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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 03-5067AP-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
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 (
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 (
Therefore, it is,
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:
Eilam Isaak, Esquire
Jason Helfant, Assistant General Counsel
Bureau of Driver Improvement