vs.                                                                                                        Case No.: 00-42-CI-88A




Opinion Filed __________________

Petition for Writ of Certiorari

Seeking review of a decision of the Department of Highway Safety and Motor Vehicles

J. Kevin Hayslett, Esquire
Attorney for Petitioner

Kathy A Jiminez, Esquire
Attorney for Respondent


THIS CAUSE came before the Court on a Petition for Writ of Certiorari.  Petitioner contends the Department of Highway Safety and Motor Vehicles departed from the essential requirements of law by entering its Final Order of License Suspension.  Petitioner grounds this contention on alleged defects in the arresting officer’s refusal affidavit, upon which the hearing officer relied.  The Court considers Petitioner’s assertions in turn.

First, Petitioner contends the arresting officer’s Affidavit of Refusal to Submit to Breath, Urine, or Blood Test is invalid and therefore insufficient to support the ensuing suspension procedure; this, because the Affidavit was not attested to at exactly the moment the full implied consent warnings were read to Petitioner.  In making this assertion, Petitioner has misconstrued the purpose of the attestation portion of the refusal affidavit. 

As cogently discussed in State v. Johnston, 553 So. 2d 730, 732-33 (Fla. 2d DCA 1989), the purpose of the oath is to guarantee the validity of the refusal affidavit and the subsequent suspension procedure.  In other words, the signature of the attesting officer on the refusal affidavit guarantees the veracity of the arresting officer’s written testimony and does so by subjecting the arresting officer to penalty of perjury.  While lack of this oath does not serve to turn an unlawful refusal into a lawful one, the oath itself is basic to the validity of the refusal affidavit and subsequent suspension procedure.  See Johnston at 733; Cf. Collins v. State, 465 So. 2d 1266 (Fla. 2d DCA 1985) (Holding an oath basic to validity of supporting affidavit and ensuing warrant).  In short, the “structure” of the suspension procedure can only be built upon the strong “foundation” of a properly attested-to refusal affidavit.  The oath providing strength to that “foundation” is no weaker simply due to increased temporal distance from the actual refusal; it is enough that the “foundation” is laid before the “structure” is erected.  As such, there is no defect in the refusal affidavit merely based upon when the arresting officer’s statements were attested to.

Next, Petitioner argues that an arresting officer who incorrectly lists the time of the refusal and the full reading of implied consent from the refusal affidavit renders such affidavit defective.  In this case, however, any defect in the time listed on the refusal affidavit was remedied by the arresting officer’s testimony given under oath at the subsequent suspension hearing.  There, the hearing officer found sufficient evidence to show that Petitioner was fully informed of the consequences of the refusal to submit to a breath test and subsequently did refuse such a test.  As Petitioner aptly points out, this Court is not entitled to reweigh the evidence that was before the hearing officer or substitute its judgment for that of the hearing officer.  See Haines City Community Dev. v. Heggs, 658 So. 2d 106 (Fla. 1995).  Given this, the Court again finds no error of law. 

Finally, Petitioner thrusts forward the broad allegation that the hearing officer below was not impartial.  It is true that due process would require this Court to invalidate the procedure below if it could be shown that the citizens of Florida were not being afforded a prompt, fair, and meaningful hearing by the suspension hearing procedure. See Conahan v. Department of Highway Safety and Motor Vehicles, Bureau of Driver Improvement, 619 So. 2d 988, 990 (Fla 5th DCA 1993) (Griffin, J., concurring).  However, Petitioner ought not to confuse thoroughness on the part of the hearing officer with lack of impartiality.  The former is supported by the record; the latter is not.  Therefore, it is hereby

ORDERED AND ADJUDGED that upon review of the record and being otherwise duly advised in the premises, this Court finds that Petitioner was afforded due process by a hearing officer who observed the essential requirements of law, and whose findings were supported by substantial competent evidence.   Therefore, the Petition for Writ of Certiorari is denied.

DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, this 4th day of August 2000.


Circuit Judge, Appellate Division

Copies Furnished To:

J. Kevin Hayslett, Esquire
250 North Belcher Road, Suite 102
Clearwater, FL 34625

Kathy A. Jiminez, Esquire
Assistant General Counsel
Department of Highway Safety And Motor Vehicles
2515 W. Flagler Street
Miami, FL 33135

Staff Attorney