Petition
for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway
Safety and Motor Vehicles: DRIVER’S LICENSES – Breath Test – Lawful Arrest
– affidavit of refusal was valid when driver refused breath test after being
read the implied consent warning – record supports finding that arrest was
lawful – officer made arrest based on the totality of the circumstances, not
solely for driver’s refusal to perform field sobriety tests -- Petition denied.
Riemer v. Dept. of Highway Safety and Motor Vehicles, No. 04-0001AP-88A
(
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
CATHERINE M. RIEMER,
Petitioner,
vs.
Appeal No. 04-0001AP-88A
UCN522004AP000001XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
Respondent.
____________________________________________/
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, Catherine M. Riemer (Riemer), seeks review of the Final
Order of License Suspension, entered December 3, 2003, in which the hearing
officer for the Respondent, Department of Highway Safety and Motor Vehicles
(Department), concluded that Riemer’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 (
The record shows that on October 10, 2003, at approximately 1:47 a.m., Officer Synder, of the Largo Police Department, observed a vehicle cut in front of his marked police cruiser in a careless fashion. The vehicle came to rest halfway in the parking space and halfway in the grass area. Officer Synder initiated a traffic stop. As stated in his Narrative, upon approach of the vehicle, Officer Synder found the driver, Riemer, with a confused look on her face. Riemer was unresponsive to Officer Synder’s request to roll down her window. Riemer then opened her door, at which time Officer Synder smelled the strong odor of alcohol. Officer Synder observed that Riemer’s eyes were bloodshot and that her speech was slurred and mumbled. Upon exiting her vehicle, Riemer was unstable on her feet. After the back-up officer arrived, Officer Synder informed Riemer that he was conducting a criminal investigation. Riemer refused to perform the field sobriety tests and subsequently refused the breath tests. Riemer was charged with DUI and was also cited for careless driving.
Riemer argues that the Department improperly failed to invalidate her license suspension as the Affidavit of Refusal is invalid and Reimer’s refusal to submit to field sobriety tests does not provide a lawful basis for a DUI arrest. Both of these arguments are premised on information taken from documents generated by Officer Synder at the time of Riemer’s arrest. Specifically, the Affidavit of Refusal states that Riemer was arrested for DUI at 3:25 a.m., but was requested to take the breath test at 3:07 a.m. Additionally, Officer Synder’s Narrative states that, “[d]ue to the refusal to take the breath alcohol test, Riemer was charged with DUI for failure to submit to Field Sobriety Testing.”
The Department does not dispute that
a breath test must be incidental to a lawful arrest, pursuant to Florida Statutes,
§ 316.1932(1)(a), or that an individual cannot be arrested for DUI solely
for refusing to submit to field sobriety tests. First, the Court agrees with the Department’s
position that Riemer was under lawful arrest at the time Officer Synder requested
that she take the breath test. See
e.g. Department of Highway Safety and Motor Vehicles v. Whitley,
846 So.2d 1163, 1167 (
Second, as set forth above, Officer Synder had the requisite reasonable suspicion to conduct a criminal investigation following the traffic stop and thereafter developed probable cause to arrest Riemer for DUI based upon the totality of the circumstances, not solely for Riemer’s refusal to perform the field sobriety tests. See Whitley, 846 So.2d at 1166 (explaining probable cause); see also Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992)(stating that probable cause to arrest or suspend a license may be based on evidence obtained during the standard procedures following a valid traffic stop). Therefore, the Court finds that the hearing officer’s finding of probable cause to make a lawful arrest is supported by competent substantial evidence. Accordingly, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is denied.
DONE AND
ORDERED in Chambers, at
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
J. Kevin Hayslett, Esquire
Jason Helfant, Assistant General Counsel
Bureau of Administrative Reviews