County Criminal Court: CRIMINAL LAW – Traffic Stop– trial court erred in denying motion to suppress- the officer did not have the requisite founded suspicion of DUI to conduct a lawful traffic stop- the only evidence regarding the driving was that the vehicle was drifting to the left towards the center median and suddenly turned right. Order reversed.  Piper v. State, 0604498CFAES, (Fla. 6th Cir. App. Ct. May 1, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

DENISE PIPER,      

                        Appellant,

v.

 

STATE OF FLORIDA,                                               Case No: 0604498CFAES

                        Appellee.                                              Lower No: 06264514WTES   

_______________________/

 

Appeal from Pasco County Court

 

County Judge William Sestak

 

A.R. Mander, III, Esq., 

for Appellant

 

Jeffrey A. Herzog, Esq. A.S.A., 

for Appellee

 

ORDER AND OPINION

 

            Appellant was arrested and charged by citation with the offenses of Driving While Under the Influence, Driving While License Suspended, Refusal to Submit to Testing.  In addition, appellant was issued traffic citations for the infractions of Failure to Drive in a Single Lane, No Proof of Insurance, No Registration in Possession, and No Seatbelt.

Appellant filed a Motion to Suppress and after hearing, appellant entered pleas of no contest to the charges of Driving While Under the Influence and Driving While License Suspended, with an express reservation of her right to appeal. 

            At the hearing on the motion to suppress , Officer Cooper testified that while on patrol, he began following appellant’s vehicle for approximately two minutes.  He testified that as he followed the vehicle he observed the vehicle start to drift to the left towards the center median concrete curbing. The vehicle then suddenly turned to the right.  He observed this pattern of driving seven times and then initiated a traffic stop on the vehicle.  After reviewing the briefs and record, this Court reverses the trial court’s decision because the record does not competently or substantially support the officer’s stop of appellant’s vehicle. 

As argued by appellant, this case is factually indistinguishable from Carnes v. State, CRC 02-2987CFAES (Fla. 6th Cir. App. Ct. June 27, 2003) in which this Court reversed the denial of a motion to suppress. In Carnes, the stopping officer testified he observed Carnes moving from one side of the traffic lane to the other over a dozen times for a distance of almost two miles. The Court held Carnes did not fail to maintain a single lane because he never left his lane, his actions did not create a safety concern and there was no evidence he was endangering anyone.  Further, there was no evidence that the officer suspected, prior to the stop, that the driver was impaired.  Crooks v. State, 710 So. 2d 1041 (Fla. 2d DCA 1998); State v. Davidson., 744 So. 2d 1180 (Fla. 2d DCA 1999).

Likewise, in the instant case, Officer Cooper did not indicate in his report, nor did he testify, that there was any reason for stopping appellant’s vehicle other than the vehicle was drifting to the left towards the center median and suddenly turned right.   From this limited evidence, this Court finds that the record does not competently or substantially support the officer’s stop of appellant’s vehicle on the basis of failure to maintain a single lane because there is no evidence that appellant went beyond a single lane or that the officer stopped appellant to determine whether she was ill, tired, or impaired. Dobrin v. DHSMV, 874 So. 2d 1171 (Fla. 2004).  It is, therefore, 

 

ORDERED AND ADJUDGED that the decision of the trial court is REVERSED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  ___________, 2007.

                                                                                    ___________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                                           

                                                                                   

 

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies to:

A.R. Mander, III, Esq.

Jeffrey A. Herzog, Esq. A.S.A.

Honorable William Sestak

County Court Judges/ Pasco