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 (
vs. Appeal No. 02-7769-CI-88A
OF HIGHWAY SAFETY & MOTOR
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 (
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 (
It is therefore,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies Furnished To:
Joseph M. Davis, Esquire
Heather Rose Cramer, Assist. General Counsel
Bureau of Driver Improvement