vs.                                                                                                        Appeal No. 00-1519-CI-88A





            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 there is competent substantial evidence to support the finding of the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (“Department”), that the Petitioner had an unlawful alcohol level of .08 or higher.  Specifically, the Petitioner asserts that the blood alcohol level obtained under FDLE Administrative Rule 11D-8.012 was invalid and inadmissible as evidence at his formal review hearing.

            2.  After a review of the Department’s Order, entered February 1, 2000, 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 satisfied all procedural due process requirements.  Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

            3.   Following a serious automobile crash where Petitioner’s vehicle slammed into a stationary vehicle resulting in the hospitalization of four individuals, Officer Komar, of the Pinellas County Sheriff’s Office, conducted a blood draw of the Petitioner.  The Petitioner’s consent was obtained.  After the vials were labeled and sealed, Deputy Komar took the vials to the Medical Examiner’s Office where he placed them into a refrigerator locker and obtained an evidence receipt.  The blood alcohol level of the Petitioner was found to be .212 gm/dl and .210 gm/dl.  These test results were admitted into evidence at the formal review hearing through Exhibit 4, the Ethyl Alcohol Determination report, Exhibit 5, the notarized Blood Analysis Result Affidavit, and Exhibit 6, Officer Komar’s supplemental report.  The Ethyl Alcohol Determination report was signed by the Chief Toxicologist of the Medical Examiner’s Office, Pinellas County, and set forth findings that established the requirements of Rule 11D-8.012 of the Florida Administrative Code were followed.

            4.  Rule 11D-8.012 has recently come under scrutiny for being inadequate to ensure the preservation of blood samples that would result in an accurate analysis.  State of Florida v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999); State of Florida v. Sandt, 751 So.2d 136 (Fla. 2d DCA 2000).  Therefore, the State is entitled to the statutory presumption of impairment in a criminal DUI trial only after the proper predicate is established.  See id.  However, these holdings have been limited to criminal proceedings.  See id.

            5.  The stringent admissibility requirements for blood-alcohol results in criminal proceedings are not applicable to the more relaxed requirements of the Department’s administrative review of license suspensions.  Department of Highway Safety and Motor Vehicles v. Anthol, 742 So.2d 813 (Fla. 2d DCA 1999).  Further, Florida Statutes                        § 322.2615(2)(2000), provides that the use of written reports of a law enforcement officer may be considered as evidence in a formal review hearing.  See id.  Rule 15A-6.013, of the Florida Administrative Code, which implements, in part, § 322.2615, similarly provides that the hearing officer shall consider any report submitted by a law enforcement officer or agency relating to the arrest of the driver and the administration of a blood test.  See id. at 814.  Therefore, the test results of the Petitioner’s blood-alcohol level were properly admitted into evidence and were properly considered by the Hearing Officer, in conducting a formal review of the Petitioner’s driver’s license suspension.

            6.  The Hearing Officer considered the evidence presented, evaluated the credibility of the witnesses and reached ultimate findings of fact based on competent substantial evidence.  The Hearing Officer concluded, by a preponderance of the evidence, that the Petitioner was lawfully arrested and charged with a violation of section 316.193, Florida Statutes, and that the Petitioner did have an unlawful alcohol level of .08 or higher.  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 ________ day of July 2000.




Circuit Judge, Appellate Division


Copies Furnished To:

David R. Parry, Esquire

Jordan Hills Professional Center

1550 South Highland Avenue, Suite C

Clearwater, FL  33756

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