Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:DRIVERíS LICENSES Ė Breath Test Ė Lawful Arrest Ė affidavit of refusal was valid when driver refused breath test after being read the implied consent warning Ė record supports finding that arrest was lawful Ė officer made arrest based on the totality of the circumstances, not solely for driverís refusal to perform field sobriety tests -- Petition denied.Riemer v. Dept. of Highway Safety and Motor Vehicles, No. 04-0001AP-88A (Fla. 6th Cir. App. Ct. May 28, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

CATHERINE M. RIEMER,

††††††††††††††††††††††† Petitioner,

vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† Appeal No. 04-0001AP-88A

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †† UCN522004AP000001XXXXCV

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 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 Riemerís driving privilege was properly suspended for a period of one year for driving under the influence (DUI).In reviewing the Departmentís 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 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 Synderís 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 Riemerís 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 Reimerís 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 Riemerís 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 Synderís Narrative states that, ď[d]ue to the refusal to take the breath alcohol test, Riemer was charged with DUI for failure to submit to Field Sobriety Testing.Ē

††††††††††† The Department does not dispute that a breath test must be incidental to a lawful arrest, pursuant to Florida Statutes, ß 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 Departmentís 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 (Fla. 5th DCA 2003)(setting forth the elements of a lawful arrest).After Officer Synder observed Riemerís erratic driving behavior and other physical traits of alcohol impairment, he informed Riemer of her Miranda rights, placed her in custody, and then transported her to the Pinellas County Jail where Riemer was read the implied consent warning and offered the breath test.Hence, the Departmentís finding that Riemer refused to submit to a breath test, implicitly finding that the Affidavit of Refusal was valid, conforms to the essential requirements of law and is supported by competent substantial evidence.

††††††††††† 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 Riemerís 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 officerís 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 Clearwater, Pinellas County, Florida this ________ day of May 2004.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† JOHN A. SCHAEFER

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge, Appellate Division

Copies furnished to:

 

J. Kevin Hayslett, Esquire

250 North Belcher Road

Clearwater, FL34625

 

Jason Helfant, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL33762