Case No.: GCG01-0234
HENRY FRIELINGHAUS,
Petitioner,
vs.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
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OPINION OF THE COURT
This matter is before the court on a petition for writ of certiorari. Petitioner, Henry Frielinghaus, seeks review of an order of the Department of Highway Safety, and Motor Vehicles, (DHSMV), suspending his driver license. This court has jurisdiction. Fla. R. App. P. 9.030(c), and ' 322.31, Fla. Stat. (2000). Petition denied.
I.
On January 31, 2001, Officer Harris of the Sebring Police Department heard a BOLO in reference to a possible intoxicated driver. The BOLO was received from the Highlands County Sheriff=s Office and advised that a white Ford truck with orange cones in the rear was traveling towards State Road 17. Officer Harris observed the vehicle matching the description and began to follow the white Ford truck and noted that the truck swerved into the oncoming lane as it took a curve. The driver then attempted to merge back into his lane and the right side tires ran off the road. Officer Harris made a traffic stop. Upon making contact with Petitioner, Officer Harris detected the odor of an alcoholic beverage coming from Petitioner and noted that his speech was slurred and he was unable to keep his balance. Officer Harris asked petitioner if he had consumed alcoholic beverages that night and petitioner admitted that he had a couple of beers. Pursuant to Officer Harris=s request, the petitioner performed a series of field sobriety exercises. Based on the petitioner=s poor performance, Officer Harris placed the petitioner under arrest for DUI and transported him to jail. The petitioner was read the implied consent warning and he refused to submit to a breath test. Officer Harris issued petitioner a citation for refusal to submit to a breath test and suspended his driver license pursuant to section 322.2615, Fla. Stat. (2000).
Petitioner requested a formal review of his driver=s license suspension. The hearing officer determined by a preponderance of the evidence that petitioner=s suspension should be upheld. The hearing officer informed Petitioner in an Order dated March 20, 2001, that the suspension of his driving privilege had been sustained for a period of one year. Petitioner seeks review from that order.
II.
When reviewing an administrative proceeding on a petition for writ of certiorari, this court must determine whether the hearing officer followed the essential requirements of the law, whether the petitioner was afforded due process, and whether the decision below is supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Section 322.2615, Fla. Stat. provides the hearing officer=s standard of review for suspension actions as follows:
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues if the license was suspended for refusal to submit to a breath, blood, or urine test:
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 a violation of s. 316.193.
3. Whether the person refused to submit to any such test after being requested to do so by a law enforcement or correction officer; and
4. Whether the person was told that if he refused to submit to such test his privilege to operate a motor vehicle would be suspended for a period of one year, or in the case of a second or subsequent refusal, for a period of eighteen months.
Section 322.2615(7)(b), Fla. Stat.(2000).
III.
Petitioner argues that Officer Harris=s initial stop was not lawful because, he alleges, the officer lacked reasonable suspicion. In support of his argument, the petitioner relies on Officer Harris=s probable cause affidavit. According to the affidavit, Officer Harris responded to a BOLO regarding a possible intoxicated driver. Officer Harris observed a vehicle matching the description of the BOLO and began to follow it. The officer observed the vehicle swerve into the ongoing lane as it took a curve. When the driver attempted to merge back into his lane, the right side tires ran off the road. Officer Harris subsequently conducted a traffic stop of the vehicle. AIn order to effect a valid stop for DUI, the officer need only have a `founded suspicion= of criminal activity.@ Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). The Florida Supreme Court has stated that Abecause of the dangers inherent to our vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation.@ Bailey v. State, 319 So.2d 22, 26 (Fla. 1975). Accordingly, an officer may conduct a brief investigatory stop of a driver in situations less suspicious than that required for other types of criminal behavior . DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). In this case, the court finds that there was competent substantial evidence that Officer Harris had a reasonable suspicion to stop the petitioner=s vehicle.
It is hereby ORDERED that the petition for writ of certiorari is DENIED.
ORDERED September 2001.
Charles B. Curry, Chief Judge