IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

JOHN B. ELLIS,

††††††††††† Petitioner,

vs.††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† Appeal No. 99-4595-CI-88A

DEPARTMENT OF HIGHWAY SAFETY, MOTOR
VEHICLES, STATE OF FLORIDA,
DIVISION OF
DRIVERS LICENSES,

††††††††††† Respondent.

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ORDER DENYING PETITION FOR A WRIT OF CERTIORARI

††††††††††† This cause came before the Court on the Petition for a Writ of Certiorari, the Response and the Reply.† Upon consideration of the same, the Court finds that the Petitioner has raised two issues in his Petition.

††††††††††† 1.† The first issue raised by the Petitioner is whether there is a lack of substantial competent evidence to support the findings of the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (ďDepartmentĒ), that the police officers had probable cause to believe that the Petitioner was under the influence of alcoholic beverages or controlled substances, or that the Petitioner refused to submit to a breath, urine or blood test.† The second issue raised is whether the Petitionerís right to counsel and Petitionerís right to reasonable assistance in obtaining a requested blood alcohol test were unlawfully denied.†

††††††††††† 2.† After a review of the Departmentís Order, entered June 11, 1999, sustaining the Petitionerís driverís license suspension and after a review of the record, including the arrest video, the Court finds the Departmentís Order conforms to the essential requirements of law and is supported by competent substantial evidence.† Further, the Court finds that the Departmentís Hearing Officer, who conducted a formal review of the Petitionerís driverís license suspension, satisfied all procedural due process requirements and observed the essential requirements of law throughout the administrative process.

††††††††††† 3.† The Hearing Officer found, based on substantial competent evidence, that the arresting police officers had probable cause to believe that the Petitioner was under the influence of alcoholic beverages or controlled substances.† The arresting officers, Officer Resler and Officer McBride, were approached by citizen who informed the officers that his vehicle had just been hit by another vehicle.† The citizen described the vehicle that hit his car and gave a tag number.† Officer Resler and Officer McBride remembered a vehicle fitting the citizenís description having recently passed the area.† The vehicle matching the description was found by the officers and the tag number given by the citizen did match.† Officer Resler then conducted a traffic stop.† Upon exiting his vehicle, Officer McBride noticed a distinct odor of an alcoholic beverage on Petitionerís breath and also noted that Petitionerís eyes were bloodshot, watery and glassy.† Additionally, the arrest video shows that the Petitioner was uncooperative with Officer Resler and Officer McBride.

††††††††††† 4.† The Hearing Officer found, based on substantial competent evidence, that the Petitioner was lawfully arrested and charged with a violation of section 316.193, Florida Statutes.† Petitioner was driving or in actual physical control of the vehicle, Petitioner was under the influence of alcoholic beverages or controlled substances, and Petitioner was affected to the extent that his normal faculties were impaired.

††††††††††† 5.† The Hearing Officer found, based on substantial competent evidence, that the Petitioner refused to submit to a blood, breath or urine test after being asked to take the test by a law enforcement or correctional officer.† Although the Petitioner indicated he might take a blood test, the Petitioner did not have a right to select the initial type of test used to determine his blood alcohol level.† Department of Highway Safety and Motor Vehicles v. Green, 702 So. 2d 584 (Fla. 2d DCA 1997).† Officer McBride read the Implied Consent Warning to the Petitioner.† The Petitioner refused to take the breath test, as requested by Officer McBride, even after Officer McBride explained to the Petitioner that his driving privilege would be suspended for a period of one year for refusing to submit to the breath test.† The Petitioner also refused to do any Field Sobriety Exercises.

6.      The Petitionerís right to counsel and the Petitionerís right to reasonable assistance in

obtaining a requested blood alcohol test were not unlawfully denied.† The Petitioner was not entitled to consult with an attorney before deciding whether to submit to the breath test as requested by Officer McBride.† Nelson v. State, 508 So.2d 48 (Fla. 4th DCA 1987).† The Petitioner refused to take the breath test after Officer McBride explained to the Petitioner that he was not entitled to an attorney before deciding whether to submit to the breath test.

††††††††††† Further, the Petitioner was not entitled to reasonable assistance in obtaining a blood test as the Petitioner did not comply with Officer McBrideís request to take the breath test.† Green at 585.† Although Petitioner cites Unruh v. State, 669 So.2d 584 (Fla. 1996), in his Petition For Writ Of Certiorari, Unruh can be distinguished from the present case.† In Unruh, the Florida Supreme Court held law enforcement is required to render reasonable assistance in helping a motorist, who has been arrested for driving under the influence, obtain an independent blood test upon request.† However, in Unruh, the motorist had already submitted to a breath test before requesting an independent blood test.† The Supreme Court in Unruh limited its holding to circumstances in which the driver complies with the arresting officerís request and then wishes to obtain a second test, such as a blood test.† Green at 585.† The Petitioner in the present case refused to submit to the breath test as requested by Officer McBride, so had no right to reasonable assistance in obtaining an independent blood test.†

††††††††††† It is therefore,

††††††††††† ORDERED AND ADJUDGED that Petitionerís Petition for a Writ of Certiorari is DENIED.

††††††††††† DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 9th day of June 2000.

†††††††††††

††††††††††††††††††††††† ††††††††††††††††††††††† †††††††††††††††††††††††

_________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies Furnished To:

E. Ronald Bradley, Esquire

P.O. Box 356

St. Petersburg, FL 33731-0356

Attorney for Appellant

Kathy A. Jimenez, Esquire

Assistant General Counsel

Florida Dept. of Highway Safety & Motor Vehicles

2515 W. Flagler Street

Miami, FL 33135

Attorney for Appellee

Staff Attorney, Appellate Division