Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES
to the breath testing equipment were the same as were made in Department
of Highway Safety and Motor Vehicles v Alliston, 813 So.2d 141 (Fla. 2d
DCA 2002) – Abatement lifted upon conclusion of appellate review in Alliston
case – Applying Alliston, there was competent substantial evidence
to support the Hearing Officer’s conclusion that the Petitioner had an unlawful
breath alcohol level – However, petitioner’s statement that she was the driver
was protected by the accident report privilege – Eyewitness statements were
not relied upon by arresting officer - No competent substantial evidence to
support the Hearing Officer’s finding and conclusion that the arresting law
enforcement officer had probable cause to believe Petitioner was driving a
motor vehicle while under the influence. Petition granted. Riley v. Dept.
of Highway Safety and Motor Vehicles, No. 01-8263-CI-88A (
vs. Case No. 01-8263CI-88A
SAFETY & MOTOR VEHICLES,
THIS CAUSE is before the Court on a Petition for Writ of Certiorari, brought pursuant to Florida Statutes §322.31 and Fla. R. App. P. 9.030(c), 9.190(b)(3) and 9.100(b), (c) after the Hearing Officer of the Department of Highway Safety and Motor Vehicles concluded that Petitioner’s driving privilege was properly suspended for driving with an unlawful blood alcohol level.
On July 29, 2001, Petitioner was involved in a two-car collision. The Hearing Officer found that while Officer Lazzari was conducting his DUI investigation, the Petitioner informed him that she was driving one of the vehicles involved in the crash. Officer Lazzari testified that there was a strong odor of alcohol on Petitioner’s breath, that her eyes were bloodshot, her face was flushed and that her speech was slurred. He also noted that she admitted drinking several alcoholic beverages prior to the crash. While performing the field sobriety tasks, Petitioner exhibited further indicia of impairment. Upon Petitioner’s arrest for DUI, she submitted to a breath test and provided two breath samples containing .143 and .145 grams of alcohol per 210 liters of breath. Her driving privilege was then suspended.
Pursuant to Florida Statutes 322.2615(7), the scope of a formal review hearing is limited to determinations by a preponderance of the evidence of the following issues:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in the state while under the influence of alcoholic beverages or controlled substances.
2. Whether the person was placed under lawful arrest for a violation of s 316.193.
3. Whether the person had an unlawful blood alcohol level as provided in s. 316.193.
Petitioner contended that Respondent failed to demonstrate substantial compliance with FDLE Rule 11D-8.004 by failing to establish the warm up period and the number of simulators used during an FDLE inspection of the breath testing equipment as well as failing to include the registration of the breath testing machine as an exhibit at the hearing. Petitioner also argued that she did not submit to an “approved” breath test because DHSMV did not demonstrate that the configuration of the breath-testing machine was one of the seven prototypes tested and approved by FDLE in 1993.
Finally, she also argued that it was not shown that the arresting officer had probable cause to believe that she was the driver of the vehicle because any statements she made were protected by the accident report privilege and she was not read her Miranda rights before the criminal investigation began.
This Court’s review of the Hearing Officer’s order is limited to a determination of whether procedural due process has been accorded, whether the essential requirements of law have been observed and whether the administrative order is supported by competent substantial evidence.
Petitioner’s challenges to the breath
testing equipment are the same as were made in Department of Highway Safety
and Motor Vehicles v Alliston, 813 So.2d 141 (Fla. 2d DCA 2002), rev denied,
Case No. SC02-688, ___So.2d ___ (
With regard to the fact that at the hearing DHSMV did not establish the particular configuration of sample chambers, pressure switches, and software programs in the actual machine used to test Petitioner’s breath, the documents before the Hearing Officer showed that the machine was an Intoxilyzer 5000 series 66, which is the approved series, and that the particular machine had passed the applicable agency and Department inspection reports and were sufficient to show substantial compliance with the applicable rules and regulations. Therefore, this Court finds that there was competent substantial evidence to support the Hearing Officer’s conclusion that the Petitioner had an unlawful breath alcohol level.
Lastly, Petitioner’s contention that
her statement that she was the driver was protected by the accident report
privilege is supported by the Supreme Court of Florida’s decision of State
v Marshall, 695 So.2d 686 (Fla. 1997). According to
…[W]e emphasize that the privilege granted under section 316.066 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that “this is now a criminal investigation,” followed immediately by Miranda warnings, before any statement by the defendant may be admitted.
Petitioner’s statements made to Officer Wright during the accident investigation
were privileged and when Officer Wright handed off the investigation to Officer
Lazzari to pursue possible criminal charges, not only should there have been
the express statement that the civil investigation was concluded and a criminal
investigation was beginning, but also that Petitioner had the right to remain
The Respondent’s suggestions that Petitioner’s statements to Officer Lazzari when he first arrived were spontaneous utterances are not factually similar to the utterances made in Perez v State, 630 So.2d 1231 (Fla. 2d DCA 1994)(admission by driver when police arrived at scene of accident and before any investigation had begun was not protected by accident report privilege) or Goodis v Finkelstein 174 So.2d 600 (Fla. 3d DCA 1965) (admissions made by driver upon regaining consciousness were a part of the res gestae). In this case Petitioner had already made statements to Officer Wright as part of the accident investigation. The fact that she repeated her statements to the next Officer without him specifically asking the question does not make it a spontaneous utterance.
Although statements made by eyewitnesses not involved in the accident are not protected by the accident report privilege, a review of the testimony at the hearing shows that neither witness actually saw the Petitioner in the car and that the Hearing Officer did not rely on their statements. It is therefore
ORDERED AND ADJUDGED that
1. The Order Granting Motion to Abate and Order Granting Petitioner’s Motion to Continue Abatement until Final Appellate Resolution are hereby lifted.
2. Since there was no competent substantial evidence to support the Hearing Officer’s finding and conclusion that the arresting law enforcement officer had probable cause to believe Petitioner was driving a motor vehicle while under the influence, the petition for writ of certiorari is granted.
DONE AND ORDERED
in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copy Furnished To:
Eilam Isaak, Esq.
Rhonda M. Diamond, Esq