Case No.: GCG01-1677
ALAN KEITH GOUGE,
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, Alan Keith Gouge, 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 February 16, 2001 at approximately 11:15 p.m., Officer Manrow was in his uniform on his way to work at the Lakeland Police Department when he observed a Red Chevy Blazer swerving and crossing between and over the lines. Manrow advised Lakeland Police Department communications of a possible DUI and requested assistance from a Lakeland Police Department DUI officer. Manrow continued to follow the vehicle and observed that it swerved to the outside lane of 92 and then back across to the inside turn lane where it came to a stop at the red light over a car length past the white stop bar. When the light turned green, the officer observed the vehicle travel south, and when making a left turn onto the road, the driver under steered and nearly missed hitting a stop sign. Manrow continued to follow the vehicle out of the city limits of Lakeland and into the territory of the Polk County Sheriff=s Office. Thereafter, Officer Manrow requested the Lakeland Police Department communications notify the Polk County Sheriff=s Office. Officer Manrow observed the vehicle continue to swerve all the while he followed it, until eventually turning into a residence located at 731 Belaire Avenue. Officer Manrow parked his vehicle and approached the petitioner and observed him sitting in the vehicle drinking a bottle of beer. Manrow also noted that there was a 5 gallon bucket behind the front passenger seat that contained ice and beer. Officer Manrow identified himself as a Lakeland Police Department officer and requested the petitioner=s driver=s license. Manrow stayed with the petitioner until Lakeland Police Officer Kercher arrived on the scene. Kercher, who was also outside of his jurisdiction, made contact with the petitioner. Thereafter, Deputies Dennis and Clanton from the Polk County Sheriff=s Office arrived on the scene. Officer Kercher advised Deputy Clanton about Manrow=s observations as well as his own observations of the petitioner. Clanton stated that he wanted the Lakeland Police Department to handle the DUI through the mutual aid agreement since the Lakeland officers had made all of the observations. Officer Kercher then made contact with the petitioner, who was still behind the wheel of his vehicle, and detected the odor of alcohol on his breath, noted that his eyes were bloodshot and watery, and his face was flushed. Kercher requested and petitioner agreed to perform field sobriety exercises. Based on his poor performance of the exercises and the other indicators of impairment, Officer Kercher arrested the petitioner for DUI and the results of the requested breath test were .151 and .152 g/210L. Petitioner was issued a citation for DUI and his license was suspended pursuant to Florida Statute ' 322.2615(1)(a).
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 April 4, 2001, that the suspension of his driving privilege had been sustained for a period of six months. 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 driving with an unlawful blood alcohol level:
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 had an unlawful blood alcohol level as provided in s.316.193.
Section 322.2615(7)(a), Fla. Stat.(2000).
III.
Petitioner argues that Officer Manrow=s detention of Petitioner was unlawful because he was off duty and outside of his jurisdiction. Florida Statute ' 901.25 provides that a police officer in fresh pursuit of a felon or misdemeanor or violator of traffic laws has the right to arrest outside of his jurisdiction. Since there is no claim of fresh pursuit in this case, Florida Statute
' 901.25 is not applicable, placing Officer Manrow in the same position as a private citizen. At common law, a private citizen may arrest a person who in the citizens presence commits a felony or breach of the peace, or a felony having occurred, the citizen believes this person committed it. Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). The issue, therefore, is whether petitioner=s conduct amounts to breach of the peace. There is no statute defining breach of the peace, however, it has been defined as a generic term including all violations of the public order or decorum. Id at 582 (citing 11 C.J.S. Breach of the Peace ' 1 (1938)). The evidence in this case shows that Officer Manrow observed the petitioner=s vehicle continuously swerve within the lane of travel and nearly strike a stop sign. Officer Manrow suspected the petitioner was driving under the influence and called for assistance. Erratic driving and driving under the influence is a breach of the peace. Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985)(off duty police officer properly exercised his powers as a private citizen to arrest driver for his conduct in driving while drunk on a public highway; such conduct constituted a breach of the peace.); State v. Furr, 723 So.2d 842 (Fla. 1st DCA 1999)(drunk driving on an infrequently traveled rural roadway was a breach of the peace entitling uniformed police officer to make citizen=s arrest outside of his jurisdiction). Accordingly, probable cause existed for Officer Manrow to believe that the petitioner was committing a breach of the peace in his presence, and as a private individual, he properly exercised his common law right to detain him. Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). Since he could have effectuated a lawful arrest of the petitioner, Officer Manrow=s off duty status or out of jurisdiction location did not make the stop and detention of petitioner illegal. Brown v. Department of Highway Safety and Motor Vehicles, 8 Fla. L. Weekly Supp.348 (Fla. 13th Cir. March 15, 2001).
Petitioner=s next argument is that the arrest by Officer Kercher is unlawful because Officer Kercher relied on the observations of off duty Officer Manrow. Petitioner argues that the fellow officer rule does not apply to these circumstances because Officer Manrow was a private citizen at the time of the incident, and therefore, not a fellow officer. Petitioner argues that since Officer Manrow was not on duty at the time of his observations, he was precluded from relying on the fellow officer doctrine to communicate his probable cause information to the officer who ultimately arrested the petitioner. However, an off duty officer=s observations could be considered by the arresting officer in determining whether to make an arrest despite the absence of fresh pursuit. Brown v. Department of Highway Safety and Motor Vehicles, 8 Fla. L. Weekly Supp.348 (Fla. 13th Cir. March 15, 2001)(citing Ellis v. State of Florida, 755 So.2d 767 (Fla. 4th DCA 2000). In Ellis, the court held that the observations of an off duty officer outside his jurisdiction were admissible as those of a citizen informant. The court concluded that the observations of both the off duty officer as well as the arresting officer provided competent substantial evidence for the hearing officer to uphold the suspension of the petitioner=s driving privileges. Similarly, in this case, Officer Kercher had probable cause to suspect the petitioner was driving under the influence. Kercher had responded to Manrow=s request for assistance regarding a possible DUI. In his request for assistance, Manrow had conveyed that the driver was exhibiting a very bad driving pattern. Officer Kercher relied on information relayed to him from an off duty, out of jurisdiction police officer. Ellis v. State of Florida, 755 So.2d 767 (Fla. 4th DCA 2000). Upon arriving at the scene, Kercher noted that the petitioner, who was still seated behind the wheel, had bloodshot watery eyes and an odor of an alcoholic beverage coming from his breath. Based on those observations, Officer Kercher conducted a field sobriety test of the petitioner. Accordingly, the arrest was lawful and the findings of the hearing officer were based upon competent substantial evidence and conformed to the essential requirements of law.
It is hereby ORDERED that the petition for writ of certiorari is DENIED.
ORDERED August 2001.
Charles B. Curry, Chief Judge