Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Challenges 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 (Fla. 6th Cir. App. Ct. Jan 30, 2003).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

LESLIE RILEY,

                   Petitioner,

 

vs.                                                               Case No. 01-8263CI-88A

 

STATE OF FLORIDA DEPT OF HWY

SAFETY & MOTOR VEHICLES,

                   Respondent.

____________________________________/

 

ORDER LIFTING ABATEMENT AND GRANTING WRIT OF CERTIORARI

 

          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 ___ (Fla. Dec 18, 2002), and in fact this case was abated until all appellate review of Alliston was concluded. In Alliston it was determined that in the context of a license suspension hearing, the lack of an initial registration for the breath test machine and the inspector’s inability to remember whether she followed one specific protocol in one specific inspection were insubstantial differences, and that the hearing officer was free to determine that a particular lack of proof did not constitute less than substantial compliance with the appropriate procedures.

          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 Marshall:

          …[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.

 

Therefore, 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 silent. See State v Marshall, 695 So.2d 719 (Fla. 3rd DCA 1996), app’d and opinion adopted, 695 So.2d 686 (Fla. 1997). Although there was a statement that the civil investigation was now concluded, there were no Miranda warnings given and the Petitioner’s statements that she was the driver were still protected by the accident report privilege.

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 Clearwater, Pinellas County, Florida this ________ day of January 2003.

                                                                                                                      

         

                                                          ___________________________________

                                                          JOHN A. SCHAEFER

                                                          Circuit Judge, Appellate Division

 

 

Copy Furnished To:

 

Eilam Isaak, Esq.

4021 North Armenia Ave., Suite 200

Tampa, Florida  33607

 

Rhonda M. Diamond, Esq

Florida Dept of Hwy Safety & Motor Vehicles

2515 West Flagler Street

Miami, Florida 33135