ADOLFO ARIEL REAL

v.

DEPT OF HIGHWAY SAFETY AND MOTOR VEHICLES

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

SANTOVENIA, J.

On Petitioner's Motion for Rehearing, the Motion is granted, the Opinion [*2] dated March 29, 2021 is withdrawn¹, and this Opinion is substituted therefor. Adolfo Ariel Real ("Real" or "Petitioner") filed an Amended Petition for Writ of Certiorari ("Petition") herein challenging the August 24, 2018 Findings of Fact, Conclusions of Law and Decision of the Department of Highway Safety and Motor Vehicles ("Respondent" or "DMV") affirming the suspension of his driving privilege for violating Section 316.193, Fla. Stat., the driving under the influence statute, and for refusing a breath test. Real contends that the officer who approached his vehicle lacked probable cause for an investigatory stop, thereby invalidating the license suspension. He also contends that the evidence does not support a finding that Petitioner was in actual physical control of a motor vehicle within the meaning of Section 322.2615(7)(b)1, Fla. Stat. at the time of the stop.

Following Petitioner's arrest for driving under the influence, Petitioner requested a formal administrative review of his license suspension pursuant to Section 322.2615, Fla. Stat. (2017). An evidentiary hearing was held on August 21, 2018 before a hearing officer, who upheld the suspension.

N 1 The appellate record in this case does not include a copy of the transcript of the administrative hearing below. Accordingly, the March 29, 2021 Opinion of this court denied the Petition for Writ of Certiorari on the basis of Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla. 1979). However, the Court has subsequently located the transcript of the August 18, 2018 administrative hearing filed in Eleventh Judicial Circuit Court Case No. 2018-32270 CA 01, Appendix to Petition for Writ of Certiorari (incorrectly titled Amended Complaint), docket entry no. 7 at pp. 23-42. [*3] On July 15, 2018 at 3:17 a.m., Officer Murphy of the Tallahassee Police Department was traveling west on Miccosukee Road, approaching Marys Drive. He observed a gray four-door Lexus, with license number BQCZ95 stopped in the left turn lane with a man standing outside the car, dancing next to the open driver's side door with the engine running and the music turned up. Officer Murphy pulled behind the vehicle, at which time the individual saw the officer. The officer activated his rear flashing lights to warn any traffic coming from behind. The man, identified as Petitioner, staggered as he looked in Officer Murphy's direction, climbed into the vehicle, and closed the door. Upon walking up to the vehicle, Officer Murphy noted that the driver's window was open and could smell the odor of alcohol coming from Petitioner. He further noted that Petitioner had a "1000mile stare." Officer Murphy asked Petitioner to exit his vehicle, which he did very slowly, stumbling as he exited. Petitioner was unable to give coherent answers to basic questions.

Due to Petitioner's behavior and the smell of alcohol coming from his person, Officer Murphy believed he was intoxicated. He then called for Officer Shea to come to the scene and conduct a DUI investigation. After Officer Murphy shared his observations with Officer Shea, Officer Shea conducted his investigation. He observed that Petitioner had a flushed face, extremely glassy eyes, and sweat dripping from his forehead. He also noted that Petitioner's upper [*4] torso was swaying back and forth as he leaned on the patrol car. Officer Shea noted the faint smell of alcohol coming from Petitioner's breath. In conversing with Officer Shea, Petitioner slurred his words and was not able to maintain a consistent conversation. Officer Shea requested Petitioner to participate in field sobriety exercises. Petitioner refused. Officer Shea placed Petitioner under arrest for DUI. At the scene, Officer Shea asked Petitioner if he would provide a breath sample and Petitioner refused. Officer Shea read Petitioner the implied consent warning, after which Petitioner again refused to provide a breath sample.

We review the decision below to determine "whether or not the hearing officer provided procedural due process, observed the essential requirements of the law, and supported its findings by substantial competent evidence." City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

Petitioner does not argue a lack of due process. Notwithstanding, the record reveals that Petitioner received notice of the hearing and a hearing at which he was represented by counsel, and had the opportunity to present evidence and crossexamine the DMV's witnesses. As such, Petitioner received due process. See Kupke v. Orange County, 838 So. 2d 598 (Fla. 5th DCA 2003) (procedural due process requires notice and an opportunity to be heard).

Petitioner also does not contest that he refused to provide a breath sample or that he was advised that such failure would result in suspension of his license. [*5] Rather, Petitioner argues that the facts do not support a finding that Petitioner was driving or in actual physical control of his motor vehicle while under the influence of alcoholic beverages or controlled substances pursuant to Section 322.2615(7)(b)1. Petitioner contends that he was neither driving nor in actual physical control of the car because he was outside of the car when the officer stopped him. Further, Petitioner argues that the facts do not establish a lawful basis for the officer's initial encounter with the Petitioner and that the officer's positioning of the police car behind Real's car and activation of the police car's emergency lights constituted an impermissible investigatory stop.

The only district court opinion upon which Real relies for the proposition that he was not in control of the car for purposes of the driving under the influence statute is Hughes v. State, 943 So. 2d 176 (Fla. 3d DCA 2006). Hughes did not analyze the meaning of "control" of a motor vehicle in the context of the driving under the influence statute beyond reciting the standard jury instruction for criminal cases involving this charge. The Hughes defendant, a commercial pilot charged with operating an airplane while intoxicated, attempted to apply inoperability, which is a defense to a charge pursuant to Section 316.193, Fla. Stat., to defend his charges for the operation of an airplane while intoxicated. The court stated that: [*6] Section 316.193, the driving under the influence statute, provides that, before a person may be found guilty of this offense, the State must prove the following two elements beyond a reasonable doubt: 1. That the defendant drove or was in actual physical control of a vehicle, and 2. While driving or in actual physical control of the vehicle the defendant a. was under the influence of [alcoholic beverages][a chemical substance][a controlled substance] to the extent that [his][her] normal faculties were impaired, or b. had a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood, or a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he/she is actually operating the vehicle at the time. Fla. Std. Jury Instr. (Crim.) 28.1. A defendant, therefore, may be found guilty of this offense if he/she (1) drove or is driving a vehicle while under the influence or (2) is in actual physical control of a vehicle while under the influence. Id. at 192-93 (emphasis added). Indeed, the Third District Court of Appeal noted that Hughes had not been charged with violating Section 316.193, the driving under the influence statute. Any analysis of the provisions of that statute in Hughes would be dicta in any event.

Petitioner challenges the hearing officer's finding that the stop was not an investigatory stop or detention. At the very least, there was reasonable suspicion for Officer Murphy to approach Petitioner's car to investigate. See Popple v. State, [*7] 626 So. 2d 185, 186 (Fla. 1993) ("[A] police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime."); Fulmer v. Dep't of Highway Safety & Motor Vehicles, 22 Fla. L. Weekly Supp. 43a (Fla. 9th Cir. Ct. July 23, 2014). Although reasonable suspicion for such a stop is sufficient and the heightened standard of probable cause is not necessary, we find that probable cause was present when Officer Murphy observed Petitioner's vehicle stopped in the lefthand turn lane.

Aside from any suspicion that Real's dancing outside his car in the left-hand turn lane at 3:17 a.m. was indicative of possible intoxication, the officer had probable cause to stop Real because the car was stopped in a lane of travel. This act is in violation of Section 316.1945(1)(a), Fla. Stat., which prohibits stopping, standing, or parking a vehicle in a roadway or within an intersection. Petitioner does not contest that he "may have been in violation of §316.1945(1)(a) (stopping a vehicle in the roadway)". Petitioner's reply brief at p. 8.

Pursuant to Section 318.14, Fla. Stat., in relevant part, "any person cited for a violation of chapter 316... is charged with a noncriminal infraction and must be cited for such an infraction and cited to appear before an official." (emphasis added). The officer was thus permitted to stop Real in order to issue a citation to him. [*8] The fact that the officer did not charge Real with the noncriminal infraction because he ultimately arrested Real for driving under the influence does not change the fact that the officer had probable cause to detain Real. See State v. Potter, 438 So. 2d 1085, 1086-87 (Fla. 2d DCA 1983) (where stop was based on a violation of Chapter 316, the officer was acting under the authority of Section 901.15(5), Fla. Stat. which authorized him to arrest the driver, regardless of whether the violation of Chapter 316 was charged).

Petitioner attempts to challenge the correctness of the hearing officer's conclusion that Real was in actual physical control of the vehicle "due to the Petitioner's proximity to the vehicle, the fact that Petitioner being the sole occupant of the vehicle, the vehicle being in the left turn lane, the vehicle being in the middle of traffic, the key being in the ignition, and that the engine was running". Once it is determined that Officer Murphy had probable cause to stop Real for a different infraction, this challenge fails. Officer Murphy witnessed Real entering the car voluntarily and without hesitation upon noticing Officer Murphy's vehicle behind Real's car, notably without being asked to do so or to retrieve anything inside the car, thus confirming that he was the driver of the car and had control of the vehicle. Moreover, an empty car did not drive itself to the intersection with the key in the ignition, open its door and accept Real, who just happened to be dancing at that location, as its driver. The only inference to be [*9] drawn from the fact that Real entered the car through the open driver's side door he was dancing next to when he saw the officer is that he was the driver of the car, especially in the absence of any passengers or other individuals in the area. This was enough for the Petitioner to be considered in control of the vehicle.

This factual scenario and conclusion are analogous to cases finding that a sleeping, intoxicated individual who has access to a car key or key fob is in control of a vehicle. See State of Florida Dept. of Hwy Safety and Motor Vehicles v. Prue, 701 So. 2d 106 (Fla. 4th DCA 1989) (defendant was the only person in the vehicle and keys were near enough for him to use them to start the vehicle and drive away); Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988) (location of keys and defendant's presence asleep in vehicle are factors to be considered in determining whether defendant was in actual physical control of vehicle). As the Second District Court of Appeal noted in State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011), quoting Hughes v. State, 535 P. 2d 1023, 1024 (Okla. Crim. App. 1975): [A]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. He therefore had "actual physical control" of the vehicle within the meaning of the statute. [*10] We therefore find that Petitioner was in actual physical control of the vehicle. Because the August 24, 2018 Findings of Fact, Conclusions of Law and Decision below suspending the Petitioner's driver's license was correctly entered, the Petition for Writ of Certiorari is therefore DENIED.

TRAWICK and WALSH, JJ., concur. Copies furnished to all parties of record [*11] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected]