Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – record supports hearing officer’s determination that petitioner refused to take breath test – aside from petitioner’s testimony there was no evidence to support argument that he unequivocally retracted his refusal in the presence of the officer and that no inconvenience would result from allowing the petitioner to take the breath test – hearing officer is not required to believe the testimony of any witness, even if unrebutted -- Petition denied.  Kanakaris v. Dept. of Highway Safety and Motor Vehicles, No. 04-0020AP-88A (Fla. 6th Cir. App. Ct. June 30, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

CRAIG KANAKARIS,

                        Petitioner,

 

vs.                                                                                               Appeal No. 04-0020AP-88A

                                                                                                   UCN522004AP000020XXXXCV

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, Craig Kanakaris (Kanakaris), seeks review of the Final Order of License Suspension, entered February 25, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Kanakaris’ 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 January 3, 2004, at 2:10 a.m., Kanakaris was stopped at a sobriety checkpoint and evaluated for DUI.  Deputy Timms, of the Pinellas County Sheriff’s Office, made contact with Kanakaris and smelled the odor of alcohol and noticed several other signs of impairment.  Kanakaris failed the subsequent field sobriety tests and was arrested for DUI.  Kanakaris was informed of Implied Consent but refused to take the breath test.

            Kanakaris argues that the Department improperly failed to invalidate Kanakaris’ license suspension because he did not refuse to submit to a breath test.  Kanakaris appeared at the hearing and testified that he never told Deputy Timms that he would not take the breath test.  Rather, as Kanakaris testified, he “wasn’t sure” if he should take the breath test at the point Deputy Timms started the breath test instrument and then, at the conclusion of the 3-minute cycle, he wanted to take the breath test “if it will help my situation, my case.” 

            Deputy Timms was not subpoenaed to testify.  However, his Incident Report states that Kanakaris was advised several times during the 20-minute observation period what would happen if Kanakaris took the breath test and blew over the legal limit or if Kanakaris refused to take the breath test.  Once the breath test instrument was activated, Kanakaris stated he was unsure of what to do, even after being advised of the Implied Consent Warning.  Kanakaris was advised the test had been started and that if he did not provide a sample within the 3-minute time frame, it would be considered a refusal.  Kanakaris did not provide a breath sample within the allotted period so a refusal was entered.       

            The Court finds that the record supports the hearing officer’s determination that Kanakaris refused to submit to a breath test.  As held in Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692 (Fla. 5th DCA 1994), the hearing officer is the trier of fact and is in the best position to evaluate the evidence and the witnesses.  Insofar as Kanakaris’ testimony conflicted with documents provided by law enforcement, it was for the hearing officer to resolve.  See id.   Further, aside from Kanakaris testimony, there was no evidence presented that Kanakaris unequivocally retracted his refusal in the presence of police officers and that no inconvenience would result by permitting Kanakaris to take the breath test.  Compare with Larmer v. State, Dept. of Highway Safety and Motor Vehicles, 522 So.2d 941, 944 (Fla. 4th DCA 1988); see also Satter, 643 So.2d at 695 (distinguishing Lamar by finding that there was sufficient evidence for the hearing officer to determine that driver’s eventual request to take the test was conditional or equivocal).  However, 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).

            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 June 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