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 (Fla. 6th Cir. App. Ct. March 3, 2005).









vs.                                                                                               Appeal No. 04-0088AP-88B










            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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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 First Avenue and 34th Street South, when he heard a loud crash to the north.  Officer Desich observed that two vehicles had just collided at the intersection of Third Avenue and 34th Street North and responded to the accident scene.  Officer Newell, of the same agency, also heard the crash and immediately responded.  Officer Desich first made contact with Rawa, one of the driver’s involved in the accident.  Officer Desich observed that Rawa smelled of alcohol, had a dazed expression and her face was flushed.  Rawa was unusually dressed, with no shirt on, and appeared disoriented.  Officer Newell then made contact with Rawa and asked her if she had any injuries to which she responded that she did not.  Officer Newell also detected an odor of alcohol and observed that Rawa spoke in a loud, fast voice, that her speech was slurred, and that her eyes were bloodshot and watery.

            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 Fla. Stat., § 316.2615(7)(b)3.  While it is implicit that a refusal to submit to a requested test would be knowing or willful, unless the driver is unconscious,[1] the statute does not require that the hearing officer make such a finding.  Rather, the hearing officer, as the finder of fact, must weigh the evidence and testimony presented, and determine whether the driver refused the requested test.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994)(concluding that the hearing officer, as trier of fact, was in the best position to evaluate the evidence and witnesses). The hearing officer can make this determination without witnesses testifying on behalf of the Department and based on the documents generated by law enforcement at the time of the arrest.  See id.; see also Fla. Stat. § 322.2615(11). 

            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 St. Petersburg, Pinellas County, Florida this ________ day of March 2005.





                                                                        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

111 North Belcher Road, Suite 202

Clearwater, FL  33765


Heather Rose Cramer, Assistant General Counsel

6801 Lake Worth Road, #230

Lake Worth, FL  33467


Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762


[1] The Court notes that even when a driver is incapable of refusal by reason of unconsciousness or other mental or physical condition, a person is not deemed to withdrawn his consent to submit to a blood test to determine his blood alcohol content.  See Fla. Stat. 316.1932(1)(c).