Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – affidavit of refusal and testimony of officer that Petitioner refused breath test was competent substantial evidence to support hearing officer’s finding that Petitioner refused breath test after being properly informed of implied consent law – Petition denied.  Evansen  v. Dept. of Highway Safety and Motor Vehicles, No. 03-5055AP-88A (Fla. 6th Cir. App. Ct. Feb. 3, 2004).

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MATTHEW EVANSEN,

                        Petitioner,

vs.                                                                                               Appeal No. 03-5055AP-88A

                                                                                                   UCN522003AP005055XXXXCV

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, Matthew Evansen (Evansen), seeks review of the Final Order of License Suspension, entered September 5, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Evansen’s driving privilege was properly suspended for a period of one year 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).

           

            On appeal, Evansen argues that the hearing officer erred in sustaining his license suspension as there is no evidence that Evansen was informed that if he refused to submit to a breath test, his driving privilege would be suspended for a period of one year, or in the case of a second or subsequent refusal, for a period of eighteen months.  However, the record shows that the hearing officer considered the Affidavit of Refusal, signed by Officer Smith, of the Clearwater Police Department, and the testimony of Officer Medlin, of the same agency, who testified that he recalled Evansen saying that he refused to take the test “...because he had witnessed several TV shows that told him he shouldn’t take the breath test.” 

            The Court finds that, as the trier of fact, the hearing officer was in the best position to evaluate the evidence and the witness and to make a determination about whether Evansen was properly informed of the implied consent and the consequences of his refusal to submit to a breath test.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).  Further, although the Affidavit of Refusal was not notarized, the hearing officer could properly consider the Affidavit as evidence.  See Department of Highway Safety and Motor Vehicles v. Perry, 751 So.2d 1277 (Fla. 5th DCA 2000)(finding that the hearing officer could consider an affidavit of refusal that was not sworn to or notarized).  

            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 February 2004.

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

Copies furnished to:

 

Sami Thalji, Esquire

4830 West Kennedy Blvd., Suite 750

Tampa, FL 33609

 

Rhonda F. Goodman, Assist. 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