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Petition for Writ of Certiorari

COMES NOW the Petitioner, by and through his undersigned counsel, and files this Petition for Writ of Certiorari, and in support thereof states as follows:

Introduction

1. On August 5, the Client was stopped by Lt. C. R. P., and, within less than 3 minutes, arrested, allegedly for DUI, by Officer M. J. H. Both officers were with the Jacksonville Sheriff’s Office, and both officers later testified at a Department of Motor Vehicles (“DMV”) Formal Review Hearing.
2. The Client retained undersigned counsel for legal representation.
3. On or about August 6,, undersigned counsel did timely execute all documents necessary to make application for formal review and an administrative hearing with regard to the DUI arrest and administrative license suspension, and did receive the August 10, Notice of Formal Review Hearing/Prehearing Order (a copy of which is attached hereto as Exhibit 1).
4. A Formal Hearing was conducted in this case on September 2, before Hearing Officer C. C. P.
5. On that same date, later that afternoon, with the permission of the Hearing Officer, a three page Memorandum of Law was submitted to the Hearing Officer (a copy of which is attached hereto as Exhibit 2), which provided case law confirming that an officer cannot lawfully perform a traffic stop on a citizen, merely for changing lanes, unless such lane changing affected other traffic.
6. As of September 16,, not having received a Decision, on that date, the Client submitted an additional Supplement, which Supplement is hereby incorporated by reference, and copy of which is attached hereto as Exhibit 3. That Supplement provided conclusive evidence that Lt. C. R. P. had falsified critical components of his testimony with regard to the alleged driving pattern of the Client.
7. Unbeknownst to Petitioner and his counsel, the Hearing Officer had rendered her decision two days earlier – on September 14. However, apparently due to an inadvertent mailing of that decision to an incorrect address for undersigned counsel, that decision was not received until received by facsimile at approximately 3:59 p.m. on September 16, – after counsel had provided the Hearing Officer with his hand delivered September 16, presentation. A copy of the Hearing Officer’s Findings of Fact, Conclusions of Law and Decision is attached hereto as Exhibit 4.
8. After Counsel received Hearing Officer’s Findings of Fact, Counsel filed a Motion to Reconsider Findings of Fact, Conclusions of Law and Decision, via United States mail on September 21, a copy of which is attached hereto as Exhibit 5.
9. On September 22, (one day after Counsel delivered his Motion to Reconsider), Hearing Officer’s Amended Findings of Fact, Conclusions of Law and Decision was transmitted to Counsel, in which the Motion to Reconsider was rejected and is attached hereto as Exhibit 6.
10. Pursuant to Florida Statutes sections 322.2615(13) and 322.31, a person may appeal any decision of the Department by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein the formal review was conducted. The formal review was conducted (and the order was issued from) the Department of Highway Safety and Motor Vehicles, 7439 Wilson Boulevard, Jacksonville Florida 32210, within the county of Duval.
11. The Department acted in an arbitrary and capricious manner, and denied the defendant substantive and procedural due process.
12. The “scope of the review” at such hearings is set forth in Section 322.2615(7), Florida Statutes and includes determining the following:

1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.

2. Whether the person was placed under lawful arrest for violation of s. 316.193. (emphasis added).
Moreover, the hearing officer shall determine those issues “by a preponderance of the evidence.” Id.

13. In particular, the Hearing Officer erred because a reasonable suspicion of criminal activity did not exist to detain the Client for a DUI investigation, and the officer did not have probable cause to arrest the Client for DUI.

Facts

13. Lt. C. R. P. testified that, on August 5, he followed the Client three to four car lengths behind the Client’s vehicle for approximately 1.5 – 2 miles, on University Boulevard – which becomes Cesery Boulevard. Tr. at 13:21-25 and 14:1.
14. Lt. C. R. P. saw the Client swerving on University Boulevard, where he allegedly came within 2″ of a raised curb while traveling over the Arlington River Bridge. Tr. at 18:15-17.
15. Lt. C. R. P. witnessed the Client was failing to maintain a single lane by traveling from the right northbound lane to halfway into the left northbound lane on a number of occasions, although he could not remember the number of occasions. Tr. at 18:10-12.
16. He testified that the Client was in compliance with the posted speed limits and had his lights on. Tr. at 28: 22-25 and 29:1-2.
17. Lt. C. R. P. continued to follow the Client, where he made a proper stop at the stop light of Arlington Expressway and Cesery Boulevard, approximately one half mile from the Arlington River Bridge. Tr. at 21:1-8. Lt. C. R. P. was directly behind the Client at this intersection. Tr. at 21:9-10.
18. He continued to follow the vehicle for approximately one half of a mile from the intersection of Arlington Expressway and Cesery Boulevard, where Lt. C. R. P. initiated a traffic stop at the intersection of Cesery Boulevard and Arlington Road, approximately one and one half miles from where he initially saw the Client. Tr. at 21:25 and 22:1-7.
19. Lt. C. R. P. testified that, upon initiating his emergency lights, the Client make a proper right hand turn, in a timely fashion, at a parking lot at 6100 Commerce St. Tr. at 25:10-12.
20. Lt. C. R. P. approached the vehicle and asked for the Client driver’s license. Tr. at 29:7-10.
21. He testified that the Client did not hesitate or stumble while providing Lt. C. R. P. his driver’s license. Tr. at 29:11-15.
22. Lt. C. R. P. testified that the Client’s speech was fine. Tr. at 31:1-3
23. The Client acknowledged that he had been drinking, when asked. Tr. at 29:17-18, but Lt. C. R. P. did not ask how many drinks, or when or what he drank. Tr. at 31:16-18.
24. Lt. C. R. P. did not want to become involved in the investigation, because according to Lt. C. R. P., Lieutenants don’t arrest people for DUI at the Jacksonville Sheriff’s Office. Tr. at 10:20-22.
25. Lt. C. R. P. testified that the Client was detained inside his vehicle for approximately one minute before Officer H. arrived. Tr. at 10:8-10.
26. When Officer H. arrived, he approached the vehicle, with the Client still inside. Tr. at 39:10-13.
27. Officer H. asked the Client where he was coming from, whereupon the Client stated he was coming from a bar. Tr. 39:15-18.
28. Officer H. detected an odor of alcohol beverage coming from the Client, while he was still inside his vehicle. Tr. at 39:15-16.
29. Officer H. testified he did not ask the Client what he had to drink, how much he had to drink, or over what period of time he was drinking. Tr. at 39:24-25 and 40:1-4. Thus, the alleged odor of alcohol was without any specificity whatsoever.
30. Officer H. questioned the Client while still inside of his car for less than one minute. Tr. at 42:9-11.
31. Officer H. testified that, prior to the Client exiting the vehicle, before starting the DUI investigation, he had enough probable cause to arrest the Client for DUI (Tr. at 41:10-15) – thus demonstrating the lack of knowledge, expertise and judgment of Officer H., since no such probable cause existed.
32. Officer H. testified the basis for his claim of probable cause to arrest the Client – even before the DUI investigation even – was (1) driving pattern, (2) odor of alcoholic beverage, and (3) the Client stated that he just left the bar. Tr. at 42:5-8.
33. At this time, Officer H. instructed the Client to exit his vehicle. Tr. at 46:10-12.
34. Officer H. instructed the Client to walk to the curb to sit down. Tr. at 46:13-15.
35. Officer H. testified that the Client (1) exited his vehicle, (2) walked to the curb and (3) sat down – without any problems. Tr. at 46:24-25 and 47-1-5.
36. Officer H. testified that, prior to the Client exiting his vehicle, the Client was not free to go. Tr. at 49:8-13.
37. At the curb, Officer H. read the Client his Miranda Rights via card. Tr. at 49:14-16.
38. Upon Officer H. reading the Client his Miranda Rights, the Client immediately invoked his rights, and requested counsel. Tr. at 49:23-25 and 50:1-3.
39. Officer H. then immediately arrested the Client for DUI.

MEMORANDUM OF LAW

Stop and Detention

Lt. C. R. P. testified he was driving approximately 3-4 car lengths behind the Client, in a marked car, for about 1.5 – 2 miles, up University Boulevard, from the intersection of Atlantic Boulevard, across the Arlington River bridge, where University Boulevard turns into Cesery Road, up Cesery, across the major intersection at Arlington Expressway, across the major intersection at Arlington Road, to where he conducted a “traffic stop” of the Client at Cesery and Commerce Street – based on the Client’s alleged failure to maintain a lane, in violation of F.S. §316.089(1). He testified he had observed the Client’s vehicle move from the right northbound lane, approximately halfway into the left northbound lane, on a number of occasions, although he could not remember the number of occasions. He also saw him drive close to the curb on the right side of the bridge.
However, Lt. C. R. P. testified there were no other vehicles on the roadway, and that no other vehicles were affected by the Client’s driving.
In Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), the court held that a driver’s movements away from a deputy, over the right line on three separate occasions, where no other cars were present, was not enough to create a reasonable suspicion to stop the vehicle. The court further stated that a violation of Section 316.089, Florida Statutes, Failure to Maintain a Single Lane, was similar to that of the statute governing the use of turn signals, in that a violation could not occur in isolation, but required evidence that the driver’s conduct created a reasonable safety concern. Crooks v. State at 1043.
In this case, even if the Client did drift into the other lane of traffic, the officer verified that such movement did not create a safety concern for other vehicles. Therefore Lt. C. R. P. should not have stopped him.
Several Circuit Court opinions follow the same reasoning as Crooks. In Porterfield v. State, 6 Fla. L. Weekly Supp. 79a (Duval Co. 1998), a driver wove within his lane and “a couple of times and went outside the lane by about a tire width.” No other cars were on the road, and no cars took evasive action as a result of his driving. Id. The court granted a motion to suppress and cited Crooks.
Other cases where courts have granted motions to suppress when a driver was weaving within a lane or failing to stay in one lane, and no other traffic was affected, include the following:

1. O’Connel v. State, 7 Fla. L. Weekly Supp. 3 (6th Cir. 1999);
2. State v. Giachinta, 3 Fla. L. Weekly Supp. 700 (Broward Co. 1996);
3. State v. Gonzalez, 3 Fla. L. Weekly Supp 701 (Broward Co. 1996); and
4. State v. Strahr, 4 Fla. L. Weekly Supp. 225 (Clay Co. 1996).

Thus, the stop of the Client was unlawful, and all evidence derived from that stop must be suppressed. See, e.g., State v. Perkins, 760 So.2d 85 (Fla. 2000)(where stop unlawful, even knowledge of the driver’s name must be suppressed); Weeks v. U.S., 232 U.S. 383, 398 (1914).

Almost Hitting a Curb

Lt. C. R. P. testified that a key factor in his [improper] traffic stop of the Client was his claim the Client almost hit the “raised curb” on the bridge, and he was concerned that might cause his car to flip over the bridge.
His testimony was that he allegedly saw the Client drive close to the “curb” on the bridge, allegedly coming within 2″ of the Arlington River Bridge curb. Tr. at 18:15-17. Lt. C. R. P. described that curb as a “raised curb,” located “just before you get to the rail” on the bridge. Tr. at 19:20-25. He also testified there was likely a 3′ wide sidewalk. Tr. at 20:1-9. He further testified to his belief that this “curb” and the “sidewalk” could cause the Client to flip into the river. That testimony is demonstrably incorrect. There is no curb on the Arlington River Bridge, and there is no sidewalk.
Attached as Composite Exhibit3-B are photos of the Arlington River Bridge. As you can see from the photos, there is no curb whatsoever on the bridge – and no sidewalk.
Moreover, if the Client had come within 2″ from the “curb,” his passenger side mirror would have been knocked off, or at least scraped by the side rail. Attached also as part of Composite Exhibit 3-B are photos of the Client’s car, demonstrating his side view mirror has no damage – which it surely would have, since it juts out from the car – if the officer’s testimony about him coming within 2″ of a curb was the least bit truthful.
This physical evidence demonstrates the falsity of Lt. C. R. P.’s testimony, and the same allegations he made in the Arrest and Booking Report, which apparently was done for the same reason that Officer H. falsified his Field Sobriety Test Report, that is, to justify what was an invalid and unlawful detention and arrest of the Client.

Arrest

Grounds Alleged

In addition, the arrest of the Client was without probable cause. All the arresting officer relied upon was (1) a driving pattern and (2) the odor of alcohol.

Driving Pattern

As to the driving pattern, as noted above, the Client could not have even been cited for improper lane change, let alone stopped and detained for doing so – since he never affected any other traffic. Moreover, the alleged claim that the Client was about to hit a [non-existent] curb on a bridge is demonstrably false, as confirmed by the photographs in Composite Exhibit 3-B, as well as the pure common sense that no officer would have followed the Client for some 2 miles, across not one but two major intersections, if the Client was truly about to flip over a bridge. Lastly, the evidence of the driving pattern or the Client also includes the fact he was perfectly alert and drove perfectly properly, when Lt. C. R. P. turned on his blue lights. The Client dutifully pulled over, into a parking lot at the next available turn.

Odor of Alcohol

The decision relied on the fact that “Officer H. observed an odor of an alcoholic beverage coming from [the Client’s] breath.” Decision at 3. However, the Decision fails to acknowledge that an odor of alcoholic beverage is not sufficient probable cause for an officer to believe that a driver is under the influence of alcoholic beverage to the degree that his normal faculties are impaired. State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000). Moreover, Officer H. failed to ask any questions of the Client as to what he had been drinking, where he had been drinking, how much he had been drinking and how recently he had been drinking. The mere odor of alcohol is insufficient to establish probable cause. Id. In addition, as confirmed by the testimony of Lt. C. R. P. and the Arrest and Booking Report (DDL # 3), Lt. C. R. P., who had the same ability to allegedly observe the odor of alcohol, as he stood by the window when he had first had discussions with the Client, did not observe the odor of alcohol.

Speech – Stuttered and Mumbled? – versus Slurred

The Decision asserts that “Officer H. observed that the Client, stuttered and mumbled as he spoke.” However, the Decision wholly fails to note that Officer H. acknowledged, both in his written report (Field Sobriety Report – DDL # 5) as well in his sworn testimony (DMV Tr. at 44:21-25 – 45:1-25) that the key terms describing a speech condition that reflect impairment did not exist. The Client did not “slur” his words, was not “incoherent,” and was not “thick tongued” – all terms on the Field Sobriety Report that were not checked.
Officer H. agreed that slurred speech was “one of the strongest factors of the effect of alcohol.” DMV Tr. at 45:8-10. Yet, no slurred speech existed! DMV Tr. at 45:11-25. His speech was “fine.”
Moreover, as to the claim of stuttered or mumbled speech, not only did Officer H. not know if the Client either stuttered nor mumbled normally (DMV Tr. at 46:1-9), but Officer H. could not recall anything with regard to the Client’s voice, and could not remember a single word that may have been stuttered or mumbled. DMV Tr. at 43:5-21; 46:1-9. Lastly, the Decision fails to note that Lt. C. R. P., who had an equal ability to observe the speaking pattern of the Client, attested to the proposition that the Client’s speech pattern was “fine.” DMV Tr. at 31:1-3. Thus, the Decision rests on perfectly normal speech and, more importantly, ignores the fact that the key terms demonstrative of a potentially impaired speaking pattern did not exist.

Lack of Credibility of Arresting Officer

The record before the Hearing Officer demonstrated that Officer H. is not an officer whose reports and/or testimony can be relied upon. Officer H. filed a Field Sobriety Test Report (DDL # 3) that falsely claimed that the Client had exited his vehicle and walked to the roadside (sidewalk) while “unsteady” on his feet. This false report was rejected by Officer H.’s own testimony, and that of Lt. C. R. P. Rather, Officer H. testified that the Client exited his vehicle, walked some 30 feet, and sat down – without any signs of impairment. DMV Tr. at 46:10-25 – 47:1-9. In addition, the Hearing Officer was provided further evidence of the falsity of Officer H.’s testimony – with regard to two other key components of his testimony. First, the alleged odor of alcohol he claimed to have observed was not observed by Lt. C. R. P. – even though he had an equal opportunity to do so. Second, the unsupported claim that the Client somehow mumbled or stuttered is rejected by the sworn testimony of Lt. C. R. P., who observed the Client’s speech to be perfectly fine. Even if Officer H.’s testimony was unrefuted and entirely accurate, probable cause did not exist for the arrest. However, the Hearing Officer should not sanction false testimony by an arresting officer to support a suspension of a citizens driver’s license.

Motor Skills – No Evidence of Impairment

Finally, the Decision wholly omits reporting what is the second key evidentiary component in any claim of impairment – the physical ability of the driver to exit a vehicle and walk and sit. In that regard, it is undisputed that the Client exited his vehicle, walked some 30 feet to the sidewalk, and sat down on the sidewalk – without any impairment whatsoever. DMV Tr. at 46:10-25 – 47:1-9. His fine physical abilities were further corroborated by the jail video and its accompanying transcript. Attached hereto as Exhibit 7.
Officer H. agreed, as he must, that slurred speech is “one of the strongest factors of the effects of alcohol.” DMV Tr. at 45:8-10. However, the Client had no slurred speech. Indeed his speech was fine.
The second of the most compelling factor demonstrative of impairment is one’s physical ability to stand, walk and sit. Again, on that factor, the Client performed superbly. However, in sustaining a suspension based on what is at most a three (3) minute investigation by Officer H., the Decision completely disregarded the undisputed record that the two strongest factors demonstrative of the lack of impairment have been omitted and disregarded by the Decision – while relying on demonstratively false testimony of minor, and insignificant factors, that did not give rise to probable cause of lawful impairment.
Thus, both the arresting officer and the Hearing Officer completely disregarded the two most accurate measurements of impairment – the individual’s (1) speech pattern and their (2) ability to demonstrate motor skills. The Client’s speech was perfectly fine (according to both Officers C. R. P. and H.), and the Client exited his vehicle, walked some 30 feet to the sidewalk, and sat down on the sidewalk, without any motor skills deficiencies whatsoever.

Angry and Precipitous Arrest

Officer H. was dispatched at 3:32 AM. He had to arrive at the scene, speak with Officer C. R. P., and then make the arrest at 3:35 AM. At most, Officer H. spent one or two minutes purportedly conducting a DUI investigation. Instead, he apparently was offended that the Client exercised his Constitutional Rights, and promptly arrested him without probable cause.

Summary of Argument

In summary, this Petition should be granted, and the Client’s suspension should be set aside, for the following reasons:

The traffic stop was unlawful.

The Client did not affect any other traffic. Moreover, as to the key testimony supporting the stop, that is, that the Client supposedly almost hit the curb on the bridge, that testimony is demonstrably false. There is no curb. Moreover, if that incredible testimony were true, surely Lt. C. R. P. would not follow the Client through not one but two major intersections as he followed him for the next mile.

The detention was unlawful.

The Client should have been given the traffic citation and should have been permitted to leave. A detention for a traffic citation constitutes an arrest. Eldridge v. State, 817 So.2d 884, 885 (Fla. 5th DCA 2002); Cresswell v. State, 564 So.2d 480 (1990).

There was no probable cause for a DUI arrest.

Lt. C. R. P. identified only two factors that supported his claim of probable cause for arrest: (1) driving pattern and (2) odor of alcohol (the corollary of which is the claim that The Client had left a bar – without any details) DMV Tr. at 52:12-25 – 53:1-7. There were no other factors to support a probable cause claim. Although those factors were possibly sufficient to constitute reasonable suspicion for him to conduct a DUI investigation (if the Client had not already been illegally detained), they are certainly not sufficient to establish probable cause to arrest for DUI.
In addition, Lt. C. R. P. wholly ignored the other compelling factors demonstrating that he did not have probable cause, including the following:

(1) The Client, immediately upon Lt. C. R. P. turning on his blue lights, did “pull over in a timely and safe fashion.” DMV Tr. at 25:10-12.
(2) The Client promptly, and with full physical dexterity, produced his driver’s license and registration. DMV Tr. at 29:7-15.
(3) The Client’s speech was “perfectly fine” (DMV Tr. at 31:1-3), and he did not display any of the slurred speech, which is typically indicative of impairment. DMV Tr. at 44:21-24; 45:8-10.
(4) The Client displayed no physical impairment whatsoever as he exited the car, walked some 30 feet to the sidewalk and sat down – as he was instructed. He did so perfectly – all of which is further corroborated by the Jail Intake Video (although such corroboration is hardly necessary in light of the sworn testimony of the officers that the Client walked without any physical impairment whatsoever).
(5) The Client was articulate enough and intelligent enough to coherently explain to Officer H., in substance, that Officer H. had just affected a false arrest. DMV Tr. at 51:10-13. Of course, as noted herein, that is exactly what Officer H. had done. The fact that The Client was lucid enough to analyze the legal issues in his false stop and arrest is further demonstrative that he was in control of his normal faculties – and he was right.
(6) The arrest was affected in less than three (3) minutes. The precipitous nature of this arrest demonstrates Officer H. could not have had sufficient time to form a proper probable cause determination. During that very brief time of an encounter with the Client, Officer H. observed no physical impairment, and no speech impairment. There was nothing to support his probable cause determination. Instead, he petulantly arrested the Client for exercising his constitutional rights.

Officer H., by his own sworn testimony, admitted he possessed clear evidence to negate any basis for a probable cause arrest – yet he ignored that very evidence. He had knowledge of facts and circumstances that did not give him reasonably trustworthy information sufficient to warrant a belief that the Client was DUI. More importantly, the Hearing Officer had before her a compelling record that probable cause did not exist, even if the false information asserted is not discounted.

WHEREFORE, Petitioner respectfully requests this Court grant this Petition for Writ of Certiorari, reinstate The Client’s license, and schedule oral argument on the Petition.