Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Actual Physical Control – whether an individual is in actual physical control of motor vehicle at the time of traffic stop is fact specific and must be determined on a case-by-case basis – abundance of evidence presented at hearing from which hearing officer could reasonably infer actual physical control – petitioner found sitting behind the steering wheel in the driver’s seat and the keys were sitting on the center console --Petition denied.  Krivanek v. Dept. of Highway Safety and Motor Vehicles, No. 02-7769CI-88A (Fla. 6th Cir. App. Ct. June 19, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MARK KRIVANEK,

                        Petitioner,

 

vs.                                                                                            Appeal No. 02-7769-CI-88A

                                                                                                UCN522002**007769XXCI*P

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY & MOTOR

VEHICLES,

                        Respondent.

____________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            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 Petition must be denied as set forth below.

            The Petitioner, Mark Krivanek (Krivanek), seeks review of the administrative order, entered August 29, 2002, in which the hearing officer for the Respondent, Department of Highway Safety & Motor Vehicles (Department), concluded Krivanek’s driving privilege was properly suspended for a period of one year for failure to submit to a breath test after being arrested for driving under the influence (DUI).  In reviewing the Department’s order, this Court must determine (1) whether procedural due process had been accorded, (2) whether the essential requirements of law had been observed, and (3) whether the administrative findings and judgment were supported by competent substantial evidence.  See Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department)(citations omitted). 

 

            The record shows that on June 25, 2002, at approximately 3:25 a.m., Trooper Christian Pimental of the Florida Highway Patrol was dispatched to investigate a vehicle stopped in the inside emergency lane of westbound S.R. 93 (Howard Franklin Bridge) facing eastbound.  Krivanek was found unconscious behind the wheel of the vehicle with his head leaning against the window.  The head lights and brake lights were off and the car’s engine was not running.  A set of keys was on the center console.  Krivanek was initially unresponsive and it took Trooper Pimental approximately one minute to wake Krivanek.  Krivanek stumbled out of the car and used the vehicle and bridge wall for support.  Trooper Pimental noticed a strong odor of alcohol on Krivanek’s breath and that Krivanek’s eyes were bloodshot, watery and glassy. 

            Trooper Pimental then requested Krivanek to perform field sobriety tests.  Krivanek did poorly on the Horizontal Gaze Nystagmus and refused to perform any other tests.  Krivanek stated to Trooper Pimental that he should have stayed home and that he should be arrested for being drunk.  Trooper Pimental arrested Krivanek for DUI and read Krivanek the implied consent warning.  Krivanek refused to submit to a breath test, resulting in suspension of his driver’s license for a period of one year. 

            In appealing the Department’s order, Krivanek takes issue only with the hearing officer’s finding that he was in “actual physical control of a motor vehicle” at the time of his arrest.  Krivanek argues that he could not be in actual physical control of a motor vehicle when he was seated unconscious in the driver’s seat of a car with its engine off, no keys in the ignition, with the head lights and brake lights off, and with no proof that the set of keys located on the center console operated the vehicle.  However, from the outset of his argument, Krivanek acknowledges that whether or not an individual is in actual physical control of a motor vehicle is fact specific and must be determined on a case-by-case basis. 

            The hearing officer was the fact finder in this case and his finding that Krivanek was in actual physical control of a motor vehicle is supported by competent substantial evidence in the record.  See Fieselman v. State of Florida, 537 So.2d 603, 607 (Fla. 3d DCA 1988)(concluding that whether the defendant was in actual physical control of vehicle while intoxicated was for the fact finder); see also B.A.L. v.  Department of Children and Families, 824 So.2d 241, 242 (Fla. 4th DCA 2002)(defining competent substantial evidence as “such relevant evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred…”)(citations omitted).  As outlined above, there was an abundance of evidence presented at the hearing from which the hearing officer could reasonably infer that the keys located on the center console started the vehicle.  Additionally, Krivanek was found sitting behind the steering wheel in the driver’s seat, was the only one in the vehicle and the keys were near enough for Krivanek to use them to start the vehicle and drive away.  See Baltrus v. State of Florida, 571 So.2d 75, 76 (Fla. 4th DCA 1990)(analyzing similar cases that have pointed to the defendant’s upright position behind the wheel as an important part of determining actual physical control); see also Department of Highway Safety and Motor Vehicles v. Prue, 701 So.2d 637, 638 (Fla. 2d DCA 1997)(concluding that the motorist was in actual physical control of vehicle where she was the only one in the vehicle and the keys to the vehicle were either in the ignition or near enough for the motorist to use them to start the vehicle and drive away)(citations omitted).  This Court, sitting in its appellate capacity, is not entitled to reweigh the evidence nor substitute its judgment for that of the hearing officer.  See id.    Therefore, this Court finds that the Department’s order is supported by competent substantial evidence and, further, that Krivanek was accorded procedural due process and that the essential requirements of law were observed in the proceedings below.

            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 June 2003.

 

 

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

Copies Furnished To:

Joseph M. Davis, Esquire

3333 West Kennedy Blvd., Suite 102

Tampa, FL 33609

 

Heather Rose Cramer, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, #230

Lake Worth, FL  33467

 

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610