Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – field sobriety tests – hearing officer erred in considering FSTs that were obtained as a result of misinformation – FSTs are not mandatory pursuant to Florida’s implied consent law – hearing officer’s consideration of FSTs is harmless error – even without FSTs there is competent substantial evidence in the record to support finding of probable cause to make lawful DUI arrest --Petition denied.  Peden  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0043AP-88B (6th Cir. App. Ct. August 19, 2004).










vs.                                                                                               Appeal No. 04-0043AP-88B









            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 D. Peden (Peden), seeks review of the Final Order of License Suspension, entered April 22, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Peden’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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            The record shows that on February 26, 2004, at approximately 11:53 p.m., Officer Burke activated his emergency overhead lights to stop Peden’s vehicle when Officer Burke observed the vehicle traveling south in the northbound lane, head-on towards Officer Burke.  Upon making contact with Peden, Officer Burke smelled the odor of alcohol and noticed that Peden’s eyes were bloodshot and watery and that his speech was slurred.  Officer Burke conveyed these observations to Officer Galley, who responded to conduct the DUI investigation.  Officer Galley noticed the same signs of impairment and also observed that Peden’s face appeared flushed.  In response to Officer Galley’s question as to whether Peden had been drinking, Peden stated he had “two beers.”  Peden complied with Officer Galley’s request to step away from the vehicle and have his eyes checked.  The nystagmus evaluation showed signs of impairment and Peden swayed back and forth while Officer Galley checked his eyes.  Peden failed the subsequent field sobriety tests and was arrested for DUI.  Peden was informed of the implied consent law but refused to take the breath test.

            Peden’s primary argument on appeal is that the Department erred in failing to invalidate his license suspension as it was the result of an unlawful DUI arrest based on coerced field sobriety tests.  According to Officer Galley’s testimony and his arrest report, Peden, who initially refused to perform the requested field sobriety tests, agreed to take the tests after Officer Galley informed Peden that the tests were mandatory pursuant to Florida’s implied consent law.  The Court finds, and the Department concedes, that this is an incorrect statement of the law since the implied consent law only governs chemical or physical breath tests incidental to a lawful arrest.  See Fla. Stat. § 316.1932.  Therefore, the hearing officer erred in considering the results of the field sobriety tests as they were obtained as a result of misformation.  See e.g. State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992)(affirming suppression of breath tests results obtained as a result of misinformation); State v. Lewinson, 6 Fla. L. Weekly Supp. 656a (Fla. Broward Cty. Ct. July 26, 1999)(finding that results of field sobriety exercises should have been suppressed as the officer incorrectly advised driver that if he refused to submit to the exercises, his license would be suspended); State v. Boyles, 4 Fla. L. Weekly Supp. 659b (Fla. Duval Cty. Ct. March 20, 1997)(same). [1]    

            However, the Court finds this error harmless as, even without the results of the field sobriety tests, there is competent substantial evidence to support the finding that Officer Galley had probable cause to arrest Peden for DUI.  There is no dispute that the initial traffic stop was lawful.  Thereafter, Officer Galley observed several signs of impairment including that Peden had the odor of alcohol, bloodshot, watery eyes, slurred speech, flushed face, nystagmus deviation and swaying back and forth; further, Peden admitted that he’d consumed alcohol.  Therefore, even without the field sobriety tests, Officer Galley had ample evidence to arrest Peden for DUI.    Accordingly, the Court finds that the hearing officer’s conclusion that the arresting officer had probable cause to believe Peden was driving under the influence and was lawfully arrested is supported by competent substantial evidence and conforms to the essential requirements of law.  See Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(finding that probable cause exists “where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed”).

            The Court finds no support for Peden’s argument that the hearing officer in this case did not have the proper training to act as the trier-of-fact in the proceedings below or that the hearing officer failed to consider all the relevant evidence.  Although the Court would agree with the general position that hearing officers’ formal training in the law may be prudent given the constitutional and evidentiary issues involved in DUI review hearings, [2] the law only requires that a hearing officer remain an impartial decision maker and base his/her final decision on the preponderance of the evidence.  See Department of Highway Safety and Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002)(explaining the role of the hearing officer in a formal review hearing).  Formal training for the Department’s hearing officers is more appropriate for legislative resolution.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of August 2004.






                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division



Copies furnished to:

Jeffrey G. Brown, Esquire

777 Alderman Road

Palm Harbor, FL  34683


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

[1] The Court finds these county court decisions informative given the similar fact pattern.

[2] See Griffin v. Department of Highway Safety and Motor Vehicles, 11 Fla. L. Weekly Supp. 17a (Fla. 17th Cir. Ct. 2003).