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 real indication as to
the length of time in which the observations took place or the distance
involved-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.
Wideman v. Department of Highway Safety
and Motor Vehicles, No:51-2005-CA-1440ES (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
SCOTT A. WIDEMAN,
Petitioner,
v.
DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES, Case No: 51-2005-CA-1440ES/P
Respondent.
________________________________/
A.R. Mander, III, Esq.
Attorney for Petitioner
Jason Helfont, Esq.
Attorney for Respondent
. ORDER GRANTING PETITION FOR WRIT OF
CERTIORARI
THIS CAUSE came before
the Court on the Petition for Writ of Certiorari and the Response to Petition
for Writ of Certiorari. 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, Scott A. Wideman, seeks review of the Final Order of License
Suspension, entered April 26, 2005, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Wideman'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 (
After being arrested for refusing to take a breath test, petitioner requested a formal review hearing. The hearing was conducted upon the review of the reports of a law enforcement officer. There was no live testimony. The record consisted of: the traffic citation, complaint affidavit, uniform probable cause affidavit, uniform alcohol influence report, Pasco County Sheriff's Office Alcohol/Drug Influence Report, driver's license teletype, Pasco County Sheriff's Office Multipurpose Form, Property Receipt and Refusal Affidavit. The hearing officer found that petitioner was lawfully arrested for DUI and found that his driving privileges was properly suspended. Petitioner filed a petition for writ of certiorari seeking to quash the order suspending his driving privileges.
Two of the documents provided statements:
[1] The Complaint Affidavit was written by Deputy Shaw which stated:
[On March 20, 2005, at 1:49 a.m.] Deputy Raymer stopped the defendant who was operating a 1999 GMC. . . after observing it acting suspicious in the area of a perimeter in which several units were looking for a fleeing suspect. Deputy Raymer also observed the defendant drive off the roadway and then conducted the traffic stop. Upon my arrival I detected the odor of alcohol coming from the defendant and he advised that he had drank six or eight beers. The defendant agreed to submit to a field sobriety test and did poorly and was arrested for DUI. I read the defendant implied consent and he stated he would not take the breath test. Upon checking his driver's license history I was advised that the defendant had a prior refusal to submit to a breath test. The defendant was placed under the arrest for the refusal charge.
[2] The Alcohol/Drug Influence Report was written by Deputy Shaw which stated:
Deputy Raymer was on a perimeter post while we were doing a K-9 track for a
suspect in the area of SR 54 and
With regard to the stop, the hearing officer made the following findings:
On March 20, 2005, at approximately 1:49 a.m., Deputy Raymer of the Pasco County Sheriff's Office was working a perimeter post in a search area. Deputy Raymer observed a vehicle drive slowly past the scene, and then turn around and come back to the area. Deputy Raymer conducted a traffic stop after observing the vehicle's suspicious behavior and also driving off the road. . . . Attorney Sotomayor made a motion to invalidate the administrative suspension, arguing that there was no probable cause for the stop. This motion is denied. . . . The arresting officer did have probable cause to believe that you were driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
Wideman
argues argues that Department erred in sustaining his license suspension as
Deputy Raymer lacked probable cause to initiate a lawful traffic stop. This Court agrees. Florida Statutes, § 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.” This 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 Jordan v.
State, 831 So.2d 1241, 1243 (
There is no evidence in the record
that Wideman's vehicle created a safety concern for others. Further, the record is void of any evidence
that Deputy Raymer suspected that Wideman
was driving under the influence or that Deputy Raymer conducted the traffic stop to determine
whether Wideman was ill or tired. See
Nicholas v. State, 857 So.2d 980 (Fla. 4th DCA 2003)(stating that a
police officer can stop a driver based on a foundation suspicion that the
driver is under the influence, even where the driver is not committing a
separate traffic offense); see also Roberts v. State, 732 So.2d
1127 (Fla. 4th DCA 1999)(same). Particularly
troubling in this case is the fact that while Deputy Raymer alleges that the
petitioner "drove off the roadway", there is no real indication as to
the length of time in which the observations took place or the distance
involved. Thus, in comparing the facts
of this case with other cases addressing this issue, the Court finds that Wideman's
driving pattern was not “erratic” to support a lawful investigatory stop. See id.
The Florida Supreme Court in Dobrin
v. Florida Department of Highway Safety and Motor Vehicles, 2004 WL 306051
(Fla. 2004), explained that the correct test to be applied by the Circuit Court
in reviewing such administrative action is “whether the particular officer who
initiated the traffic stop had an objectively reasonable basis for making the
stop.” In applying this test to the
facts of this case and the applicable case law as cited above, the only
evidence presented to the hearing officer concerning the traffic stop was a
Complaint Affidavit and an Alcohol/Drug Influence Report written by Deputy
Shaw. The Court finds that both reports
are silent as to whether other traffic was affected or that other cars had to
take evasive action. Accordingly, the
Court finds that there was not an objectively reasonable basis for Deputy Raymer
to conduct a traffic stop as there is no
competent or substantial evidence that Widemans's vehicular movements created
any danger to himself or other traffic. See
e.g. Jordan, 831 So.2d at 1243; Crooks, 710 So.2d at 1043;
Nicholas, 857 So.2d at 982 (concluding that stop was unlawful where
officer acknowledged that he observed the driver for a very short period of
time and the driver did not interfere with any other traffic). Lastly, in Dobrin the Court upheld the
trial court’s finding that the stop could not be upheld based upon the need to
investigate the unusual driving because the officer did not say he thought the
driver might be impaired. The same is
true in the instant case.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order is quashed.
DONE AND ORDERED in Chambers, at New Port Richey,
_______________________
Primary Appellate Judge
__________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
A.R. Mander, III, Esq.
Jason Helfant, Esq.