CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1125032
...After securing Drago, Deputy Deutsch opened the box of laundry detergent and found inside it a clear plastic bag containing 250 grams of cocaine. Gordon was arrested and taken to the Collier County Jail. When Gordon bonded out of jail, he found among the personal property returned to him a warning ticket for a violation of section 316.2004(2)(b), Florida Statutes (2003)....
...Thus the resolution of the issue presented by this case requires us to determine whether any provisions of more general application in the *403 Florida Uniform Traffic Control Law, chapter 316, Florida Statutes, make such conduct a traffic infraction. E. The State's Argument Section
316.2004(2)(b) was the statute cited in the warning of traffic violation the deputies delivered to Gordon following his arrest. At the hearing on the motion to suppress, both deputies testified that the controlling statute was not section
316.2004(2)(b), but rather section
316.2952(2)....
...earview mirror violates both statutes. Accordingly, we will examine both statutes in order to determine if either or both of them prohibit operating a motor vehicle with an air freshener or other object hanging from the vehicle's rearview mirror. F. Section 316.2004(2)(b) Section 316.2004(2)(b) forms part of the Florida Uniform Traffic Control Law....
...It provides: No person shall drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, side wings, or side or rear windows of such vehicle which materially obstructs, obscures, or impairs the driver's clear view of the highway or any intersecting highway. Pursuant to section 316.2004(3), a violation of section 316.2004(2)(b) is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318, Florida Statutes. The State contends that the air fresheners in Gordon's Cadillac were an impermissible obstruction to the driver's view of the highway pursuant to section 316.2004(2)(b) because they "were hanging from the rearview mirror which is attached to or upon the front windshield." In support of its contention, the State relies on Deputy Deutsch's testimony that he considered the air fresheners a nontra...
...windshield, and they were not in direct contact with it. Instead, they were suspended loosely in the vehicle by a string that looped over the post supporting the rearview mirror that was in turn attached to the windshield. Thus the applicability of section 316.2004(2)(b) to the loosely hanging air fresheners depends on whether the air fresheners can be said to have been "upon" the windshield within the meaning of the statute....
...It is also used to denote "contact with or location on a surface, etc., whatever its position." Id. Thus, when "upon" is used to indicate the spatial relation between objects, it denotes direct contact. It follows then that "upon" does not mean "close to," "in the vicinity of," or "near." Therefore, a plain reading of section 316.2004(2)(b) indicates that it does not prohibit driving with an object loosely suspended from the vehicle's rearview mirror because such an object cannot be said to be "upon" the windshield. We find persuasive authority for our interpretation of section 316.2004(2)(b) in United States v....
...the ordinance." Id. at 740. See also People v. White, 107 Cal.App.4th 636, 132 Cal.Rptr.2d 371, 374 (2003). Except for its reference to "an accumulation of snow, ice or frost," the municipal ordinance under review in King is substantially similar to section 316.2004(2)(b). Thus the Ninth Circuit's reasoning in King provides support for our interpretation of section 316.2004(2)(b) as not prohibiting driving with air fresheners or other objects hanging from the vehicle's rearview mirror. In Gordon's case, the air fresheners did not violate section 316.2004(2)(b) because they were not in direct contact with the front windshield or any other windows in the vehicle....
...Pursuant to section
316.2952(6), a violation of section
316.2952(2) is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318, Florida Statutes. The analysis of section
316.2952(2) is similar to the analysis of section
316.2004(2)(b)....
...We therefore reverse the judgment and sentence imposed on Gordon and remand for further proceedings consistent with this opinion. Reversed and remanded. CANADY, J., and THREADGILL, EDWARD F., Senior Judge, Concur. NOTES [1] The warning issued to Gordon following his arrest was for a violation of a different statute, section 316.2004(2)(b)....
