Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – no record evidence to support Petitioner’s argument that he was misled by improper reading of implied consent warning after he was “Mirandized” – hearing officer, as the trier of fact, is in the best position to evaluate the evidence -- Petition denied.  Homer v. Dept. of Highway Safety and Motor Vehicles, No. 04-00011AP-88A (Fla. 6th Cir. App. Ct. April 30, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MICHAEL T. HOMER,

                        Petitioner,

 

vs.                                                                                               Appeal No. 04-000011AP-88A

                                                                                                   UCN522004AP000011XXXXCV

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, Michael T. Homer (Homer), seeks review of the Final Order of License Suspension, entered January 7, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Homer’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).

            The record shows that on October 7, 2003, at approximately 12:46 a.m., Officer Milne, of the Clearwater Police Department, clocked a vehicle traveling at 73 mph in a posted speed limit zone of 45 mph.  Deputy Milne conducted a traffic stop for speeding.  Upon making contact with Homer, Officer Milne smelled the odor of alcohol and noticed several other signs of impairment, including that Homer’s speech was slurred and that his eyes were glassy and watery.  Homer refused to perform the field sobriety tests.  Homer did allow Officer Milne to check his eyes and Officer Milne noted six clues for Horizontal Gaze Nystagmus.  Homer was arrested for DUI and transferred to the police station where he again refused to perform the field sobriety tests.  Homer initially refused the requested breath test, even after being read the implied consent warning.  Homer subsequently agreed to take the breath test, but then wouldn’t blow into the mouthpiece.

            Homer challenged his DUI arrest and, after a formal review hearing, the Department sustained the license suspension for failure to submit to a breath test.  On appeal before this Court, Homer argues that Department’s hearing officer failed to follow the law and afford Homer procedural due process at the formal review hearing despite objections made on the record at the hearing.  Homer asserts that the record establishes that he was misled by the improper reading of the implied consent warning after he was “Mirandized” and that the confusion which arose from this improper reading excuses and invalidates Homer’s refusal to submit to the breath test. 

            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 Homer understood the implied consent warning.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).  There is nothing in the record to suggest that Homer was misled by Officer Milne’s advising him of his Miranda rights and then explaining the implied consent warning, nor is there any record evidence that Homer believed that he could refrain from submitting to the breath test until his attorney was present.  Indeed, as testified by Officer Milne, Homer stated, “man, this is a no-win situation” upon being informed that Officer Milne would need a urine sample should Homer “blow below .08.”  Homer then agreed to submit to the breath test, but then refused to blow into the mouthpiece.  The Court notes that Homer did not appear at the formal review hearing to offer his own testimony. 

            Accordingly, the Court finds that the evidence supports the hearing officer’s determination that Homer understood that he was required to submit to the breath test.  This Court will not reweigh the evidence to reach a different conclusion.  See Department of Highway Safety and Motor Vehicles v. Marshall, 848 So.2d 482, 486 (Fla. 5th DCA 2003).  Lastly, the Court finds no support for Homer’s argument that the hearing officer was not an impartial and detached fact finder in the proceedings below.

            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 April 2004.

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL  33765

 

Heather Rose Cramer, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, Suite 230

Lake Worth, FL  33467

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762