intoxicated is considered a breach of the peace as such activity threatens public safety.  See id. 

While committing a breach of the peace may lead to a lawful DUI arrest, an off-duty police officer may not make an arrest in violation of the “color of office” doctrine.  See Furr, supra.  This doctrine “applies to prevent law enforcement officials from using powers of their office to observe unlawful activity or gain access to evidence not available to a private citizen.”  See Furr, 723 So.2d at 844 (citing Phoenix, 455 So.2d at 1025).  The Court finds that there is no showing in the record that Officer Shaw’s actions ran afoul of the “color of office” doctrine, nor does Whitney argue that this doctrine applies in this case. 

Rather, the facts clearly establish reasonable grounds for Officer Shaw to believe Whitney was committing a DUI and threatening public safety as recognized in Furr.  See Furr, 723 So.2d at 845.  As discussed in Furr, several jurisdictions follow the common-law breach of the peace rule for a citizen’s arrest.  See Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985), rev. denied, 475 So.2d 694; City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221, 223 (1991), rev. denied, 482 N.W.2d 107 (Wis. 1992)(stating that: “operating a motor vehicle while intoxicated is an activity which threatens the public security and involves violence.  As such, it amounts to a breach of the peace”); State v. Hart, 669 N.E.2d 762, 764 (Ind. App. 1996)(concluding that “a person who operates a motor vehicle while intoxicated commits a breach of the peace, whether such conduct in a particular case consists of actual or threatened violence”).

In Edwards, the Fourth District Court of Appeal analyzed whether an off-duty officer conducted a valid citizen’s arrest.  The off-duty officer had observed a pickup truck driving erratically, crossing the center line several times and forcing on-coming traffic to take evasive action to avoid hitting the driver.  See Edwards, 462 So.2d at 582.  In upholding the traffic stop, the Fourth District stated: “We cannot think of a more apt illustration of such breach of individual and collective peace of the people of Okeechobee County than to have a drunk driver at the wheel of a killing machine that is going all over the road and scaring oncoming drivers to death rather than killing them.”  Id. 

In following the Edwards analysis, the Furr Court upheld the extra-jurisdictional stop of a driver traveling west in the east-bound lane on a rural roadway and observed crossing the center line several times.  See Furr, 723 So.2d at 844.  But the decision in Furr makes it clear that the driving behavior needn’t result in a serious accident or force other drivers off the road to be a breach of the peace.  See id.;[1] see also Gueltzow v. State, 10 Fla. L. Weekly Supp. 788 (Fla. 17th Cir. App. Ct. July 23, 2003)(citing to Furr and Edwards in finding that “operating any motor vehicle while impaired from alcohol is a breach of the peace, regardless of whether any other traffic is disrupted”); Brown v. State, Department of Highway Safety and Motor Vehicles, 8 Fla. L. Weekly Supp. 348 (Fla. 13th Cir. App. Ct. March 15, 2001)(denying certiorari relief finding that off-duty officer outside his jurisdiction lawfully conducted traffic stop when driver was observed leaving roadway and officer formed belief that driver was impaired). 

Hence, the Court concludes that Officer Shaw’s detention of Whitney, which occurred at the point Whitney’s keys were removed,[2] was lawful.  Officer Shaw observed Whitney’s vehicle stopped in the outside lane of traffic, obstructing traffic and creating a traffic hazard.  Further, when Officer Shaw approached the vehicle, he found that it was running, in drive, with Whitney passed out in the driver’s seat and his foot on the brake.  As illustrated by the cases discussed above, an off-duty officer, outside his jurisdiction, needn’t wait until someone is injured or vehicles are forced off the road to conduct a valid citizen’s arrest.  The Court finds that Officer Shaw then turned custody of Whitney over to Trooper Vaughn who lawfully processed Whitney and transported him to jail. 

            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 2007.

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

Copies furnished to:

 

Michael Loberg, Esquire

7601 – 38th Avenue North

St. Petersburg, FL  33710

 

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 Court notes that Furr cites to several cases from foreign jurisdictions that also make clear that DUI, regardless of the severity of driving, constitutes a breach of peace.  See Furr, 723 So.2d at 845. 

[2] See e.g. Woods v. State, 890 So.2d 559, 561 (Fla. 5th DCA 2005)(stating that “[a] person is detained within the meaning of the Fourth Amendment if a reasonable person would not feel free to terminate the encounter, given the totality of the circumstances”).