Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S
LICENSES – Traffic Stop – failure to maintain single lane – Department departed
from the essential requirements of law by failing to invalidate traffic stop –
there was not an objectively reasonable basis to conduct the traffic stop --
there was not competent substantial evidence that Petitioner’s vehicular
movements created a danger to himself or other traffic – no evidence that officer
suspected Petitioner was driving under the influence or that officer conducted
traffic stop to determine if Petitioner was ill or tired -- Petition
granted. Kurdziel v. Department of Highway Safety and Motor Vehicles, No:
51-2004-CA-0178WSP (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JAMES P. KURDZIEL,
Appellant
vs. Case No: 51-2004-CA-0178 WSP
STATE OF
OF HIGHWAY SAFETY AND MOTOR
VEHICLES, DIVISION OF DRIVER LICENSES
Appellee.
___________________/
ORDER GRANTING 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 granted as set forth below.
The
Petitioner, James P. Kurdziel, (Kurdziel),
seeks review of the Final Order of License Suspension, entered December 23,
2003, in which the hearing officer for the Respondent, Department of Highway
Safety and Motor Vehicles (Department), concluded that Kurdziel's
driving privilege was properly suspended for a period of eighteen months for
driving under the influence (DUI). In
reviewing the Department’s order, this Court must determine (1) whether
procedural due process had been accorded, (2) whether the essential
requirements of law had been observed, and (3) whether the administrative
findings and judgment were supported by competent substantial evidence. See Vichich
v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
The record
shows that on September 21, 2003, Officer Kay testified that he observed
petitioner's vehicle swerving in and out of the lane crossing the median
slightly. He testified that he followed the petitioner's vehicle for
approximately a half of a mile to two thirds of a mile and observed petitioner weave
significantly outside his lane of travel.
He explained that the tires were over the line two or three times.
Upon making contact with Kurdziel, Officer Kay smelled the odor of alcohol and noticed six additional clues of impairment. Deputy Carmen responded and upon contact with Kurdziel detected the very strong odor of an alcoholic beverage, slurred speech and bloodshot glassy eyes. Carmen testified that when he asked Kurdziel what he had to drink, he first responded that he did not have anything and then later admitted that he had three beers. Carmen also observed a cold half a can of beer in the console. Finally Carmen testified that Kurdziel performed poorly on the field sobriety test. Kurdziel refused to submit to a breath test.
Kurdziel
argues that the Department erred in sustaining his license suspension as
Officer Kay lacked probable cause to initiate a lawful traffic stop. This Court agrees. Florida Statutes, Section 316.089(1), states
that “[a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane
until the driver has first ascertained that such movement can be made with
safety.” The statute “recognizes that it is not practicable,
perhaps not even possible, for a motorist to maintain a single lane at all
times and that the crucial concern is safety rather than precision.” See
Further,
the record is void of any evidence that Officer Kay suspected that Kurdziel was driving under the influence or that Kay
conducted the traffic stop in this case to determine whether Kurdziel was ill or tired. See Nicholas v. State, 857 So.2d
980 (
COUNSEL FOR PETITIONER: . . . Based upon your experience and
training, what conclusion--what facts justify the conclusion that this vehicle
is--is--there 's impairment, there's drunk--I mean other than you see some
weaving--but the conclusion of impairment, what --what facts . . . before the
stop?
OFFICER KAY: Before
the stop I observed the vehicle. It's
not necessarily that they're impaired.
It's that there is a problem, whether it be physical, whether it be
fumbling with a phone, a fight in the car--it's hard to see in that vehicle - -
or medical condition. We ascertain what
their condition is at that point. It's
not necessarily this person is intoxicated. . . . It could be why they're
crossing the line. Basically the stop is
for the fact that they're failing to maintain a single lane due to such reason
that--to be [sic] ascertained once we stop the vehicle.
(P.A. 8-Transcript of Officer Kay's
testimony at p. 48). Thus, there is no evidence in this case that
Officer Kay pulled Kurdziel's vehicle over because he
suspected this driver was ill, tired, or driving under the influence. The only evidence in this case is what facts
Officer Kay relies on generally, when conducting a stop; there was no evidence
as to why he pulled this specific vehicle over. In comparing the
facts of this case with other cases addressing this issue, the Court finds that
Kurdziel's driving pattern was not "erratic" to
support a lawful investigatory stop. See
Roberts, Nicholas, supra.
Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED.
DONE
AND ORDERED in Chambers, at New Port Richey,
________________________
Copies furnished to:
Robert D. Eckard, Esquire
Carlos
Raurell, Esquire