Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES—Suspension—Petitioner failed to maintain a single lane in violation of section 316.089(1), Florida Statues (2012) – deputy observed on two occasions Petitioner squealing her tires when accelerating away from traffic lights.  One piece of documentary evidence conflicts with remainder of evidence on the timing of the request for the breath-alcohol test.  Competent, substantial evidence supports the Hearing officer’s decision that deputy had objectively reasonable basis for traffic stop for DUI and supports the decision that Petitioner was under arrest when she refused to submit to the breath-alcohol test. Petition denied. Lamm v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 12-000033AP-88A (Fla. 6th Cir. App. Ct. Dec. 4, 2012).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

KATHY LAMM,

      Petitioner,                                                                       Case No.: 12-000033AP-88A

                                                                                                UCN: 522012AP000033XXXXCV

 

v.

                                                                                               

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

      Respondent.                 

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari from

Decision of Hearing Officer

Bureau of Administrative Reviews

Department of Highway Safety

and Motor Vehicles

 

Marc N. Pelletier Esq.

Attorney for Petitioner

 

Stephen D. Hurm, Gen. Counsel

Judson Chapman, Sr. Asst. Gen. Counsel

Attorneys for Respondent

 

 

PER CURIAM.

            Kathy Lamm seeks certiorari review of the "Findings of Fact, Conclusions of Law and Decision" of the Hearing Officer of the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles entered on June 19, 2012.  The Decision affirmed the order of suspension of Ms. Lamm's driving privileges.  The petition is denied.

 

Statement of Case

            The Pinellas County Sheriff Office ACISS PCSO Offense Report ("Offense Report") (App. 19-26) indicates that a traffic stop was conducted by Deputy Horton at approximately 12:29 a.m. on May 19, 2012.  The Offense Report (App. 25) and the Complaint/Arrest Affidavit (App. 11) indicate that Ms. Lamm was stopped by Deputy Horton for failure to drive in a single lane.  Upon making contact with Ms. Lamm, the deputy reportedly noted that she had a distinct odor of alcohol on her breath; her eyes were watery, glassy and bloodshot; her speech was "thick" and occasionally slurred; and she had a flushed appearance.  Ms. Lamm agreed to perform standardized field sobriety tests.  The evidence in the record indicates that she poorly executed the tests.  The Complaint/Arrest Affidavit states that at 12:52 a.m. Ms. Lamm was arrested for allegedly driving while under the influence (DUI).  After being transported to the Central Breath Testing facility, Ms. Lamm was asked to provide a breath sample and she refused.  Ms. Lamm's driving privileges were suspended and she challenged the suspension. 

            On June 19, 2012, an administrative formal review hearing was conducted pursuant to section 322.2615(1)(b)(3), Florida Statutes (2012).  No witnesses testified at the hearing.  After receiving documentary evidence and considering the argument of counsel for Ms. Lamm, the Hearing Officer issued the "Findings of Fact, Conclusions of Law and Decision" denying Ms. Lamm's motions and affirming the order of suspension of her driving privileges.  This petition followed.

Standard of Review

            Circuit court certiorari review of an administrative agency decision is governed by a three-part standard: (1) whether procedural due process has been accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent, substantial evidence.  State, Dep't of Highway Safety & Motor Vehicles v. Sarmiento, 989 So. 2d 692, 693 (Fla. 4th DCA 2008).  This Court is not entitled to reweigh the evidence; it may only review the evidence to determine whether it supports the hearing officer's findings and Decision.  Dep't of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).

Analysis

            I.  Was there a lawful basis to stop Ms. Lamm's vehicle?

            In the present case, Ms. Lamm argues that the Hearing Officer's finding that the traffic stop was lawful is not supported by competent, substantial evidence.  The Hearing Officer made the following Findings of Fact:

 

            I find that the following facts are supported by a preponderance of the evidence:  After considering all the evidence submitted in this case this Hearing Officer finds that the petitioner was driving and in actual physical control of a motor vehicle within the confines of the State of Florida on the above listed date of suspension.

 

            Deputy G. Horton, of the Pinellas County Sheriff's Office observed a vehicle failing to maintain a single lane by drifting, touching the lane lines, and crossing over the fog line [the white line on the right-hand side of the road].  Deputy Horton conducted a traffic stop and made contact with the driver.

 

The Offense Report by Deputy Horton's states:

            I was drawn to the vehicle after hearing the tires squeal as the vehicle took off from the intersection.

 

            I observed the vehicle as it continued southbound on Park Street.  The vehicle touched the white lane marker between the curb and median lanes just south of Park Blvd.  The vehicle continued to drift in its lane for several blocks.  The vehicle stopped for the red light at 84th Lane and Park Street.  When the light changed, the vehicle squealed the tires as it took off from the intersection.  I then observed the vehicle touch the white lane marker between the median and curb lanes on the south end of the bridge over Cross Bayou.  The vehicle continued southbound on Park Street, where I observed the vehicle cross over the fog line in the curb lane just north of 62nd Avenue N.

 

(App. 25).  There is no indication in the evidence in the record that any other traffic was affected or endangered by Ms. Lamm's act of failing to maintain a single lane in violation of section 316.089(1), Florida Statutes (2012).  

            Ms. Lamm argues that the officer did not have a lawful basis to stop her vehicle.  She notes that there are two possible justifications for the stop of her vehicle: the observation of Ms. Lamm squealing her tires on two occasions, or the traffic infraction of failure to maintain a single lane. 

            It is argued that there is no statute that prohibits squealing or screeching tires on a vehicle and this conduct would not justify the investigatory stop of Ms. Lamm's vehicle.  Ms. Lamm argues that in order to validly effectuate a stop for a violation of section 316.089(1), there must be evidence that she failed to maintain the single lane in such a way that it created a safety risk to others.  See Crooks v. State, 710 So. 2d 1041, 1042-43 (Fla. 2d DCA 1998).  She points out that there was no evidence that any of Ms. Lamm's movements interfered with other traffic or placed any persons or property in danger.  In Crooks the Second District Court of Appeal stated that a violation of section 316.089 "does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern."  Id. at 1043.  The appellate court concluded that the arresting deputy had no objective basis to stop Mr. Crooks' vehicle.  Id.

            In evaluating the validity of a traffic stop, this Court is to determine if the law enforcement officer had an objectively reasonable basis to effectuate the initial stop.  See Dobrin v. Fla. Dep't of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004).  We note that the evidence before the hearing officer demonstrates that in addition to witnessing Ms. Lamm failing to maintain a single lane, the deputy also observed her stopped at two traffic signals.  In that limited time period, the deputy witnessed Ms. Lamm squeal her tires each time she accelerated away from the intersections. 

            A law enforcement officer does not have to have probable cause to believe that a driver is intoxicated in order to make an investigatory stop; a founded suspicion is all that is required.  As explained in State, Department of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349, 1351 (Fla. 2d DCA 1992):

           

            In order to effect a valid stop for DUI, the officer need only have a "founded suspicion" of criminal activity.  Thereafter, the probable cause needed to arrest or to suspend a license for DUI may be based upon evidence obtained during the standard procedures following a valid traffic stop . . . .  The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.

 

See also Dep't of Highway Safety and Motor Vehicles v. Ivey, 73 So. 3d 877, 881 (Fla. 5th DCA 2011).

            The appellate court in Florida Department of Highway Safety and Motor Vehicles v. Jones, 935 So. 2d 532, 535 (Fla. 3d DCA 2006), held that the wrong law was applied by the circuit court acting in its appellate capacity when it looked at the officer's subjective reason for stopping Mr. Jones.  The Third District Court of Appeal stated that "failure to maintain a single lane alone, can under appropriate circumstances, establish probable cause."  Jones, 935 So. 2d at 535 (emphasis added). 

            As in Jones, this Court has reviewed all the evidence presented to the hearing officer including the deputy's documented observations.  We conclude that Ms. Lamm's act of squealing her tires as she accelerated away from two intersections and her failure to maintain a single lane were sufficient to provide the deputy with a "founded suspicion" of criminal activity.  The deputy had an objectively reasonable basis for the initial stop.  This Court concludes that the Hearing Officer's Decision that the traffic stop was lawful is supported by competent, substantial evidence. 

            II.  Was the request to submit to the breath-alcohol test made after an arrest?

            The documentation in the parties' appendices reveals the following time line for events occurring on May 19, 2012:

 

 

 

12:29 a.m.

Florida Uniform Traffic Citation (App. 16) (DDL #1); Complaint/Arrest Affidavit (App. 11)

(DDL #3)

Ms. Lamm was found to have failed to drive within a single lane

12:29 a.m.

Pinellas County Standardized Field Sobriety Test Form (App. 15) (DDL #9)

Field Sobriety Test form indicates that Ms. Lamm was stopped at 12:29 a.m. and Ms. Lamm was informed of her Miranda rights.

12:29 a.m.

Complaint/Arrest Affidavit (App. 11)

(DDL #3)

Ms. Lamm performed poorly on standardized field sobriety tests.

12:29 a.m.

Florida DUI Uniform Traffic Citation (App. 16) (DDL #1); Complaint/Arrest Affidavit (App. 11)

(DDL #3)

The traffic citation indicates that Ms. Lamm committed the offense of DUI at 12:29 a.m.

12:52 a.m.

Complaint/Arrest Affidavit (App. 11) (DDL #3)

Ms. Lamm was arrested by Deputy Horton at 12:52 a.m. according to this document.

12: 40 a.m. & 12:52 a.m.

Affidavit of Refusal to Submit to Breath, Urine, or Blood Test (App. 12) (DDL #7)

Affidavit form states that Ms. Lamm was arrested at 12:52 a.m.  Below that statement it is noted that she was requested to take the breath-alcohol test at 12:40 a.m. and refused to submit to test.

1:20 a.m.

ACISS PCSO Offense Report (App. 25)

(DDL #5)

The report states the 20 minute observation period of Ms. Lamm began at Central Breath Testing Facility at 1:20 a.m.

Approx. 1:40 a.m.

ACISS PCSO Offense Report (App. 25)

(DDL #5)

Report states that after 20 minute observation period, the Implied Consent Form was read to Ms. Lamm who refused to take the breath-alcohol test.  Refusal was documented on the Intoxilyzer 8000 instrument.

1:40 a.m.

State of Florida Implied Consent for DUI In a Motor Vehicle Form (App. 14) (DDL #8)

The Implied Consent Form states that Dep. Horton read the form to Ms. Lamm and she was asked to take the breath-alcohol test.  Ms. Lamm was informed if she refused, her driving privilege will be suspended.  The form indicates that at 1:40 a.m. Ms. Lamm refused to take the breath-alcohol test although she was informed of the consequences of the refusal.

1:44 a.m.

Alcohol Testing Program Breath Alcohol Affidavit—Intoxilyzer 8000 (App. 13)

(DDL #6)

The Intoxilyzer 8000 instrument documents that at 1:44 a.m., after a 20 minute observation period, Ms. Lamm refused to take the breath-alcohol test.

 

            The valid suspension of a driver's license under sections 316.1932(1)(a) and 322.2615, requires that a defendant must have been under arrest at the time the request to submit to the breath-alcohol test was made and that the defendant be informed of the consequences of the refusal to submit to the test.  See Fla. Dep't of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1076 (Fla. 2011).  Ms. Lamm argues that the evidence is conflicting on the issue of whether she was under arrest at the time she refused to submit to the breath-alcohol test.

            The only conflicting evidence is found in the Affidavit of Refusal to Submit to Breath, Urine, or Blood Test (App. 12) (DDL #7) that states Ms. Lamm was arrested at 12:52 a.m., that she was requested to take the breath-alcohol test at 12:40 a.m., and refused to submit to the test at that time.  All remaining documentary evidence supports the information recorded in the Offense Report and Deputy Horton's narrative therein. (App. 19-26)(DDL #5).  The Offense Report states that Ms. Lamm was arrested at 12:52 a.m.; was asked to take the breath-alcohol test at approximately 1:40 a.m. (after the twenty-minute observation period that began at 1:20 a.m.); and she refused the test after being read the Implied Consent Form at 1:40-1:44 a.m.  See Alcohol Testing Program Breath Alcohol Affidavit—Intoxilyzer 8000 (App. 13) (DDL #6); State of Florida Implied Consent for DUI In a Motor Vehicle Form (App. 14) (DDL #8).

            The hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.  "The preponderance of the evidence standard [is] evidence which as a whole shows that the fact sought to be proved is more probable than not."  State v. Edwards, 536 So. 2d 288, 292 (Fla. 1st DCA 1988). 

            The hearing officer weighed the evidence and decided by a preponderance of the evidence that sufficient cause existed to find that Ms. Lamm was under arrest at the time she refused to submit to the breath-alcohol test.  See e.g.  Spriggs v. Fla. Dep't of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 16a (Fla. 9th Cir. App. Ct. Sept. 13, 2011).  This Court finds that competent, substantial evidence outlined above supports the hearing officer's Decision on the timing of the request for the breath-alcohol test. 

 

            Petition for writ of certiorari is denied.

            DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of November, 2012.

 

 

 

 

Original order entered on December 4, 2012, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

 

 

 

 

Copies furnished to:

 

Marc N. Pelletier, Esq.

9721 Executive Center Dr. North, Ste. 120

St. Petersburg, FL 33702

 

Stephen D. Hurm, Gen. Counsel

Judson M. Chapman, Sr. Asst. Gen. Counsel

P.O. Box 2940

Pinellas Park, FL 33781