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
vs. Appeal No. 04-0020AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
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 (
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
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
J. Kevin Hayslett, Esquire
Carlos J. Raurell, Assistant General Counsel
Bureau of Administrative Reviews