Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Implied Consent – Miranda rights – there is no evidence to support Petitioner’s argument that she was confused between her right to remain silent and the officer’s request for the Petitioner to take the breath test – hearing officer is not required to believe the testimony of any witness, even if unrebutted -- Petition denied.  Barrett  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0019AP-88A (Fla. 6th Cir. App. Ct. July 7, 2004).

 

 
 
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

PATRICIA B. BARRETT,

                        Petitioner,

 

vs.                                                                                               Appeal No. 04-0019AP-88A

                                                                                                   UCN522004AP000019XXXXCV

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 Department observed the essential requirements of law, the Final Order of License Suspension, entered February 5, 2004, is supported by competent substantial evidence, and the Petitioner, Patricia B Barrett, was accorded procedural due process in the proceedings below.  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).

            Barrett argues that the hearing officer erred in failing to invalidate her license suspension as the evidence before the hearing officer established that Barrett was misled by being advised of her Miranda rights first and then later advised of the implied consent warning.  However, other than her own testimony, there is no evidence to support Barrett’s assertion that she was confused over her right to remain silent and the officer’s request for Barrett to take the breath test.  As the trier of fact, the hearing officer is in the best position to evaluate the evidence and the witnesses.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).  Insofar as Barrett’s testimony conflicted with documents provided by law enforcement, it was for the hearing officer to resolve.  See id.  Further, the hearing officer is not required to believe the testimony of any witness, even if unrebutted.  See Dept. of Highway Safety and Motor Vehicles v. Dean, 662 So.2d 371, 372 (Fla. 5th DCA 1995); see also Kanakaris v. State, Dept. of Highway Safety and Motor Vehicles, Appeal No. 04-0020AP-88A (Fla. 6th Cir. App. Ct. June 30, 2004).  Accordingly, the Court finds that the Petition must be denied. 

            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 July 2004.

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

J. Kevin Hayslett, Esquire

250 N. Belcher Road, Suite 102

Clearwater, FL  33765

 

Carlos J. Raurell, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762