Tuesday, October 21, 2008
Monday, July 21, 2008
Florida Department of Motor Vehicles
The Law office or Andrew D. Stine took on the Department of Motor Vehicles(DMV) in two appellate Cases 502008-CA-007637-XXXXMB and 502008-CA-008011-XXXXMB. The law office of defense attorney Andrew D. Stine took on the Department of Motor Vehicles as the Department was applying the law which was clearly unconstitutional. The Department of Motor Vehicles was unconstitutionally depriving the drivers of Florida, specifically Palm Beach County drivers, of their right to a fair and constitutional hearing after a DUI arrest. Florida law is specific in that after a DUI arrest a driver has 10 days to file for a DMV hearing. The Department of Motor Vehicles hearing officers, according to the law office of Andrew D. Stine, were applying unconstitutional law in that they were not requiring law enforcement officers to have probable cause when stopping motorists in Palm Beach County Florida. Please read the following Petitions for Writ of Certiorari filed in these cases.
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR PALM BEACH COUNTY.
Petitioner,
Petitioner,
v.
Dept. of Highway Safety & Motor Vehicles,
Respondent,
_______________________________________/
PETITION FOR WRIT OF CERTIORARI
Pursuant to Fla. R. App. P., 9.100, Petitioner, by and through his undersigned attorney respectfully petitions this Honorable Court for a writ of certiorari to review the Final Order of a Hearing Officer in an administrative proceeding. The Order to be reviewed is an order suspending the Petitioner’s driver’s license. (Appendix A)
I.
BASES FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a writ of certiorari under Article V, Section 4(b) of the Florida Constitution, F.S. 322.31, and Rule 9.030(b) (2) (A). Further, F. S. 322.2615 (13), specifically states that “a person may appeal any decision of the department sustaining a suspension of his driver’s license by a writ of certiorari to the circuit court.”
II.
STATEMENT OF THE FACTS
Petitioner, requests this Court to grant his petition for writ of certiorari and to reverse the Hearing Officer’s order suspending his driving privileges due to the fact that the Order departed from the essential requirements of law, Petitioner was not afforded due process, and due to the fact that the findings within the order were not based upon substantial competent evidence.
According to the findings of fact, made in the Final Order of License Suspension, Mr. Petitioner was stopped by Sgt. Wright of the Palm Beach County Sheriff’s Office on January 11, 2007 (sic 2008), at approximately 5:00 a.m. due to the fact that he thought he might be impaired. Sgt. Wright then informed Det. Rieger that he observed Petitioner weave back and forth within his lane, that he crossed over the solid white line about 2 tire lengths and that he would fluctuate his speed between 25 and 45 miles per hour. Upon stopping Petitioner, Sgt. Wright states that Petitioner had glassy red eyes, there was strong odor of alcohol and Petitioner’s speech was slurred. Detective Rieger also made these observations. (Appendix A pg. 3). Based upon these observations, Petitioner was subjected to roadside sobriety tests, which the officers believed that he performed poorly. Petitioner was subsequently subjected to a breath test and he provided two breath samples of .154 at 6:02 a.m. and 1.50 at 6:05 a.m. (Appendix A pg. 3). Petitioner was then arrested for driving under the influence of alcohol in violation of Florida Statute 316.193.
Petitioner requested a Formal Review Hearing from which a Final Order of License Suspension issued on February 19, 2008.
From that Order, this timely petition for writ of certiorari ensues.
III.
NATURE OF RELIEF SOUGHT
The Petitioner seeks an Order of this Court granting his Petition for Writ of Certiorari, quashing the Department of Highway Safety and Motor Vehicles Order upholding the suspension of his driver’s license and ordering that the Petitioner’s driving privileges be reinstated.
IV.
ARGUMENT
The Department of Highway Safety and Motor Vehicles’ Administrative hearing did not satisfy minimum standards of due process. Fla. Const. Art. 1. Sec. 9; U.S. Const. Amendment 14. Petitioner was deprived of due process due to the fact that he was stopped by Sgt. Wright without a legal basis. Therefore, the stop and arrest of Petitioner were unlawful. This court should quash the Final Order of License Suspension and Petitioner’s driving privilege should be reinstated. Holland v. State, 696 So 2d 757 (Fla. 1997).
The finding of facts as stated in the Order reflects that Mr. Petitioner was stopped for weaving back and forth within his lane. Sgt. Wright also advised the Petitioner was crossing over the roadway approximately two tire widths and that his speeds would fluctuate from 20 MPH to 45 MPH. (Appendix A pg. 3).
The officer stopped the vehicle due to the fact that he “believed he was impaired or ill”. The officer conducted roadside test and subsequently the licensee was arrested for driving under the influence of alcohol and was transported to a breath testing facility. At the facility the licensee was read his implied consent rights and he provided two breath samples with readings of .154 and .150. Licensee was subsequently charged with DUI, failure to maintain a single lane and impeding traffic (driving to slow).
Licensee now moves to set aside the suspension due to the fact that the officer had no legal basis to conduct a stop of licensee’s vehicle, the Hearing Officer failed to consider legal arguments of Petitioner and the Hearing Officer improperly admitted incompetent evidence, specifically the breath card.
It is well established that the Fourth Amendment's prohibition of unreasonable searches and seizures includes investigatory stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic stop under the Fourth Amendment thus requires courts to determine whether the stop was reasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
In Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop. The Court thus rejected a consideration of whether a reasonable officer under similar circumstances would have initiated the traffic stop, noting that it seems “easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a ‘reasonable officer’ would have been moved to act upon the traffic violation.” Id. at 815, 116 S.Ct. 1769.
In this case the officer articulates facts regarding the driving pattern of Petitioner in that on a few occasions he observed a vehicle vary its speeds and cross a solid white line in the right hand lane. The officer did not articulate or swear to any other facts. Therefore, the officer’s sworn testimony does validate a Constitutional basis for stopping Petitioner.
Florida Statute §316.089(1), provides: “Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) 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”.
In Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) the defendant pled guilty to possession of cocaine, and appealed the denial of his motion to suppress the incriminating evidence. The sole issue presented on appeal was whether the traffic stop of Jordan's vehicle for failure to maintain a single lane was lawful. The court held that §316.089 (failure to maintain a single lane) is not a strict liability infraction; movement from a single lane is permitted when the driver ascertains that the movement can be made safely. In fact the Court stated “The applicable statute in this case 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.” Id at 1243.
In Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1998), the Court held that an arresting deputy sheriff had no objective basis to stop defendant's vehicle, even though deputy observed vehicle drive over right-hand line on edge of right lane of traffic on three occasions, when there was no testimony that suggested that defendant moved any great distance over line into emergency lane and no other cars or pedestrians were near defendant at the time, and there was no testimony that his driving created a safety concern or any suspicion. The facts in this case are almost identical to that in Crook and require a finding that the stop of licensee’s vehicle was illegal.
The citation for impeding traffic is also not a valid basis to stop the licensee’s vehicle. Florida Statue §316.183(5) states that “no person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” The probable cause affidavit makes no mention that there was any traffic (and quite frankly how much traffic could there have existed at 5:00 am) or that any traffic was impeded.
In Hurd v. State, 32 Fla. L. Weekly D1594 (Fla. 4th DCA 2007) the court held that Defendant's varied speeds and unwarned sudden lane change did not provide probable cause for traffic stop, where defendant's lane change was done safely, and defendant's driving was not sufficiently erratic to give rise to a reasonable suspicion of impairment. The Court stated that while a traffic stop is permitted without a traffic violation when supported by a reasonable suspicion of impairment, the facts in that case did not support a reasonable belief of impairment. In so much as the facts articulated by the arresting officer do not support a reasonable belief of impairment the suspension must be set aside.
The Hearing Officer was presented with all of the above cases in a motion which was to become an exhibit to be considered by the Department. However, in the final order of suspension, while the Hearing Officer acknowledges the motions having been made, the officer does not indicate that the written motion itself was ever considered. In addition, the final order fails to do include any analysis of the facts set forth in the motion that would distinguish the above cited cases from the instant case. It appears as if the Hearing Officer accepted the motions as a matter of procedure without ever truly considering them. In other words she placed procedure over substance. Clearly this is a violation of Petitioner’s due process rights.
CONLCUSION
Based on the foregoing, the Hearing Office departed from the essential requirements of law and due process which requires that the suspension be set aside and vacated and the reinstatement of Petitioner’s driving privileges.
WHEREFORE, the licensee respectfully requests that the suspension be set aside and that his full driving privileges be immediately restored and for such other further relief as this Honorable Court deems just and proper.
CERTIFICATE OF SERVICE
I DO HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail to the Department of Highway Safety and Motor Vehicles, to Hearing Officer Odileinis Gibson at 6801 Lake Worth Road, Ste. 230, Lake Worth, Florida 33467 this 18th day of March, 2008.
Respectfully submitted,
s/Andrew D. Stine, Esq.
ANDREW D. STINE, ESQ.
120 South Olive Avenue
Suite 402
West Palm Beach, Florida 33401
(561) 832-1170
Fla. Bar No.:
adstine@bellsouth.net
Petitioner,
Petitioner,
v.
Dept. of Highway Safety & Motor Vehicles,
Respondent,
_______________________________________/
PETITION FOR WRIT OF CERTIORARI
Pursuant to Fla. R. App. P., 9.100, Petitioner, by and through his undersigned attorney respectfully petitions this Honorable Court for a writ of certiorari to review the Final Order of a Hearing Officer in an administrative proceeding. The Order to be reviewed is an order suspending the Petitioner’s driver’s license. (Appendix A)
I.
BASES FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a writ of certiorari under Article V, Section 4(b) of the Florida Constitution, F.S. 322.31, and Rule 9.030(b) (2) (A). Further, F. S. 322.2615 (13), specifically states that “a person may appeal any decision of the department sustaining a suspension of his driver’s license by a writ of certiorari to the circuit court.”
II.
STATEMENT OF THE FACTS
Petitioner, requests this Court to grant his petition for writ of certiorari and to reverse the Hearing Officer’s order suspending his driving privileges due to the fact that the Order departed from the essential requirements of law, Petitioner was not afforded due process, and due to the fact that the findings within the order were not based upon substantial competent evidence.
According to the findings of fact, made in the Final Order of License Suspension, Mr. Petitioner was stopped by Sgt. Wright of the Palm Beach County Sheriff’s Office on January 11, 2007 (sic 2008), at approximately 5:00 a.m. due to the fact that he thought he might be impaired. Sgt. Wright then informed Det. Rieger that he observed Petitioner weave back and forth within his lane, that he crossed over the solid white line about 2 tire lengths and that he would fluctuate his speed between 25 and 45 miles per hour. Upon stopping Petitioner, Sgt. Wright states that Petitioner had glassy red eyes, there was strong odor of alcohol and Petitioner’s speech was slurred. Detective Rieger also made these observations. (Appendix A pg. 3). Based upon these observations, Petitioner was subjected to roadside sobriety tests, which the officers believed that he performed poorly. Petitioner was subsequently subjected to a breath test and he provided two breath samples of .154 at 6:02 a.m. and 1.50 at 6:05 a.m. (Appendix A pg. 3). Petitioner was then arrested for driving under the influence of alcohol in violation of Florida Statute 316.193.
Petitioner requested a Formal Review Hearing from which a Final Order of License Suspension issued on February 19, 2008.
From that Order, this timely petition for writ of certiorari ensues.
III.
NATURE OF RELIEF SOUGHT
The Petitioner seeks an Order of this Court granting his Petition for Writ of Certiorari, quashing the Department of Highway Safety and Motor Vehicles Order upholding the suspension of his driver’s license and ordering that the Petitioner’s driving privileges be reinstated.
IV.
ARGUMENT
The Department of Highway Safety and Motor Vehicles’ Administrative hearing did not satisfy minimum standards of due process. Fla. Const. Art. 1. Sec. 9; U.S. Const. Amendment 14. Petitioner was deprived of due process due to the fact that he was stopped by Sgt. Wright without a legal basis. Therefore, the stop and arrest of Petitioner were unlawful. This court should quash the Final Order of License Suspension and Petitioner’s driving privilege should be reinstated. Holland v. State, 696 So 2d 757 (Fla. 1997).
The finding of facts as stated in the Order reflects that Mr. Petitioner was stopped for weaving back and forth within his lane. Sgt. Wright also advised the Petitioner was crossing over the roadway approximately two tire widths and that his speeds would fluctuate from 20 MPH to 45 MPH. (Appendix A pg. 3).
The officer stopped the vehicle due to the fact that he “believed he was impaired or ill”. The officer conducted roadside test and subsequently the licensee was arrested for driving under the influence of alcohol and was transported to a breath testing facility. At the facility the licensee was read his implied consent rights and he provided two breath samples with readings of .154 and .150. Licensee was subsequently charged with DUI, failure to maintain a single lane and impeding traffic (driving to slow).
Licensee now moves to set aside the suspension due to the fact that the officer had no legal basis to conduct a stop of licensee’s vehicle, the Hearing Officer failed to consider legal arguments of Petitioner and the Hearing Officer improperly admitted incompetent evidence, specifically the breath card.
It is well established that the Fourth Amendment's prohibition of unreasonable searches and seizures includes investigatory stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic stop under the Fourth Amendment thus requires courts to determine whether the stop was reasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
In Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop. The Court thus rejected a consideration of whether a reasonable officer under similar circumstances would have initiated the traffic stop, noting that it seems “easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a ‘reasonable officer’ would have been moved to act upon the traffic violation.” Id. at 815, 116 S.Ct. 1769.
In this case the officer articulates facts regarding the driving pattern of Petitioner in that on a few occasions he observed a vehicle vary its speeds and cross a solid white line in the right hand lane. The officer did not articulate or swear to any other facts. Therefore, the officer’s sworn testimony does validate a Constitutional basis for stopping Petitioner.
Florida Statute §316.089(1), provides: “Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) 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”.
In Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) the defendant pled guilty to possession of cocaine, and appealed the denial of his motion to suppress the incriminating evidence. The sole issue presented on appeal was whether the traffic stop of Jordan's vehicle for failure to maintain a single lane was lawful. The court held that §316.089 (failure to maintain a single lane) is not a strict liability infraction; movement from a single lane is permitted when the driver ascertains that the movement can be made safely. In fact the Court stated “The applicable statute in this case 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.” Id at 1243.
In Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1998), the Court held that an arresting deputy sheriff had no objective basis to stop defendant's vehicle, even though deputy observed vehicle drive over right-hand line on edge of right lane of traffic on three occasions, when there was no testimony that suggested that defendant moved any great distance over line into emergency lane and no other cars or pedestrians were near defendant at the time, and there was no testimony that his driving created a safety concern or any suspicion. The facts in this case are almost identical to that in Crook and require a finding that the stop of licensee’s vehicle was illegal.
The citation for impeding traffic is also not a valid basis to stop the licensee’s vehicle. Florida Statue §316.183(5) states that “no person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” The probable cause affidavit makes no mention that there was any traffic (and quite frankly how much traffic could there have existed at 5:00 am) or that any traffic was impeded.
In Hurd v. State, 32 Fla. L. Weekly D1594 (Fla. 4th DCA 2007) the court held that Defendant's varied speeds and unwarned sudden lane change did not provide probable cause for traffic stop, where defendant's lane change was done safely, and defendant's driving was not sufficiently erratic to give rise to a reasonable suspicion of impairment. The Court stated that while a traffic stop is permitted without a traffic violation when supported by a reasonable suspicion of impairment, the facts in that case did not support a reasonable belief of impairment. In so much as the facts articulated by the arresting officer do not support a reasonable belief of impairment the suspension must be set aside.
The Hearing Officer was presented with all of the above cases in a motion which was to become an exhibit to be considered by the Department. However, in the final order of suspension, while the Hearing Officer acknowledges the motions having been made, the officer does not indicate that the written motion itself was ever considered. In addition, the final order fails to do include any analysis of the facts set forth in the motion that would distinguish the above cited cases from the instant case. It appears as if the Hearing Officer accepted the motions as a matter of procedure without ever truly considering them. In other words she placed procedure over substance. Clearly this is a violation of Petitioner’s due process rights.
CONLCUSION
Based on the foregoing, the Hearing Office departed from the essential requirements of law and due process which requires that the suspension be set aside and vacated and the reinstatement of Petitioner’s driving privileges.
WHEREFORE, the licensee respectfully requests that the suspension be set aside and that his full driving privileges be immediately restored and for such other further relief as this Honorable Court deems just and proper.
CERTIFICATE OF SERVICE
I DO HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail to the Department of Highway Safety and Motor Vehicles, to Hearing Officer Odileinis Gibson at 6801 Lake Worth Road, Ste. 230, Lake Worth, Florida 33467 this 18th day of March, 2008.
Respectfully submitted,
s/Andrew D. Stine, Esq.
ANDREW D. STINE, ESQ.
120 South Olive Avenue
Suite 402
West Palm Beach, Florida 33401
(561) 832-1170
Fla. Bar No.:
adstine@bellsouth.net
And the second Writ:
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT OF FLORIDA,
IN AND FOR PALM BEACH COUNTY.
Petitioner,
v.
Dept. of Highway Safety & Motor Vehicles,
Respondent,
_______________________________________/
PETITION FOR WRIT OF CERTIORARI
Pursuant to Fla. R. App. P., 9.100, Petitioner, Petitioner, by and through his undersigned attorney respectfully petitions this Honorable Court for a writ of certiorari to review the Final Order of a Hearing Officer in an administrative proceeding. The Order to be reviewed is an order suspending the Petitioner’s driver’s license. (Appendix A)
I.
BASES FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a writ of certiorari under Article V, Section 4(b) of the Florida Constitution, F.S. 322.31, and Rule 9.030(b) (2) (A). Further, F. S. 322.2615 (13), specifically states that “a person may appeal any decision of the department sustaining a suspension of his driver’s license by a writ of certiorari to the circuit court.”
II.
STATEMENT OF THE FACTS
Petitioner, _________ requests that this Court grant his petition for writ of certiorari and to reverse the Hearing Officer’s order suspending his driving privileges due to the fact that the Order departed from the essential requirements of law, Petitioner was not afforded due process, and due to the fact that the findings within the order were not based upon substantial competent evidence.
According to the findings of fact (attached as appendix A), made in the Final Order of License Suspension, Officer Rieger was on patrol in a parking lot issuing two traffic citations to a vehicle, when he ran the tag of the vehicle and a warrant came back for the owner of the vehicle. Deputy Rieger waited in the parking lot, to see if he could make contact with the driver of the vehicle, the Deputy then notices the driver get into the vehicle and go. Deputy Rieger followed the vehicle and noticed the driver drift over the solid yellow lane line by the median, then back to the left, and this occurred several times. Deputy Rieger proceeded to conduct a traffic stop for the warrant.
After stopping the vehicle, Deputy Rieger detected a strong smell of odor of unknown alcoholic beverage coming from the driver, Petitioner. The Deputy also noticed that Petitioner’s eyes were bloodshot and watery, his face was flushed and that his clothes were disorderly. Upon Petitioner exiting his automobile, he stumbled, used the patrol car for balance and sat on the bumper of the car. Petitioner was administered road side tests, which were performed poorly.
Petitioner was then transported to a breath testing facility and he gave two samples of his breath with the following readings: (i) .085 at 1:22 a.m. and (ii) .089 at 1:26 a.m.
Petitioner was then arrested for driving under the influence of alcohol in violation of Florida Statute 316.193.
Petitioner requested a Formal Review Hearing from which a Final Order of License Suspension issued on February 21, 2008. During the Petitioner’s Formal Hearing, the following additional testimony and argument was procured. Objection was made to the breath card, which is marked as document number DDL number 5 of the Department’s exhibit list. The objection was based on authenticity because DDL 5 is a photocopy of the breath card with a signature on the card, which is made with blue ink. The objection to authenticity was made as the information that the Department had regarding DDL 5 shows the breath card was not signed at the time of the sample as a photocopy form was provided with all of the breath information and then signed with a blue ink pen. (pgs. 5-6).
Further, during the hearing a written motion to set aside suspension was filed, and entered into the record. The Department however, does not list it within their record regarding this Petitioner; and the Department does not distinguish in any shape, way or manner the cases presented with the filed, written, argued and articulated motion in their final decision to suspend the Petitioner’s driving privileges.
From that Order, this timely petition for writ of certiorari ensues.
III.
NATURE OF RELIEF SOUGHT
The Petitioner seeks an Order of this Court granting his Petition for Writ of Certiorari, quashing the Department of Highway Safety and Motor Vehicles Order upholding the suspension of his driver’s license and ordering that the Petitioner’s driving privileges be reinstated.
IV.
ARGUMENT
The Department of Highway Safety and Motor Vehicles’ Administrative hearing did not satisfy minimum standards of due process. Fla. Const. Art. 1. Sec. 9; U.S. Const. Amendment 14. Petitioner was deprived of due process due to the fact that he was stopped by Officer Rieger without a legal basis. Therefore, the stop and arrest of Petitioner were unlawful. This court should quash the Final Order of License Suspension and Petitioner’s driving privilege should be reinstated. Holland v. State, 696 So 2d 757 (Fla. 1997).
It is well established that the Fourth Amendment's prohibition of unreasonable searches and seizures includes investigatory stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic stop under the Fourth Amendment thus requires courts to determine whether the stop was reasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
In Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop. The Court thus rejected a consideration of whether a reasonable officer under similar circumstances would have initiated the traffic stop, noting that it seems “easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a ‘reasonable officer’ would have been moved to act upon the traffic violation.” Id. at 815, 116 S.Ct. 1769.
In this case, the officer articulates facts regarding the driving pattern of Petitioner in that on a few occasions he observed a vehicle drift over the solid yellow line by the median, then back over the left lane. The officer did not articulate or swear to any other facts. Therefore, the officer’s sworn testimony does validate a Constitutional basis for stopping Petitioner.
Florida Statute §316.089(1), Florida Statutes provides: “Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) 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”.
In Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) the defendant pled guilty to possession of cocaine, and appealed the denial of his motion to suppress the incriminating evidence. The sole issue presented on appeal was whether the traffic stop of Jordan's vehicle for failure to maintain a single lane was lawful. The court held that §316.089 (failure to maintain a single lane) is not a strict liability infraction; movement from a single lane is permitted when the driver ascertains that the movement can be made safely. In fact the Court stated “The applicable statute in this case 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.” Id at 1243.
In Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1998), the Court held that an arresting deputy sheriff had no objective basis to stop defendant's vehicle, even though deputy observed vehicle drive over right-hand line on edge of right lane of traffic on three occasions. There was no testimony that suggested that defendant moved any great distance over the line into the emergency lane and no other cars or pedestrians were near defendant at the time, and there was no testimony that his driving created a safety concern or any suspicion. The facts in this case are almost identical to that in Crook and require a finding that the stop of licensee’s vehicle was illegal.
In Hurd v. State, 32 Fla. L. Weekly D1594 (Fla. 4th DCA 2007) the court held that Defendant's varied speeds and unwarned sudden lane change did not provide probable cause for traffic stop, where defendant's lane change was done safely, and defendant's driving was not sufficiently erratic to give rise to a reasonable suspicion of impairment. The Court stated that while a traffic stop is permitted without a traffic violation when supported by a reasonable suspicion of impairment, the facts in that case did not support a reasonable belief of impairment. In so much as the facts articulated by the arresting officer do not support a reasonable belief of impairment the suspension must be set aside.
Likewise the officer had no right to stop the vehicle based upon the warrant. The deputy did not articulate that he was stopping the vehicle and apprehending the driver for a “warrant.” In fact the deputy does not affirm to any of the following facts concerning the warrant: (1) the named individual; (2) the description of the person; (3) gender; (4) age; (5) race; (6) hair color; (7) eye color and (8) any features of the person whom the warrant was issued for were provided. Therefore, the argument, if any, that the stop was premised on a warrant for someone is without merit.
Here the deputy did not determine that the driver of the vehicle was the owner of the vehicle for which a warrant was issued. There is not one scintilla of evidence, as the sworn probable cause affidavit is void, as to the driver and the owner being one and the same person. See State v. Phelps, 13 Fla. L. Weekly Supp. Fla. (6th Cir. Ct. Oct. 25, 2005) wherein the court held that there is no probable cause to stop a vehicle for the suspicion of a warrant, when it was ascertained that the driver is not the person for whom the warrant was issued.
At bar, it is axiomatic that this deputy did not ascertain who the warrant was for in that he did not swear to it in his probable cause affidavit. As in Phelps, Id., and here even more egregious is the fact that this deputy did ascertain who the warrant was issued for, but made an investigatory stop premised on a lack of information due to incompetence or plain laziness. Whatever the reasons, without reasonable suspicion the result cannot change, meaning the Constitution cannot tolerate these types of illegal stops of its citizens.
Additionally, as to the twenty minute observation period, it is credulous to believe that the 20 minute observation period was properly adhered to in this matter as the form was pre-typed before the driver was ever arrested. Current regulations provide, “the breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test.” 11D-8.007(3), F.A.C. Additionally, The State has the burden of proving substantial compliance with this regulation. Id.
Here, because the form was prepared prior to the driver ever being arrested it is impossible to know whether substantial compliance with the rule ever took place. Petitioner also points argues that the signature of the breath card in blue ink, adds more credence to the argument that the 20 minute observation period was not properly adhered too. In essence, this Honorable Court is left speculating as to whether or not compliance was met. This type of speculation cannot stand.
Moreover, the Department overruled Petitioner’s objection of authenticity to the aforementioned document, DDL 5, and such objection is an abuse of discretion.
Petitioner,
v.
Dept. of Highway Safety & Motor Vehicles,
Respondent,
_______________________________________/
PETITION FOR WRIT OF CERTIORARI
Pursuant to Fla. R. App. P., 9.100, Petitioner, Petitioner, by and through his undersigned attorney respectfully petitions this Honorable Court for a writ of certiorari to review the Final Order of a Hearing Officer in an administrative proceeding. The Order to be reviewed is an order suspending the Petitioner’s driver’s license. (Appendix A)
I.
BASES FOR INVOKING JURISDICTION
This Court has jurisdiction to issue a writ of certiorari under Article V, Section 4(b) of the Florida Constitution, F.S. 322.31, and Rule 9.030(b) (2) (A). Further, F. S. 322.2615 (13), specifically states that “a person may appeal any decision of the department sustaining a suspension of his driver’s license by a writ of certiorari to the circuit court.”
II.
STATEMENT OF THE FACTS
Petitioner, _________ requests that this Court grant his petition for writ of certiorari and to reverse the Hearing Officer’s order suspending his driving privileges due to the fact that the Order departed from the essential requirements of law, Petitioner was not afforded due process, and due to the fact that the findings within the order were not based upon substantial competent evidence.
According to the findings of fact (attached as appendix A), made in the Final Order of License Suspension, Officer Rieger was on patrol in a parking lot issuing two traffic citations to a vehicle, when he ran the tag of the vehicle and a warrant came back for the owner of the vehicle. Deputy Rieger waited in the parking lot, to see if he could make contact with the driver of the vehicle, the Deputy then notices the driver get into the vehicle and go. Deputy Rieger followed the vehicle and noticed the driver drift over the solid yellow lane line by the median, then back to the left, and this occurred several times. Deputy Rieger proceeded to conduct a traffic stop for the warrant.
After stopping the vehicle, Deputy Rieger detected a strong smell of odor of unknown alcoholic beverage coming from the driver, Petitioner. The Deputy also noticed that Petitioner’s eyes were bloodshot and watery, his face was flushed and that his clothes were disorderly. Upon Petitioner exiting his automobile, he stumbled, used the patrol car for balance and sat on the bumper of the car. Petitioner was administered road side tests, which were performed poorly.
Petitioner was then transported to a breath testing facility and he gave two samples of his breath with the following readings: (i) .085 at 1:22 a.m. and (ii) .089 at 1:26 a.m.
Petitioner was then arrested for driving under the influence of alcohol in violation of Florida Statute 316.193.
Petitioner requested a Formal Review Hearing from which a Final Order of License Suspension issued on February 21, 2008. During the Petitioner’s Formal Hearing, the following additional testimony and argument was procured. Objection was made to the breath card, which is marked as document number DDL number 5 of the Department’s exhibit list. The objection was based on authenticity because DDL 5 is a photocopy of the breath card with a signature on the card, which is made with blue ink. The objection to authenticity was made as the information that the Department had regarding DDL 5 shows the breath card was not signed at the time of the sample as a photocopy form was provided with all of the breath information and then signed with a blue ink pen. (pgs. 5-6).
Further, during the hearing a written motion to set aside suspension was filed, and entered into the record. The Department however, does not list it within their record regarding this Petitioner; and the Department does not distinguish in any shape, way or manner the cases presented with the filed, written, argued and articulated motion in their final decision to suspend the Petitioner’s driving privileges.
From that Order, this timely petition for writ of certiorari ensues.
III.
NATURE OF RELIEF SOUGHT
The Petitioner seeks an Order of this Court granting his Petition for Writ of Certiorari, quashing the Department of Highway Safety and Motor Vehicles Order upholding the suspension of his driver’s license and ordering that the Petitioner’s driving privileges be reinstated.
IV.
ARGUMENT
The Department of Highway Safety and Motor Vehicles’ Administrative hearing did not satisfy minimum standards of due process. Fla. Const. Art. 1. Sec. 9; U.S. Const. Amendment 14. Petitioner was deprived of due process due to the fact that he was stopped by Officer Rieger without a legal basis. Therefore, the stop and arrest of Petitioner were unlawful. This court should quash the Final Order of License Suspension and Petitioner’s driving privilege should be reinstated. Holland v. State, 696 So 2d 757 (Fla. 1997).
It is well established that the Fourth Amendment's prohibition of unreasonable searches and seizures includes investigatory stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic stop under the Fourth Amendment thus requires courts to determine whether the stop was reasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
In Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop. The Court thus rejected a consideration of whether a reasonable officer under similar circumstances would have initiated the traffic stop, noting that it seems “easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a ‘reasonable officer’ would have been moved to act upon the traffic violation.” Id. at 815, 116 S.Ct. 1769.
In this case, the officer articulates facts regarding the driving pattern of Petitioner in that on a few occasions he observed a vehicle drift over the solid yellow line by the median, then back over the left lane. The officer did not articulate or swear to any other facts. Therefore, the officer’s sworn testimony does validate a Constitutional basis for stopping Petitioner.
Florida Statute §316.089(1), Florida Statutes provides: “Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) 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”.
In Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) the defendant pled guilty to possession of cocaine, and appealed the denial of his motion to suppress the incriminating evidence. The sole issue presented on appeal was whether the traffic stop of Jordan's vehicle for failure to maintain a single lane was lawful. The court held that §316.089 (failure to maintain a single lane) is not a strict liability infraction; movement from a single lane is permitted when the driver ascertains that the movement can be made safely. In fact the Court stated “The applicable statute in this case 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.” Id at 1243.
In Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1998), the Court held that an arresting deputy sheriff had no objective basis to stop defendant's vehicle, even though deputy observed vehicle drive over right-hand line on edge of right lane of traffic on three occasions. There was no testimony that suggested that defendant moved any great distance over the line into the emergency lane and no other cars or pedestrians were near defendant at the time, and there was no testimony that his driving created a safety concern or any suspicion. The facts in this case are almost identical to that in Crook and require a finding that the stop of licensee’s vehicle was illegal.
In Hurd v. State, 32 Fla. L. Weekly D1594 (Fla. 4th DCA 2007) the court held that Defendant's varied speeds and unwarned sudden lane change did not provide probable cause for traffic stop, where defendant's lane change was done safely, and defendant's driving was not sufficiently erratic to give rise to a reasonable suspicion of impairment. The Court stated that while a traffic stop is permitted without a traffic violation when supported by a reasonable suspicion of impairment, the facts in that case did not support a reasonable belief of impairment. In so much as the facts articulated by the arresting officer do not support a reasonable belief of impairment the suspension must be set aside.
Likewise the officer had no right to stop the vehicle based upon the warrant. The deputy did not articulate that he was stopping the vehicle and apprehending the driver for a “warrant.” In fact the deputy does not affirm to any of the following facts concerning the warrant: (1) the named individual; (2) the description of the person; (3) gender; (4) age; (5) race; (6) hair color; (7) eye color and (8) any features of the person whom the warrant was issued for were provided. Therefore, the argument, if any, that the stop was premised on a warrant for someone is without merit.
Here the deputy did not determine that the driver of the vehicle was the owner of the vehicle for which a warrant was issued. There is not one scintilla of evidence, as the sworn probable cause affidavit is void, as to the driver and the owner being one and the same person. See State v. Phelps, 13 Fla. L. Weekly Supp. Fla. (6th Cir. Ct. Oct. 25, 2005) wherein the court held that there is no probable cause to stop a vehicle for the suspicion of a warrant, when it was ascertained that the driver is not the person for whom the warrant was issued.
At bar, it is axiomatic that this deputy did not ascertain who the warrant was for in that he did not swear to it in his probable cause affidavit. As in Phelps, Id., and here even more egregious is the fact that this deputy did ascertain who the warrant was issued for, but made an investigatory stop premised on a lack of information due to incompetence or plain laziness. Whatever the reasons, without reasonable suspicion the result cannot change, meaning the Constitution cannot tolerate these types of illegal stops of its citizens.
Additionally, as to the twenty minute observation period, it is credulous to believe that the 20 minute observation period was properly adhered to in this matter as the form was pre-typed before the driver was ever arrested. Current regulations provide, “the breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test.” 11D-8.007(3), F.A.C. Additionally, The State has the burden of proving substantial compliance with this regulation. Id.
Here, because the form was prepared prior to the driver ever being arrested it is impossible to know whether substantial compliance with the rule ever took place. Petitioner also points argues that the signature of the breath card in blue ink, adds more credence to the argument that the 20 minute observation period was not properly adhered too. In essence, this Honorable Court is left speculating as to whether or not compliance was met. This type of speculation cannot stand.
Moreover, the Department overruled Petitioner’s objection of authenticity to the aforementioned document, DDL 5, and such objection is an abuse of discretion.
ABUSE OF DISCRETION ARGUMENT.
The Hearing Officer was presented with all of the above cases in a motion which was to become an exhibit to be considered by the Department. However, in the final order of suspension, while the Hearing Officer acknowledges the motions having been made, does not indicate that the written motion itself was ever considered. In addition, the final order fails to do include any analysis of the facts or set forth in the motion that would distinguish the above cited cases from the instant case. It appears as if the Hearing Officer accepted the motions as a matter of procedure without ever truly considering them. In other words she placed procedure over substance. Clearly this is a violation of Petitioner’s due process rights.
The Hearing Officer also placed procedure over substance when she accepted a signed breath card by the arresting officer almost a month after the sample was actually provided. The arrest affidavit is written in handwriting, except for the statement that the arresting officer observed the driver for 20 minutes prior to the driver providing a breath sample. In other words it is pre-printed form that states that a requirement for the admissibility of the breath test results has occurred, when in fact the actual act has not yet occurred. In this case, the arresting officer did not state under oath that he observed the Petitioner for 20 minutes before the breath test until the day before the hearing. This was evidenced by the discovery provided by the State Attorney’s Office which was provided before the hearing and included an unsigned breath card. The signed breath card was provided to Petitioner fort he first time on the day of hearing. Aside from violating the rule that the document be provided to the department within ten days, it is also in accurate which indicates that an event occurred on a certain date when obviously it did not. Despite this major discrepancy, the Hearing Officer accepted the breath card as competent evidence contrary to the requirements of law and to the mandates of due process.
CONCLUSION
Based on the foregoing, the Hearing Office departed from the essential requirements of law and due process which requires that the suspension be set aside and vacated and the reinstatement of Petitioner’s driving privileges.
WHEREFORE, the licensee respectfully requests that the suspension be set aside and that his full driving privileges be immediately restored and for such other further relief as this Honorable Court deems just and proper.
CONLCUSION
Based on the foregoing, the Hearing Office departed from the essential requirements of law and due process which requires that the suspension be set aside and vacated and the reinstatement of Petitioner’s driving privileges.
WHEREFORE, the licensee respectfully requests that the suspension be set aside and that his full driving privileges be immediately restored and for such other further relief as this Honorable Court deems just and proper.
The Hearing Officer was presented with all of the above cases in a motion which was to become an exhibit to be considered by the Department. However, in the final order of suspension, while the Hearing Officer acknowledges the motions having been made, does not indicate that the written motion itself was ever considered. In addition, the final order fails to do include any analysis of the facts or set forth in the motion that would distinguish the above cited cases from the instant case. It appears as if the Hearing Officer accepted the motions as a matter of procedure without ever truly considering them. In other words she placed procedure over substance. Clearly this is a violation of Petitioner’s due process rights.
The Hearing Officer also placed procedure over substance when she accepted a signed breath card by the arresting officer almost a month after the sample was actually provided. The arrest affidavit is written in handwriting, except for the statement that the arresting officer observed the driver for 20 minutes prior to the driver providing a breath sample. In other words it is pre-printed form that states that a requirement for the admissibility of the breath test results has occurred, when in fact the actual act has not yet occurred. In this case, the arresting officer did not state under oath that he observed the Petitioner for 20 minutes before the breath test until the day before the hearing. This was evidenced by the discovery provided by the State Attorney’s Office which was provided before the hearing and included an unsigned breath card. The signed breath card was provided to Petitioner fort he first time on the day of hearing. Aside from violating the rule that the document be provided to the department within ten days, it is also in accurate which indicates that an event occurred on a certain date when obviously it did not. Despite this major discrepancy, the Hearing Officer accepted the breath card as competent evidence contrary to the requirements of law and to the mandates of due process.
CONCLUSION
Based on the foregoing, the Hearing Office departed from the essential requirements of law and due process which requires that the suspension be set aside and vacated and the reinstatement of Petitioner’s driving privileges.
WHEREFORE, the licensee respectfully requests that the suspension be set aside and that his full driving privileges be immediately restored and for such other further relief as this Honorable Court deems just and proper.
CONLCUSION
Based on the foregoing, the Hearing Office departed from the essential requirements of law and due process which requires that the suspension be set aside and vacated and the reinstatement of Petitioner’s driving privileges.
WHEREFORE, the licensee respectfully requests that the suspension be set aside and that his full driving privileges be immediately restored and for such other further relief as this Honorable Court deems just and proper.
Tuesday, June 17, 2008
Vehicular Homicide
- Facts: In a Martin County Felony Criminal Traffic Homicide Case, Case Number 04-773-CF-MA, the defendant, a Mexican National, was traveling northbound on I-95 in the Hobe Sound area. The testimony showed that the defendant was travelling above the speed limit on a rained slick road. Due to the speed of the car coupled with bad weather conditions, the defendant's car hydroplaned, and crossed the median of I-95. The defendant's vehicle then began to travel north bound on I-95 in the South bound lanes into oncoming traffic. The defendant's vehicle struck another vehicle causing a violent car acident in Martin County, Florida. The driver of the southbound vehicle was killed instantly in the traffic accident. The defendant was arrested and charged with Vehicular Homicide. Because the defendant was an illegal, he was held no bond.
- Defense: Defense attorney Andrew D. Stine of West Palm Beach, Florida and his team conducted an evaluation of all evidence. After combing through all of the State's evidence, Attorney Andrew D. Stine began to realize the defendnat was falsely arrested and being illegally held. Attorney Stine filed several motions, including a Violation of Miranda and an Accident Report Privilege. With several motions pending before the Honorable Judge Larry Shack, the State of Florida decided to Nolle Pros the case. All charges were dropped and the defendant was immediately released from custody from the Martin County Jail.
Lewd and Lascivious Battery
- Facts: In Palm Beach County Felony Case Number 2004-CF-010535 AXX the defendant was charged with Lewd and Lascivious Battery. It was charged that the defendant committed Lewd and Lascivious molestation on a child, it was alleged that he touched a young girl inappropriately without intent to commit rape. It was also alleged that the defendant penetrated the alleged victim with his penis and or fingers.
- Defense: Defense attorney Andrew Stine aggressively prepared a defense in this case. Witnesses were brought in to testify. This sounds easy but the witnesses were from Honduras, and were illegal. Therefore, Attorney Stine had to summon the help of the Honduran consulate and required a court order to bring the witness into the court to testify. The witnesses’ testimony refuted the allegations and the case was Nolle-Prossed. The result of this case was the State dropping all charges.
Aggravated Battery with a Deadly Weapon
- Facts: In Palm Beach County Felony Case Number 2008-CF-002479 AMB the defendant was charged with Aggravated Battery with a Deadly Weapon. The defendant used his vehicle on Southern Blvd. in Palm Beach County, to run into the vehicle of the victim Mr. George. The defendant's actions of using his monster truck as a weapon to ram the victim's vehicle on several occassions, over the distance of 4 miles, caused head injuries to the victim and totally destroyed his $130,000.00 Mercedes. Because of the evidence against the defendant, including a full confession, several eye witnesses and a destroyed vehicle with paint marking matching the impounded monster truck, the State charged that the defendant intentionally and repeatedly struck Mr. George against his will, and in doing so used a motor vehicle as a Deadly Weapon in this Palm Beach County, Florida criminal felony case. The defendant in this case was a former State Trooper, CIA Agent and U.S. Army Solider. Actually, the facts showed that the defendant used the PITT maneuver to finally stop the victim's car, before the defendant backed his monster truck on top of it reducing it to a pile of scrap. The State was asking for the bottom of the guidelines, under the Florida Sentencing Punishment Code, which was more than 3 years in the department of corrections. Attorney Andrew D. Stine and his team began the case with the theory of defense that the defendant was in acting in defense of others, and that the victim was actually at fault.
- Defense: Defense attorney Andrew D. Stine aggressively prepared a defense in this case, defense of others, motions were filed, depositions were taken, the investigation was finished. The outome of the case, the State of Florida agreed to drop the Aggravated Battery Charges. The defendant was given probation with no felony conviction on his record. Adjudication was withheld and this once seemingly hopeless case turned on the preparation of the team of Attorney Andrew D. Stine.
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