Petition for Writ of Certiorari
to Review Quasi-Judicial Action, Department of Highway Safety and Motor
Vehicles: DRIVER’S LICENSES – breath test – Florida
Statute, § 316.2615(7)(b)(3), requires hearing officer to determine that driver
refused to submit to breath test – there is no requirement that hearing officer
find that refusal was knowing or willful – Court cannot reweigh the conflicting
evidence to reach a different conclusion that driver refused breath test -
Petition denied. Rawa v. Dept. of Highway Safety and Motor Vehicles,
No. 04-0088AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
RAWA,
Petitioner,
vs. Appeal No. 04-0088AP-88B
UCN522004AP000088XXXXCV
STATE OF
OF HIGHWAY SAFETY AND
MOTOR VEHICLES,
BUREAU OF DRIVER
IMPROVEMENT,
Respondent.
____________________________________________/
THIS CAUSE came before the Court on the
Petition for Writ of Certiorari, the Response and the Reply. 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, (Rawa), seeks review of the Final Order of License Suspension,
entered November 3, 2004, in which the hearing officer for the Respondent,
Department of Highway Safety and Motor Vehicles (Department), concluded that
Rawa’s driving privilege was properly suspended for a period of one year for
driving under the influence (DUI). In
reviewing the Order and the administrative action taken by the Department, this
Court must determine whether Rawa was afforded procedural due process, whether
the essential requirements of law were observed, and whether the Department’s
findings and judgment are 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
August 6, 2004, at approximately 1:09 a.m., Officer Desich, of the St.
Petersburg Police Department, was stopped at the intersection of
Paramedics arrived and offered Rawa medical treatment. Rawa denied injury and refused treatment against medical advice. Officer Newell proceeded to conduct a DUI investigation. During the investigation, Rawa was unresponsive and exhibited odd behavior, including speaking in a loud voice and asking the same questions repeatedly. In answering questions regarding her general health, Rawa denied any physical defects and described her overall physical health as good. Rawa admitted that she had been drinking. Officer Newell administered the HGN test to Rawa, which showed signs of impairment. Rawa refused to perform the remaining field sobriety tests and was arrested for DUI. Rawa refused to submit to a breath test. Rawa was transported to Ed White Memorial Hospital for medical clearance and then taken to the Pinellas County Jail. In addition to the DUI, Rawa was also cited for failure to yield from a stop sign, the cause of the accident.
Before this Court, Rawa
argues that her license suspension should have been invalidated because her
refusal of the breath test was not knowing or willful due to head injuries
which prevented her from making a conscious decision. In addressing this issue, the Court finds
that the hearing officer was charged with determining, by a preponderance of
the evidence, “[w]hether the person refused to submit to any such test after
being requested to do so by a law enforcement officer or correctional
officer.” See
In this case, the Court finds that there is competent substantial evidence to support the hearing officer’s conclusion that Rawa refused to take the breath test. While there was evidence and testimony presented that Rawa was suffering from injuries sustained in the car accident, there was also evidence presented that showed Rawa refused to take the breath test even after being informed that her license would be suspended for a period of one year for a first refusal. This evidence consisted of Officer Newell’s Arrest Narrative, the Alcohol Influence Report/Implied Consent form, and the Breath Test Result Affidavit. It is clear from these documents that the officers did not regard Rawa as incapable of taking the breath test; indeed, Rawa does not argue that she should have been offered a different test.
The Court finds that the hearing officer considered the evidence and concluded the Rawa refused the requested breath test. This Court cannot reweigh the evidence to arrive at a different conclusion. See Satter, 643 So.2d at 695 (quashing circuit court order as circuit judge reweighed the evidence and improperly substituted his judgment for that of the Department). Accordingly, the Court finds that certiorari relief must be denied. Therefore, it is,
ORDERED AND ADJUDGED that the Petition for
Writ of Certiorari is denied.
DONE AND ORDERED in Chambers, at
___________________________________
DAVID A. DEMERS
Circuit Judge, Appellate Division
___________________________________
PETER RAMSBERGER
Circuit Judge, Appellate Division
___________________________________
ANTHONY RONDOLINO
Circuit Judge, Appellate Division
Copies furnished to:
Larry Sandefer, Esquire
Heather Rose Cramer, Assistant General Counsel
Bureau of Administrative Reviews