Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department
of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Actual Physical Control
of Motor Vehicle – arrest affidavits, which included Petitioner’s self-incriminating
statements, were not competent substantial evidence that Petitioner was in
actual physical control of motor vehicle – self-incriminating statements made
pre-arrest could not be used to establish probable cause that Petitioner was
driving – Petition granted. Barringer
v. Dept. of Highway Safety and Motor Vehicles, No. 03-3057CI-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
JOSEPH JAMES BARRINGER,
vs. Appeal No. 03-3057CI-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
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 granted as set forth below.
The Petitioner, Joseph James Barringer (Barringer), seeks review of
the Final Order of License Suspension, entered March 18, 2003, in which the
hearing officer for the Respondent, Department of Highway Safety and Motor
Vehicles (Department), concluded that Barringer’s 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 (
Barringer requested a formal review hearing following his license suspension. Barringer’s attorney was present, but Barringer himself, nor any other witnesses, were present or were called. The hearing officer admitted several documents into evidence, including the Uniform Traffic Citation issued to Barringer, the complaint arrest affidavit of Officer Losinski, the complaint arrest affidavit of Officer Lange, the field sobriety test form, and the Breath Test Result Affidavit.
When asked by the hearing officer if he had any objections to these documents, Barringer’s attorney replied that he did not. Barringer’s attorney then moved to set aside the license suspension on two grounds: (1) there was nothing in the reports before the hearing officer that Barringer was in actual physical control of the vehicle, and (2) there was not a 20-minute observation period before Barringer was administered the first breath test. These motions were denied. Barringer raises the same two issues in his Petition before this Court.
The record shows that Officer Losinski
and Officer Lange, both of the Largo Police Department, responded to a motor
vehicle accident with injuries. Officer
Lange’s arrest affidavit states that Barringer was operating a 1998 Ford station
wagon west bound in the curb lane on
Likewise, Officer Losinski’s arrest affidavit states that Barringer was involved in a traffic crash and fled the scene. Barringer was located approximately ¾ of a mile north of the scene and Barringer admitted to driving the motor vehicle involved in the accident. Officer Losinski conducted the DUI investigation. Barringer failed all the field sobriety tests and was charged with DUI at 9:18 a.m. Barringer was then taken to the Largo Police Department where the breath tests were administered. The Breath Test Result Affidavit shows that Barringer’s blood alcohol level was .138 and .139, at 10:04 a.m. and 10:07 a.m., respectively, with the observation period beginning at 9:40 a.m.
As to the first issue, the Court agrees with the Petitioner that the Final Order is not supported by competent substantial evidence. Although the hearing officer was authorized to consider all of the documentation and reports submitted by the law enforcement officers, the arrest affidavits, which included Barringer’s self-incriminating statements, is not competent substantial evidence from which the hearing officer could determine that Officer Losinki and Officer Lange had probable cause to believe that Barringer was in actual physical control of the vehicle involved in the accident. See Fisher v. Department of Highway Safety and Motor Vehicles, 10 Fla. L. Weekly Supp. 1a (Fla. 4th Cir. App. Ct. Oct. 1, 2002)(finding that competent substantial evidence did not exist in the record upon which the hearing officer could find that the self-incriminating statements relied upon were pre-arrest, so that they could be used to establish probable cause that Fisher was driving); see also Janney v. Department of Highway Safety and Motor Vehicles, 6 Fla. L. Weekly Supp. 4a (Fla. 9th Cir. App. Ct. Sept. 24, 1998)(concluding that the record lacked competent substantial evidence to support the hearing officer’s finding of probable cause where the charging affidavit failed to state the factual basis upon which the officer believed Janney to be the driver); Cato v. Department of Highway Safety and Motor Vehicles, 8 Fla. L. Weekly Supp. 267 (Fla. 4th Cir. App. Ct. Feb. 22, 2001); Schuyten v. Department of Highway Safety and Motor Vehicles, 6 Fla. L. Weekly Supp. 5a (Fla. 9th Cir. App. Ct. Sept. 30, 1998); Fila v. Department of Highway Safety and Motor Vehicles, 8 Fla. L. Weekly Supp. 547a (Fla. 17th Cir. App. Ct. June 6, 2001). Accordingly, the Court finds that it needn’t address the merits of the second issue.
It is therefore,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order is quashed.
ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies Furnished To:
Craig Epifanio, Esquire
Heather Rose Cramer, Assist. General Counsel
Bureau of Driver Improvement