Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test -- where arresting officer observed petitioner from 2:34 a.m. until 2:54 a.m., 20-minute observation period required by Fla. Admin. Code Rule 10D-024(1)(e) was substantially complied with – Petition denied.  Deas v. Dept. of Highway Safety and Motor Vehicles, No. 03-5046AP-88B (Fla. 6th Cir. App. Ct. Jan. 9, 2004).

 

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DAVID G. DEAS,

                        Petitioner,

 

vs.                                                                                               Appeal No. 03-5046AP-88B

                                                                                                   UCN522003AP005046XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        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 record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, David G. Deas (Deas), seeks review of the Final Order of License Suspension, entered August 14, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Deas’ driving privilege was properly suspended for a period of six months 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).

            The only issued raised by Deas is whether the Department improperly failed to invalidate his license suspension because the arresting officer did not comply with the 20-minute observation period as required by Florida Administrative Code Rule 10D-024(1)(e).  Without any evidentiary support, Deas specifically challenges the incremental seconds of the minutes noted by the arresting officer, from 2:34 a.m. until 2:54 a.m., speculating that the 20-minute observation period was not complied with exactly.  However, the Court finds that the observation period was in substantial compliance with code requirements.  See Kaiser v. State of Florida, 609 So.2d 768, 770 (Fla. 2d DCA 1992)(holding that for purposes of DUI statutes, breath test is admissible if there is probative evidence that the test was performed substantially in accordance with methods approved by HRS).  Therefore, it is,

            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 January 2004.

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

Copies furnished to:

J. Kevin Hayslett, Esquire

250 N. Belcher Road, Suite 102

Clearwater, FL  33765

 

Elida Landry, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610