CORINA L. WILLARD, Petitioner, v. STATE OF FLORIDA

CORINA L. WILLARD, Petitioner, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF DRIVER IMPROVEMENT, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2008-CA-007158-XXXX-MA, Division CV-C. October 6, 2008. Counsel: Mitchell A. Stone, Stone Taylor & Associates , Jacksonville, for Petitioner. M. Lilja Dandelake, for Respondent.

ORDER GRANTING WRIT OF CERTIORARI

(L. HALDANE TAYLOR, J.) Petitioner, CORINA L. WILLARD, filed a petition in the above-styled cause seeking certiorari review of the Department of Highway Safety and Motor Vehicles final order of suspension sustaining Petitioner's driver's license suspension for refusal to submit to a breath test. This Court sitting in its appellate capacity having heard arguments and having reviewed the briefs and pertinent case law finds as follows:

The Case:

Petitioner's Writ of Certiorari cited several grounds under which Petitioner alleged the hearing officer departed from the essential requirements of law and violated her right to due process of law. This Court granted certiorari review and conducted a hearing on September 25, 2008. Issue One of the Petition for Writ of Certiorari concerned Petitioner's assertion that the hearing officer departed from essential requirements of law by finding Officer Hoover had probable cause to stop Petitioner.

This issue is relevant to these proceedings pursuant to DHSMV v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008). Respondent acknowledged this issue as relevant but requested this Court consider a remand of the case back to the hearing officer for reconsideration of this issue. Petitioner objected to a remand and oral argument followed.

Facts:

On March 15, 2008, Officer Hoover stopped Petitioner for excessive horn honking and following a vehicle too closely. Officer Hoover's report indicated he observed Petitioner traveling east on Atlantic Boulevard. A silver SUV entered into the lane in front of Petitioner and Officer Hoover alleged that Petitioner, "honked her horn in a sustained fashion while simultaneously closing in behind the silver SUV and maintained less than a car length while traveling 45 m.p.h."

However, at the hearing the video reflected and Officer Hoover confirmed in testimony that Petitioner was eastbound on Atlantic Boulevard in heavy traffic when the SUV changed lanes in front of Petitioner without using a turn signal and without there being a safe distance between Petitioner's car and the other traffic. As such, the SUV's lane change constituted an illegal lane change. In fact, when the SUV changed lanes into Petitioner's lane Petitioner had to immediately apply the brakes and turn her wheel to avoid a collision with this SUV.

Officer Hoover's testimony verified that his attention was directed to Petitioner only after the illegal lane change by the SUV. In fact, only after watching the video did Officer Hoover agree in testimony that the SUV made an illegal lane change. Therefore, when Officer Hoover saw Petitioner's vehicle near the back of the SUV and Petitioner was honking her horn he was not fully aware of what had just occurred.

Importantly, Petitioner had been driving on the same road as Officer Hoover before this incident occurred. Officer Hoover only noticed Petitioner after she reacted to being cut off by the SUV that had changed lanes in front of her without signaling. Therefore, there was no evidence of any improper driving by Petitioner prior to the SUV's illegal lane change.

It was also verified that Petitioner herself changed lanes within a few seconds of being cut off by the SUV. The evidence and testimony further reflected that Petitioner committed no traffic violations after honking her horn at the SUV. This included Petitioner changing lanes two times, entering into a turn lane, stopping at a traffic light and turning at the intersection, all in heavy traffic.

The Hearing Officer's Order:

According to the record, Petitioner's driving before and after the SUV's illegal lane change was apparent in the video entered into evidence. In spite of Officer Hoover having confirmed in testimony that Petitioner's driving before and after the SUV's illegal lane change was acceptable the hearing officer somehow made a finding of fact that Petitioner had been driving "erratically." In that same order the hearing officer denied Petitioner's motion to invalidate based on the stop, detention and arrest and sustained the suspension. Therefore, it appears the hearing officer did consider and acknowledge the driving in deciding the case.

Ruling:

This Court finds that Petitioner's reaction to the other vehicle's illegal lane change did not constitute "erratic driving." Further, Petitioner's driving under the circumstances was a reaction to an illegal lane change and as such cannot be considered a valid reason to have stopped Petitioner. Therefore, a remand on this issue is not necessary.

Therefore, Petitioner's motion to invalidate based on the legality of the stop should have been granted. As such, the hearing officer departed from the essential requirements of law by disregarding evidence and testimony about the basis for the stop. Moreover, the hearing officer departed from the essential requirements of law and violated Petitioner's right to due process of law by characterizing the driving as erratic. In this respect, Petitioner's driving cannot under the circumstances objectively be characterized as erratic.

THEREFORE, it is hereby ordered and adjudged:

1. That the Petition for Writ of Certiorari is hereby GRANTED.

2. That the Order suspending Petitioner's driving privilege entered by Respondent on May 6, 2008 is hereby REVERSED AND QUASHED.

3. That Respondent shall reinstate Petitioner's driving privilege for the suspension period referenced in its Order entered on May 6, 2008.

4. That Respondent shall remove from Petitioner's permanent driving record any entry which reflects the administrative suspension that was sustained by Respondent's Order suspending Petitioner's driving privilege, entered May 6, 2008.

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