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Department of Highway Safety and Motor Vehicles v. Ivey

Florida Court of Appeal, Fifth District

November 10, 2011

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner,
v.
Suann IVEY, Respondent.

Page 878

Stephen D. Hurm, General Counsel, and Richard M. Coln, Assistant General Counsel, Orlando, for Petitioner.

No Appearance for Respondent.

MONACO, J.

The petitioner, Department of Highway Safety and Motor Vehicles, seeks certiorari review of an order from the circuit court that reinstated the driving privileges of the respondent, Suann Ivey. Ms. Ivey's driving privileges were suspended because after she failed a field sobriety test, she refused to submit to a test of either her breath alcohol or blood alcohol after being requested to do so by a law enforcement officer. See § 322.2615, Fla. Stat. (2010). It was the second time she had refused such a test.

Although the suspension was upheld by a Department hearing officer after a formal review hearing, the circuit court reinstated her privileges on certiorari review. In the final analysis, the circuit court found that the arresting officer lacked a sufficient basis to initiate a stop of her vehicle. We conclude that the circuit court failed to apply the correct law in reversing Ms. Ivey's suspension because only a founded suspicion is necessary to effectuate a DUI traffic stop, and the findings of the hearing officer clearly support the existence of that basis. We, therefore, grant the petition of the Department.

The facts as found by the hearing officer are as follows:

... Officer Lorengo of the Maitland Police Department, responded to a dispatch call of a possibly impaired person attempting to drive away from the convenience store. A customer identified as Reid Mayback was exiting the store when he was approached by a woman identifying herself as Suzy, later identified as Suann Ivey, asked him to guide her to her home and she would follow him in her Range Rover. She stated that she had been drinking and was lost. After explaining to her that he could not let her drive her car, Mr. Mayback called his friend Joseph Chiaro to come

Page 879

help, as he was concerned for the woman's safety. Mr. Mayback gave Mr. Chiaro a description of Ms. Ivey and her vehicle. Mr. Chiaro drove to the store, en route he called 911 stating that his friend was there at the store where a female was attempting to leave the parking lot in a black Land Rover SUV and gave the tag number. Mr. Mayback stalled Ms. Ivey until the police and his friend arrived. Officer Lorengo approached the parking lot and observed the suspect vehicle, black Land Rover SUV with female matching the description standing next to the vehicle and she seemed to be staggering and having a difficult time maintaining her balance. Ms. Ivey entered the vehicle. Officer Lorengo approached on foot as Officer Plumlee pulled his patrol vehicle in behind the vehicle and activated his emergency lights. As Officer Lorengo looked inside the vehicle, he observed Suann Ivey identified by her driver license, seated in the drivers [sic] seat holding her keys in her right hand. Officer Lorengo detected the odor of an alcoholic beverage coming from Ms. Ivey's breath and noticed that she had red and glassy eyes. Ms. Ivey submitted to Field Sobriety Exercises and performed poorly. Officer Lorengo placed Ms. Ivey under arrest and transported her to the Orange County DUI Testing Center. Ms. Ivey was read the implied consent and requested to submit to a breath test. Ms. Ivey initially agreed to submit to the test but later refused to do so. Ms. Ivey's privilege to operate a motor vehicle was suspended for refusal to submit to a breath test.

Ms. Ivey petitioned the circuit court for certiorari relief to quash the order of the Department. See § 322.2615(13), Fla. Stat. (2010). The circuit court issued the writ and reversed the suspension order finding that because the law enforcement officers " lacked probable cause or reasonable suspicion that the Petitioner was alcohol impaired and or in physical control of a motor vehicle while alcohol impaired when initiating the stop," the stop of Ms. Ivey was unconstitutional. We conclude that the circuit court did not apply the correct law in granting the petition.

A district court of appeal reviewing a circuit court decision on second-tier certiorari review may not conduct a de novo review of the record. See Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000); Dan Joint Venture III, LP v. Armstrong, 929 So.2d 1186, 1186 (Fla. 4th DCA 2006). Rather, the district court's review is limited to whether the lower court afforded procedural due process, and applied the correct law. Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843-844 (Fla.2001); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). Because the State does not claim that the circuit court did not afford it procedural due process, our function is limited to determining whether the circuit court applied the correct law.

Before the Department can suspend a person's license for refusing to submit to a blood or breath test, the law enforcement officer must have had probable cause to believe that the person had been driving or had physical control of a vehicle while intoxicated. See § 322.2615(7)(b), Florida Statutes (2010). Notably, however, neither the statute nor the case law requires an officer to have " probable cause" at the time he or she makes an investigative stop. Rather, only a founded suspension that the driver is intoxicated is needed for a stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);

Page 880

State v. Carrillo, 506 So.2d 495 (Fla. 5th DCA 1987). A founded or reasonable suspicion necessary to support an investigatory stop is a suspicion that would warrant a man of reasonable caution to believe that a stop was appropriate. More importantly, for purposes of this case, a reasonable suspicion can be based solely on information provided by an ordinary citizen. See State v. Evans,692 So.2d 216 (Fla. 4th DCA 1997). See also State v. Reyes,680 So.2d 1092 (Fla. 3d DCA 1996). ...


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