Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – Breath Test – traffic citation for speeding and intoxylizer report showing Petitioner was driving with an unlawful alcohol level were documents generated at the time of Petitioner’s arrest and were properly considered by the hearing officer – “low sample volume” breath tests substantially complied with applicable regulations – Petition denied.  Wilcox v. Dept. of Highway Safety and Motor Vehicles, No. 03-3057CI-88B (Fla. 6th Cir. App. Ct. Feb. 2, 2004).

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

SUSA WILCOX,

                        Petitioner,

 

vs.                                                                                               Appeal No. 03-5067AP-88B

                                                                                                   UCN522003AP005067XXXXCV

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, the Response, and the Reply.  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, Susa Wilcox (Wilcox), seeks review of the Final Order of License Suspension, entered October 16, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Wilcox’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, Wilcox argues that the hearing officer erred in sustaining her license suspension, as the traffic stop was unlawful and in violation of the Fourth Amendment and, further, that her breath test results were a “low sample volume” so lacked reliability.  The record shows that on September 11, 2003, at approximately 1:54 a.m., Sergeant Wierzba, of the Clearwater Police Department, clocked Wilcox’s vehicle going 56 m.p.h. in a 40 m.p.h. zone.  Sergeant Wierzba conducted a traffic stop of Wilcox for speeding, after which he observed signs of impairment.  Wilcox failed the subsequent field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .197g/210L and .212g/210L.

            The Court finds that the Final Order must be sustained.  The hearing officer, as the trier of fact, was in the best position to evaluate the evidence presented at the formal review hearing and to make a determination about whether Wilcox was lawfully stopped for speeding and whether Wilcox was driving with an unlawful alcohol level.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).  Both the traffic citation issued by Sergeant Wierzba to Wilcox for speeding and the Intoxilyzer report showing Wilcox was driving with an unlawful breath alcohol level were documents generated at the time of Wilcox’s arrest, so were properly considered by the hearing officer.  See id.

            Although the Intoxilyzer report indicates that the breath tests were a “low sample volume,” there is nothing in the record to rebut the presumption that the administered breath tests substantially complied with the applicable regulations.  See Robertson v. State, 604 So.2d 783, 789 (Fla. 1992)(explaining the admissibility of test results under the implied consent law within the criminal context).  Additionally, the Court notes that the stringent admissibility requirements in a criminal setting do not apply in a formal administrative hearing.  See Department of Highway Safety and Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002). 

            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.

 

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Eilam Isaak, Esquire

4021 North Armenia, Suite 200

Tampa, FL  33607

 

Jason Helfant, 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