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

ULYSSES L. MIRAMONTES,

            Petitioner,

vs.                                                                                                        Appeal No. 00-0223-CI-88A

STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY & MOTOR VEHICLES,

            Respondent.

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ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            This cause came before the Court on the Petition For Writ Of Certiorari and the Response.  Upon consideration of the same, the Court finds that the Petitioner has raised one issue in his Petition.

            1.  The issue raised in the Petition For Writ Of Certiorari is whether the Final Order of License Suspension entered by the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (“Department”), conforms to the essential requirements of law and is supported by competent substantial evidence.  Specifically, the Petitioner contends that he did not refuse to submit to the alcohol breath test after being requested to do so by a law enforcement officer as evidenced by the Breast Test Result Affidavit, which was entered into evidence during the formal review hearing below.

            2.  After a review of the Department’s Order, entered December 16, 1999, and the record, the Court finds the Department’s Order conforms to the essential requirements of law and is supported by competent substantial evidence.  Further, the Court finds that the Department’s Hearing Officer, who conducted the review hearing on the Petitioner’s driver’s license suspension, satisfied all procedural due process requirements.  Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

            3.  The record shows that on September 11, 1999, at 2:20 a.m., Officer Soucy, of the St. Petersburg Police Department, conducted a traffic stop of the Petitioner after observing his vehicle strike the highway curb twice within a two-block distance.  Suspecting D.U.I. impairment, Officer Soucy requested a D.U.I. unit to which Officer Arkovich, also of the St. Petersburg Police Department, responded.  Upon failing the field sobriety tests, Officer Arkovich placed the Petitioner under arrest for D.U.I. and transported him to the breath testing facility at the police station.  The Implied Consent Warning was read and explained to the Petitioner, and the Petitioner stated that the understood the Implied Consent Warning.  At that time, the Petitioner told Officer Arkovich that he was too tired to take the breath test, but also said that he was not refusing to take the test.  In response to this, Officer Arkovich attempted to administer the breath test by presenting the Petitioner with a mouth piece in which to blow.  However, as the Operational Procedures Checklist indicates, the Petitioner did not blow for the first, or the second, “subject test.”  This resulted in breath test results of 0.000 grams of alcohol per 210 liters of breath, as noted on the Breath Test Result Affidavit.  Officer Arkovich then completed the Affidavit of Refusal.

            4.  Although, at first glance, the Breath Test Result Affidavit appears to be inconsistent with the Affidavit of Refusal, upon closer examination it is apparent that Officer Arkovich attempted to give the Petitioner an opportunity to comply with the breath test request, but that the Petitioner subsequently refused to blow.  The Petitioner’s refusal to blow for the purpose of the breath test is competent substantial evidence to support the hearing officer’s finding that the Petitioner “did refuse to submit to any such test after being requested to do so by a law enforcement or correctional officer.”

            5.  The Hearing Officer considered the evidence presented and reached ultimate findings of fact based on competent substantial evidence.  The Hearing Officer found that the Petitioner refused to take the breath test, even after being informed that such refusal would result in the suspension of the Petitioner’s driving privilege for a period of one year.  The record supports this conclusion.  Therefore, this Court will not substitute its judgment for that of the Hearing Officer or reweigh the evidence.  Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692 (Fla. 5th DCA 1994); Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995).

            It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 14th day of August 2000.

                                                                       

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies Furnished To:

Gregory L. Olney, II, Esquire

Post Office Box 27

St. Petersburg, FL  33731

Attorney for Petitioner

Kathy A. Jimenez, Esquire

Assistant General Counsel

Florida Dept. of Highway Safety & Motor Vehicles

2515 W. Flagler Street

Miami, FL  33135

Attorney for Respondent

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610

Staff Attorney, Appellate Division