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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
JOSHUA M. WHITNEY,
vs. Appeal No. 06-0056AP-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
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.
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 (
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 (
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
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 (
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.”
In following the Edwards
Hence, the Court concludes that Officer Shaw’s detention of Whitney, which occurred at the point Whitney’s keys were removed, 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.
AND ORDERED in Chambers, at
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
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews
 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.
e.g. Woods v. State, 890 So.2d 559, 561 (