Case No. GCG99-3882
March 8, 2000

ALEXANDER WADE GARNER,

Petitioner,

vs.

DEPARTMENT OF HIGHWAY SAFETY, AND MOTOR VEHICLES,

Respondent.

_________________________________

This matter is before the court on a petition for writ of certiorari. Petitioner, Alexander Wade Garner, 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. (1999). Petition denied.

On October 5, 1999 at approximately 2:00 a.m., Officer Henderson of Lakeland Police Department observed Petitioner stopped at a stop sign without his headlights illuminated. Petitioner turned on his lights before continuing across the intersection, and Officer Henderson stopped Petitioner based on a violation of section 316.220, Florida Statutes, (1999). The officer observed that Petitioner had glassy eyes, slurred speech, a flushed complexion, and smelled of alcohol. Officer Henderson also observed a small red cup containing an unidentified dark liquid between Petitioner’s legs. Petitioner informed the officer that he was a police officer with the Lake Hamilton Police Department, and that he used his vehicle for work. He also stated that he had a department-issued weapon. Officer Henderson asked Petitioner to exit the vehicle so that he could retrieve the weapon. Officer Henderson observed Petitioner sway after exiting the vehicle. Petitioner admitted that he drank five beers during the course of the evening. Petitioner became belligerent and demanded to know the reason for his detention. Officer Henderson called for backup and another officer conducted field sobriety tests. As other officers arrived, Petitioner continued to argue that police had no probable cause for the stop. Petitioner failed to satisfactorily perform the field tests and Officer Henderson placed him under arrest for DUI. Petitioner stated that he did not understand his Miranda rights, and refused a blood, breath or urine test.

On October 10, 1999, the DHSMV hearing officer issued a final order suspending Petitioner’s license for his refusal to submit to a blood, breath or urine test. The hearing officer took testimony from Lieutenant Jagniszak of Lake Hamilton Police, Petitioner, and Petitioner’s witness, Charles Windham. Mr. Windham, who had been a passenger earlier in the evening, testified that Petitioner’s lights were on when he got out of the car. Petitioner testified that he was a police officer with DUI training, and that he did not refuse the test; he simply wanted an explanation. Petitioner also testified that his lights were on the entire time. Lieutenant Jagniszak testified that Lakeland Police notified him that Petitioner was cooperative, but placed under arrest.

Relying on the police report, the hearing officer found that Officer Henderson observed Petitioner driving without headlights, and that Officer Henderson had probable cause to stop Petitioner. She also found that Petitioner failed to perform field tests and concluded that the officer had probable cause to arrest Petitioner for DUI. Finally, Petitioner refused to submit to the tests.

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 preponde rance 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:

(b) 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 officer or correctional officer.

4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

A traffic stop is a seizure under the Fourth Amendment and courts must balance the degree of intrusion against some legitimate government interest. Jones v. State, 459 So. 2d 1068, 1072 (Fla. 2d DCA 1984). The legal standard for determining the constitutionality of a stop following a traffic infraction is different from the standard for determining the constitutionality of an investigative stop. See, DHSMV v. DeShong, 603 So. 2d 1349, 1352 (Fla. 2d DCA 1992); State v. Snead, 707 So. 2d 769, 770 (Fla. 2d 1995). When an officer observes a traffic infraction, the infraction itself creates the required probable cause for a stop. Snead, 707 So. 2d at 770. The legal standard for investigative stops is set forth in section 901.151, Florida Statutes. It codifies the holding in Terry v. Ohio, 392 U.S. 1 (1968) and states:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state ... he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

In those circumstances in which the officer has observed no traffic infraction, courts have held that DUI is a legitimate safety concern, and can warrant a brief investigative stop. DeShong, 603 So. 2d at 1352. An investigative stop is permissible under the Fourth Amendment when based upon an officer’s reasonable suspicion. Taylor v. State, 648 So. 2d 701, 703 (Fla. 1995); § 901.151, Fla.Stat. (1999). An officer may stop a car when he or she observes erratic or unusual driving. DeShong, 603 So. 2d at 1351. However, further inquiry is required to determine whether the facts establish probable cause for arrest. Taylor, 648 So. 2d at 703.

Petitioner argues that the hearing officer failed to follow the essential requirements of the law in suspending his license. In support of his position, Petitioner states that his headlights were on at all times; therefore, the police officer lacked probable cause to effect a traffic stop. The traffic stop being unlawful, Petitioner reasoned that the subsequent DUI investigation was also unlawful. However, facts show that Petitioner violated section 316.220. Moreover, Petitioner argues that the hearing officer erroneously construed his confusion as a refusal, and did not consider the testimony of his witness. His arguments fail because the trier of fact resolves disputed issues of fact and weighs the credibility of witnesses. Heggs, 658 So. 2d at 529. This court may not re-weigh evidence when competent evidence supports the outcome below. Jones v. State, 591 So. 2d 911, 916 (Fla. 1991).

The hearing officer relied on Officer Henderson’s written report and correctly concluded that the officer had probable cause to stop Petitioner based upon a violation of section 316.220. Violation of section 316.220 created probable cause for the stop. After the stop, officer Henderson observed signs of alcohol intoxication which justified further inquiry to determine whether probable cause existed to arrest Petitioner for DUI. For the foregoing reasons, this court finds that the hearing officer followed the essential requirements of the law; Petitioner was afforded due process; and the order below is based upon competent substantial evidence.

It is hereby ORDERED that the petition for writ of certiorari is DENIED.

ORDERED 8 March 2000.

Charles B. Curry

Chief Judge