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

DONALD BIRKBECK,

††††††††††††††††††††††† ††††††††††† Petitioner,

vs.††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† †††††††††††† Appeal No.01-8831-CI-88A

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY & MOTOR

VEHICLES, DIVISION OF DRIVER

LICENSE

††††††††††††††††††††††† ††††††††††† 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 (Petition) and the Response.† Upon consideration of the same, the Court finds that the Petition is denied as set forth below.

††††††††††† The Petitioner seeks review of the Final Order of License Suspension, entered by the Department of Highway Safety and Motor Vehicles (Department), that suspended the Petitionerís driving privilege for a period of one year for refusing to submit to a breath, blood or urine test.† Upon a review of the record the Court finds that the Petitioner was accorded procedural due process, the essential requirements of law were observed, and the Departmentís actions were supported by competent substantial evidence.† SeeHaines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

††††††††††† The record reflects that the Petitioner refused multiple requests to take a breath test, even after the implied consent warning was explained to him, insisting instead on taking a blood test.† Florida law provides that a person lawfully arrested for driving under the influence (DUI) does not have the right to select the initial type of test; it is the police officer who requests the test, not the driver who selects it.† See Dept. of Highway Safety & Motor Vehicles v. Green, 702 So.2d 584, 586 (Fla. 2d DCA 1997)(finding that the driver who was willing to submit to a blood test was nevertheless subject to the license suspension under the implied consent statute for refusing to submit to initial breath test after being requested to do so by the police officer).†

††††††††††† The Petitioner further asserts that there are inconsistencies in the evidence.† However, when the evidence presented supports two inconsistent findings, it is the hearing officerís role to decide the issue one way or the other.† See Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985).† There is competent substantial evidence in the record to support the hearing officerís findings of fact and final determination that the Petitionerís driving privilege was lawfully suspended.† See Cohen v. School Board of Dade County, Florida, 450 So.2d 1238, 1241 (Fla. 3d DCA 1984)(finding that where substantial competent evidence supports the findings and conclusions of the administrative agency and the record discloses neither an abuse of discretion nor violation of law, a court should not overturn the agencyís determination).†

††††††††††† Therefore, it is,

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

††††††††††† DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 8th day of February 2002.

††††

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NANCY MOATE LEY

Circuit Judge, Appellate Division

†††††††

Copies Furnished To:

J. Kevin Hayslett, Esquire

Kathy A. Jimenez, Esquire

Bureau of Driver Improvement